PPG (WA) Pty Ltd v Efron

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROFESSIONAL LIABILITY LIST

S ECI 2020 00041

PPG (WA) PTY LTD (ACN 097 497 679)	Plaintiff
v
GRAME EFRON	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2020
DATE OF JUDGMENT:	12 August 2020
CASE MAY BE CITED AS:	PPG (WA) Pty Ltd v Efron
MEDIUM NEUTRAL CITATION:	[2020] VSC 482

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PRACTICE AND PROCEDURE – Application by the defendant for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) – Whether the plaintiff’s claim has any real prospect of success – Whether the plaintiff’s allegation of breach of contract is time barred under s 5 of the Limitations of Actions Act 1958 (Vic) – Whether there is a debateable point of law – Rules of the Supreme Court 1971 (WA) Order 3 r 5, and Order 4A r 28 – Consequences of a proceeding being on the Inactive Cases List – Whether proceeding in Western Australia capable of being reinstated using the power of the Court to extend time – Rowe v Stoltze (2013) 45 WAR 116; Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112, referred to – FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 referred to – Application of ‘comity rule’ – DPP (Cth) v Thomas; DPP (Cth) v Wu (2016) 53 VR 546 referred to – Application for summary judgment dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Minahan	James D Mapleston
For the Defendant	Mr T J Scotter	Colin Biggers & Paisley

HER HONOUR:

In or around February 2006, Fermanagh Investments Pty Ltd (‘Fermanagh’), Glenariff Holdings Pty Ltd (‘Glenariff’) and Burswood On Swan Holdings Pty Ltd (‘Burswood’) (collectively, ‘WA plaintiffs’) commenced a proceeding in the Supreme Court of Western Australia (‘WA Supreme Court’) against the plaintiff in this proceeding (‘PPG’),[1] along with Mr Gavin Brown and Sinclair Consulting WA Pty Ltd (‘Sinclair Consulting’) (collectively ‘WA defendants’) (‘WA proceeding’). In the WA proceeding, the WA plaintiffs sought, among other things, damages for alleged breaches of fiduciary duty and breaches of contract arising out of a joint venture between Fermanagh and PPG with respect to the development of land in Perth (‘development’). Glenariff and Burswood were the vehicles by which the development was undertaken.
[1]Then known as ‘Protocol Property Group’ Pty Ltd.

Initially, the WA defendants held a thirty per cent share of both Glenariff and Burswood, but by the time the WA proceeding commenced, Glenariff and Burswood were wholly owned by Fermanagh.

On or about 18 May 2007, the WA defendants filed an amended defence and counterclaim in the WA proceeding. PPG counterclaimed against Fermanagh and Glenariff seeking, among other things, restitution and damages for breach of contract, an accounting for PPG’s interest in companies incorporated for the purposes of the development, including Glenariff and Burswood, and orders setting aside the agreement by which the WA defendants had transferred their interest in Glenariff and Burswood to Fermanagh. Sinclair Consulting also claimed the sum of $2.6 million from Fermanagh, on account of commission said to be due to it with respect to finance raised for the purpose of the development.

On or around 28 September 2010, the WA defendants engaged the defendant (‘Mr Efron’) to provide advice and act on their behalf in the WA proceeding (‘retainer’).

On 28 November 2011, orders were made in the WA proceeding (‘November 2011 orders’) for the filing and service of, among other things, witness statements, expert reports and a court book, and adjourning the WA proceeding to a status conference on 11 June 2012. These orders were not complied with.

On or about 30 January 2012, a receiver was appointed to Glenariff.

On or about 9 February 2012, Fermanagh entered into voluntary liquidation,

On 11 June 2012, the status conference was adjourned to a date to be fixed.

On 17 December 2012, Registrar Whitby made orders directing that, unless the parties to the WA proceeding took a step in the proceeding by 21 January 2013, the matter would be placed on the Inactive Cases List (‘December 2012 orders’). The December 2012 orders provided, in part, as follows:

1.Unless the plaintiff takes a procedural step in the action by 21 January 2013, the action be placed on the Inactive Cases List.
2.Unless the defendant takes a procedural step in relation to the counterclaim by 21 January 2013, the counterclaim be placed on the Inactive Cases List.

On 20 February 2013, WA Supreme Court sent the parties to the WA proceeding a letter (‘February 2013 letter’) to the effect that if the WA proceeding stayed on the Inactive Cases List for six continuous months, it would be taken to be dismissed for want of prosecution. The February 2013 letter provided as follows:

I refer to Orders 1 and 2 of the orders made on 17 December 2012 by Registrar Whitby.
The case is to be taken to be inactive and has been put on the Inactive Cases List pursuant to O4A, Div 5 of the Rules of the Supreme Court 1971 (WA).
Should the case remain on the Inactive Cases List for 6 continuous months, it is to be taken to have been dismissed for want of prosecution.

On 4 February 2014, Mr Boris Pogoriller, a solicitor, sent Mr Efron a letter stating that Mr Pogoriller had received instructions to act on behalf of PPG[2], and requesting all files held by Mr Efron on behalf of PPG.
[2]Trading as PPG (WA) Pty Ltd.

On 18 February 2014, Mr Pogoriller sent Mr Efron a further request for his files relating to PPG, and the WA proceeding.

On 20 February 2014, Mr Efron sent Mr Pogoriller an email stating that Mr Efron had no record of acting for PPG, and did not have any files.[3]
[3]It seems that Mr Efron did not appreciate that “Protocol Property Group” and PPG were one and the same.

This proceeding was issued on 8 January 2020.

On 10 February 2020, at the request of Mr Efron’s solicitors, the WA Supreme Court provided a list of documents filed in the WA proceeding (‘list of documents’). The list of documents records no documents which post-dated the December 2012 orders (which were erroneously described as having been made on 18 December 2012). The heading to the list of documents includes the following:

Matter Status:
Completed on 22 February 2017 due to Dismiss Want of Prosecution

On 19 February 2020, Mr Efron filed his defence. Also on that day, Mr Efron’s solicitors sent to PPG’s solicitor a letter which stated, among other things, that:

(a) PPG’s claim against Mr Efron was time barred; and

(b) Mr Efron was entitled to have the proceeding stayed, as PPG’s claim is for breach of retainer, but the remaining WA defendants, although parties to the retainer, are not parties to this proceeding, and, as such, there has been no waiver of privilege by all of the WA defendants regarding documents relevant to the claims against him with respect to his conduct of the WA proceeding.

This letter also sought information regarding the financial capacity of PPG.

On 19 February 2020, Mr Efron’s solicitors wrote to Mr Brown and Sinclair Consulting to enquire as to whether they would waive privilege in their communications with Mr Efron concerning the WA proceeding. Mr Efron’s solicitors received no response to this letter.

On 19 March 2020, Mr Efron’s solicitors sent an email to PPG’s solicitor attaching the letters to Mr Brown and Sinclair Consulting referred to above, and requested that they provide a response within seven days.

On 20 March 2020, Mr Efron’s solicitors sent an email to PPG’s solicitor stating, among other things, that if PPG did not provide satisfactory evidence of its ability to meet an adverse costs order, they would seek instructions to bring an application for security for costs.

On 27 May 2020, Mr Brian McMahon, through whom PPG’s solicitor liaises with the directors of PPG, sent Mr Gavin Brown and Mr Bill Hallam, a director of PPG, an email which stated as follows:

Dear Sirs,
I refer to above [sic] matter and request that you email tonight confirming;
(1)PPG and Directors anf [sic] Gavin Brown and company if it still exists waive privalige [sic] of all communication [sic] between Efron and themselves.
(2)Gavin Brown be joined as a part Plaintiff to the Supreme Court proceedings and sinclair P/L [sic] if it still exists.

Jim Mapleaton [sic] will then file and [sic] affidavit in Court in the morning confirming your instructions.

On 27 May 2020, Mr Brown sent an email to Mr McMahon, which provided as follows:

Hi Brian,
As discussed this evening I agree to both points one and two.
Kind regards,
Gavin Brown

On 27 May 2020, Mr Hallam sent an email to Mr McMahon, which provides as follows:

Brian,
As discussed earlier today and based on Gavin’s reply, PPG Directors and Gavin consent to waive privilege of all communication [sic] between Efron and ourselves.

No response has been received from Sinclair Consulting, which is apparently controlled by Mr Brown’s ex‑wife, and may well be dormant.

The Statement of Claim

Prior to turning to the parties’ submissions concerning Mr Efron’s application for summary judgment, the allegations in the statement of claim are summarised below.

The statement of claim filed on 8 January 2020,[4] makes the following allegations against Mr Efron:
[4]On 23 January 2020 PPG filed an amended statement of claim correcting Mr Efron’s name, but otherwise repeated the allegations in the statement of claim.

(a) in or around February 2006 the WA plaintiffs commenced the WA proceeding for, among other things, breach of fiduciary duty and breach of contract;

(b) in or around September 2010, PPG engaged Mr Efron to provide advice and act on PPG’s behalf in connection with the WA proceeding;

(c) the retainer is contained in a costs agreement between PPG and Efron dated 28 September 2010;

(d) there were terms of the retainer[5] that Mr Efron would exercise all due care and responsibility in acting for PPG and would among other things:
[5]Not all of the terms alleged below are expressly referred to in the costs agreement between Mr Efron and PPG in evidence. However, for present purposes I will assume that the allegations regarding the terms of the retainer in the statement of claim are correct.

(i) ensure that PPG complied with all orders made in the WA proceeding;

(ii) ensure that Mr Efron consulted PPG on all questions regarding the carriage and conduct of the WA proceeding;

(iii) ensure that Mr Efron was possessed of sufficient instructions to represent PPG in the WA proceeding; and

(iv) not to remain on the record in the WA proceeding unless possessed of instructions to act;

(e) pursuant to the retainer, Mr Efron:

(i) on 13 May 2011 informed the WA Supreme Court that he acted for PPG;

(ii) filed a notice of change of practitioner dated 1 April 2011; and

(iii) represented PPG at a mediation in the WA proceeding in November 2011;

(f) the November 2011 orders provided for the filing and service of witness statements, expert reports and a court book, and adjourned the proceeding to a status conference on 11 June 2012;

(g) Mr Efron failed to comply with the November 2011 orders;

(h) Mr Efron breached the terms of the retainer by failing to, among other things:

(i) ensure that PPG complied with the November 2011 orders;

(ii) keep PPG its officers and directors apprised of all developments in the WA proceeding;

(iii) obtain instructions from PPG with a view to complying with the orders made in the WA proceeding;

(iv) advise PPG of the consequences of a failure to comply with orders in the WA proceeding;

(v) advise PPG that the proceeding had been placed in the Inactive Cases List in January 2013; and

(vi) advise PPG that unless an application was made to reinstate the WA proceeding, the consequences would be that the proceeding would be dismissed for want of prosecution; and

(i) by reason of the matters referred to above, PPG lost the opportunity to prosecute its counterclaim in the WA proceeding.

Mr Efron filed a defence on 19 February 2020. Mr Efron’s substantive responses to the allegations in the amended statement of claim are summarised as follows:

(a) Mr Efron admitted that he was engaged by the WA defendants;

(b) Mr Efron admitted that it was a term of the retainer that he would exercise due care and responsibility in acting for the WA defendants in the WA proceeding;

(c) Mr Efron denied the allegations in the amended statement of claim regarding what he should have done in order to comply with the retainer (see paragraph 26(d)(i)-(iv) above);

(d) as for the assertion that Mr Efron failed to comply with the November 2011 orders, Mr Efron stated as follows:

(a)He admits that PPG, Sinclair Consulting and Brown did not undertake the steps required of them by the order made 28 November 2011 in the WA proceeding.

(b) He says that Glenariff was placed into receivership on 30 January 2010.
(c)He says that Fermanagh went into voluntary liquidation on 30 January 2012.
(d)He says that by reason on section 500(2) of the Corporations Act 2001 (Cth) once Fermanagh went into liquidation PPG could not take any step in the WA proceeding, including those required by the order made 28 November 2011, to prosecute its counterclaim against Fermanagh.

(e) He admits paragraph 10(a).
(f)He admits paragraph 10(b), and says further that the WA proceeding was placed on the Inactive Cases List in or about January 2013.
(g)He says that by operation of rule 28(1) of Order 4A of the Rules of the Supreme Court 1971 (WA), in or about August 2013, the WA proceeding was dismissed for want of prosecution, by reason of having been on the Inactive Cases List for six continuous months.

...

(e) Mr Efron alleged that on 15 August 2011, Fermanagh, Glenariff and Burswood offered to compromise the WA proceeding on the basis that both the claim and counterclaim be dismissed with no order as to costs, and that any unsatisfied costs orders be vacated;

(f) he stated that, owing to the financial position of Fermanagh and Glenariff at the relevant time, PPG’s alleged lost opportunity to prosecute the counterclaim in the WA proceeding had no value; and

(g) Mr Efron alleged that PPG’s cause of action accrued more than six years prior to the commencement of this proceeding on 8 January 2020, and is therefore statute barred by reason of s 5 of the Limitations of Actions Act 1958 (Vic) (‘LAA’).

The summary judgment application

In his summons filed on 28 April 2020, Mr Efron seeks the following relief:

1.Pursuant to sections 62 and 63 of the Civil Procedure Act 2010 (Vic), there be summary judgment for the defendant on the ground that the plaintiff’s claim has no real prospects of success.

2. Alternatively, the proceeding be stayed.
3.Further and alternatively, pursuant to section 1335 of the Corporation Act 2001 (Cth) [sic] and/or rule 62.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the plaintiff give security for the costs of the defendant, and that the proceeding be stayed until that security is given.

Mr Efron relies upon s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’), which provides as follows:

Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

The test under s 63 of the CPA is governed by the statement of the Court of Appeal in the decision of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[6] as follows:

(a)the test for summary judgment under section 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to ‘fanciful’ chance of success;
(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[7]

[6](2013) 42 VR 27.

[7]Ibid [35].

In Sloan v Arnold Thomas & Becker (No 2),[8] I had cause to consider when it is appropriate to grant summary judgment on the basis that the defendant had a limitations defence which was bound to succeed, as follows (omitting footnotes):
[8][2019] VSC 682. See also Hind v Ronsel Investments Pty Ltd [2020] VSC 428.

Traditionally, the Courts have been reluctant to grant summary judgment where the sole issue is whether a plaintiff’s claims are time barred, save in the clearest of cases.
In D’Aquino v Trovatello, the Court referred to the difficulties faced by the defendant seeking summary judgment on limitations grounds. In response to a defendant’s contention that, on the plaintiff’s case as pleaded, and on the plaintiff’s own material, the case would be unable to succeed, McLeish JA stated as follows:
In taking this course, the respondents assumed a heavy burden. In order to show that the claim had no real prospect of success, it was necessary for the respondents to establish that the applicants had no real prospect of overcoming the limitations defence. That in turn meant, either that the pleaded claims fell wholly outside the limitation period, or that, although there were claims that arose within the limitation period, there was no real prospect of sustaining them at trial.

However, in Bodycorp Repairs Pty Ltd v Holding Redlich, the Court of Appeal stated that granting summary judgment upon limitation grounds may be appropriate ‘where there was no relevant issue of fact which required resolution, and nothing to suggest that there is any prospect further evidence could materially alter [the date upon which the cause of action accrued]’.[9]

[9]Ibid [22]-[24].

Relevantly for the purposes of the current application, the summary procedure is not suitable where there is a debateable point of law. While this principle generally applies in the context of strike out applications under Order 23 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’),[10] it seems to me to be also applicable to applications for summary judgment. Further, if the outcome of a proceeding is dependent on the construction of a statute or the terms of an instrument which is amenable to debate, then such a proceeding is probably not appropriate for summary determination.[11]
[10]See, for example, A v Ipec Aust Ltd [1973] VR 39, 53.
[11]JBS Southern Australia Group Holdings Pty Ltd [2014] VSC 476 [51].

The evidence

Mr Efron relied on an affidavit of Mr Scott Krischock, a solicitor employed by Mr Efron’s solicitors, affirmed on 28 April 2020. In his affidavit, Mr Krischock deposed, in summary, as follows:

(a) he deposed as to the factual matters set out at paragraphs 1 to 10 above;

(b) on 10 February 2020, the Registry of the WA Supreme Court provided Mr Krischock with the list of documents, which shows that no document was filed in the WA proceeding after the making of the December 2012 orders;

(c) on 19 February 2020, Mr Krischock sent a letter to PPG’s solicitor (see paragraph 16 above);

(d) he deposed as to his efforts to enquire whether the WA defendants would waive any claims for legal professional privilege in their communications with Mr Efron concerning the WA proceeding;

(e) he deposed that an ASIC historical company extract for PPG dated 14 January 2020 indicates that PPG has $10,100 in paid up share capital;

(f) he deposed that a national property index search dated 17 April 2020 indicates that PPG is not the registered proprietor of any land in Australia; and

(g) Mr Krischock estimates that Mr Efron’s costs of defending this proceeding will range from $39,525.55 to $49,825.55 to the end of the mediation and from $59,775.00 to $80,970.00 from the mediation to the end of the trial.

The documents exhibited to Mr Krischock’s affidavit include the following:

(a) Mr Efron’s costs agreement with the WA defendants dated 28 September 2010;

(b) the December 2012 orders;

(c) the February 2013 letter (see paragraph 10 above);

(d) the list of documents obtained by him on 10 February 2020;

(e) a copy of Order 4A, Division 5 of the Rules of the Supreme Court 1971 (WA) (‘WA Rules’);

(f) Mr Krischock’s letter to PPG’s solicitor, Mr Brown, and Sinclair Consulting dated 19 February 2020;

(g) Mr Krischock’s email to PPG’s solicitor dated 20 March 2020;

(h) an ASIC historical company extract for PPG dated 14 January 2020; and

(i) a national property index search for PPG dated 17 April 2020.

PPG relied on an affidavit of its solicitor, James Mapleston, sworn on 25 May 2020 (‘first Mapleston affidavit’). In the first Mapleston affidavit, Mr Mapleston deposed, in summary, as follows:

(a) PPG accepts that the application for security for costs up until and including the mediation is a legitimate request by Mr Efron;

(b) Mr Mapleston believes the estimation of fees and disbursements to the end of mediation as detailed in Mr Krischock’s affidavit is excessive;

(c) on Mr Mapleston’s estimate, the likely costs of Mr Efron on a party/party basis total $20,015.80, and PPG is prepared to pay this amount into Court as security for Mr Efron’s costs up to and including mediation;

(d) the process of bringing this proceeding has been delayed by Mr Efron’s actions in that he has, in the past, denied acting for PPG or possessing any documents related to the WA proceeding;

(e) the parties have not completed discovery, and it may be that documents relevant to Mr Efron’s limitations defence are in existence but have not yet been identified; and

(f) no order was made dismissing the WA proceeding for want of prosecution until 22 February 2017, meaning that the WA proceeding was still on foot until 21 February 2017.

The first Mapleston affidavit exhibited, among other things, correspondence between Mr Pogoriller and Mr Efron between 4 February and 20 February 2014.

PPG also relied on a further affidavit of Mr Mapleston, sworn on 28 May 2020 (‘second Mapleston affidavit’). In the second Mapleston affidavit, Mr Mapleston deposed, in summary, as follows:

(a) Mr Mapleston liaises with PPG and its directors through Mr Brian McMahon;

(b) Mr McMahon has been in contact with Mr Brown and Sinclair Consulting seeking their instructions as to whether they will waive privilege with respect to all communications between them and Mr Efron, and whether they consent to be joined to the present proceeding as plaintiffs;

(c) in an email sent on 27 May 2020, Mr Brown confirmed that he had waived privilege over his communications with Mr Efron, and consented to being joined to this proceeding as a plaintiff;

(d) in an email on 27 May 2020, Mr Hallam, another director of PPG, consented to PPG waiving privilege over its communications with Mr Efron;

(e) a current and historical company search of Sinclair Consulting indicates that its current director is Ms Toni Brown, who Mr Mapleston understands to be the ex-wife of Mr Brown; and

(f) Mr Mapleston has been unable to obtain instructions from Ms Brown as to whether Sinclair Consulting consents to waiving privilege over its communications with Mr Efron and to being joined as a plaintiff to this proceeding.

The following documents are exhibited to the second Mapleston affidavit:

(a) the email correspondence between Mr McMahon and Mr Brown dated 27 May 2020;

(b) the email correspondence between Mr McMahon and Mr Hallam dated 27 May 2020; and

(c) the current and historical ASIC records with respect to Sinclair Consulting.

Mr Efron’s submissions

Mr Efron submitted that the claims made by PPG in this proceeding are time barred by reason of s 5(1) of the LAA and, as such, the proceeding ought to be dismissed, as PPG has no real prospects overcoming Mr Efron’s defence that PPG’s cause of action is time barred.

Mr Efron submitted that PPG’s claim is for breach of contract alone, and as such, its cause of action accrued upon the date of breach. Further, while the dates of the alleged breaches are not clear, they seem to relate to the need for the WA defendants to comply with the November 2011 orders. As this proceeding was issued on 8 January 2020, any cause of action accruing prior to 8 January 2014 is time barred.

Mr Efron submitted that while PPG contends that the WA proceeding was not dismissed for want of prosecution until 22 February 2017, PPG has no real prospects of success in establishing that date as the date from which time began to run, as:

(a) there is no dispute that the December 2012 orders provided that unless a step was taken by 21 January 2013, the WA proceeding would be put in the Inactive Cases List;

(b) the list of documents shows that no such steps were taken;

(c) the February 2013 letter stated that if the WA proceeding remained on the Inactive Cases List for six continuous months, it would be taken to be dismissed for want of prosecution;

(d) as the list of documents shows there was nothing filed in the WA proceeding after the December 2012 orders, the WA proceeding remained on the Inactive Cases List for six continuous months;

(e) by operation of r 28(1) of Order 4A of the WA Rules, the WA proceeding, including the counterclaim, was taken to be dismissed for want of prosecution once it was on the Inactive Cases List for six continuous months, that is, on 21 July 2013;

(f) the decisions of the Court of Appeal of the WA Supreme Court (‘WA Court of Appeal’) in Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia[12] (‘Rosebridge’) and Rowe v Stoltze (‘Rowe’)[13] establish that such a dismissal cannot be set aside;

(g) once dismissed for want of prosecution under r 28(1) of the WA Rules, the WA proceeding cannot be reinstated, or any extension of time obtained in which to prevent the dismissal occurring in the first place; and

(h) from the time that the WA proceeding was dismissed, there can have been no further relevant breaches of retainer by Mr Efron, and as such, PPG’s cause of action accrued more than six years prior to the issue of this proceeding.

[12][2018] WASCA 112.

[13](2013) 45 WAR 116.

Mr Efron rejected PPG’s contention that the date from which time began to run was 22 February 2017, on the basis that:

(a) there was no need for any order to be made to dismiss the WA proceeding;

(b) the list of documents does not include any reference to any order made in 2017; and

(c) whatever the reason for the header of the list of documents stating that the WA proceeding was completed on 22 February 2017, such an administrative decree cannot affect the operation of an actual order made by the Court and the effect of the WA Rules.

Counsel for Mr Efron referred to the decision of the WA Court of Appeal in Rowe,[14] which concerned an application to reinstate a case which had been dismissed for want of prosecution by reason of the operation of the WA Rules, and the question of whether the Court had the power to extend the time to enable a proceeding to be removed from the Inactive Cases List after it had been dismissed. Mr Efron submitted that the Court in Rowe[15] found that case will be taken to be dismissed simply because it has been on the Inactive Cases List for six continuous months, regardless of the circumstances by which that came about. The Court held that no extension of time under Order 3 r 5 of the WA Rules was available in circumstances when the case had been dismissed by reasons of being on the Inactive Cases List for six continuous months.
[14](2013) 45 WAR 116.
[15]Ibid.

In his oral submissions, counsel for Mr Efron submitted that the decision in Rosebridge[16] is authority for the proposition that a failure of the Registrar to notify the parties that a proceeding had been dismissed by reason of the WA Rules does not of itself nullify the dismissal.
[16][2018] WASCA 112.

In his oral submissions, counsel for Mr Efron also referred to the case of Culleton v Kershaw (No 2),[17] (‘Culleton’). Mr Efron submitted that Culleton[18] stands for the proposition that the proper construction of r 28(1) of the WA Rules is that a case that is placed on the Inactive Cases List for six continuous months is not dismissed by reason of the Principal Registrar giving the parties notice that the case has been dismissed, or by any administrative action of the Court, but merely by the operation of the WA Rules. Mr Efron submitted, the dismissal, upon the expiry of the six-month period, operates as an ‘absolute guillotine’.
[17][2018] WASC 238.
[18]Ibid.

As for the list of documents, Mr Efron submitted that it is not clear why that this document states that the WA proceeding was completed on 22 February 2017, but in any event, the list of documents is an administrative document which cannot affect the operation of a perfected order of the WA Supreme Court or the operation of the WA Rules.

Mr Efron submitted that PPG’s submission that the bringing of this proceeding was delayed by reason of Mr Efron’s denial of acting for PPG is irrelevant to determining whether PPG’s cause of action arose more than six years prior to this proceeding.

In the alternative to his application for summary dismissal, Mr Efron submitted that the proceeding should be stayed on the grounds that:

(a) not all of the parties to Mr Efron’s retainer are plaintiffs in this proceeding; and

(b) as such, as there has been no implied waiver of client legal privilege. Accordingly, Mr Efron will be disadvantaged in his conduct of his defence, and the proceeding should be stayed.

In his written submissions filed on 27 May 2020, Mr Efron referred to the following commentary in Civil Procedure Victoria:[19]

In some situations a person is a necessary party in the sense that if the plaintiff does not join the person as a party, the court will, on objection by the defendant, require the plaintiff to make the person a party. Such a situation is one of compulsory as distinct from permissive joinder. The enforcement of claims by or against several persons jointly is the most common case of compulsory joinder, and it is governed by r 9.03. Except by order of the court or as provided by or under any Act, all persons jointly entitled should be made plaintiffs, and any person who does not consent to be joined as plaintiff must be made a defendant: r 9.03(1). … In the case of joint liability in contract, if the plaintiff does not make all the contractors defendant, the court may stay the proceeding until this is done: r 9.03(3).[20]

[19]D L Bailey and J K Arthur, Civil Procedure Victoria, Lexis Advance.

[20]At [9.03.5].

Mr Efron submitted that:

As noted above, the defendant was jointly retained by three parties. Accordingly, the proceeding, as currently formulated, is defective and ought to be stayed until the remaining parties to the defendant’s retained are joined.

Mr Efron submitted further that s 124 of the Evidence Act 2008 (Vic) (‘Evidence Act’) applies to civil proceedings where two or more parties have, before the commencement of the proceeding, jointly retained a lawyer. However, the effect of s 124(2) of the Evidence Act is that while those parties can adduce evidence of a communication made by them to their lawyer, or the contents of a confidential document prepared at the direction of any one of them in connection with the matter, Mr Efron, as the parties’ lawyer, cannot adduce evidence of privileged communications between him and his former clients, as it is the privilege of his former clients, not his privilege. Mr Efron submitted that this is fundamentally unfair, and in the absence of any waiver on the part of the WA defendants, the proceeding should be stayed.

Mr Efron submitted that, while Mr Brown appears to have waived legal professional privilege in his communications with Mr Efron concerning the WA proceeding, Sinclair Consulting has not waived its claim for legal professional privilege. Counsel for Mr Efron had been unable to locate any authority to support the proposition that, if someone is joined to a proceeding against their will or without their consent, that joinder in such circumstances will operate as a waiver of privilege.

Counsel for Mr Efron observed that the sums claimed by PPG in its counterclaim in the WA proceeding are relatively modest, with the largest claim (by counterclaim) in the WA proceeding being the counterclaim made by Sinclair Consulting.[21]
[21]I do not take this submission as being made in support of the application for summary judgment, but rather an observation to the effect that summary dismissal on limitation grounds would cause no great injustice to PPG.

In regard to his application that PPG provide security for costs (in the event his application for summary judgment is unsuccessful), Mr Efron submitted that he did not accept the criticisms made by Mr Mapleston in the first Mapleston affidavit of the quantum of security claimed by PPG. Further, PPG has accepted Mr Efron’s figure for the costs of the mediation, but had failed to add that figure to the sum of $20,015.80, which PPG accepts ought to be paid. Counsel for Mr Efron observed that there is some overlap between the sums put forward by PPG and those put forward by Mr Efron, as on a corrected calculation, PPG’s estimate of costs is between $23,000.00 to $26,000.00, and Mr Efron’s estimate of costs is approximately between $24,000.00 to $38,000.00. The quantum of the security ordered should be within that range.

PPG’s submissions

PPG submitted that the authorities provide that the power to dismiss a proceeding on the grounds that a plaintiff’s claim is time barred should be exercised sparingly.

PPG submitted that the list of documents shows that the WA Supreme Court considered that the proceeding was on foot until 22 February 2017. If the proceeding was in fact on foot until 22 February 2017, Mr Efron’s limitation defence falls away, and accordingly, it could not be said that PPG’s claims in this proceeding have no real prospects of success.

PPG submitted that the decision in Rowe[22] is confined to the question of whether the Court has power to extend the time for taking a step provided for under O 4A of the WA Rules after the time for compliance had expired, but does not stand for the broader proposition that a proceeding dismissed under r 28(1) can never be reinstated.
[22](2013) WAR 116.

PPG submitted further that the decision in Rosebridge[23] noted that there is a requirement under r 28(3) that, where a proceeding on the Inactive Cases List is taken to have been dismissed pursuant to this rule, the Registrar is required to give the parties notice of the dismissal. PPG submitted that in Rosebridge,[24] the Court found that while failure to give the requisite notice does not automatically nullify the effect of the order, as an irregularity it may enliven the Court’s discretion to set aside the dismissal. PPG submitted that there was no evidence that any such notice was given by the WA Supreme Court to the effect that the WA proceeding had been dismissed for want of prosecution.
[23][2018] WASCA 112.
[24]Ibid.

Counsel for PPG went on to submit that the decision of the Court of Appeal in Dismore v Milton[25] (‘Dismore’) provides that it is settled law that, where it appears from the statement of claim that a plaintiff’s cause of action arose at a time before the period prescribed by the statute of limitations, it is not possible to have the statement of claim struck out on the ground that it discloses no cause of action, except in proceedings to which the Real Property Limitation Acts apply. He submitted that Dismore[26] is authority for the proposition that an application for summary dismissal on limitation grounds will not succeed unless the actual cause of action relied upon by a plaintiff has been extinguished, rather than the remedy. Accordingly, Mr Efron has not satisfied the high bar for summary dismissal. However, if the Court considers that PPG’s claim as currently pleaded is time barred, then PPG should be given the opportunity to amend its statement of claim, rather than dismiss the proceeding.
[25][1938] 3 All ER 762.
[26]Ibid.

PPG submitted that Mr Efron’s observations as to the quantum of PPG’s claims in the WA proceeding are of no relevance to the current application, and Mr Efron’s assertion that the WA plaintiffs’ counterclaim was valueless by reason of the insolvency of the WA plaintiffs is incorrect. PPG submitted that Glenariff was placed in receivership, but continued to trade, and, as such, the loss of opportunity to pursue Glenariff was therefore real ,and not illusory.

In relation to the duration of Mr Efron’s retainer, PPG submitted that it should not be assumed that the retainer was not ongoing after the WA proceeding was dismissed in July 2013, as there is no evidence that the retainer was ever terminated.

As for Mr Efron’s contention that the proceeding should be stayed by reason of the failure to join Sinclair Consulting to the proceeding, PPG submitted that its instructions are that PPG and Mr Brown have waived their claims of legal professional privilege with respect to their communications with Mr Efron, and there is otherwise little point in joining parties to a proceeding in which they will have no role to play. Notwithstanding that, PPG submitted that Mr Brown consents to being joined as a plaintiff to this proceeding, but Sinclair Consulting is dormant, and PPG has been unable to communicate with its director regarding joinder or any waiver of privilege.

PPG submitted that it cannot be correct that two parties having a good claim cannot proceed with that claim simply because a third potential plaintiff is recalcitrant. PPG submitted that Mr Brown should be joined as a plaintiff to the proceeding, and Sinclair Consulting should be joined as a defendant.

PPG accepted that provision of security for costs up to and including the date for mediation is appropriate in all of the circumstances, but submitted that the sum proffered by PPG in the first Mapleston affidavit of $20,015.80 is more than reasonable, and should be the sum ordered to be provided by way of security.

Mr Efron’s submissions in reply

Mr Efron submitted that the authorities provide that the lack of any evidence of any notice being given by the WA Supreme Court regarding the dismissal of the WA proceeding is irrelevant to the current application. Mr Efron submitted that it is the fact that a proceeding is on the Inactive Cases List for six months that causes it to be dismissed by operation of the WA Rules, not the giving of notice of the dismissal.

In regard to PPG’s request that it be given an opportunity to replead its claims, Mr Efron submitted that nothing has been identified before this Court which would suggest a viable cause of action within time could be brought against Mr Efron.

In regard to PPG’s submission that discovery is not complete, Mr Efron submitted that PPG should be able to demonstrate that its claim was brought within time without resort to discovery, and in any event, Mr Efron has provided to PPG copies of all electronic documents relating to PPG in his possession.[27]
[27]These documents were provided on 26 May 2020, two days before the hearing of this application.

As for PPG’s reliance on the decision in Dismore,[28] Mr Efron submitted that proceedings are summarily dismissed on the grounds that a limitations defence is bound to succeed reasonably regularly, and it is simply not correct to say that there cannot be summary judgment with respect to claims which are time barred. Mr Efron submitted that Dismore[29] merely establishes that a defendant cannot apply to dismiss a proceeding before it has actually pleaded a limitation defence, and Mr Efron has pleaded such a defence in this proceeding.
[28][1938] 3 All ER 762.
[29]Ibid.

Discussion

I agree with counsel for Mr Efron that, to the extent that the decision in Dismore[30] remains good law, it does not, contrary to the submissions of counsel for PPG, preclude summary judgment merely on the grounds that the defendant has an unassailable defence that the plaintiff’s cause of action is time barred. It is, however, correct to say that the authorities urge caution in such applications,[31] although those authorities may carry less weight given the less stringent test imposed by s 63 of the CPA[32].
[30]Ibid.
[31]See the discussion in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, [533].
[32]See D’Aquino and ors v Trovalello and ors (2015) 47 VR 31, [49] and Bodycorp Repairs Pty Ltd v Holding Redlich [2018] VSCA 17 (‘Bodycorp‘) [129].

Given the nature of the current application, and the evidence before me, it seems to me that there are two pertinent questions which need to be answered in the negative before the Court could have the necessary degree of comfort required to grant summary judgment in favour of Mr Efron, being:

(a) whether there is any real prospect (that is, not a fanciful prospect) that, after a trial, a judge of this Court would hold that the operation of r 28(1) of the WA Rules did not act as an absolute guillotine with respect to the WA proceeding; and

(b) regardless of the answer to (a) above, whether there is any real prospect that there may be further evidence which may emerge which would shed further light upon when time began to run with respect to PPG’s allegations of breach of contract.[33]

[33]See Bodycorp [2018] VSCA 17 [130].

In answering those questions, the Court is required to take the plaintiff’s case, as pleaded, at its highest and best. For the purpose of the current application, therefore, I will assume that:

(a) the terms of the retainer were those pleaded by PPG in its statement of claim;

(b) the retainer continued indefinitely, or at least beyond 8 January 2014; and

(c) Mr Efron breached the terms of the retainer.

I should say at the outset that the evidence regarding the exchanges between Mr Pogoriller and Mr Efron in 2014 is irrelevant to the determination of the application. As observed by the Court of Appeal in Bodycorp:[34]

In Australia, there is no overriding qualification to this requirement based upon when the claimant discovers the damage, or could with reasonable diligence have discovered the damage.[35]

[34]Ibid.

[35]Ibid [131].

In proceedings concerning an alleged breach of contract, the limitation period commences to run from the date of breach. Accordingly, the question of when PPG discovered Mr Efron’s breaches is irrelevant. It was not contended by PPG that s 27 of the LAA, which provides that cases of fraud or mistake, or where the right of action is concealed by the fraud of the defendant, the time from which time began to run may be extended, is applicable to the current case.

In submitting that PPG’s cause of action accrued no later than 21 July 2013, Mr Efron relies upon the provisions of the WA Rules which were in force at the relevant time,[36] and three decisions of the WA Supreme Court and the WA Court of Appeal which have considered the effect of the relevant provisions.
[36]The extract of the WA Rules in evidence is the rule in effect as at 18 December 2012.

Division 5 of Order 4A of the WA Rules provides as follows:

Division 5 – Inactive Cases List
21. Term used: Inactive Cases List
In this Division –
Inactive Cases List means a list of inactive cases kept by the Principal Registrar under rule 25.

22. Case manager may issue summons to show cause
(1)The case manager of a case may at any time summons the parties to attend a hearing before a case manager to show cause why the case should not be put on the Inactive Cases List.
(2)The hearing date for the summons must be at least 7 days after the date on which it is issued.
(3)The issue of the summons does not prevent any party to the case from taking any procedural step in the case.
(4)At the hearing the case manager may order that the case be put on the Inactive Cases List if not satisfied that the case is being conducted in a timely way, having regard to the requirements of these rules and the circumstances of the case.

(5) An order may be made under subrule (4) in the absence of any party.
...

24. Cases in active for 12 months deemed inactive
If no procedural step is taken in a case for 12 months by any party to the case, the case is taken to be inactive unless the case manager for the case orders otherwise.
25.Parties to be notified of case being on Inactive List and to advise clients
(1)When an order is made under rule 22(4), or an order made under rule 23(1) takes effect, or a case is taken to be inactive under rule 24, the Principal Registrar must –
(a)put the case on the Inactive Cases List; and
(b)give all parties to the case written notice that the case is on the Inactive Cases List and of the effect of rule 26.

(2)As soon as practicable after being notified under subrule (1), the practitioner for a party to the case must notify the party of –
(a) the fact that the case in on the Inactive Cases List and why; and
(b) the effect of rule 26.

26. Consequences of case being on Inactive List
(1)If a case is on the Inactive Cases List, only these documents may be filed in the Court in relation to the case –
(a)a summons for an order under rule 27(1);
(b)a notice of discontinuance by the plaintiff under Order 23 rule 2;
(c)an application for leave made by the plaintiff or the defendant under Order 23 rule 2;
(d)a written consent under Order 43 rule 16 to the making of an order that would finally dispose of the case.

(2)If the plaintiff or defendant in a case on the Inactive Cases List files an application for leave under Order 23 rule 2, the Court may grant leave under that rule even though the case has not been removed from that list.
(3)If a written consent is filed under Order 43 rule 16 to the making of an order in a case on the Inactive Cases List that would finally dispose of the case, the Court may make the order even though the case has not been removed from that list.

27. Removing cases from Inactive Cases List
(1)Any party to a case on the Inactive Cases List may apply to the Court for an order that the case be taken off the Inactive Cases List.
(2)The Court may order a case to be taken off the Inactive Cases List if satisfied the case will be conducted in a timely way or for any other good reason.
(3)An order that a case be taken off the Inactive Cases List may include any conditions necessary to ensure the case is conducted in a timely way.

28.      Certain inactive cases to be taken to have been dismissed
(1)A case that is on the Inactive Cases List for 6 continuous months is taken to have been dismissed for want of prosecution.
(2)If no procedural step (except an application to dismiss the case for want of prosecution) is taken in the 6 months after the date on which a case is ordered to be taken off the Inactive Cases List, the case is taken to have been dismissed for want of prosecution.
(3)If under subrule (1) or (2) a case is dismissed, the Principal Registrar must give all parties to the case written notice of the fact.
(4)Notwithstanding a case is dismissed under subrule (1) or (2) –
(a)       any party to the case may apply for an order for costs; and
(b)       the Court may make an order as to costs.

Relevantly, for the purposes of the current application, O 3, r 5 of the WA Rules provides as follows:

5. Extending and abridging time
(1)The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order, or direction, to do any act in any proceedings.
(2)The Court may extend any such period as is referred to in subrule (1) although the application for extension is not made until after the expiration of that period.

The decisions relied upon by Mr Efron in support of his submissions that PPG’s cause of action accrued no later than 21 July 2013 are the decisions of the WA Court of Appeal in Rowe,[37] and Rosebridge,[38] and the decision of Kenneth Martin J of the trial division of the WA Supreme Court in Culleton.[39]
[37](2013) WAR 116.
[38][2018] WASCA 112.
[39][2018] WASC 238.

In Rowe,[40] the appellants, a minor and his litigation guardian, had brought an action in the District Court against a medical practitioner for damages for negligence in connection with the child’s birth. While the writ was served on the medical practitioner’s insurers, no further steps were taken in the proceeding, and on 6 September 2011, the District Court issued a notice stating that the proceeding had been placed on the Inactive Cases List,[41] which apparently did not come to the attention of the appellants’ solicitors.
[40](2013) WAR 116.
[41]While the District Court Rules governing the entry, management and disposition of cases on the Inactive Cases List are not identical to the rules governing proceedings in the WA Supreme Court, for present purposes, there does not appear to me to be any material difference between them.

Shortly after the solicitors for the appellants received a notice to the effect that the proceeding was taken to have been dismissed for want of prosecution, the appellants applied for the proceeding to be reinstated, on, among other things, the following basis:
The District Court has the power to extend the time for compliance with the requirements of 4 55A and/or r 44G(1) of the District Court Rules and to set aside the dismissal of the action, pursuant to:
(a) rule 44G(4) (ground 1);
(b) Order 3 r 5 of the Rules of the Supreme Court (ground 2);
(c)the implied or incidental powers of the District Court to govern its own procedures (ground 3);
(d)Order 2 r (1)(2) of the Rules of the Supreme Court (ground 4).
The application was unsuccessful, and the appellants appealed to the WA Court of Appeal. The Court dismissed the appeal. First, the Court rejected the appellants’ contention that a rule enabling a party to a proceeding which had been dismissed for want of prosecution to apply for orders made as a consequence of the dismissal empowered the Court to set aside the dismissal of the action, stating as follows:

The appellants argued that while ‘any order needed as a consequence of the dismissal’ would obviously include costs orders and other orders necessary to give effect to the dismissal, there was no reason to limit the operation of r 44G(4) to orders of that nature. In its plain meaning, r 44G(4) was capable of applying to an order extending the time periods in r 44A and/or r 44G(1), or setting aside the dismissal. Such an order is needed ‘as a consequence of’ the dismissal, in that such an order would not be needed had the dismissal not occurred.
I do not consider there is any substance in that submission. In this context, the meaning of ‘a consequence’ is ‘a thing or circumstance which follows as an effect or result from something preceding’: New Shorter Oxford Dictionary, 5^th ed, 2002; ‘the act or fact of following as an effect or result upon something antecedent, that which so follows, an effect or result’: Macquarie Dictionary, 5^th ed, 2009.
No amount of linguistic ingenuity is capable of turning r 44G(4) into a power to reverse the dismissal. The power under r 44G(4) is a power to make orders dealing with matters which arise because the action stands dismissed and which are incidental or ancillary to the dismissal. The obvious example is orders relating to costs, but there may well be a number of loose ends which need to be tied up once an action has been dismissed, such as by orders in relation to a counterclaim or third party proceedings.[42]

[42]Ibid [16]-[18].

Secondly, the Court rejected the appellants’ contention that the general rule (equivalent to r 3.02 of the Rules of this Court empowering the Court to extend or abridge time) did not assist the appellants. The Court stated as follows:

Counsel for the appellants sought to draw an analogy between the dismissal of an action under r 44G(1) and dismissal by reason of the failure of a party to comply with a springing order. It was submitted that the operation of r 44G(1) was no different in principle to the operation of a springing order. As O 3 r 5 permitted the court to extend time for compliance with a springing order even after the order had taken effect (referring to FAI), so it permitted the court to extend time to permit a plaintiff to apply for an action to be taken off the Inactive Case List under r 44F(2) even after the action was taken to have been dismissed. It was submitted that the commissioner (at [24(e)] and [25]) had erred in finding that the operation of O 3 r 5 was limited to the six‑month period before the action was taken to have been dismissed.
The appellants’ argument proceeds upon a false analogy. An action is dismissed under a springing order where the plaintiff fails to do the act required of it by the order within the stipulated time. Under O 3 r 5, the court may extend the time within which the act is required to be done under the order, even after that time has expired. The effect of the extension of time in such cases is to revive the action, although the action is, of course, liable to be dismissed again if the act is not done within the extended time.[43]

[43]Ibid [23]-[24].

Finally (at least for present purposes, the Court also rejected the appellants’ arguments on grounds not relevant to the present application), the Court rejected the appellants’ contention that the incidental or implied powers of the District Court enabled the Court to set aside the dismissal, stating as follows:

The District Court has no power to grant such an extension. There is no express power to do so and to do so would clearly not fall within the court’s implied or incidental powers. The court may order that a case is not deemed to be in active if no document is filed for 12 months: r 44A. It may also order that the case be taken off the Inactive Cases List if it is satisfied that good reason exists to do so: r 44F(3). But it cannot, by reliance on implied or incidental powers or otherwise, by order alter the operation of r 44G(1). Such an order would conflict with the terms of the rule. It is clear that a court cannot exercise its inherent or implied powers in a manner which would conflict with a provision of a statute or the rules of court…..[44]

[44][2018] WASCA 42.

The decision in Rosebridge[45] arose out of a more complex factual background than Rowe.[46] In Rosebridge,[47] the WA Court of Appeal was concerned with an appeal from a decision of Le Miere J to refuse an application by the appellant (the liquidator of the company that had originally brought the action in question (‘plaintiff company’) to reinstate a proceeding which was taken to have been dismissed for want of prosecution after the proceeding had been on the Inactive Cases List for six continuous months.
[45][2018] WASCA 112.
[46](2013) 45 WAR 116.
[47]Ibid [32].

The proceeding had commenced in 1999, concerning events which took place between 1995 and 1999. Successive orders were made that the plaintiff company provide security for costs. On 20 November 2014, Le Miere J made orders that the plaintiff company provide security for costs, failing which, the proceeding would be placed on the Inactive Cases List. On 19 January 2015, the Principal Registrar of the WA Supreme Court gave the parties notice that the proceeding had been put on the Inactive Cases List. The plaintiff company was wound up in insolvency on 2 June 2015.

On 6 July 2015, the Principal Registrar’s delegate informed the plaintiff company (and its solicitors) that the proceeding had been dismissed for want of prosecution, notwithstanding that the six month period did not expire until 19 July 2015. Between 7 July 2015 and September 2016, the liquidator made certain investigations and appointed solicitors. On 1 September 2016, the liquidator applied to, among other things, reinstate the proceeding. Le Miere J dismissed the application. The Court of Appeal recorded that his Honour had:

(a)Found that there was no irregularity or failure to comply with the rules in the plaintiff’s liquidator not receiving notice that the case was on the Inactive Cases List and was dismissed under O 4A r 28(1). His Honour said the liquidator had not been appointed liquidator when the court notified the plaintiff that the case had been put on the Inactive Cases List, and that the court did not need to check if a liquidator had been appointed before the principal registrar gave notice to the parties that the case was dismissed.
(b)Said that the case was not dismissed by the letter of the principal registrar’s delegate dated 6 July 2015. Rather, it was taken to be dismissed for want of prosecution on 19 July 2015, as by then, the case had been on the Inactive Cases List for six continuous months since the parties were notified that the case was on the list.
(c)Said that the registrar’s letter of 6 July 2015, although sent before the case was dismissed, rather than upon or after dismissal as required by O 4A r 28(3), did not render the dismissal liable to be set aside, as notification under O 4A r 28(3) is not required for the case to be taken as dismissed.
(d)Said that the failure to give notice under O 4A r 28(3) does not render the dismissal of the case irregular or liable to be set aside. Accordingly, the court does not have power to set aside the deemed dismissal under O 2 r 1(2) of the RSC.
(e)Said that if the court had power to set aside the dismissal, his Honour would not exercise the power, as the liquidator’s lack of action to remove the case from the Inactive Cases List was not the result of irregularities or non‑compliance with rules, but was because he did not know the case had been put on the Inactive Cases List. His failure to know that the case had been put on the Inactive Cases List was not the result of any non‑compliance with the rules or any irregularity.
(f)Held that the court had no inherent jurisdiction to reinstate the case. His Honour said to do so would be inconsistent with the RSC, and that the court cannot exercise inherent power inconsistently with the court rules. In that regard, his Honour referred to and applied a decision of this court in Rowe v Stoltze in an analogous context.[48]

[48]Ibid [18].

The relevant grounds of appeal were as follows:

1.The judge erred in law in finding that as a matter of law there had been notification to the plaintiff sufficient to comply with the provisions of O 4A r 25 of the RSC.
2.The judge erred in law in finding that the failure of the plaintiff to take active steps to take the matter off the Inactive Cases List pursuant to O 4A r 227 was not non-compliance within the meaning of O 2 4 1 of the RSC.
3.The judge erred in law in determining that the registrar’s letter dated 6 July 2015 did not amount to an irregularity such as to enliven the operation of O 2 r 1(1) of the RSC.
4.The judge erred in finding that, consistently with this court’s decision in Rowe, the court could not extend the time for the plaintiff to comply with O 4A r 28(1) so as to permit an application under O 4A r 27(1) of the RSC to be made.
5.To the extent that Ground 4 did not form the basis of the judge’s decision, the court ought to have found that it had the power under O 3 r 5 of the RSC to extend time, and that to the extent that Rowe decided otherwise, it was inconsistent with the decision on FAI General Insurance Co Ltd v Southern Cross Exploration.

After summarising the evidence relied upon by the liquidator and identifying the relevant rules (which were identical to those relevant to Mr Efron’s application before this Court), the Court found that the failure of the Principal Registrar to comply with the rule regarding notification of the dismissal after the dismissal had in fact taken effect on 19 July 2015 did not of itself nullify the dismissal of the proceeding. While the Court had the power to set aside the dismissal on the basis of the irregularity, the justice of the case (based upon the lengthy delays and numerous defaults of the plaintiff company in the past) required the dismissal to stand.

The Court then went on to say as follows:
By grounds 4, 5 and 6, the plaintiff contends, in substance, that the judge should have found that his Honour had the power to order that the case be taken off the Inactive Cases List under O 4A r 27(1), by using the power under O 3 r 5 to extend the time for the plaintiff to make an application under O 4A r 27(1). In that regard, the plaintiff contends that this court should not follow the decision in Rowe, which is to contrary effect.
The point is academic here because, essentially for the reasons given in [50]-[52] above, even if the power were exercisable, this would not be an appropriate occasion to exercise it.
Further, for the Court of Appeal to overturn its own previous decision, the court must be convinced that the earlier decision was wrong, or that there is some other compelling reason why the previous decision should no longer be followed.
Also, the court should not lightly depart from its previous decisions, least of all in circumstances in which the later court comprises only three members.
Neither of the criteria referred to in [56] above is, in our view, satisfied in this case. We would dismiss grounds 4, 5 and 6.[49]
[49]Ibid [54]-[58].
Accordingly, while the Court was disinclined to depart from the earlier decision of the WA Court of Appeal in Rowe,[50] it can also be inferred from the reasons of the Court that discretionary considerations (in particular, the delays and defaults attributable to the plaintiff company, and further delays by the liquidator), carried substantial weight with the Court. The Court did not in its reasons expressly address the liquidator’s contention that the decision in Rowe[51] was inconsistent with the reasoning of the High Court in FAI General Insurance Co Ltd v Southern Cross Exploration NL[52] (‘FAI Insurance’), a decision I will return to later in these reasons.
[50](2013) 45 WAR 116.
[51]Ibid.
[52](1988) 165 CLR 268.

Finally, in Culleton[53] the plaintiff had brought a defamation action in 2016. On 17 November 2016, Kenneth Martin J made, in the plaintiff’s absence, a ‘springing order’ (better known in this jurisdiction as a selfexecuting‑ order). The plaintiff complied with the springing order, filing with the Court a draft amended indorsement within the specified time. However, no application to file and serve the amended indorsement was made, the plaintiff (being self-represented) being preoccupied in 2016 and 2017 by other events, including his election as a senator for the state of Western Australia, bankruptcy proceedings in the Federal Court of Australia, and his disqualification as a senator by the High Court of Australia. Accordingly, there were no developments in the defamation proceeding throughout the course of 2017.
[53][2018] WASC 238.

On 18 December 2017, the defendants requested that the proceeding be placed on the Inactive Cases List. This request was acceded to by the Court, and the parties were duly notified. Nothing further occurred until 18 June 2018, when the defendants enquired of the status of the proceeding. His Honour provided the plaintiff 72 hours within which to make an application, pending the likely issue of a notice by the

Registrar to the effect that the proceeding had been dismissed for want of prosecution. The plaintiff acted upon that invitation, and made an application to remove the proceeding from the Inactive Cases List within the time specified by his Honour’s chambers.

His Honour’s reasons stated as follows:

The essential question arising from Mr Culleton’s chamber summons application is whether it was open to bring that application or whether time had already run in the way of six continuous months for the purposes of RSC O 4A r 28(1) – delivering the consequence that Mr Culleton’s action was thereby ‘dismissed for want of prosecution’. That was the contended position of the legally represented defendants through counsel, drawing, my attention to two prior decisions of this court upon that threshold issue.

His Honour then went on to refer to the decision of Master Sanderson in Lifelong Investments Pty Ltd v Karageorge,[54] where the learned Master held as follows:

Second, it would appear that there is no power to extend the time for the bringing of an application to have the matter removed from the List. That is to say, once the case has been on the List for six months, it is deemed dismissed. There is no scope for an extension of time under O 3 r 5. Indeed, if an application to have a case removed from the List is brought within the six-month period but not heard within that period, it must be open to doubt whether any order can be made… But there appears to be no doubt that it is not possible to extend the time to bring an application to be removed from the List.

[54][2008] WASC 86.

His Honour also referred to the decision of Le Miere J at first instance in Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [No 7],[55] where his Honour said as follows:

The proper construction of O 4A r 28(1) together with O 4A r 25(1) is that a case that is on the Inactive Cases List for six continuous months after the Principal Registrar has given notice that the case is on the Inactive Cases List is taken to have been dismissed for want of prosecution: see Leighton v Garnham [No 4]; Timcal Pty Ltd v Sons of Gwalia Ltd (Subject to Deed of Company Arrangement) [No 2] [2011] WASC 58. The action is not dismissed by the Principal Registrar giving the parties notice that the case has been dismissed nor is the action dismissed by any administrative procedure of the court. The action is dismissed as a result of the operation of the rules. No order of the court is necessary to give effect to the deemed dismissal: Rowe v Stoltze [2013] WASCA 92 [31], [33] (Newnes JA, Pullin & Murphy JJA agreeing). [56]

[55][2016] WASC 329.

[56]Ibid [12] – [13].

In Culleton,[57] Kenneth Martin J reached the conclusion that ‘the overwhelming weight of local authority stands firmly against Mr Culleton’s application … to have the matter taken off the Inactive Cases List’,[58] on the basis that it was too late, as the proceeding had already been dismissed by reason of the operation of r 28(1). His Honour held that, in any event, the plaintiff’s dilatory conduct of the proceeding meant that he would not have removed the proceeding from the Inactive Cases List or reinstated the proceeding, even if he had formed the view that he had the power to do so.
[57][2018] WASC 238.
[58]Ibid [62].

It appears from the authorities referred to in the paragraphs above that the judges of the WA Supreme Court and the WA Court of Appeal are of the view that the effect of r 28(1) of the WA Rules is that, once a proceeding remains on the Inactive Cases List for six continuous months, the proceeding stands dismissed, and the Court does not have the power to extend the six month period referred to in r 28(1), or to reinstate a proceeding once dismissed by the operation of that rule, save perhaps where there has been some irregularity (such as where the Registry has failed to give the notice required to be given by the WA Rules). Accordingly, on this view, the relevant rule does act, as contended by Mr Efron, as an ‘absolute guillotine’, and there is a powerful argument that, as nothing could be done by Mr Efron (or anyone else) to reinstate the proceeding after 21 July 2013, time began to run from that date.

There are, however, two impediments to such a conclusion being reached in the current case, at least with the degree of certainty necessary to justify the grant of summary judgment. First, while principles of comity provide that judges of this Court would be highly likely to follow the construction of the WA Rules adopted by the WA Court of Appeal in Rowe,[59] particularly given its apparent approval in Rosebridge,[60] it would still be open to a judge of this Court to depart from the conclusion expressed by the WA Court of Appeal in those decisions regarding the proper construction of the WA Rules, if a judge of this Court formed the view that the WA Court of Appeal’s construction of the WA Rules, and its conclusion that the Court had no power to reinstate a proceeding after the six month period had expired, were ‘plainly wrong’.[61]
[59](2013) 45 WAR 116.
[60][2018] WASCA 112.
[61]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 (‘Farah Constructions’).

Further, given that the decisions in Rowe[62] and Rosebridge[63] concern the construction of a statute peculiar to Western Australia, rather than the construction of uniform national legislation or the common law of Australia, it is arguable that the ‘comity rule’ laid down by the High Court in Farah Constructions[64] carries less force. In DPP (Cth) v Thomas; DPP (Cth) v Wu,[65] the Court of Appeal referred with approval to the following statement of Leeming JA of the New South Wales Court of Appeal in Hasler v Singtel Optus Pty Ltd:[66]

This Court is bound by what the High Court said in Farah as to second limb Barnes v Addy liability. It is bound directly. Ultimately, it is bound by reason of s 73 of the Constitution. This Court is not bound indirectly by another court's interpretation of what the High Court said. To paraphrase the words of McHugh J in Marshall, the primary guide to understanding the law as stated by the High Court is the language of that Court's reasons, and a judicial decision as to what those reasons mean is at best a guide to, but cannot control, the meaning of that language.
Naturally, considerations of comity require regard to be had to decisions of other Australian courts, especially intermediate appellate courts, in applying and developing the common law of Australia. But either Farah has changed the meaning of ‘dishonest and fraudulent design’ in second limb Barnes v Addy liability or it has not. The fact that a majority of the Western Australian Court of Appeal considered that the phrase has been diluted by Farah does not absolve this Court from its obligation to apply the law which binds it as stated by the High Court.
In short, the decision of the Western Australian Court of Appeal as to the meaning to be attributed to the reasons of the High Court in Farah has a very different precedential status from a decision of the same court as to the meaning to be attributed to the words of a federal statute. This is another illustration of the adage that judgments are to be read differently from statutes.
Accordingly, although the reasoning and conclusion in Bell warrant the deference appropriate to a decision of another intermediate court of appeal as a matter of comity, they do not attract the heightened deference as might be suggested by [135] of Farah.[67]

[62](2013) 45 WAR 116.

[63][2018] WASCA 112.

[64](2007) 230 CLR 89.

[65](2016) 53 VR 546.

[66](2014) 311 ALR 494.

[67]Ibid [97]-[101].

Leeming JA also referred with approval to the following statement by McHugh J in Marshall v Director-General, Department of Transport:[68]

But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.[69]

[68](2001) 205 CLR 603.

[69]Ibid [62].

Accordingly, while one might expect that a judge of this Court would show considerable deference to decisions of the WA Court of Appeal concerning the construction of a provision of the WA Rules, it would be possible, theoretically at least, for a judge of this Court to adopt a different view upon whether r 28(1) of the WA Rules acts as an ‘absolute guillotine’, without falling foul of the comity rule. Ultimately, the task before a judge of this Court is to construe the language of the WA Rules. It might well be, as discussed further below, that a judge of this Court might form the view that the reasoning in FAI Insurance[70] is relevant to the construction of the relevant WA Rules, in particular O 3, r 5 (which finds its counterpart in r 3.02 of the Rules) and that he or she was bound to follow the ratio of the High Court in FAI Insurance[71], regarding the scope of that rule, which may lead that judge to reach a contrary view to the WA Court of Appeal in Rowe[72] regarding the question of whether the Court is empowered to reinstate a proceeding deemed to have been dismissed by the operation of r 28(1) of the WA Rules.
[70](1988) 165 CLR 268.
[71]Ibid.
[72](2013) 45 WAR 116.

The decision of the High Court in FAI Insurance[73] was concerned with the proper construction of the provision of the rules of court in New South Wales, which was the equivalent of O 3, r 5 of the WA Rules (see paragraph 76 above). The New South Wales Court of Appeal reversed the decision of the trial judge refusing an application for an extension of time to comply with a selfexecuting– order on the basis that, as the proceeding had terminated as a result of the applicant’s non‑compliance with the selfexecuting– order, the Court was, in effect, functus officio, and had no power to extend time. The Court of Appeal held that the Court did have the power to extend time, notwithstanding the proceeding had been dismissed by reason of the selfexecuting– order.
[73](1988) 165 CLR 268.

The High Court agreed, overruling, to the extent required, the Court’s previous decisions in Goodwin v Southern Table Lands Finance Co Pty Ltd[74] and Bailey v Marinoff.[75] Referring to the relevant rule, Wilson J (with whom Brennan, Deane, Dawson and Gaudron JJ agreed) stated as follows:

The plain meaning of these words is very wide. The Court may extend ‘any time’ fixed by ‘any … order’ and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired. As Baggallay LJ said in Carter v Stubbs of the analogous English rule, it gives ‘very full discretionary power; indeed, I can hardly imagine a more extended discretion’. It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non‑compliance.[76]

[74](1968) 42 ALJR 309.

[75](1971) 125 CLR 529.

[76](1988) 165 CLR 268, 283-4.

Gaudron J referred to the distinction between proceedings where orders had been made finally determining the issues between the parties, and orders dismissing a proceeding where it was open to a party to commence a fresh proceeding (that is, where the doctrine of res judicata would not apply). Her Honour stated:

Where an order for dismissal does no more than effect a situation in which fresh proceedings may be brought (involving additional expense and duplication of court time if, as here, there has been a hearing as to the issues in dispute or some of them) then it seems to me that the administration of law and justice may be well served by a power to reinstate proceedings. That consideration, particularly having regard to the terms of Pt 40, r. 891), provides part of the context in which Pt 2, r. 3 should be construed.[77]

[77]Ibid, 288.

And further:

Although the rule that a court may not vary a duly entered order which brings proceedings to a conclusion rests, at least in part, on the obvious desirability that litigation should be brought to an end, the converse of that rule viz. that a court of record may vary an order before the order is entered must rest on the notion that a court is not functus officio whilst there remains any judicial function which may be performed in relation to a proceeding, even if it be only that of ensuring that the final order correctly records the meaning of the court…. [78]

[78]Ibid, 289.

Relevantly, the decision in FAI Insurance[79] was followed by the WA Court of Appeal in Biala Pty Ltd v Mallina Holdings Ltd,[80] where the Court held that the terms of O 3, r 5 of the WA Rules allowed the Court to extend the time for the respondent to comply with an order made by a judge under the corporations legislation in force at the time that it issue certain shares, in circumstances where the deadline specified within the relevant order could not practicably be met. Malcolm CJ held that O 3, r 5 is a remedial provision, and confers a broad power to relieve against injustice. Significantly, his Honour was also of the view that it was open to the Court, in the exercise of its inherent jurisdiction, to vary or modify any order in order to prevent an injustice, notwithstanding the fact that the proceeding had been concluded, even in the absence of an express statutory power to do so.[81]
[79](1988) 165 CLR 268
[80](1989) 2 WAR 381.
[81]Ibid, 391, 393.

The decision of the High Court in FAI Insurance[82] is authority for the proposition that the power conferred by O 3, r 5 of the WA Rules is remedial in nature, and as such, should be construed broadly, and given its full effect. The WA Court of Appeal in Biala Pty Ltd v Mallina Holdings Pty Ltd,[83] saw no need to limit the operation of O 3, r 5 to proceedings where a party sought to be relieved of the adverse consequences of a self-executing order, and indeed, held that an order extending time for compliance with an order could be made in the exercise of the inherent jurisdiction of the Court, even after the relevant proceeding had been concluded by the previous order.
[82](1988) 165 CLR 268.
[83](1999) 2 WAR 381.

Accordingly, the conclusion of the WA Court of Appeal in Rowe[84] to the effect that the powers of the Court to extend time under O 3, r 5 of the WA Rules did not extend to proceedings dismissed by the operation of r 28(1) sits uncomfortably with the reasoning of the High Court in FAI Insurance,[85] and indeed the decision of the WA Court of Appeal in Biala Pty Ltd v Mallina Holdings Pty Ltd.[86] That is not to say that the decision in Rowe[87] is plainly wrong: that is a matter for further analysis and argument. However, it seems to me that the question of whether s 28(1) of the WA Rules acts as an ‘absolute guillotine’ is, at the very least, a debateable point of law.
[84](2013) 45 WAR 116.
[85](1988) 165 CLR 268.
[86](1989) 2 WAR 381.
[87](2013) 45 WAR 116.

Accordingly, it seems to me that there is a real prospect that a judge of this Court would depart from the conclusions of the WA Court of Appeal concerning the effect of the relevant provisions of the WA Rules, including whether it would have been open to the WA Supreme Court to reinstate the WA proceeding after 21 July 2013, either by extending the date for PPG to take a step in the WA proceeding, or by reinstating the proceeding. In particular, it seems to me to be at least arguable that in Rowe,[88] the WA Court of Appeal may have been in error in holding that the reasoning of the High Court in FAI Insurance[89] was irrelevant to the appellant’s application to reinstate the proceeding, and that the effect of the decision of the High Court in FAI Insurance[90] was not limited to applications for extension of time in proceedings where there had been a failure to comply with a self‑executing order.
[88](2013) 45 WAR 116.
[89](1988) 165 CLR 268.
[90]Ibid.

Further, even if a judge of this Court were to reach the same conclusion as the WA Court of Appeal as to the effect of r 28(1) of the WA Rules, and the inability of the WA Supreme Court to extend time or reinstate the proceeding, in Rosebridge,[91] the WA Court of Appeal appeared to leave open the prospect of the Court being able to reinstate a proceeding which had been dismissed where there had been an irregularity, such as a case where the Court had failed to comply with the notification requirements under O 4.
[91][2018] WASCA 118.

In Rosebridge,[92] the Court of Appeal accepted that the failure of the Principal Registrar to notify the parties that the proceeding had been dismissed by reason of the operation of r 28(1) (as required by r 28(3)) was an irregularity, and accepted, at least for the purposes of argument, that the irregularity might enliven the Court’s discretion to reinstate the proceeding. However, the WA Court of Appeal did not need to conclusively determine the point, which it described as an ‘academic’ point, as the Court would not have exercised its discretion in favour of the liquidator, by reason of the plaintiff company’s defaults and delays in prosecuting the proceeding.
[92]Ibid.

In the current case, the evidence is incomplete. While there is in evidence a letter which complies with r 25(2) of the WA Rules (the February 2013 letter informing the parties that the WA proceeding had been placed on the Inactive Cases List), there is no evidence that notice was given pursuant to r 28(3) of the WA Rules after the dismissal had taken effect. One might expect if such a letter was in the possession of Mr Efron (as the solicitor on the record in the WA proceeding), then that would have been exhibited to Mr Krischock’s affidavit. Its absence does not mean that no such notice was given: rather, it raises the question that there may have been an irregularity which, even adopting the restrictive approach taken by the WA Court of Appeal regarding the powers of the Court to reinstate a proceeding once it had been dismissed for want of prosecution, would enliven the discretion of the Court to reinstate the proceeding.

It is not apparent from the list of documents that any letter was sent to the parties after 21 July 2013 that the proceeding was taken to be dismissed by reason of r 28(1) of the WA Rules. However, as there is no record on the list of documents of the February 2013 letter having been sent to the parties, it appears that the list of documents does not purport to include all correspondence sent by the Court to the parties, but includes only documents filed by the parties and orders made by the Court. The list of documents also sheds no light on the significance of the date of 22 February 2017, the date the WA proceeding was said to have been ‘completed’. Accordingly, using the language of the Court of Appeal in Bodycorp,[93] it could not be said that there is ‘nothing to suggest that there is any prospect further evidence could materially alter’ the date upon which PPG’s cause of action against Mr Efron accrued.[94]
[93][2018] VSCA 17.
[94]Ibid [130]

Of course, it could be argued, given the history of the WA proceeding, and the length of time it had been on foot (it was issued seven years prior to the February 2013 letter) that it would have been unlikely that the Court would have exercised its discretion in favour of reinstatement of the WA proceeding. However, that is not a question which can or should be resolved on a summary basis, on the limited evidence currently available to the Court. After all, given that the financial position of the WA plaintiffs seemed to be, at best, shaky in the 2011-2012 period, that may have caused the Court to view the position of the WA defendants more favourably than, say, the position of the appellant in Rosebridge,[95] where the responsibility for the delays in the conduct of the proceeding was clearly sheeted home to the plaintiff company and the liquidator.
[95][2018] WASCA 116.

This is not to say that the claims of PPG in this proceeding appear to have particularly strong prospects of success. At trial, PPG will need to establish the following:

(a) that this Court should adopt a different construction of the WA Rules than that adopted by the WA Court of Appeal, and further, that, it was at least possible that, notwithstanding the decision in Rowe,[96] a judge of the WA Supreme Court or (more likely) the WA Court of Appeal would have determined that the reasoning of the High Court in FAI Insurance[97] empowered the Court to reinstate the WA proceeding;
[96](2013) 45 WAR 112.
[97](1988) 165 CLR 268.

(b) alternatively, there had been an irregularity (such as a failure to give notice in accordance with r 28(3)), which enlivened the Court’s discretion to reinstate the proceeding;

(c) regardless of which of (a) or (b) apply, that, notwithstanding the period of time the WA proceeding had been on foot, and the apparent inactivity of the parties to the WA proceeding, the Court would have exercised its discretion to reinstate the WA proceeding; and

(d) that the failure of the WA defendants to make an application to reinstate the WA proceeding was caused by a breach of retainer by Mr Efron.

Accordingly, PPG has a number of hurdles to overcome to make good its claims in this proceeding. It may well be that the compounding effect of the modest probabilities of overcoming each of these hurdles may be that PPG’s prospects of success in this proceeding are quite limited, even before one considers the likelihood of PPG obtaining a material commercial return from prosecuting this proceeding, noting Mr Efron’s observations about the value of PPG’s counterclaim in the WA proceeding. But the latter issue is not a matter for summary determination. For example, it is not beyond the realms of possibility that PPG could obtain an assignment of Sinclair Consulting’s claims against Mr Efron from Sinclair Consulting, if it is indeed otherwise dormant. In any event, the limited value of PPG’s claims in this proceeding may raise the question of whether this is the appropriate forum in which to prosecute these claims. But it is not a ground for granting summary judgment.

Accordingly, I do not consider that PPG’s claims in this proceeding have such low prospects of success to justify granting summary judgment in favour of Mr Efron, at least on the basis of the evidence before me, and given that the proper construction of the relevant WA Rules involves a debatable point of law. It may well be that further evidence emerges which reinforces Mr Efron’s limitation defence, and as such, it would be open to him to make a further application for summary judgment.

Stay application

Mr Efron has also applied for a stay of the proceeding on the basis that, as Sinclair Consulting and Mr Brown are currently not plaintiffs to the proceeding, they cannot be taken to have waived their claim for legal professional privilege in their communications with Mr Efron concerning the WA proceeding, and as such, Mr Efron is hamstrung in advancing his defence to PPGs claims in this proceeding. I agree that, if indeed Mr Efron is precluded from adducing evidence of confidential communications between him and the WA defendants by reason of ss 118 or 119 of the Evidence Act, that prohibition would unjustifiably compromise Mr Efron’s ability to defend himself in this proceeding. However, it seems to me that there is a simple solution to this problem. I will direct that the solicitor for PPG notify Sinclair Consulting that, if Sinclair Consulting, by its director, fails to object to its confidential communications with Mr Efron concerning the conduct of the WA proceeding being adduced in evidence in this proceeding by a specified date, Sinclair Consulting would be deemed to have waived any claim for legal professional privilege in those documents. Such a direction seems to me to be within the broad case management powers conferred upon this Court by the CPA. If Sinclair Consulting refuses to waive privilege, then that issue can be dealt with on a later occasion.

Security for costs

PPG accepts that it cannot resist an order that it provide security for costs. The dispute between the parties is the quantum of the security which should be ordered, and even then, the parties are not terribly far apart on that issue: Mr Efron claims between around $24,000.00 to $38,000.00, while PPG has offered to pay $20,015.80.

I agree that, at this stage, I should only order costs up to and including mediation. I also agree that Mr Efron’s claim for security for costs is quite modest for a claim of this nature in this Court. Accordingly, I will order that PPG provide security for Mr Efron’s costs in the sum of $34,000.00, being approximately ninety percent of the higher sum claimed.

Proposed orders

I propose to make the following orders to give effect to these reasons:

1. The defendant’s application in paragraph 1 of his summons filed 28 April 2020 be dismissed, without prejudice to his right to make a further application for summary judgment.

2. Subject to paragraphs 3 and 4 of these orders, the defendant’s application in paragraph 2 of his summons filed 28 April 2020 be adjourned to a date to be fixed not before 2 September 2020.

3. By 4.00 pm on 19 August 2020 the solicitors for the plaintiff deliver a copy of these orders to the registered office of Sinclair Consulting.

4. If no notice of objection is received from Sinclair Consulting by 4.00pm on 2 September 2020, Sinclair Consulting will be deemed to have waived any right to claim legal professional privilege in its communications with the defendant regarding the conduct of proceeding CIV 1104 of 2006 in the Supreme Court of Western Australia.

5. By 4.00pm on 13 September 2020 the plaintiff provide $34,000.00 by way of security for the defendant’s costs up to and including mediation in a manner to be agreed between the parties, or, in the absence of agreement, to be paid into Court.

6. There be liberty to apply.

7. The parties’ costs of the defendant’s summons filed 28 April 2020 be reserved for determination ‘on the papers’ not before 2 September 2020.

[2020] VSC 482

12 August 2020