Rodger v Minister for Health - [2006] WADC 143

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: RODGER -v- MINISTER FOR HEALTH [2006] WADC 143

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 4 AUGUST 2006

DELIVERED : 11 SEPTEMBER 2006

FILE NO/S: CIV 2111 of 2004

BETWEEN: JULIE ANN RODGER
Plaintiff
AND
MINISTER FOR HEALTH
Defendant

Catchwords:

Practice - Western Australia - Practice under the District Court Rules - Case management - Entry for trial - Conditional order for judgment - Failure of plaintiff to extend time to file entry for trial - Ex parte application for judgment - Application to set aside judgment

Legislation:

Nil

Result:

Judgment and application for judgment set aside

Representation:

Counsel:

Plaintiff: Ms D G Craig
Defendant: Ms T A Bennett

Solicitors:

Plaintiff: Bradford & Co
Defendant: Downings Legal

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Broers v Forster (1981) 38 ALR 605
Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69
Van Hoputen v Foodsafe Ltd (1980) 124 Sol Jo 277
Vipond v Masters, unreported; SCt of WA; Library No 6596; 28 January 1987

DEPUTY REGISTRAR HARMAN: By her application of 12 June 2006 the plaintiff seeks to set aside judgment entered on 2 June 2006 and to extend the time for entry for trial either to that date or some other date.
Judgment was obtained upon the defendant's application filed 25 May 2006 in the following terms:
"There be judgment for the Defendant, pursuant to the orders of Registrar Kingsley dated 18 April 2006."
Paragraph 2 of the order of 18 April 2006 was as follows:
"Unless the plaintiff do enter the action for trial within 10 days, the plaintiff's claim be struck and judgment be entered for the defendant for the costs of the action."
The plaintiff entered the action for trial on 2 May 2006. I was informed by the plaintiff and it was uncontested that the defendant had been informed that the action had been entered for trial and of the date of the pre trial conference by letter dated 10 May 2006. In his affidavit of 9 June 2006 the applicant's solicitor deposes that on 6 June 2006, the day before the conference, he received a telephone call from the defendant's solicitor who then informed him that judgment had been entered. That telephone call appears to have been the only communication between the parties subsequent to the defendant's receipt of the letter of 10 May 2006.
I am satisfied that the application for judgment was heard ex parte. It was supported by the defendant's solicitor's affidavit of 25 May 2006 in which she deposed that the plaintiff had not entered the action for trial until 2 May 2006 and had not applied for an enlargement of time within which to comply with the order of 18 April 2006.
The application before me opens for consideration the result obtained upon the application for judgment. Although the defendant's solicitor has filed an affidavit in opposition to plaintiff's application, it does not add to the material that had been before the court. The force of the defendant's case had been that to the point at which the application for judgment was heard the plaintiff had not sought an enlargement of time to file the entry for trial. As in awarding judgment the filing of the entry for judgment was not set aside, the only basis upon which it could have been awarded was that the failure to obtain an extension of time was a substantive issue.
At the point that the action was entered for trial there was no impediment to it being entered for trial. The entry for trial papers were not rendered ineffective because they had been filed late. To the contrary, when lodged they were appropriately accepted for filing and processed in the usual manner. Thereby a pre-trial conference listing was allocated to the action. The filing of the papers satisfied the purpose for which the order of 18 April 2006 had been made. In my opinion once the action had been entered for trial the fact that it had not been entered within time could not amount to more than an irregularity. It may not even qualify as that.
Now that each of the parties has had the opportunity to put their cases, in my opinion the crisp point for consideration is whether prior to judgment had the defendant had communicated to the plaintiff the fact that it took issue with her failure to extend the time within which to enter the action for trial.
On an ex parte application it is the responsibility of the applicant to draw to the attention of the court any matter that would bear upon the appropriateness of the determination sought. In my opinion it would have been appropriate for the defendant to draw to the attention of the court that it had not informed the plaintiff that it would not overlook her failure to extend time. In choosing to seek judgment by ex parte application it is irresistible that the defendant did not want to alert the plaintiff to either that default or its contended significance. It is also irresistible that the primary motive of the defendant in seeking to change the return date of the application was to the same end. It had been given the return date of 12 June 2006. By facsimile dated 30 May 2006 the defendant sought a listing prior to the pre trial conference.
In my opinion the failure of the defendant to extract judgment after the expiration of the period expressed in the order is of no moment. The issue raised before the court on 7 June 2006 was at most a technicality. I am satisfied that it had not been brought to the plaintiff's attention but ought to have been in light of what has transpired.
I will conclude by recording that there is reason to reflect upon the propriety of the court in responding to the request for an earlier listing of the defendant's application as it did. In the ordinary course the method of communication of a change in return date of an application is by amendment and the resealing of the application. By that means the applicant is informed and upon service, so too the respondent. That course was not followed by the defendant in this case. It chose not to provide the copy of the application leaving it for the court to respond by letter. In order to reflect protocol the court would have communicated a response to each party. In response to the defendant's request the court communicated only with the defendant. The other noteworthy feature of that communication is that it expressed that the action had been assigned to a listing conference on 2 June 2006. I suspect that it would be a rare occurrence that the list clerk would chose to communicate such a listing to one party only. I accept that the list clerk was dealing with what was patently an ex parte motion but neither the application nor the defendant's communication made any commitment to the fact that the plaintiff would not be served. There was no basis upon which the listing officer could have discerned that it would have been inappropriate to communicate with both parties. Unfortunately when the court ought to have provided transparency in the process of communicating its determinations it did not do so.
I do not intend to elevate the issue raised by the defendant to any degree of significance at all. I will set aside the judgment and dismiss the defendant's application for judgment.