Rong v Pt Supplies Group Pty Ltd

[2020] WADC 113

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   RONG -v- PT SUPPLIES GROUP PTY LTD [2020] WADC 113

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   12 AUGUST 2020

DELIVERED          :   27 AUGUST 2020

FILE NO/S:   CIV 2291 of 2019

BETWEEN:   HONGQI RONG

Plaintiff

AND

PT SUPPLIES GROUP PTY LTD

Defendant

AAI LIMITED t/as GIO

Third Party

Catchwords:

Practice and procedure - Application to remove case from inactive case list - turns on its own facts

Legislation:

District Court Rules 2005 (WA)

Result:

Case removed from inactive case list

Representation:

Counsel:

Plaintiff	:	Mr C Foyle
Defendant	:	Mr T Houweling
Third Party	:	Mr M Dobson

Solicitors:

Plaintiff	:	Foyle Legal
Defendant	:	Cornerstone Legal
Third Party	:	Moray & Agnew Lawyers

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

Nil

DEPUTY REGISTRAR HEWITT:

1. In this action the plaintiff is a former employee of the defendant who suffered an injury which caused significant mutilation of both his hands, including amputation of some fingers on each hand, together with other significant injuries, in a workplace accident. 

2. The plaintiff filed a statement of claim in the action on 30 August 2019 and on 4 December 2019 the defendant filed a defence and a summons for leave to commence third party proceedings against AAI Limited, its insurer against whom it claimed an indemnity.  Why the defendant should have chosen such a course is difficult to understand since a defendant may commence a third party proceeding without the leave of the court providing he has not served a defence on the plaintiff.  Plainly it was open to this defendant to simply issue the third party proceeding and then file and serve the defence but for some reason that is not explained, he did not do so.  One effect however, of the course chosen by the defendant was to significantly delay the progress of the proceedings.  Although the application for leave was heard on 15 January 2020, it was not until 23 March 2020 that a third party notice was filed, a delay of something over three months.  Had the defendant acted more expeditiously, the issue of the third party proceedings could probably have been tidied up in either December 2019 or early January 2020.  An appearance was filed to the third party proceeding on 31 March 2020.  By summons dated 9 April 2020, the defendant applied for directions in the third party proceeding but that application was never proceeded with because on 20 April 2020 the action became inactive.  On June 2020 the plaintiff made an application to have the matter removed from the inactive cases list and that is the matter with which I am concerned and which the defendant opposes.

3. The thrust of the defendant's opposition is the fact that the court has not been provided with any information which, on the submission of the defendant, should give it any confidence that the matter will be proceeded with expeditiously from now on.  On that score, I must say that in my opinion, the matter has not been proceeded with expeditiously by the solicitor engaged by the plaintiff but it must also be noted that there were a number of impediments to the plaintiff proceeding expeditiously which were created by the defendant.

4. Superimposed on this matrix of matters is a further matter of consequence. The plaintiff was a student in Western Australia on a student visa. He has since returned to China and during the time of his absence from Australia our borders were closed and it is not currently possible for the plaintiff to re-enter the country in order to progress his claim. Additionally, I am informed that his student visa is about to lapse. I am also informed that the plaintiff, being a Chinese national, does not have a good command of English and those matters, in my view, in combination, make it very difficult for even a more energetic solicitor to do very much by way of advancing the plaintiff's case. Section 44F of the District Court Rules 2005 (WA) provides:

   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. 

5. Subsection 4 of s 44F provides 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.

6. One source of complaint which has been levelled by the defendant is the fact that it requires discovery to be on oath whereas the plaintiff has simply provided a list of relevant documents.  Such a stance by the defendant is somewhat hypocritical since it has not provided discovery in any shape or form despite the fact that the time for doing so had long past.  Perhaps not the motivation for requiring discovery on oath, but nonetheless a consequence of requiring a discovery on oath, would be to place a significant obstacle in the plaintiff's way since he is a resident in mainland China and the manner in which an affidavit of discovery could be completed and sworn would, I imagine, represent significant hurdles.

7. It is to be noted that amongst the matters which may be taken into account in removing a case from the inactive cases list are 'any other good reason'. The plaintiff is a relatively young man, pleaded to be born in 1998, who has suffered very, very serious injuries to his hands. The circumstances of his accident, as revealed by the pleadings, suggest that he has a good prospect of succeeding if not in total at least in part in the claim which he is pursuing. The COVID-19 pandemic and the closing of Australian boarders to visitors from China make it very difficult, in fact at the moment, nigh on impossible, to effectively progress his action. If I refuse to remove the matter from the inactive cases list it will presumably remain on that list until dismissed after six months pursuant to the provisions of r 44G of the District Court Rules. The question which troubles me is would that be a just outcome for a young man who finds himself in the position of this plaintiff.  The question is obviously largely rhetorical, this would not be a just outcome for a person in his circumstances with the injuries which he has sustained.  What then to do about the situation?  In my view, the appropriate way to deal with this matter is to remove the matter from the inactive cases list and fix an entry for trial milestone approximately one year from today's date.  I also propose to list a directions hearing at some interval to ensure that the plaintiff's solicitor is motivated to do what can be done to keep this case moving, and I am also hoping to hear submissions as to whether or not the third party proceeding can be independently resolved prior to the trial between the plaintiff and the defendant.  It is fairly clear to me that the insurer, which is already paying the workers' compensation payments to the plaintiff might be better motivated to reach a settlement of the action, than the present defendant, if indeed it is found that the policy of insurance is applicable to the circumstances of this case.

8. It is therefore my decision that the action be removed from the inactive cases list and that the matter be programmed broadly in accordance with the sentiments which I have mentioned earlier. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

LF
Court Officer

27 AUGUST 2020