Rowe and Anor v Stoltze and Anor
[2013] HCATrans 221
[2013] HCATrans 221
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P28 of 2013
B e t w e e n -
NADENE ROWE
First Applicant
JOSHUA TANGEY (BY NEXT FRIEND TREVOR TANGEY)
Second Applicant
and
LYN STOLTZE
First Respondent
ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Second Respondent
Application for special leave to appeal
FRENCH CJ
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON THURSDAY, 12 SEPTEMBER 2013, AT 9.47 AM
Copyright in the High Court of Australia
MR C.G. COLVIN, SC: May it please the Court, I appear with my learned friend, MR B.W. ASHDOWN, on behalf of the applicants. (instructed by Slater & Gordon).
MR R.M. MITCHELL, SC: May it please the Court, I appear with my learned friend, MS F.B. SEAWARD, on behalf of the second respondent. (instructed by the State Solicitor (WA))
FRENCH CJ: There is a submitting appearance for the first respondent. Yes, Mr Colvin.
MR COLVIN: Thank you, your Honour. This application concerns a court rule of the District Court of Western Australia by which a case stands dismissed if it has been on what is called the Inactive Cases List for six months. The first question raised is whether the rule is unconstitutional because it is repugnant to the institutional integrity of a Chapter III court. The rule in question appears at application book 46 and the relevant rule is rule 44G (1) which provides that the:
A case that is on the Inactive Cases List for 6 continuous months is taken to have been dismissed for want of prosecution –
if it has been on the list for a continuous six months.
FRENCH CJ: Now, this is in a section of the rules dealing with case management, is it not?
MR COLVIN: It is.
KIEFEL J: When a case is dismissed under that rule, is an order taken out?
MR COLVIN: No. It operates by effect of the rule itself. There is no order which is part of the foundation of the application.
KIEFEL J: So you do not have any appeal right arising from the effecting of an order.
MR COLVIN: There is no order. There is no appeal right and there is no right, if the court below is correct, to apply to set aside as would be the case, in our submission, in any other jurisdiction. We have given the rules in other jurisdictions where either rules of this kind are made expressed to be subject to order or they are subject to a right by which you can apply to set aside. In addition to that form of rule, rule 44A provides how one gets in to the list and that is:
If no document is filed in a case for 12 months by any party to the case, the case is taken to be inactive unless the Court orders otherwise.
So there is no determination that the matter get in to the list and it relates not to the process of whether there is due prosecution of the proceeding, it relates simply to the administrative assessment as to whether a document has been filed, although that order is subject to “unless a Court otherwise orders”. That provision is absent materially in rule 44G.
So, in our submission, the significant aspects of the rule are as we have submitted, no judge is involved in deciding the issue. If the Court of Appeal is correct, no judge can review or set aside the dismissal once it has occurred. Then separately the issue is determined by operation of the rule itself.
FRENCH CJ: The vice cannot be that no judge is involved in determining the issue, can it? After all a default judgment can be entered without any judicial involvement.
MR COLVIN: Not of itself. It is the two issues, the bookends we would say, of no judge at the beginning and also no judge being able to review. So it is both those matters taken together. In a default judgment situation, there is an ability to apply to set aside.
FRENCH CJ: I appreciate that but the actual default judgment, unless somebody applies to set it aside, stands as a judgment of the court simply by lodgement of the appropriate documents.
MR COLVIN: Yes, and we would accept that that of itself is not enough. It is the character of this procedure being one which operates without even an opportunity to appeal or apply to set aside.
FRENCH CJ: There is no provision in the District Court Rules relating to case management, as I understand it, which allows for the lifting or waiver by a judge of the application of any rule, for example, as there is or used to be in the Federal Court Rules.
MR COLVIN: That was certainly the decision that was made below. We have a separate ground No 3 in our application in which we contend that there is a basis for an argument that there could be but if the Court of Appeal below is right, then there is no such basis available. To complete the aspects of the rule which are significant, in our submission, it provides for an absolute outcome in a context where, having regard to the character of a court, you would expect there to be a judgment based upon consideration of the particular circumstances, that is the character of a dismissal, in effect, for want of prosecution is one which a court applying procedures that are fair and reasonable would, in our submission, have as part of its procedure a requirement that involves an opportunity for a consideration of the particular circumstances, either at the time the dismissal takes effect or by way of some procedure for review, or set aside application.
In our submission, the facts as disclosed on the application are such that if there had been such a fair procedure, then the consequence would have been that an order for dismissal for want of prosecution, in effect, would not have been made. Shortly stated, the fact that no appearance was entered by the defendant was by agreement between the parties. On the evidence there was regular contact by the plaintiff with the defendant’s insurers. The plaintiffs had been seeking medical opinions in order to consider the case and there had been the beginning of “without prejudice” negotiations.
KIEFEL J: How are these matters relevant to our considerations?
MR COLVIN: They are only relevant, in our submission, not to the fundamental point, as it were, but as to whether there is any underlying point in the application. We advance them to say well, if we are right in our argument that has consequences for this particular party.
KIEFEL J: Can you bring proceedings again?
MR COLVIN: We have brought this ‑ ‑ ‑
KIEFEL J: It would only be a question of abuse of process.
MR COLVIN: Two questions arise. One is abuse of process, one is a limitation point. We accept in relation to the second applicant that there is no limitation point. In relation to the first, we have put on an affidavit identifying that ‑ ‑ ‑
KIEFEL J: The matters that you were just discussing might go to the question of abuse of process, might they not?
MR COLVIN: They will, in our submission. It is put against us that we do not contend that the second proceedings would be an abuse and that is relevant. In our submission, that is not the right question. The issue is whether we are at risk of such an application as a consequence and that remains live as does the question of as to whether there is a statute bar for limitation reasons in relation to the first applicant. The defendant has taken that position in relation to the first applicant’s subsequent proceedings. So it is a live issue in the second proceedings.
FRENCH CJ: Statutory bar is something which operates, that is a limitation question arises by operation of a different statutory regime. It does not, as it were, reflect back upon the character of the rule and its legal consequence which is, I think as put against you, that it does not actually determine any rights of itself, apart from the right to continue in that particular proceeding.
MR COLVIN: It does not, if you look at it in that sense, your Honour. In our submission, a rule of this kind though, being a rule of the procedure of a court, would not be expected to exist as a matter of fairness where it has that consequence or the potential for that consequence. It is the reason why a rule that is operating to dismiss, in effect, for want of prosecution should, as a matter of fairness, be a rule that is subject to some supervision by a judicial officer, either because it is made subject to an order of the court or there is a right to apply to set aside. It is the potential for injustice of that kind that means that there ought to be present that kind of potential as an essential element of a characteristic of the court. That is to say we do not elevate the claim to say absolutely in all cases you can never have an order which might operate automatically. We say, particularly in the case of an application of this kind or an order which is taking effect for apparent reasons of this kind, there needs to be a judicial involvement.
FRENCH CJ: Does your contention have any wider implications for any statute which would bar proceedings after the lapse of a certain time without any opportunity for review by a court?
MR COLVIN: It would have wider applications if there are other rules which operated in a context ‑ ‑ ‑
FRENCH CJ: Not the limitation statutes?
MR COLVIN: Yes. It would not have an implication with the limitation statutes themselves. The wider application, in our submission, arises from the fact that this application contends that the Kable principles apply to the rules that the courts make themselves. They are not confined to where the Executive or the legislature seeks to intervene. In effect, the fact that the courts make the rules does not take them outside of the application of the Kable principles. Now, that is an aspect of the application that could have a wider application and is a matter that is significant for the administration of justice generally, in our submission.
Just briefly then, dealing with the matters that are put against us, in our submission it is said that there is no compromise of the impartiality of the court by subjecting it to the direction of the political branches of government. We accept that. That is not the nature of the incompatibility
with the institutional integrity of the court that is alleged in this case. The consequence of this rule arises from the action taken by the court through its own rule‑making power.
It is said separately that the fact that the rule deprives a party of a hearing on the merits cannot spell invalidity and we agree. The issue is not whether the party is deprived of a hearing on the ultimate merits. Clearly there are many ways in which that can occur. The issue here is whether an application or a consequence of this kind should flow without any involvement by a judge looking at the particular circumstances.
It is said that other courts, including this Court, have such a rule but as we have submitted, in all other instances that we have identified in the list in our submissions, those rules provide either for the order to be made subject to court order or for an application for review. Those are our submissions.
FRENCH CJ: Yes, thank you. Yes, Mr Mitchell.
MR MITCHELL: Thank you, your Honour. As an intervener in the court below, the Attorney‑General has not any particular interest in whether special leave is or is not granted in these proceedings. However, because the first respondent took no active part, we put on written submissions contending that the decision below is not attended by sufficient doubt to justify the grant of leave.
Subject to four matters which arise out of my learned friend’s submissions, we are content to rely on our written submissions. The first matter that I should alert the Court to is that there have actually been amendments to the District Court Rules since the Court of Appeal’s decision in the matter. Those amendments include provisions which alter the basis on which a case may be placed on an Inactive Cases List by reason of a failure to enter the matter for trial within the time required by the rules. They do not, however, alter the provisions by which proceedings in which no document is filed for 12 months can be placed on the Inactive Cases List. So we do not see those amendments as precluding the grant of leave in this case.
In terms of whether the operation of the rules can be avoided, we say that they can at any point up to the point where the case is deemed to be dismissed and that arises in two ways. Firstly, under rule 44A, which is on page 33 of the reprinted tab 2 of the book which the Attorney‑General provided, the court may otherwise order. Secondly, on page 35 of that book, under rule 44F(2):
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.
(3)The Court may order a case be taken off the Inactive Cases List if satisfied the case will be conducted in a timely way or for any other good reason.
We would say in context “may” there should mean “must”, that is if the court is satisfied that there is other good reason, then an order should be made. So that the only circumstance in which the consequence of which my learned friend complains can arise is if there has been no step in the proceeding for 18 months and there has been no application to the court to avoid the ordinary operation of the rules.
At the conclusion of that process, it is correct, as my learned friend says, that there is no capacity to resuscitate the proceedings that have been brought to an end by operation of the rules and while there is no appeal, there is of course the requirement for the court to determine whether the rules have in fact operated to bring the proceedings to an end and that is what the Court of Appeal did in a case heard at the same time as at present, Ruby v Doric Constructions [2013] WASCA 94, which is behind tab 3 and there the Court of Appeal held that in fact the provisions had not been engaged and the case was not in fact deemed to be dismissed.
KIEFEL J: Your conclusion in relation to the Chapter III question appears in paragraph 23 of your written submissions?
MR MITCHELL: Yes, your Honour. I would say the two features that my learned friend relies on, no judicial involvement and no right of review or resuscitation ‑ ‑ ‑
KIEFEL J: It is the second that is perhaps the most important in the way he presented his argument.
MR MITCHELL: Maybe. Of course, that is the same way that the limitation provision operates. Their right to bring an action is terminated by operation of the Act. There is no capacity to resuscitate that in jurisdictions where there is no right to obtain an extension of time such as is generally the case in Western Australia.
Your Honour, the last matter relates to an abuse of process argument. Our submission would be that in the circumstances of this particular case, it would be difficult, if not impossible, to find that the institution of new proceedings by the second applicant would constitute an abuse of process.
FRENCH CJ: The real question is whether the, as it were, exposure to a risk of an abuse of process application on the commencement of fresh proceedings or exposure to the barring effect of a limitation statute, reflect back upon the legal character of the rule itself for purposes of constitutional validity.
MR MITCHELL: Well, for that purpose obviously there will be occasions when the rule might operate where there will be a limitation period will have expired ‑ ‑ ‑
FRENCH CJ: Well, that is a legal consequence flowing on from ‑ ‑ ‑
MR MITCHELL: Yes
FRENCH CJ: ‑ ‑ ‑ the operation of the rule but not intrinsic to it.
MR MITCHELL: No, and indeed as a consequence it flows on from the Limitation Act about which no challenge is made.
KIEFEL J: The question is that the correct way to view the character of the rule in relation to the constitutional question or does one approach the rule by saying it does nothing to affect a person’s rights in relation to proceedings, to bring them again. It does not itself purport to do that.
MR MITCHELL: We say that that is relevant to note that it does not determine rights; not necessarily conclusive but one looks at the potential unfairness that could arise in a situation where somebody cannot bring fresh proceedings because of a limitation provision. One has to consider the whole operation of the rules and the opportunities which that gives to a party to have the case dealt with on the merits and it is only if you do nothing for 18 months, do not read the rules and do not read your mail when the notice that is an essential component of the process is issued by the court, that you are placed in that position and we would say that the appellation “unfair” may not be fairly applied to that circumstance. If it please the Court, those are our submissions.
FRENCH CJ: Thank you, Mr Mitchell. Yes, Mr Colvin.
MR COLVIN: Your Honours, in relation to the submission that this consequence is the same consequence that applies in relation to the application of the limitation statute, in our submission there are two points. One, once commenced in court, the requirements for the statute of limitation are met. A party is, in our submission, entitled to expect, which is our second point, that there will be a fair procedure where the court is deciding that the proceedings which would otherwise meet the requirement
of the statute are being brought to an end with the consequence that one cannot commence again.
So in our submission there is not a direct analogy because you have taken the step that is required to comply and the question is whether a court should have a process that in order to maintain its character as a court that will ensure that there is some involvement of a court officer in deciding whether the order should be made.
In relation to the point that was made about whether steps could be made and taken before the deadline, we accept that entirely. There are steps that could be taken and there are procedures which must be met if the rule is to operate effectively. That was the decision in Ruby. The focus of the application is to say that ordinarily a party who is having their proceedings dismissed for want of prosecution is entitled to a hearing that has regard to the circumstances, either at the time or by way of review on a set aside application and our submission is that that type of consideration of the particular circumstances is an inherent characteristic of a fair procedure and therefore an inherent characteristic of the court.
FRENCH CJ: Thank you, Mr Colvin.
The applicant in this matter commenced proceedings in the District Court of Western Australia on 3 December 2010. No steps were taken in the following year. On 3 September 2011, the District Court gave notice to the applicant that the case had been placed on the Inactive Cases List pursuant to rule 44A of the District Court Rules. Under rule 44F a person can apply to have a case removed from that list. The applicant did not seek to do so. No step was taken in the next six months and the District Court then gave the applicant notice that the matter was taken to be dismissed for want of prosecution under rule 44G. Rule 44G(1) provides that a case which is on the Inactive Cases List for six months is taken to have been dismissed for want of prosecution.
The applicant argued before the Court of Appeal on a number of bases that the District Court had power to enlarge time. The Court of Appeal held that the District Court’s powers to enlarge time were not applicable to the situation to which rule 44G(1) refers. The applicant also argued that that rule was ultra vires the rule‑making power of the District Court and further that it affected the integrity of the District Court as a Chapter III court. The latter contention requires the conclusion that judicial consideration is necessary before dismissal of a proceeding and that a court’s inability to set aside a deemed dismissal affects its institutional integrity. The Court of Appeal rejected those contentions.
In that connection, as submitted by the second respondent, the dismissal effected by the rule does not finally determine rights or liabilities asserted by a plaintiff. There may be legal consequences of that kind by reason of the operation of a limitation statute on the capacity to bring any fresh proceedings. There may be an argument raised on the commencement of the fresh proceedings that they constitute an abuse of process, but those are not matters going to the character or constitutional validity of the rule.
In our opinion, the prospects of success on an appeal in this matter are insufficient to warrant the grant of special leave. Special leave will be refused.
The Court will now adjourn to reconstitute for the next matter.
AT 10.11 AM THE MATTER WAS CONCLUDED
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