| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ROWE -v- STOLTZE [2012] WADC 84 CORAM : COMMISSIONER GETHING HEARD : 28 MAY 2012 DELIVERED : 14 JUNE 2012 FILE NO/S : CIV 2710 of 2010 BETWEEN : NADENE ROWE JOSHUA TANGEY by next friend TREVOR TANGEY
Plaintiffs
AND
LYN STOLTZE
Defendant
Catchwords: Practice and procedure - Case management - Inactive Cases List - Dismissal for want of prosecution Legislation: District Court of Western Australia Act 1969 s 88, s 89
District Court Rules 2005 (WA) r 44G
Rules of the Supreme Court 1971 (WA) O 4A r 28
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Result: Application dismissed Representation: Counsel:
Plaintiffs : Mr J A Davies
Defendant : No appearance
Solicitors:
Plaintiffs : Slater & Gordon
Defendant : Not applicable
Case(s) referred to in judgment(s):
Adam P Brown Male fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Ashton v Commonwealth Government of Australia (2003) 126 FCR 297
Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381
Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1
Cleland v Boynes (1978) 19 SASR 464
Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1
Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (ACCC) [2002] HCA 49; (2002) 213 CLR 543
Director of Public Prosecutions (DPP) (Cth) v Kamal [2011] WASCA 55
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Gosper v Sawyer [1985] HCA 19; (1985) 160 CLR 548
Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311
Hart v Hall & Pickles Ltd [1969] 1 QB 405
Hughes v Gales (1995) 14 WAR 434
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201
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Mahfoud v Minister for Immigration, Local Government and Ethnic Affairs (1993) 33 ALD 609
Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243
Minister of State for the Army v Parbury Henty & Company Pty Ltd [1945] HCA 52; (1945) 70 CLR 459
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
Mustac v Medical Board of Western Australia [2007] WASCA 128
Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1
Norman v Norman (1992) 6 WAR 372
Primary Industries & Energy, Minister for v Austral Fisheries Pty Ltd (1993) 40 FCR 381
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 7) [2010] WASC 351
Ruby v Doric Group Holdings Pty Ltd [2012] WADC 58
State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
State of South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161
State of South Australia v Totani [2010] HCA 39; (2010) 85 ALJR 19
The State of Western Australia v Veolla Pty Ltd (Unreported, WASCA, Library No 930407, 30 July 1993)
TK, PB & LS v Australian Red Cross Society (1989) 1 WAR 335
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514
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1 COMMISSIONER GETHING: By application dated 14 March 2012, the plaintiffs sought orders reinstating the action following its dismissal pursuant to District Court Rules 2005 (WA) (DCR) r 44G. By notice dated 6 September 2011, the court notified the parties pursuant to DCR r 44D that, as no document had been filed in the case for the preceding 12 months, the case had been placed on the Inactive Cases List. The parties were notified that a case that is on the Inactive Cases List for six continuous months is taken to have been dismissed.
2 Following the notice dated 6 September 2011, no action was taken to remove the case from the Inactive Cases List. Accordingly, on 6 March 2012, the case was dismissed pursuant to DCR r 44G. 3 The plaintiffs did not submit that there was any irregularity in compliance with the DCR which meant that the judgment was irregular. 4 In Ruby v Doric Group Holdings Pty Ltd [2012] WADC 58 I held that the court had no power to reinstate an action dismissed pursuant to DCR r 44G. That decision is presently the subject of an appeal. I invited counsel for the plaintiffs to have the present application adjourned pending the outcome of the appeal but counsel declined the invitation. 5 The facts of the present application insofar as they relate to the application of DCR r 44G are similar, but not identical, to those in Ruby. Counsel for the plaintiffs, with due respect, invited me to reconsider the decision in Ruby, placing before the court a number of submissions which were not considered in Ruby. I have approached the present decision as if the decision in Rubyhad been given by another member of this court. The rule of comity which applies in that case is that a judge of this court should 'usually follow the decision of another judge of [this court] unless he is convinced that the judgment was wrong': Mustac v Medical Board of Western Australia [2007] WASCA 128 [38] - [46], [68], [69]; La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201, 204. 6 By agreement between the parties, the defendant has not entered an appearance. From the materials before the court it is apparent that the defendant is represented at least by her insurer, and is in regular contact with the plaintiffs' solicitors. (Page 5)
Rule framework 7 The power of the judges of the District Court to make rules is contained in District Court of Western Australia Act 1969 (DCA) s 87 and s 88: 87. Rules of court to govern practice and procedure (1) Subject to this Act, the practice and procedure of the Court shall be governed by the rules of court, and until provision is made by rules of court or where no special provision is contained in the rules of court, the rules of court of the Supreme Court for the time being in force, so far as applicable, apply to the Court. (2) A reference in any other provision of this Act to rules of court shall, unless the context otherwise requires, be read as including a reference to the rules of the Supreme Court as applied by this section. 88. Rules of court, making, content (1) The District Court judges, for the time being, or a majority of them, may make rules, not inconsistent with this Act — (a) regulating and prescribing the practice and procedure, including the method of pleading, to be followed in the Court (including the practice and procedure to be followed in the offices of the Court); (b) regulating and prescribing all matters and things incidental or relating to any such practice and procedure (including the manner in which and the time within which, any applications that under this Act or any other Act are to be made to the Court, shall be made) or necessary or convenient to be prescribed for the conduct of any business of the Court; and (c) prescribing matters relating to evidence, including rules — (i) requiring the disclosure (by the furnishing of copies of statements, reports, plans, photographs, models, or otherwise) of the nature and substance of evidence to be given; and (Page 6)
(ii) that depart from the law of evidence and provide for the admission as evidence and the exclusion from evidence, of any matter the disclosure of which is required by a rule made pursuant to subparagraph (i). (2) In particular the rules of court may provide — (a) for regulating the sittings of the Court, and of the judges thereof whether sitting in Court or in chambers; (b) for regulating any matters relating to the costs of proceedings in the Court fixed by costs determination (as defined in the Legal Profession Act 2008 section 252); (c) for regulating the means by which particular facts may be proved, and the mode in which evidence thereof may be given, in any proceedings, or on any application in connection with, or at any stage of, any proceedings; (d) for the service and execution of the process of the Court including the manner in which and the extent to which the process of the Court may be served out of the jurisdiction of the Court; … (g) for a registrar or any particular registrar to have power, either generally or in particular cases and under such conditions as are prescribed, to do such things, to transact such business, and to exercise such authority and jurisdiction as a judge of the Court sitting in chambers may, by virtue of a statute, custom, or rule or practice of the Court, do, transact, or exercise, and to tax costs; (h) for requiring and regulating pre-trial conferences in actions; (i) for regulating the practice and procedure in relation to applications under the Vexatious Proceedings Restriction Act 2002. (Page 7)
8 In addition, counsel for the plaintiffs referred to DCA s 8 and s 9 which provide: 8. Court to be a court of record, constitution 9. Seal of the Court (1) There shall be a seal of the Court at each place at which the Court is held under this Act. (2) All writs, notices, summonses, certificates, warrants and other processes issued out of the Court shall be sealed or stamped with the seal of the Court. 9 District Court Rules pt 4 div 3(6) provides a regime for managing cases which are not being carried on in a timely manner. It provides for such cases to be placed on an Inactive Cases List. 10 There are three ways in which a case may be placed on the Inactive Cases List. The first is by order of the court: DRC r 44B, r 44C. 11 The second is if 'no document is filed in a case for 12 months by any party to the case', though the court may order to the contrary: DCR r 44A. This is what occurred in the present case. 12 The third is where the case is not entered for trial within the timeframes set by the court. This is what happened in Ruby. In particular, the action is to be entered for trial within 120 days of the first defence being filed: DCR r 30, r 37. A copy of the timetable is sent (Page 8)
to each party on the filing of the first defence. If a plaintiff does not enter the case for trial on or before the date set out in the timetable, the court will send the party a DCR form 2 notice of default (entry for trial): DCR r 38. This form sets out a date by which the plaintiff must enter the action for trial. If the plaintiff does not enter the action for trial by this date, the case is taken to be inactive and is placed on the Inactive Cases List: DCR r 44D. 13 When a case is placed on the Inactive Cases List in one of these three ways, the principal registrar is to 'give all parties to the case written notice that the case is on the Inactive Cases List and of the effect of rules 44E and 44G': DCR r 44D(1). A practitioner receiving such a notice is to notify their client of the effect of the notice: DCR r 44D(2). There is no evidence before me that this occurred in the present case. Rather, this notice appears to have escaped the attention of the solicitor with the carriage of the action (affidavit of Kathryn Williams, 14 March 2012, par 77). 14 Once a case is on the Inactive Cases List, there are then limits placed on the types of documents that may be filed, as follows (DCR r 44E): 44E Consequences of case being on Inactive Cases List If a case is on the Inactive Cases List, only these documents can be filed in the case — (a) a Form 1 (Entry for trial); (b) a consent order finalising the case; (c) a summons for an order under rule 44F(3); (d) a summons for an order dismissing the case for want of prosecution; (e) any document that relates to a document listed above. 15 A case may be removed from the Inactive Cases List by being finalised, by being entered for trial or by order of the court (DCR r 44F): 44F Removing cases from Inactive Cases List (1) If a Form 1 (Entry for trial), or a consent order finalising the case, is filed in a case on the Inactive Cases List, the case is taken to have been taken off the list. (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. (Page 9)
16 The consequence of a case being on the Inactive Cases List for six continuous months is that it is dismissed (DCR r 44G): 44G Certain inactive cases 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 a case is dismissed under subrule (1), the Principal Registrar must give all parties to the case written notice of the fact. (3) If under subrule (2) a practitioner for a party is notified, the practitioner must, as soon as practicable, send a copy of the notice to the party. (4) If a case is dismissed under subrule (1), any party to it may apply to the Court for, and the Court may make, any order needed as a consequence of the dismissal. 17 The DCR pt 4 div 3 (6) is very similar to Rules of the Supreme Court 1971 (WA) (RSC) O 4A div 5. Rules of the Supreme Court O 4A does not apply to the District Court: DCR r 29. In particular, RSC O 4A r 28 provides for the same consequences if the case is on the Supreme Court's Inactive Cases List for six continuous months: 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. (Page 10)
18 There are two relevant powers in RSC. The first is RSC O 2 r 1, which deals with the effect of non-compliance: 1. Non-compliance with rules (1) Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein. (2) Subject to subrule (3) the Court may, on the ground that there has been such a failure as is mentioned in subrule (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit. (3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed. 19 The second is RSC O 3 r 5 which provides: 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. (3) The period within which a person is required by these rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose. (Page 11)
20 The powers in RSC O 2 and O 3 r 5 are to be applied in light of the general principles in RSC O 1 r 4A and 4B, which provide: 4A. Delays, elimination of The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial. 4B. Case flow management, use and objects of (1) Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of — (a) promoting the just determination of litigation; and (b) disposing efficiently of the business of the Court; and (c) maximising the efficient use of available judicial and administrative resources; and (d) facilitating the timely disposal of business; and (e) ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and (f) that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party. (2) These rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in subrule (1).
Decision in Ruby21 In Rubythe case was placed on the Inactive Cases List pursuant to DCR r 30 and r 37 as it was not entered for trial within the time period set down in those sections. (Page 12)
22 There is no express power in the DCR to reinstate a case that has been dismissed pursuant to DCR r 44G. For example, there is no power equivalent to the power in RSC O 13 r 10 to set aside a default judgment. 23 In RubyI identified two potential sources of power to reinstate a case that has been dismissed pursuant to DCR r 44G. The first source of power is DCR r 44G(4), which I have quoted above. I was of the view that an order setting aside the dismissal of the action made pursuant to DCR r 44G(1) is not an order 'needed as a consequence of the dismissal'. The power in r 44G(4) assumes that the dismissal is operative, and empowers the court to make orders consequential to that dismissal. An example of an order clearly falling within r 44G(4) would be an order for costs. Another would be an order finalising third party proceedings commenced by the defendant in whose favour judgment was awarded pursuant to r 44G(1). 24 The second source of power which I identified was the general power to extend in RSC O 3 r 5. I was of the view that the power in RSC O 3 r 5 could not be used to reinstate an action dismissed pursuant to DCR r 45G for the following reasons: (a) Rules of the Supreme Court O 3 r 5 is not excluded by operation of the DCR and thus applies to the District Court: DCA s 87; (b) Rules of the Supreme Court O 3 r 5 applies on its face to the time limits in DCR r 30 and r 37 as these rules set 'the period within which a person is required … by these rules ... to do any act in any proceedings'; (c) the fact that the time for compliance has passed, does not prevent the power from being exercised: RSC O 3 r 5(2); (d) the power in RSC O 3 r 5 may be excluded by necessary implication: Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552, 556 - 557; and (e) District Court Rules r 44G excludes RSC O3 r 5 by necessary implication. 25 Specifically, I held [35] - [39]: The regime in DCR r 44E, r 44F and r 44G provides for a six month window within which a plaintiff may apply for orders that a case be taken off the Inactive Cases List. At least where there has been a breach of the entry for trial milestone, in order that the case does not immediately go (Page 13)
back on the Inactive Cases List, the order removing it from that list will need to (and invariably does) include an order extending the time within which the case may be entered for trial. This order is made pursuant to RSC O 3 r 5. There is thus a six month window within which RSC O 3 r 5 may be used. The fact that there is a six month window within which RSC O 3 r 5 may be used, in my view, necessarily implies that once the window closes, RSC O 3 r 5 may not be used. There is an express power to remove a case from the Inactive Cases List prior to it being dismissed (DCR r 44F). It was open to the judges of the court to have included an express power to set aside the dismissal of a case pursuant to DCR r 44G(1). This power could have been expressed in similar terms to the power to set aside a default judgment (RSC O 13 r 10) or a summary judgment granted in the absence of a party: RSC O 14 r 12 and O 16 r 4. This supports the conclusion that there is no power to set aside a dismissal of a case pursuant to DCR r 44G. The view that there is no power to set aside the dismissal of a case pursuant to DCR r 44G is consistent with the general principles in RSC O 1 r 4A and r 4B. In establishing the regime in DCR r 43A to r 44G, the District Court Judges (and the Supreme Court Justices in the case of the equivalent regime) have adopted a particular balance between giving a plaintiff a fair and just opportunity to have his or her claim determined on the merits, and the principles of timeliness and efficiency. To paraphrase RSC O 1 r 4A, the regime in DCR r 43A to r 44G has as its goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial. I am thus of the view that there is no power to set aside the dismissal of a case pursuant to DCR r 44G, either by operation of RSC O 3 r 5 or otherwise.
Summary of the plaintiffs' submissions 26 The plaintiffs advanced five reasons why the decision in Ruby was clearly wrong: (Page 14)
pronouncements of the High Court on the role of case management; (c) the words 'taken to be dismissed' in DCR r 44G mean that there is no final judgment that the case is dismissed unless and until an extracted order to this effect is sealed by the court; (d) the plaintiffs have a right to have their action heard and determined on the merits, which is a right that cannot be taken away unless the words of DCR r 44G are sufficiently clear to do so, which they are not; and (e) District Court Rules r 44G is beyond the rule making power of the District Court judges as it provides for the exercise of the jurisdiction of the court by registry staff and not by the judges of the court in breach of DCA s 8. 27 Before dealing with these arguments, there is a preliminary issue which is whether the facts of the present case are distinguishable from that in Ruby such that RSC O 3 r 5 does not apply on its face. This would meet the arguments in pars (b) and (d) above, but not (a), (c) and (e).
Application of Rules of the Supreme Court O 3 r 5 28 In order for RSC O 3 r 5 to apply, there must be a period of time 'within which a person is required or authorised by the rules, or by any judgment, order, or direction, to do any act in any proceedings'. Thus, in Ruby, it was the time in DCR r 37 within which the action needed to be entered for trial. 29 In the present case, the operative provision is DCR r 44A. It does not set a time within which a party is to do anything. Rather, the case is taken to be inactive as a result of inactivity: 'no document is filed in a case for 12 months by any party to the case'. 30 In my view, RSC O 3 r 5 does not on its face apply in the circumstance set out in DCR r 44A. Therefore, the issue of whether it is excluded by necessary implication in DCR r 44G does not arise. 31 However, in case I am wrong, I will proceed to consider the other grounds raised by the plaintiff. (Page 15)
Rules of the Supreme Court O 2
Plaintiffs' submissions 32 The plaintiffs submitted that the overriding effect of RSC O 2 r 1 is to provide that non-compliance with the rules is an irregularity and does not nullify the proceedings. It may be used in the present case. The submissions then deal with the exercise of discretion under this section.
Analysis 33 In my view, RSC O 2 r 1 does not apply on its face to the situation which arose in the present case. As I have noted in relation to RSC O 3 r 5, the operative provision is DRC r 44A. This rule does not impose a positive obligation on a party. The inactivity of the plaintiff did not amount to a 'failure to comply with the requirements of these rules' within RSC O 2 r 1(1). There is thus no irregularity which can be cured by RSC O 2 r 1(2).
High Court on case management
Plaintiffs' submissions 34 The plaintiffs started with the principle that case management is not an end itself, and that the ultimate aim of the court is the attainment of justice, citing State of Queensland v JL Holdings Pty Ltd [1997] HCA 1;(1997) 189 CLR 146;Jackamarra v Krakouer[1998] HCA 27; (1998) 195 CLR 516and Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243 [53]. 35 In J L Holdings, Dawson, Gaudron and McHugh JJ stated (154 - 155): Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. … Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the (Page 16)
procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. 36 Counsel referred to the following passage from the decision in Jackamarra by Kirby J [66]: I take the following principles to apply: 1. The first rule is that there are no rigid rules. Procedural discretions, such as those in question here, are typically expressed in very wide language. In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case. This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances. 2. Nevertheless, it is useful to keep in mind a number of considerations which have commonly been taken into account. The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded. Thus, if a rule requires that 'special reasons' or 'special circumstances' be shown as a pre-condition to a procedural indulgence, this will indicate a need to demonstrate circumstances out of the ordinary. But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application. Necessarily, the indulgence is not granted as of course. It is for the party seeking to persuade the decision-maker to show that it should be granted. Such persuasion will usually depend upon the provision of an acceptable explanation of how the time default occurred. Neither a party nor its legal advisers may simply assume that a request for an extension of time will always be acceded to. Inherent in the grant of a discretionary power is the assumption that it will sometimes be refused. 3. Courts have often drawn a distinction between the approach which they take to time limits of a substantive character and those appropriate to procedural rules. Thus in In re Salmon (decd), Sir Robert Megarry V-C contrasted the requirement for the institution of proceedings within a certain time under the Inheritance (Provision for Family and Dependants) Act 1975 (UK) with procedural rules typically found in rules of court: (Page 17)
'[T]he time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules.' For the purpose of this classification, which I accept, it cannot be doubted that the requirement under the Rules of the Supreme Court of Western Australia, that an appeal be entered for hearing within a specified time, is one of a procedural character and not one touching the substance of a party's appellate rights. 4. The party seeking indulgence bears the burden of persuading the decision‑maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile. The practice ordinarily adopted in judging the arguability of a point was described by Lord Denning MR for the English Court of Appeal in R v Secretary of State for the Home Department; Ex parte Mehta. It ordinarily involves consideration of 'the outline of the case': 'We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.' This description accords with my own experience of Australian practice. It appears to accord with that of the Federal Court of Australia where Mehta was cited and applied. In Esther Investments, Seaman J, talking of the practice of the Supreme Court of Western Australia, said that the assessment of the merits was necessarily 'broad' because the Court, on an application to extend time, will ordinarily have only 'limited materials and argument'. Reason and efficiency support this practice. On an application to cure a procedural time default, the parties are entitled to expect that the court will deal with procedural issues and not without warning or consent turn the motion into the substantive hearing of the appeal. Were that to be a common practice, the time of the courts in reviewing the factual and legal details of cases might be doubled - first in the practice list and then, if the matter were allowed to proceed, in the substantive hearing. That would not be an efficient use of the court's time or of the parties' attention to the case. Moreover, it could work an injustice on a party if a telescoped hearing, which should primarily be addressed to a procedural question, were converted into the determination of issues of complexity and substance, the proper treatment of which may require more time than is typically available in a busy practice court. (Page 18)
5. Judicial attitudes to the grant of an indulgence under procedural rules of court have changed somewhat since the rather rigid approach which formerly marked such decisions. The change came about as it was realised that such rules were themselves only intended to contribute to the attainment of justice. That object necessitates a flexibility which accepts 'the fallible world in which legal disputes arise and in which they must be resolved'. Judges have warned against permitting the rules of court, particularly those relating to time, to become 'an instrument of tyranny'. This judicial attitude produced a less 'draconian' practice which tended to focus attention on the need for a measure of flexibility, the avoidance of undue technicality and the consideration of whether there was any actual prejudice to a party if the indulgence were granted, beyond that inherent in the continued prosecution of the proceedings. 6. In the cyclical way of these tendencies, the close of the century has seen something of a revival of insistence upon a stricter adherence to rules and practices. The source of the strictness is a larger judicial concern to ensure the efficient despatch of court business. Such an objective was never completely overlooked by the courts. Lord Denning MR, for example, in Allen v Sir Alfred McAlpine & Sons Ltd countered the applicant's submission that to strike out an action without trial for time default would contravene Magna Carta, with this retort: 'To this there is a short answer. The delay of justice is a denial of justice. Magna Cartawill have none of it. "To no one will we deny or delay right or justice" [Magna Carta, ch 40]. All through the years men have protested at the law's delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time [Hamlet, Act III, sc 1]. Dickens tells how it exhausts finances, patience, courage, hope [Bleak House, ch 1]. To put right this wrong, we will in this court do all in our power to enforce expedition: and, if need be, we will strike out actions when there has been excessive delay. This is a stern measure. But it is within the inherent justice of the court. And the Rules of Court expressly permit it.' More recently, this rhetoric has been converted into action in Australia as courts have come to appreciate that they have their own interest in ensuring compliance with time limits. Court lists are typically more congested today. This fact and a growing awareness about the needs for efficiency in judicial administration help to explain a somewhat diminished inclination, recently, to extend procedural indulgences. Yet even today, rules and efficient case management must not be seen as ends in themselves. (Page 19)
The ultimate obligation of a court is the attainment of justice as the law requires. 37 Counsel for the plaintiffs went on to submit that there is a 'background principle that no case should be terminated the absence of substantial grounds'. 38 Counsel for the plaintiffs could have also referred to the case law applicable to summary judgment applications. In that context, it is well established that the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd[1983] HCA 25; (1983) 154 CLR 87, 99. Further, great care must be exercised to ensure that under the guise of achieving expeditious finality a party is not improperly deprived of its opportunity for the trial of the case in the appointed manner by the court: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 - 130.
Analysis 39 The comments of members of the High Court in Jackamarra and J L Holdingsmust be viewed in light of the subsequent comments of members of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. In Aon all members of the court held that in exercising the general discretion to allow amendments to pleadings in Court Procedure Rules 2006 (ACT) (ACT Rules) r 502, the court is to seek the objectives of case management set out in ACT Rules r 21 [36], [89], [133] - [134], [157]. ACT Rules r 502 is similar in effect to RSC O 21 r 5. The objectives of case management set out in ACT Rules r 21 are substantially the same as those set out in RSC O 1 r 4A and 4B, which I have set out above. On the facts, the members of the High Court denied the respondent the further opportunity it sought to amend its statement of claim, the application being made on the third day of a four week trial. 40 The Chief Justice observed [23] - [24]: The Judicature Act Rules and their Australian offspring did not in terms make reference to the public interest in the expeditious dispatch of the business of the courts. The way in which proceedings progress has been left to the parties. This may be seen as an aspect of the adversarial system which is a dominant part of the common law inheritance of Judicature Act procedure. In this respect, however, the adversarial system has been qualified by changing practices in the courts directed to the reduction of (Page 20)
costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources. The Judicature Acts and associated Rules of Court are reflected in rr 501 and 502 of the ACT Rules. The ACT Rules, like their precursors, confer the discretion to give leave to amend and impose the duty to make amendments for the purpose of deciding the real issues in, and avoiding multiplicity of, proceedings. The discretion is exercised in the context of that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. These are matters which, even under the Australian versions of the Judicature Act system, unaffected by the sequelae of the civil procedure reforms of 1998 in the United Kingdom, are to be regarded as both relevant and mandatory considerations in the exercise of the discretion conferred by rules such as r 502. 41 The Chief Justice said of the decision in J L Holdings [30]: It might be thought a truism that 'case management principles' should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes. 42 Justices Gummow, Hayne, Crennan, Kiefel and Bell JJ made the following comments on ACT Rules r 21 which are relevant for present purposes [98], [102]: Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a 'just resolution' is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be (Page 21)
placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. … The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. While r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment. 43 The majority placed emphasis on whether the party seeking the amendment has had a sufficient opportunity to identify the issues they seek to agitate ([112] – emphasis in original): A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. 44 Their Honours also raised the issue of the impact of delay, commenting that it is now generally accepted that 'justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants': Aon [100]. Moreover, it is not just personal litigants who feel this stress; corporations and those who work in them are also subject to the pressures of litigation: Aon[100]. (Page 22)
45 Justice Heydon was also concerned with the issue of delay, in particular in commercial litigation, which he thought had legitimate claims to expedition [137]: … Those claims rest on the idea that a failure to resolve commercial disputes speedily is injurious to commerce, and hence injurious to the public interest… Commercial life depends on the timely and just payment of money. Prosperity depends on the velocity of its circulation. Those who claim to be entitled to money should know, as soon as possible, whether they will be paid. Those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay. In each case that is because it is important that both the claimants and those resisting claims are able to order their affairs. How they order their affairs affects how their creditors, their debtors, their suppliers, their customers, their employees, and, in the case of companies, their actual and potential shareholders, order their affairs. The courts are thus an important aspect of the institutional framework of commerce. The efficiency or inefficiency of the courts has a bearing on the health or sickness of commerce. 46 In the context of the present application, RSC O 1 r 4A and 4B reflect the themes evident in the passages quote from the decision in Aon. As I stated in Ruby, in establishing the regime in DCR r 43A to r 44G, the District Court Judges (and the Supreme Court Justices in the case of the equivalent regime) have adopted a particular balance between giving a plaintiff a fair and just opportunity to have his or her claim determined on the merits, and the principles of timeliness and efficiency [38]. The regime balances the plaintiff's opportunity to litigate its case in the manner it wishes with the prejudice to a defendant of an action not being progressed in a timely manner. 47 In my view, the decision in Ruby, given in the context of RSC O1 r 4A and r 4B, reflects the principles of case management as set out in Aon. Put slightly differently, principles of case management as set out in Aon support, rather than undermine, the interpretation of the DCR set out in Ruby.
'Taken to be dismissed'
Plaintiffs' submissions 48 The plaintiffs' third reason was that the words 'taken to be dismissed' in DCR r 44G mean that there is no final judgment that the case is dismissed unless and until an extracted order to this effect is sealed by the court. Until such time as there is a sealed and extracted order of the court, the court has the power to set aside the judgment if this is required in the interests of justice. (Page 23)
Analysis 49 The relevant parts of the RSC relating to the extraction of orders, O 42 and O 43, apply to the District Court. Rules of the Supreme Court O 42 r 1(1) provides that every 'every judgment shall be entered by the Principal Registrar in the book to be kept for that purpose in the Central Office'. Rules of the Supreme Court O 43 relevantly provides: 50 Prior to an order being perfected, by being extracted and sealed, the court which made the order retains a discretion to recall and vary it. This is in addition to the slip rule in RSCO 21 r 10. The discretion allows the court to vary the order where not to do so would result in an 'injustice of a substantial character': Norman v Norman (1992) 6 WAR 372, 376. In that case counsel for the plaintiff failed to attend a hearing at which the costs orders were made. The plaintiff sought to have the orders recalled and varied. Murray J declined to do so. His Honour stated the discretion as follows (376): (Page 24)
The result of that in my opinion is that I now have the power to recall my order of 24 March with respect to costs, but as has been pointed out, that is a discretionary power which I am required to exercise judicially rather than capriciously. I think it is also a power that should be exercised sparingly, consistently with the general principle that once the proceedings have been concluded in their hearing and final orders pronounced, that should be regarded as an end to the matter unless something affirmatively can be brought to the attention of the court to show that an injustice would be done by allowing the order to remain as pronounced. In this case the mere fact that by the error of those for whom the plaintiff is responsible in the litigation, the plaintiff's views as to costs were not heard on 24 March, would not in my opinion be sufficient ground to set aside the order I then made, at least in the circumstances of this case. Nor is it a case where anything has occurred since that time which would stand as some new factual element, relevant to the exercise of my discretion as to costs. It remains only for me to consider, the matter now having been argued upon the merits, whether that full argument demonstrates that any injustice of a substantial character will occur if I do not recall my order and make it anew. 51 The position where the order is perfected is summarised in the judgment of Gibbs CJ in Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, 539 (some references omitted): It is a well settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it … The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing. However, the rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court. Indeed, as the way in which I have already stated the rule implies, the court has the power to vary an order so as to carry out its own meaning or to make plain language which is doubtful, and that power does not depend on rules of court, but is inherent in the court: Lawrie v Lees (1881) 7 App Cas 19 at 34-35; Thynne v Thynne [1955] P 272 at 313. Further, it has been held that a court may amend a part of a judgment or an order which is "not the operative and substantial part": Pearlman (Veneers) SA (Pty) Ltd v Bernhard Bartels [1954] 1 WLR 1457; [1954] 3 All ER 659; such an amendment, which may be far from being merely formal in its effect, could, as Singleton LJ pointed out in Thynne v Thynne [1955] P, at 295 only be made under the inherent jurisdiction. See also: Norman, 375 – 376; Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381, 389, 397 - 398, 400. (Page 25)
52 In my view, the words 'taken to have been dismissed for want of prosecution' in DCR r 44G, are intended to place the parties in the position they would have been in had the action been dismissed for want of prosecution and an order to this effect been extracted and sealed. The DCR does not make the dismissal of the action in any way conditional on the extraction and sealing of an order. 53 There is another reason for the use of the phrase 'taken to have been dismissed for want of prosecution' in DCR r 44G. Where an action is dismissed for want of prosecution, without a judgment on the merits, the plea of res judicata cannot be maintained. There is no reason why a fresh action cannot be commenced, based on the same cause of action. This is subject to an argument of an abuse of process. It is also subject to the relevant limitation period not having expired: Hart v Hall & Pickles Ltd [1969] 1 QB 405, 411, 412, 414; Hughes v Gales(1995) 14 WAR 434, 437, 450. A plaintiff whose claim is 'taken to have been dismissed for want of prosecution' is, in my view, placed in the same position as if the case had been dismissed for want of prosecution on application, and is able to take advantage of the common law position which I have set out above.
Exclusion of the 'right to justice'
Plaintiffs' submissions 54 The plaintiffs' fourth reason was that the plaintiffs have a right to have their action heard and determined on the merits, which is a right that cannot be taken away unless the words of DCR r 44G are sufficiently clear to do so, which they are not. The plaintiffs relied on the rule of construction that Parliament is presumed not to abrogate significant common law rights in the absence of clear words or a necessary implication to that effect. 55 The plaintiffs relied on the decision in Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (ACCC) [2002] HCA 49; (2002) 213 CLR 543 as stating the rule of construction. In that case, the High Court considered that the information gathering powers of the ACCC in Trade Practices Act 1974 (Cth) s 155 did not exclude legal professional privilege. 56 Gleeson CJ, Gaudron, Gummow and Hayne JJ stated [11]: Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are (Page 26)
not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. 57 McHugh J stated the principle in slightly more detail [43] - [44] (footnotes omitted): 58 In Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1, 18 Mason CJ, Deane Dawson, Toohey, Gaudron and McHugh JJ set out the rationale of this rule (references omitted): The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is 'in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used'… If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not (Page 27)
have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear. See also: Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 [21].
Analysis 59 As I have noted above, RSC O 3 r 5 does not, on its face, apply to DCR r 44G. That being so there is no issue of construction to which the rule set out in Daniels can apply. However, in case I am wrong, I will proceed with the analysis. 60 I was not directed to any case law to the effect that the right of a party to access the justice system to have their dispute determined on the merits according to law is a fundamental common law right. However, it is so self-evident that no authority is needed. I will assume, for present purposes, that it is a right of the kind falling within the principle in Daniels. 61 The effect of DCR r 44G is not to deprive a party of their right to access the justice system to have their dispute determined on the merits according to law. Rather, it only places limits on their opportunity to do so. In the present application, the case was only placed on the Inactive Cases List after 12 months of inactivity. At that point, the parties were notified that the case was being placed on the Inactive Cases List. District Court Rules r 44E provides a clear pathway for a party to follow in order to remove a case from the Inactive Case List. That was not followed. This is the context in which the rule of statutory construction set out in Daniels falls to be applied. 62 In my view, theobject of DCR r 44G would be 'largely frustrated in its practical application' if RSC O3 r 5 were to be allowed to be applied to it. As I stated in Ruby, this is to 'adopt a particular balance between giving a plaintiff a fair and just opportunity to have his or her claim determined on the merits, and the principles of timeliness and efficiency' [38]. Allowing applications to be made pursuant to RSC O 3 r 5 at any time after the case is dismissed pursuant to DCR r 44G opens up the possibility of a plaintiff seeking to reactivate a case many years after it is dismissed. Further, allowing RSC O 3 r 5 to operate would deprive the judgment given pursuant to DCR r 44G of its fundamental character of certainty. A defendant in whose favour a judgment is given pursuant to DCR r 44G is, as set out above, placed in the same position as if it had received an extracted and sealed judgment of the court. It can structure its affairs (Page 28)
accordingly, for example, by removing a contingent liability from its books or destroying evidence retained for the purposes of the action which would otherwise have been destroyed in accordance with the defendant's usual archival processes. Individuals no longer have the stress of litigation hanging over their heads. The defendant's lawyers no longer need to maintain contact with potential witnesses. All this is done in the wider context of the Limitation Act 2005 (WA) (LA). Accordingly, I am of the view that the judges of the court have made their intention to exclude RSC O 3 r 5 sufficiently clear.
Limits on rule-making powers
Plaintiffs' submissions 63 Counsel for the plaintiffs submitted that there were relevant limits on the rule-making power of the District Court. District Court Rules s 87(1) provides that it is the 'practice and procedure' of the court that is governed by the DCR; DCA s 88(1)(a) is to similar effect, though subject to the other heads of powers in that section. 64 Counsel for the plaintiffs referred to case law to the effect that delegated legislation cannot be inconsistent with the enabling legislation. I do not need to refer to this case law as the requirement that the DCR not be inconsistent with the DCA is expressly provided for in DCA s 88(1). 65 Counsel then submitted that the DCA does not allow rules to be made to peremptorily end an action without adjudication. Counsel accepted that in exercising the rules, the court is intended to be broadly empowered to make decisions however, nothing expressly or impliedly grants authority to terminate rights without adjudication. 66 The power in DCA r 44G is subject to which DCA s 8 provides that the jurisdiction of the court is ultimately to be exercised by its judges. In this regard, the position of a default judgment can be contrasted with the position in DCA r 44G. The default judgment, like the dismissal under r 44G, is entered administratively. However, there is an express power to set aside a default judgment: RSC O 13 r 10. It may be set aside on such terms as the court thinks just: RSC O 13 r 10. In the District Court the power is usually exercised by a registrar. The decision of a registrar is subject to the right of appeal to a judge, the appeal being a 'new hearing of the matter': DCR r 15(10). Thus, a default judgment cannot be considered final unless and until a judge hearing an appeal from a registrar has declined to set it aside. In this way, the jurisdiction of the District Court is exercised by a judge, consistent with DCA s 8. (Page 29)
67 The next element of the submission is that the power in DCA r 44G goes beyond a rule for the 'practice and procedure' of the court. It finally determines substantive rights without a hearing on the merits. Assuming the earlier submissions fail, there is no power to set it aside. That is, there is no opportunity for a judge of the District Court to exercise the jurisdiction of the court before the rights of the plaintiff are finally disposed of. 68 Counsel for the plaintiffs also referred to a number of principles which courts use to determine the validity of delegated legislation. Against those principles, it was submitted that the power in DCR r 44G goes beyond that power which Parliament can be presumed to have contemplated being set out in the rules of the court.
Analysis 69 It is appropriate to analyse rules of court made by judges using the same principles as apply to delegated legislation. Rules made by the judges of the District Court are required to be laid before Parliament before taking effect, and may be disallowed by Parliament: DCA s 89. 70 A court in applying delegated legislation in the form of court rules may be asked to opine on their validity: see generally Rules of Court E Campbell (Law Book 1985) 53 - 58; Delegated Legislation in Australia 3rd ed, D Pearce and S Argument (LexisNexis Butterworths, 2005) 241. The validity of rules of the court is to be determined on the same basis as other delegated legislation: Harrington v Lowe[1996] HCA 8; (1996) 190 CLR 311, 324 - 325. The rules have the 'force of law', but cannot confer or take away or alter or diminish any existing jurisdiction: TK, PB & LS v Australian Red Cross Society (1989) 1 WAR 335, 340. 71 There are three issues to determine, namely, whether DCR r 44G: (a) is directly inconsistent with the terms of the DCA, in breach of DCA s 88(1); (b) goes beyond regulating the 'practice and procedure' of the court, again in breach of DCA s 88(1)(a); (c) is otherwise ultra vires. (Page 30)
72 As to the first issue, inconsistency, by way of example, the rules of a court cannot be used to extend a provision in a statute setting out the time within which to appeal or to extend a limitation period: Mahfoud v Minister for Immigration, Local Government and Ethnic Affairs (1993) 33 ALD 609; Wardley Australia Ltd v Western Australia[1992] HCA 55; (1992) 175 CLR 514, 561 - 562 73 There is no express provision of the DCA preventing an action from being substantively finalised in the manner set out in DCR r 44G, or, more generally, without the imprimatur of a judge of the court. The fact that the case is finalised by operation of the DCR does not mean that the jurisdiction of the court ceased to be exercised by the judges of the court. It is the judges of the court who enacted the DCR. In my view, DCR r 44G is not invalid by being inconsistent with the terms of the DCA. 74 The second issue is whether DCR r 44G goes beyond a rule 'regulating and prescribing the practice and procedure' of the court. On the scope of the terms 'practice' and 'procedure', in Minister of State for the Army v Parbury Henty & Company Pty Ltd [1945] HCA 52; (1945) 70 CLR 459, 489, Latham CJ stated: In Poyser v. Minors [(1881) 7 QBD 376, 450-451] Lush L.J. said that the term 'practice' denoted the mode of proceeding to enforce a right as distinguished from the law which gives or defines the right, and that he took 'practice' and 'procedure' as applied to that subject, to be convertible terms. "Practice" in the common or ordinary sense of the word denotes 'the rules that make or guide the cursus curiae, and regulate the proceedings in a cause within the walls or limits of the Court itself' —Attorney-General v. Sillem[(1864) 10 HLC 704, 723 [11 ER 1200, 1209]] per Lord Westbury. In that case, it was held that, under a power given to the Barons of the Exchequer to make rules and orders as to 'process, practice and mode of pleading' in a court, any rules might be made by the Barons 'for the guidance of their own proceedings' which did not require legislative sanction. A provision conferring a right of appeal within a court in a proceeding brought to enforce a substantive right is not a law creating a substantive right, but relates only to the method of establishing or enforcing that right. Such a provision is, in my opinion, a law relating to the procedure of that court. 75 In Adam P Brown Male fashions Pty Ltd v Philip Morris Inc[1981] HCA 39; (1981) 148 CLR 170, 176, Gibbs CJ, Aikin, Wilson and Brennan JJ, approved of the following passage from Salmond on Jurisprudence 10th ed (1974) 476: (Page 31)
Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated. 76 In Gosper v Sawyer[1985] HCA 19; (1985) 160 CLR 548, 558, Gibbs CJ, Wilson and Dawson JJ commented that although the terms 'practice and procedure' are often used as a composite phrase, it is probably not correct to say that the two words are synonymous. Rather, 'procedure' seems to have a more comprehensive meaning than 'practice': see generally, Rules of Court, 66 - 70. 77 In Cleland v Boynes (1978) 19 SASR 464, 473 - 474 the Court (Hogarth ACJ, Bright J, King J ) observed of the distinction between matters which belong toprocedure and matters which affect the substantiverights of the parties that: [t]he matter is by no means free from doubt. The difficulty surrounds the concept of altering substantive rights. We think that that concept cannot, of itself, afford a reliable guide to what is practice and procedure. The rights of the parties as existing when the writ is issued are necessarily altered, canalized, and regulated by the rules of procedure. The plaintiff whose car is damaged in a collision may have a claim for the cost of restoration. His claim is moulded by the procedural rules and in being moulded is altered from an absolute right to a right sub modo. We think therefore that the problem is one of characterization. The proper test is whether the rule, albeit one affecting rights, is properly to be regarded as one relating to practice and procedure. If so, it is within power. 78 In my view, the regime in DCR pt 4 div 3(6) is properly characterised as being within the phrase 'practice and procedure' as described above. It regulates the conduct and relations of courts and litigants in respect of the litigation itself. It is part of a regime for the management of old cases, designed to ensure that the objectives of case management in RCS O 1 r 4A and 4B are met. 79 As to the third issue, in Ashton v Commonwealth Government of Australia (2003) 126 FCR 297, Keifel J summarised the principles by which invalidity is to be determined in the following manner: … regulations made under an Act are to fulfil the plan or purpose which the provisions of the Act have laid down: Shanahan v Scott (1957) 96 CLR 245 at 254. They cannot go outside the field which the Act marks out and may not vary or depart from the provisions of the Act: Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 at 410 (Page 32)
(see also De L v Director-General, Department of Community Services (NSW) (1997) 190 CLR 207 at 211; Harrington v Lowe (1996) 190 CLR 311 at 324-325; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 372-373 [34]-[35] and 380 [61]). The ambit of the power is to be ascertained from the character of the statute and the nature and content of its provisions: Morton v Union Steamship Co at 410. 80 In addition, a provision in delegated legislation will be ultra vires if it so lacking in reasonable proportionality as to not be a real exercise of the power: State of South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161; Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, 260;The State of Western Australia v Veolla Pty Ltd(Unreported, WASCA, Library No 930407, 30 July 1993). The decision in Tannerconsidered the Waterworks Act 1932 (SA) s 10(1) which empowered the Governor to make regulations, among other things, 'for regulating, controlling or prohibiting the use of any land within a watershed or within a watershed zone so as to reduce or prevent the deterioration or pollution of any water within a watershed or watershed zone'. The respondent challenged the validity of Waterworks Regulations 1974 (SA) r 37.2 which prohibited the erection, construction, enlargement or establishment of a piggery, zoo or feedlot on any land within a watershed. The majority (Wilson, Dawson, Toohey and Gaudron JJ) held that r 37.2 was a valid exercise of the power conferred by the Waterworks Act. 81 The majority outlined the principles as follows (165, 167 - 168). In the course of argument, the parties accepted the reasonable proportionality test of validity (cf. Deane J. in The Commonwealth v. Tasmania (the Tasmanian Dam Case)[(1983) 158 CLR 1, 260]), namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose. However, they differed in the answers to which their application of the test led. The same test, in relation to a power limited to regulation, was expressed by Dixon J. in Williams [(1933) 49 CLR 142, 156], as being, in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose. … As we have said, the parties are agreed that the test of validity is whether the regulation is capable of being considered to be reasonably proportionate to the end to be achieved. The line between the opposing arguments is finely drawn. In the end, the answer is largely a matter of impression. On the one hand, in the application of reg. 37.2.1 to the respondents' land, having regard to the proposed development, one could (Page 33)
be led to echo the exclamation of Millhouse J. 'Talk about using a sledge-hammer to crack a nut!' On the other hand, a court must exercise care not to impose its own untutored judgment on the legislator … It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power. Nor is it enough to point, as did Jacobs J. in his reasons for judgment, to other provisions in the Waterworks Regulations which impose only qualified prohibitions as a step leading to a conclusion that a total prohibition of the kind contained in reg. 37.2.1 is unjustified. To do that is again to substitute the judgment of the court for that of the legislator. 82 In Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 29, Mason CJ stated: ... this Court has held that, in characterising a law as one with respect to a permitted head of power, a reasonable proportionality must exist between the designated object or purpose and the means selected by the law for achieving that object or purpose. The concept of reasonable proportionality is now an accepted test of validity on the issue of ultra vires ... It is a test which governs the validity of statutes as well as that of regulations…. 83 In Primary Industries & Energy, Minister for v Austral Fisheries Pty Ltd (1993) 40 FCR 381, Lockhart J stated of this test (384): Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws. 84 In my view, DCR r 44G is reasonably proportionate to the enabling purpose of prescribing the practice and procedure of the District Court. It is part of a comprehensive regime to manage old cases in the court. There is a requirement to give notice of the effect of r 44G, in ample time for a party to take steps to have the action removed from the Inactive Cases List. 85 The plaintiff lightly raised the argument that the existence of DCR r 44G might have the effect that the District Court ceased to be a 'court' for the purposes of the Constitution ch III. The thrust of this argument is conveniently summarised in the judgment of the chief justice in Director of Public Prosecutions (DPP) (Cth) v Kamal [2011] WASCA 55, [8] - [9]: (Page 34)
In Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1, Brennan, Deane and Dawson JJ observed that the legislative power of the Commonwealth did not extend to making a law which: [R]equires or authorises the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power (27). In Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, it was held that the provisions of Ch III of the Constitution of the Commonwealth, which postulate an integrated system of State and Federal Courts exercising the judicial power of the Commonwealth, impose implied constraints upon the legislative powers of the States. It was held that a State legislature cannot validly confer a function upon a court of that State which would substantially impair its institutional integrity, so as to be incompatible with its role as a repository of federal jurisdiction. The institutional integrity of the court will be relevantly impaired if a function is conferred upon it which is repugnant to, or incompatible with the exercise of the judicial power of the Commonwealth…. It follows for even stronger reason that the legislative power of the Commonwealth does not extend to the conferral of functions upon State courts which are repugnant to or incompatible with the exercise by those courts of the judicial power of the Commonwealth. 86 The Chief Justice also referred to the following comments of Chief Justice French in State of South Australia v Totani [2010] HCA 39; (2010) 85 ALJR 19 [70]: [T]he true question is not whether a court of a State, subject to impugned legislation, can still be called a court of a State nor whether it bears a sufficient relation to a court of State. The question indicated by the use of the term 'integrity' is whether the court is required or empowered by the impugned legislation to do something which is substantially inconsistent or incompatible with the continuing subsistence, in every aspect of its judicial role, of its defining characteristics as a court. So much is implicit in the constitutional mandate of continuing institutional integrity. 87 I say 'lightly' raised as I inquired of counsel whether this meant that the application should be adjourned ending the issue of the requisite notices to Attorney's General pursuant to Judiciary Act 1903 (Cth) s 78B. Counsel informed me that I was not being requested to consider constitutional invalidity directly. Rather, the issue was raised to underscore the seriousness of the right sought to be removed from the plaintiffs pursuant to DCR r 44G. In my view, the reference to ch III courts does not add to the analysis, nor cause me to change the interpretations I have adopted. |