Ruby v Doric Constructions (Australia) Pty Ltd
[2013] WASCA 94
•9 APRIL 2013
RUBY -v- DORIC CONSTRUCTIONS (AUSTRALIA) PTY LTD [2013] WASCA 94
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 94 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:36/2012 | 28 NOVEMBER 2012 | |
| Coram: | PULLIN JA NEWNES JA MURPHY JA | 9/04/13 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Case to be removed from Inactive Cases List | ||
| A | |||
| PDF Version |
| Parties: | RODNEY MARK RUBY DORIC CONSTRUCTIONS (AUSTRALIA) PTY LTD STL ENGINEERING PTY LTD |
Catchwords: | Practice and procedure District Court Inactive Cases List District Court Rules 2005 (WA), pt 4 subdiv 3(6) Case on Inactive Cases List under r 44(2) for failure to comply with Standard timetable Taken to be dismissed under r 44G(1) No order making Standard timetable applicable to case Case not inactive under r 44(2) Rule 44G(1) did not operate to dismiss case |
Legislation: | District Court Rules 2005 (WA), r 30, r 31, r 32, r 33, r 37, r 38, r 44, r 44A, r 44D, r 44G |
Case References: | ICM Agriculture Pty Ltd v Commonwealth of Australia [2009] HCA 51; (2009) 240 CLR 140 Rowe v Stoltze [2013] WASCA 92 Ruby v Doric Group Holdings Pty Ltd [2012] WADC 58 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RUBY -v- DORIC CONSTRUCTIONS (AUSTRALIA) PTY LTD [2013] WASCA 94 CORAM : PULLIN JA
- NEWNES JA
MURPHY JA
- Appellant
AND
DORIC CONSTRUCTIONS (AUSTRALIA) PTY LTD
First Respondent
STL ENGINEERING PTY LTD
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER GETHING
Citation : RUBY -v- DORIC GROUP HOLDINGS PTY LTD [2012] WADC 58
File No : CIV 3670 of 2010
(Page 2)
Catchwords:
Practice and procedure - District Court - Inactive Cases List - District Court Rules 2005 (WA), pt 4 subdiv 3(6) - Case on Inactive Cases List under r 44(2) for failure to comply with Standard timetable - Taken to be dismissed under r 44G(1) - No order making Standard timetable applicable to case - Case not inactive under r 44(2) - Rule 44G(1) did not operate to dismiss case
Legislation:
District Court Rules 2005 (WA),r 30, r 31, r 32, r 33, r 37, r 38, r 44, r 44A, r 44D, r 44G
Result:
Appeal allowed
Case to be removed from Inactive Cases List
Category: A
Representation:
Counsel:
Appellant : Mr B W Ashdown
First Respondent : Ms C H Thompson
Second Respondent : Ms C H Thompson
Intervenor : Mr R M Mitchell SC & Mr A K Sharpe
Solicitors:
Appellant : Bradford & Co
First Respondent : Jarman McKenna
Second Respondent : Tottle Partners
Intervenor : State Solicitor for Western Australia
(Page 3)
Case(s) referred to in judgment(s):
ICM Agriculture Pty Ltd v Commonwealth of Australia [2009] HCA 51; (2009) 240 CLR 140
Rowe v Stoltze [2013] WASCA 92
Ruby v Doric Group Holdings Pty Ltd [2012] WADC 58
(Page 4)
1 PULLIN JA: I agree with Newnes JA.
2 NEWNES JA: This is an appeal against a decision of Commissioner Gething in the District Court, who refused an application by the appellant for orders that the dismissal of the appellant's action pursuant to r 44G(1) of the District Court Rules 2005 (WA) (the Rules) be set aside and the action be removed from the Inactive Cases List.
3 As the appeal is against an interlocutory decision, the appellant requires leave to appeal: s 79(1)(b) of the District Court of Western Australia Act 1969 (WA) (the District Court Act). On 22 June 2012, it was ordered that the application for leave to appeal be heard with the appeal.
4 The Attorney General for Western Australia has intervened under s 78A of the Judiciary Act 1903 (WA). The Attorney General has also helpfully addressed not only the constitutional issue but also each of the other grounds of appeal.
Background
5 Before turning to the detail, it is necessary to note that there are in existence two sets of proceedings by the appellant relating to the same matter. For reasons which the solicitor now having conduct of the matter on behalf of the appellant is unable to explain, her predecessor filed not one but two writs on behalf of the appellant in the District Court. The indorsement of claim is identical in each case. Both claimed damages for personal injury suffered by the appellant in an accident on 18 June 2008.
6 The first writ was dated 26 May 2010 and was filed on 31 May 2010. It was given action number 1622 of 2010 in the District Court. The defendant to that writ was Doric Group Holdings Pty Ltd. The writ was never served.
7 The second writ was also dated 26 May 2010 but it appears to have been filed on 26 November 2010. It was given action number 3670 of 2010. The defendant was again Doric Group Holdings Pty Ltd. That writ was served and a statement of claim was filed on 25 January 2011, albeit the statement of claim was dated 25 May 2010. In the meantime, on 7 December 2010, the appellant's solicitors had filed in that action an amended writ, expressed to be pursuant to O 21 r 1 of the Rules of the Supreme Court 1971 (WA), amending the name of the defendant to Doric Constructions (Australia) Pty Ltd. On its face, that amendment was not
(Page 5)
- one authorised by O 21 r 1, the rule having no application to the substitution of a party to an action: O 21 r 1(3)(a). Nevertheless, it seems the point was not taken as a defence and a third party notice directed to the second respondent were subsequently filed in the name of Doric Constructions. Court documents filed subsequently, however, show the defendant in the action being variously described as Doric Group Holdings or Doric Constructions.
8 Be all that as it may, it is the second action, CIV 3670 of 2010, from which this appeal arises. For the purposes of the appeal it is unnecessary to resolve any issue as to the identity of the defendant in the action. However, the commissioner's order, from which the appeal is brought, refers to the defendant in the action as Doric Constructions (albeit his reasons refer to the defendant as Doric Group Holdings), whereas the appeal notice refers to that party (the first respondent) as Doric Group Holdings. In order to conform with the order, in the course of the appeal it was ordered that the name of the first respondent to the appeal be amended by replacing Doric Group Holdings with Doric Constructions.
9 From that rather confused background, I turn to the issues on the appeal.
10 On 24 February 2011, following the filing of the first respondent's defence, a case management timetable was sent by the District Court to each of the parties. It was (relevantly) in the following terms:
A Defence to this action was filed on 23 February 2011. Pursuant to Rule 30(1) of the District Court Rules 2005 the case is required to proceed in accordance with the following timetable:
EVENT DATE FOR COMPLIANCE
Entry for trial 23 June 2011
Pre-trial conference 2 August 2011
Listing conference 11 September 2011
Trial 10 December 2011
Judgment 18 February 2012
The above timetable may be varied by the court of its own motion or on the application of a party. In the event of the case not proceeding in accordance with the timetable a Notice of Default (Listing) (Form 2) may issue.
(Page 6)
11 Further notices in the same terms were sent to the parties on 4 March 2011 and 9 June 2011 respectively. The notices were not signed and did not purport to be orders of the court. The timetable set out in the notices is what is described in r 30(1) of the Rules as the 'Standard timetable'.
12 On 5 April 2011, orders were made by a registrar requiring certain procedural steps to occur in the action within specified times. It was not in issue, however, that no order was made by a registrar that the Standard timetable, or any variation of it, apply to the appellant's case. Nor was any order made requiring the action to be entered for trial by 23 June 2011 or any other date.
13 As it turned out, the appellant did not enter the action for trial by 23 June 2011 and, on 24 June 2011, the court issued a notice of default in Form 2 (sch 1 of the Rules). The notice was issued pursuant to r 38 of the Rules. It stated that unless the appellant entered the action for trial on or before 9 July 2011, the action would become 'inactive'.
14 The appellant did not enter the action for trial by 9 July 2011. On 11 July 2011, the court sent to the parties a notice stating that, on 10 July 2011, the action had been placed on the Inactive Cases List. The notice further stated that, pursuant to r 44G(1) of the Rules, a case that was on the Inactive Cases List for six continuous months is taken to have been dismissed for want of prosecution.
15 On 19 July 2011, the appellant's solicitors sought to have the action removed from the Inactive Cases List and the entry for trial milestone extended to 30 August 2011. To that end they filed a chamber summons seeking such orders but due to an error by the solicitors that summons was entitled and filed in the other action, CIV 1622 of 2010. On 11 August 2011, orders were made in CIV 1622 of 2010 in terms of the summons. I note in passing that the second respondent was not a party to that action. I should also say that it does not appear from the materials before us whether or not CIV 1622 of 2010 was in fact on the Inactive Cases List.
16 On 12 January 2012, the court sent to each of the parties a notice stating that the case (that is, CIV 3670 of 2010) having been on the Inactive Cases List for six continuous months, was deemed dismissed pursuant to r 44G(1) of the Rules. It was then that the appellant's solicitors realised the chamber summons of 19 July 2011 had been filed in the wrong action.
17 The next day, 13 January 2012, the appellant's solicitors applied by chamber summons for orders (relevantly) that the dismissal of the action
(Page 7)
- be set aside and the action be removed from the Inactive Cases List. The chamber summons was subsequently amended to seek an additional order in the following terms:
The time provided in District Court Rule 44G(1) be extended from 11 July 2011 to the date of hearing of this chamber summons.
19 The appellant appeals against that decision. The respondents in turn have filed notices of contention seeking to uphold the decision on grounds not relied upon by the commissioner.
Grounds of appeal
20 It is unnecessary to set out all the grounds of appeal. Grounds 1, 2 and 3 assert, in substance, that the commissioner erred in finding that the District Court did not have power to extend the time limits in pt 4 subdiv 6 ('Inactive cases') of the Rules or to set aside the dismissal of the action under r 44G(1). By ground 4, the appellant asserts that the commissioner ought to have found that there was power under O 2 r 1(2) of the Supreme Court Rules to rectify the chamber summons dated 19 July 2011 and the orders made in CIV 1622 of 2010, so that those orders had effect in CIV 1622 of 2010, the action the subject of this appeal.
21 Grounds 5 and 6 assert, in effect, that the commissioner should have found that the provisions of pt 4 subdiv 6, or alternatively r 44G(1), of the Rules were invalid as being contrary to s 8 of the District Court Act and beyond the rule-making power in s 88, and/or as rendering the District Court incompatible with its role as a repository of federal jurisdiction under ch III of the Commonwealth Constitution.
22 A seventh ground of appeal was added in the course of argument on the appeal, without opposition by the respondents. It is as follows:
The learned Commissioner erred in law in failing to find that no date for entry for trial in any timetable applied to the action and therefore the proceedings were never validly entered on the Inactive Cases List and were not deemed to have been dismissed for want of prosecution.
(Page 8)
The disposition of the appeal
23 It is appropriate to start with the seventh ground of appeal, a matter not raised before the commissioner. Before turning to the issues which arise under that ground it is convenient to set out the relevant regime under the Rules. That is contained in pt 4 div 3, dealing with case-management. The relevant rules are as follows:
Subdivision 1 - Preliminary
30. Standard timetable for cases commenced by writ
(1) For the purposes of making orders and directions under this Division in relation to a case, each stage of the case listed in the Standard timetable to this subrule should be completed within the period stated as calculated from the date on which a defence (or if there is more than one defendant, the first defence) is filed.
Standard timetable
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…
- 31. Case management hearing, holding of
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(3) When the first appearance is filed in a case, a registrar may summons the parties to the case to attend a case management hearing before a registrar.
…
32. Case management hearing, conduct of
(1) At a case management hearing a registrar must review the documents on the Court file and inquire into these matters -
- (a) the complexity of the case;
(b) the need for interlocutory proceedings;
(c) whether the Standard timetable in rule 30 is appropriate to the case;
(d) whether rule 38(1) should not apply to the case;
(e) the readiness of the parties for trial.
- (2) At a case management hearing, either on the oral application of a party or, after notifying the parties, on the registrar's own initiative, a registrar may -
(a) order that the standard timetable in rule 30 or some variation of it applies;
[(b) to (f) give the registrar wide powers to make case-management orders or directions in the case]
…
- 33. Case management directions etc may be made in other proceedings
(1) Without limiting rule 32, a direction or order referred to in rule 32(2) may be made, amended or cancelled -
(a) at any time while a case management hearing is adjourned, or after a case management hearing, on the application of a party made by summons with a supporting affidavit; or
(b) at the hearing of a summons for -
(i) an interlocutory order; or
(ii) third party directions issued under the RSC Order 19 rule 4.
(Page 10)
…
37. Entering a case for trial
(1) The plaintiff must enter the case for trial on or before the date for entry for trial in the timetable applicable to the case.
…
38.Plaintiff failing to enter case for trial, consequences
(1) If the plaintiff does not enter the case for trial on or before the date for entry for trial in the timetable applicable to the case, the relevant registry must send each party a Form 2 (Notice of default (entry for trial)).
…
Subdivision 6 - Inactive cases
…
44. Notice of default, effect of disobedience to
(1) If a Form 2 is sent in relation to a case, the plaintiff must, on or before the date specified in the form (which must be at least 14 days after the date of the form), enter the case for trial.
(2) If a plaintiff does not obey a Form 2, the case is taken to be inactive.
44A. Cases inactive for 12 months deemed inactive
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.
…
44D. Parties to be notified of case being on Inactive Cases List and to advise clients
(1) When a case is taken to be inactive under rule 44(2) or 44A, or an order is made under rule 44B(4), or an order made under rule 44C(1) takes effect, the Principal Registrar must -
(a) put the case on the Inactive Cases List; and
- (b) give all parties to the case written notice that the case is on the Inactive Cases List and of the effect of rules 44E and 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.
25 It is clearly the intention that case-management orders and directions in an action should ordinarily be made with the objective of achieving the milestones set out in the Standard timetable. But equally clearly it is not the intention that the Standard timetable is to apply in all cases or to apply in default of any other timetable being ordered by the court. The purpose of the Standard timetable is simply to provide a guide to the timetable ordinarily to be fixed in an action.
26 The means by which a timetable may be fixed is dealt with in r 32 and r 33. Rule 32 requires a registrar at a case management hearing to inquire whether the Standard timetable is appropriate to the case and provides that the registrar, either on the application of a party or, so long as notice has been given to the parties, on the registrar's own initiative, may order that the Standard timetable, or some variation of it, applies to the case. Rule 33 extends the power to make, amend or cancel (among other things) any such order on an interlocutory summons or an application for third party directions.
27 Those provisions are plainly inconsistent with any notion that the Standard timetable applies in the absence of an order. It is also plain that the case management timetable sent to the parties could not, and did not, of itself make the Standard timetable applicable to the case. Only an
(Page 12)
- order of the court could do so. As I have said, it was not in issue that there was no such order in this case.
28 Under r 37(1), the plaintiff in a case is required to enter the case on or before the date for entry for trial 'in the timetable applicable to the case'. The obligation of the plaintiff under r 37(1) is therefore predicated on the existence of a 'timetable applicable to the case' which contains a date for entry for trial. If there is no such timetable, r 37(1) can have no application. Nor can r 38(1) apply in circumstances where there is no timetable applicable to the case, that rule also being predicated on the existence of such a timetable. Plainly enough, a party cannot fail to enter a case 'on or before the date for entry for trial in the timetable applicable to the case' if in fact there is no timetable applicable to the case.
29 It is also clear that it is only where a party has failed to obey a Form 2 properly sent to the parties pursuant to r 38(1) that r 44(2) will cause a case to be taken to be inactive. Rule 44(2) can have no application where there is no proper basis for a Form 2 to be sent.
30 In the present case, there was no timetable applicable to the appellant's case. There was therefore no proper basis for the Form 2 to be sent to the parties under r 38(1) and it was of no effect. The case could not therefore be taken to be inactive pursuant to r 44(2). As r 44(2) did not apply to the case, the principal registrar was not authorised to put it on the Inactive Cases List under r 44D(1), and r 44G(1) could not operate to cause the case to be taken to be dismissed for want of prosecution. I should add for completeness that there was nothing to suggest that the principal registrar was authorised to put the case on the Inactive Cases List on some other basis; that is, under r 44A (12 months inactivity), r 44B(4) (order by a registrar that a case be put on the Inactive Cases List) or r 44C(1) (springing order that a case be put on the Inactive Cases List).
31 This ground of appeal has been made out. While the point was not raised before the commissioner, no objection was taken to it being raised for the first time on the appeal. It could not have been met by further evidence if it had been raised below and the respondents did not contend that they would suffer prejudice if it were to be determined by this court. It is in the interests of justice that the appellant be allowed to raise it.
32 I would allow the seventh ground of appeal.
(Page 13)
The remaining grounds of appeal
33 It is unnecessary to consider the other grounds of appeal. Indeed, insofar as those grounds raise constitutional issues, in those circumstances they should not be decided: see ICM Agriculture Pty Ltd v Commonwealth of Australia [2009] HCA 51; (2009) 240 CLR 140 [141]. Substantially the same constitutional issues have, however, arisen and been decided in Rowe v Stoltze [2013] WASCA 92, which was heard with this appeal.
Notice of contention
34 Each of the respondents filed a notice of contention. The notices were in identical terms and sought to advance a further argument in support of the contention that O 3 r 5 has no application. In view of the findings I have reached, it is unnecessary to consider the notice of contention.
35 The respondents also sought to rely on an amended notice of contention to raise a point which was not in issue below. By that notice, the respondents contended that Doric Constructions was not validly joined as a defendant to the action, the purported amendment to the writ under O 21 r 1 to substitute Doric Constructions being ineffective. The defendant to the action therefore remained Doric Group Holdings and Doric Constructions could not, as it had purported to do, join the second respondent as a third party to the action.
36 The respondents require leave to amend the notices of contention. I would refuse leave. The point they seek to raise was not raised below and was raised in the appeal only the day before the hearing. The question of whether the correct defendant to the action is Doric Constructions or Doric Group Holdings is a matter properly to be resolved in the first instance by the District Court. The resolution of that issue does not affect the outcome of this appeal.
Conclusion
37 I would:
(1) grant leave to appeal;
(2) allow the appeal;
(3) set aside the orders of the commissioner;
(Page 14)
- (4) order that the action be removed from the Inactive Cases List; and
(5) dismiss the notices of contention.
38 MURPHY JA: I agree with Newnes JA.
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