JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: RUBY -v- DORIC GROUP HOLDINGS PTY LTD [2012] WADC 58
CORAM: COMMISSIONER GETHING
HEARD: 5 APRIL 2012
DELIVERED : 20 APRIL 2012
FILE NO/S: CIV 3670 of 2010
BETWEEN: RODNEY MARK RUBY
Plaintiff
AND
DORIC GROUP HOLDINGS PTY LTD
DefendantSTL ENGINEERING PTY LTD
First Third Party
Catchwords:
Practice and procedure - Case management - Dismissal for want of prosecution
Legislation:
District Court Rules 2005 (WA) r 44G
Result:
Application dismissed
Representation:
Counsel:
Plaintiff: Mr G Stubbs
Defendant: Mr P E Jarman
First Third Party : Mr G P Bourhill
Solicitors:
Plaintiff: Shine Lawyers
Defendant: Jarman McKenna
First Third Party : Tottle Partners
Case(s) referred to in judgment(s):
Cropper v Smith (1884) 26 Ch D 700
Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86
Melville v East End Holdings Inc [2003] WASCA 133
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 7) [2010] WASC 351
COMMISSIONER GETHING:
Background
The present application, dated 13 January 2012, is for orders to revive a case taken to have been dismissed for want of prosecution by virtue of being on the inactive cases list for six continuous months pursuant to District Court Rules 2005 (WA) (DCR) r 44G(1). District Court Rules Pt 4 Div 3(6), in which r 44G is contained, came into operation on 1 July 2011. The present application is the first occasion on which the court has been asked to revive a case so dismissed. For this reason, when it came on for hearing before a registrar, the registrar referred the application to a judge for determination pursuant to DCR r 12.
The application raises the issue of whether the court has the power to revive a case taken to have been dismissed for want of prosecution pursuant to DCR r 44G. The defendant was content to abide by the decision of the court. The third party opposed the application.
The present case was commenced by writ on 26 May 2010. At the same time as filing its defence on 23 February 2011, the defendant issued a third party notice.
On 24 February 2011, a case management timetable was issued by the court requiring the plaintiff to enter the action for trial by 23 June 2011. On 24 June 2011, the court issued a notice of default pursuant to DCR r 38 notifying the plaintiff that unless he entered the action for trial on or before 9 July 2011, the action would become inactive. The plaintiff did not enter the action for trial on or before 9 July 2011, and has not done so since.
On 11 July 2011, the Court issued the plaintiff a notice pursuant to DCR r 44D advising the plaintiff…
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- AGLC
- Ruby v Doric Group Holdings Pty Ltd [2012] WADC 58
- Case
- [2012] WADC 58
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the court had the authority to extend the time for compliance with a self-executing or springing order under RSC O 3 r 5. The plaintiff argued that the judgment pursuant to DCR r 44G(1) was effectively the same as a springing order, and therefore RSC O 3 r 5 should apply. The court considered whether the power in RSC O 3 r 5 was broad enough to extend the time within which the case is to be entered for trial under DCR r 30 and r 37, and whether this extension would prevent the operation of DCR r 44G(1).
The court found that RSC O 3 r 5 did indeed provide authority to extend the time for compliance with a self-executing or springing order. The court emphasised the broad and discretionary nature of the power conferred by RSC O 3 r 5, as highlighted in the High Court's decision in FAI General Insurance Co Ltd v Southern Cross Exploration NL. The court further noted that the power should not be arbitrarily limited and could be exercised to prevent injustice in circumstances where a party subject to a conditional order should be excused from non-compliance. The court held that the power to extend time under RSC O 3 r 5 was applicable to the present case, and the judgment was set aside.
The final order of the court was that the judgment entered against Ruby be set aside, and the case be remitted to the District Court for further proceedings. The court's decision highlighted the importance of exercising discretion in preventing injustice and ensuring that the administration of justice is served.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It is well accepted that RSC O 3 r 5 provides authority to extend the time for compliance with a self executing or springing order: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268; Melville v East End Holdings Inc [2003] WASCA 133 [17]; Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 7) [2010] WASC 351 [3] ‑ [4]. The plaintiff submitted that a judgment pursuant to DCR r 44G(1) is in effect the same as a springing order and that, by parity of reasoning, O 3 r 5 applies. In the present case, it would apply by authorising the court to extend the time within which the case is to be entered for trial pursuant to DCR r 30 and r 37. Once this time is extended, the basis for the operation of DCR r 44G(1) would fall away, and the judgment would be set aside. The nature of the power in RSC O 3 r 5 was considered by the High Court in FAI. Wilson J (with whom Brennan, Deane and Dawson JJ agreed) stated of the equivalent rule in the Supreme Court Rules 1970 (NSW) (283 ‑ 284, reference omitted):The plain meaning of these words is very wide. The Court may extend 'any time' fixed by 'any ... order' and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired. ….it gives 'very full discretionary power; indeed, I can hardly imagine a more extended discretion'. It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance. Gaudron J, who agreed in the conclusion, stated (288 ‑ 289):Here an order for dismissal does no more than effect a situation in which fresh proceedings may be brought (involving additional expense and duplication of court time if, as here, there has been a hearing as to the issues in dispute or some of them) then it seems to me that the administration of law and justice may be well served by a power to reinstate proceedings. That consideration, particularly having regard to the terms of Pt 40, r. 8(1), provides part of the context in which Pt 2, r. 3 should be construed.….Although it has been common to speak of a conditional order for dismissal as self-executing or of a proceeding upon which such an order has operated as 'dead', that seems to me to obscure the fact that a conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time. Where such an issue remains to be determined in relation to a proceeding it cannot be said that the court is functus officio.