Ryan v Manor Home Builders Pty Ltd
[2016] WADC 62
•6 MAY 2016
RYAN -v- MANOR HOME BUILDERS PTY LTD [2016] WADC 62
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 62 | |
| Case No: | APP:79/2015 | 4 MAY 2016 | |
| Coram: | BOWDEN DCJ | 6/05/16 | |
| PERTH | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | ROD RYAN KAY RYAN MANOR HOME BUILDERS PTY LTD |
Catchwords: | Appeal from magistrate dismissing an application to remove a matter off the inactive case list Application made within six months of matter being placed on that list Heard after the expiry of the six-month period Rule 95F(1) of the Magistrates Court (Civil Proceedings) Rules 2005 Section 16(1)(a) and s 16(1)(b) of the Magistrates Court (Civil Proceedings) Act 2004 Court has no power to hear application after matter is dismissed |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 Magistrates Court (Civil Proceedings) Rules 2005 |
Case References: | Allesch v Maunz [2000] HCA 40 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 FAI General Insurance Co Ltd v Southerncross Exploration NL [1988] HCA 13 FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268 Hall v Hall [2011] WASC 110 Hunter Resources Ltd v Melville (1988) 164 CLR 234 Mammoth Nominees Pty Ltd v Greg Rowe Pty Ltd [2016] WASC 33 Rowe v Stoltze [2013] WASCA 92; (2011 - 2013) 45 WAR 116 The State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- KAY RYAN
Appellants
AND
MANOR HOME BUILDERS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE COCKRAM
File No : PE GCLM 12370 of 2010
Catchwords:
Appeal from magistrate dismissing an application to remove a matter off the inactive case list - Application made within six months of matter being placed on that list - Heard after the expiry of the six-month period - Rule 95F(1) of the Magistrates Court (Civil Proceedings) Rules 2005 - Section 16(1)(a) and s 16(1)(b) of the Magistrates Court (Civil Proceedings) Act 2004 - Court has no power to hear application after matter is dismissed
Legislation:
Magistrates Court (Civil Proceedings) Act 2004
Magistrates Court (Civil Proceedings) Rules 2005
Result:
Appeal dismissed
Representation:
Counsel:
Appellants : Mr D R Clyne
Respondent : Mr R Guerrini
Solicitors:
Appellants : SRB Legal
Respondent : Lawley Legal
Case(s) referred to in judgment(s):
Allesch v Maunz [2000] HCA 40
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Hall v Hall [2011] WASC 110
Hunter Resources Ltd v Melville (1988) 164 CLR 234
Mammoth Nominees Pty Ltd v Greg Rowe Pty Ltd [2016] WASC 33
Rowe v Stoltze [2013] WASCA 92; (2011 - 2013) 45 WAR 116
The State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
- BOWDEN DCJ:
Introduction
1 In December 2004 the appellants moved into a house in Ardross built by the respondent. Subsequently they experienced difficulties with the new residence.
2 On 17 August 2010 they issued a Perth Magistrates Court claim for damages in the sum of $40,241.30 arising from the allegedly faulty workmanship of the respondent whilst building their new home.
3 On 17 February 2015 the appellants' claim was placed on the inactive cases list.
4 On 3 August 2015 an application to remove the claim from the inactive cases list (the application) was lodged.
5 On 17 August 2015 pursuant to r 95F(1) of the Magistrates Court (Civil Proceedings) Rules 2005 ( the Rules), the claim was dismissed.
6 On 16 October 2015 the application was heard and dismissed by his Honour. His Honour held that:
(i) the case was automatically dismissed pursuant to r 95F(1) of the Rules; and
(ii) he had no power to extend the time for the hearing of the application to remove the case from the inactive cases list.
The appeal
7 This appeal is by way of a rehearing, and proceeds by way of a reconsideration of the evidence that was before the Magistrates Court: Magistrates Court (Civil Proceedings) Act 2004 (the Act) (s 50), District Court Rules 2005 (WA) r 50(1)(d) (DCR).
8 To succeed the appellant must demonstrate a legal, factual or discretionary error by the magistrate: Allesch v Maunz [2000] HCA 40 [23].
9 If such an error has been made the appeal court may substitute its decision for the magistrate based on the material before the magistrate. If no error is shown, the appeal court cannot intervene.
The law
Magistrates Court Act 2004 (the Magistrates Court Act)
39. Rules of court: making
(1) The Court may make rules of court.
(2) Subsection (1) is in addition to any other enactment that requires or permits rules of court to be made by the Court.
(3) The rules of court are to be made by the Chief Magistrate and at least 3 other magistrates one of whom is to be a Deputy Chief Magistrate if a person is appointed to that office.
…
40. Rules of court: content
(1) The rules of court may deal with any matter -
(a) that is required or permitted by this Act to be dealt with by rules of court; or
(b) that is necessary or expedient for the Court to operate efficiently, economically and expeditiously.
…
(3) The rules of court must not be inconsistent with -
(a) this Act; or
…
(c) the Magistrates Court (Civil Proceedings) Act 2004; or
…
(e) any other Act that regulates the procedure in the Court; or
(f) regulations made under those Acts.
10 Section 13:
13. Court's duties in dealing with cases and making rules
(1) In dealing with cases and making rules of court the Court is to ensure that cases are dealt with justly.
(2) Ensuring that cases are dealt with justly includes ensuring —
(a) that cases are dealt with efficiently, economically and expeditiously; and
…
(c) that the Court's judicial and administrative resources are used as efficiently as possible.
14. Rules of court to set out procedure etc.
(1) The procedure to be followed in a case is that set out in rules of court unless another written law provides otherwise.
(2) Without limiting section 48(1), the rules of court may —
(a) provide when and in what circumstances the Court will or may exercise a case management power;
(b) require a person to do anything that the Court could require the person to do under such a power.
- (3) A case management power must be exercised in accordance with any applicable rules of court.
(4) The Court must not exercise a case management power if to do so would be contrary to this Act or another written law.
(5) If the procedure to be followed in a case is not set out in rules of court, this Act or another written law, the procedure is to be that decided by the Court for the purposes of the case.
(6) The Court may decide that the procedure set out in rules of court to be followed in a case is not appropriate for the case, in which case the procedure is to be that decided by the Court.
16. Court's powers to control and manage cases
(1) The Court may do all or any of the following for the purposes of controlling and managing cases and trials —
(a) extend the time for complying with any rule of court or practice direction, or any order made by the Court (even if the time for complying has expired), or shorten it;
…
(t) take any other action or make any other order for the purpose of complying with section 13.
48. Rules of court, content
(1) The rules of court may regulate the practice and procedure to be followed in the Court and its registries, either generally or in relation to particular cases or to the exercise by the Court of any particular aspect of its civil jurisdiction.
(2) Without limiting subsection (1), the rules of court may —
…
(h) regulate the conduct and management of cases before they are tried;
…
(j) regulate how and when applications in the course of the proceedings in a case are to be made.
95E. Removing cases from Inactive Cases List
(1) A 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.
(2) The Court may order that a case be taken off the Inactive Cases List —
(a) if it is satisfied that the case will be conducted in a timely way; or
(b) for any other good reason.
(3) When the Court orders that a case be taken off the Inactive Cases List, it may make further orders for the conduct of the case in a timely way.
95F. Certain inactive cases taken to be dismissed
(1) A case that is on the Inactive Cases List for 6 continuous months is taken to be dismissed.
(2) If no procedural step 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 be dismissed.
(3) If the case is taken to be dismissed under subrule (1) or (2), the Principal Registrar is to take it off the Inactive Cases List.
(4) If a case is taken to have been dismissed under subrule (1) or (2) —
(a) a party to the case may apply for an order for costs; and
(b) the Court may make an order for costs.
15 The sole ground of appeal is that:
1. The learned magistrate erred in law in finding that he did not have the power to:
(i) extend the period for the operation of r 95;
(ii) bring forward the date for hearing of the application.
16 The appellants say his Honour erred in law when he said:
… for there to be an extension, there must be something which is required to be done'. There is nothing to be required done in r 95(F)(1) by the claimant. It is simply self-executing. Once the time expires the claim is dismissed. For those reasons I am of the view that it is now beyond the power of this Court to deal with the application which was lodged on 3 August 2015 to remove the case from the active cases list and there the application is dismissed. (ts 27)
17 The appellants accept that the learned magistrate considered Rowe v Stoltze [2013] WASCA 92; (2011 - 2013) 45 WAR 116, but says he erred when he found that the effect of the rule in that case was 'much the same' as that under consideration. They argue that Rowe v Stoltze dealt with provisions which are different to the provisions under consideration in this case.
18 The appellants argue that s 16 of the Act is of greater force and import than r 95 which is subsidiary legislation that cannot oust the jurisdiction contained in theAct: Interpretation Act1984 (WA), s 43.
19 The appellants submit that there was something required to be done. They say there was a rule of the court that had to be complied with in that the time in which the application was heard needed to be extended until the matter was determined or an application made or order obtained that the case not be dismissed until the application was heard and dismissed. Either way the appellants say the time for complying with either r 94E or r 94F was being extended. They were both rules of the court which needed to be complied with and there was clearly power under s 16(1)(a) of the Actto grant an extension to comply with 'any rule of the court'.
20 They point to FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 [290], where Gaudron J stated:
There may be occasions when it is appropriate to approach the question of the proper meaning of the grant of power on the basis that only the clearest expressed intention can displace fundamental legal principles or basic policy considerations. However, as a conditional order for dismissal such as that presently under consideration neither renders the court functus officio nor of itself precludes the bringing of fresh proceedings there is no question of fundamental legal principle or policy brought into issue by the grant of power in Pt 2, r 3. That being so and the language of the rule being so as to comprehend the power, Pt 2 r 3, must be construed as authorising the court to enlarge the time fixed by a duly entered conditional order of dismissal, notwithstanding that the time so fixed has expired unless such an authority is expressly excluded by a statute or other rule of court.
21 They argue that the Act and Rules set up a combined case management approach with a clear mandate to adapt procedures to fit the justice of the case.
22 They say that the Act and Rules are harmonious. Section 13(1) of the Act provides that when dealing with cases and making rules of court, the court must ensure the cases are dealt with justly. Section 14(6)of theAct gives the discretion and power to make case management orders and procedures when the Rules are silent and s 16(1)(a) of the Act provides the power for an extension of time limits of any rule of the court even if the time for compliance is past.
23 They say the learned magistrate erred in holding he had no power to extend the time and should have done so and should then have exercised his discretion in their favour by removing the case from the inactive cases list as the affidavits explained why there had been a delay in the action and give an undertaking that the claim would move forward in a timely fashion. They say not to grant the extension would bar the appellants' claim and in the circumstances of the case be unjust.
The respondent's submissions
24 The respondent says there is no inconsistency between s 16(1)(a) and r 95F(1) when s 14(3) is considered.
25 They say s 16 gives the court the power to control and manage cases. Section 16(1)(a) gives the court the power to extend time limits for compliance with the Rules and s 14(3) provides that case management power must be exercised in accordance with any applicable rules of court.
26 Rule 95F(1), they argue, is a valid rule made under the court's case management power and is unambiguous. It means what it says. If a case is on the inactive case list for six months it is dismissed. They say that the purpose of r 95F(1) is to ensure the timely progress of cases and it puts the defaulting party on notice that he must progress his case in a timely fashion and there is no inconsistency between s 16(1)(a) and r 95F(1) when s 14(3) is considered.
27 They argue that if s 16(1)(a) and r 95F(1) are construed in the manner alleged by the appellants, the six-month rule in s 95F(1) is effectively watered down.
28 They say that s 14(6) of the Act does not apply as the rules in this case are not silent. Specifically, r 95F(1) applies.
29 They rely on Rowe v Stoltze. In that case the Court of Appeal considered the DCR which provided:
44F Removing cases from inactive cases list
(1) …
(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.
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.
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.
31 The applicant in Rowe sought to rely on O 3 r 5 arguing that it permitted the court to extend the time to permit the plaintiff to apply for the action to be taken off the inactive case list, even after the action was taken to have been dismissed: [23].
32 The Court of Appeal dismissed the appeal stating:
… Rule 44G(1) does not operate because a party has failed to do an act, within a stipulated time or otherwise. Whether or not a party has failed to comply with an order or the rules is irrelevant. An action is taken to have been dismissed under r 44G(1) simply because it has been on the Inactive Case List for six continuous months, regardless of how that has come about. No question can arise of an extension of time under O 3 r 5 'to do any act' under r 44G (1). Similarly, nor can there arise any question of an extension of time 'to do any act' under r 44A. That rule does not operate because a party has failed to do an act required by an order or the rules; it operates simply because no document has been filed in the action for 12 months, regardless of how that has come about. [25]
The appellants sought to sidestep that by seeking an extension of time to bring an application under r 44F (2) to have the action taken off the Inactive Cases List. That, however, does not assist the appellants. In the first place, it is doubtful that O 3 r 5 has any relevant operation. There was no 'period' within which the appellants were 'required or authorised' by the rules or an order of the court to bring such an application. In any event, an extension of time to bring such an application would not affect the operation of r 44G(1); that is, it would not alter the fact that the action was on the Inactive Cases List for six continuous months and therefore, by operation of r 44G(1), stands dismissed. What, in effect, the appellants want is an extension of the six-month time period stipulated in r 44G(1) so as to enable an application to be brought under r 44F(2). For reasons I will come to under ground 3, such an extension is not available. [26]
... The appellants are not required to 'comply' with r 44G (1). That rule simply has effect when a case has been on the Inactive Cases List for a period of six continuous months. Nor is the action dismissed by an administrative procedure but as a result of the operation of rules of court. What, in effect, the appellants seek under this ground is an extension of the six-month period stipulated in r 44G (1) to enable them to bring an application to remove the case from the Inactive Cases List. [31]
33 The court also held that the action was not dismissed by an administrative procedure, but as a result of the operation of the rules of the court and rejected an argument that the District Court had incidental or implied power which meant it could enlarge time even after the relevant time period had elapsed.
34 The respondent says that the rules in Rowe v Stoltze, while not in identical language to s 16(1)(a) of the Act and r 95F(1) are the same in effect, that is, if a case is on an inactive list for six months it is dismissed and the Magistrates Court has no power to extend the six-month period under r 95F(1) to allow the defaulting party time to make an application to remove the case from the inactive cases list.
35 They submit that FAI General Insurance Company Limited v Southern Cross Exploration NL does not apply because that case related to the failure of the party to comply with a springing order. In that case the party failed to do a positive act. In Rowe v Stoltze, as in this case they argue, there was no positive act for the party to perform or comply as the action was dismissed pursuant to the operation of r 95F(1).
36 They point out that subsequent to Rowe v Stoltze, the DCR were amended by the District Court Amendment Rules (No 2) 2013 which then permitted the District Court to extend the period under r 44G(1) but no similar amendment has been made to the legislation applicable to the Magistrates Court. I do not consider those amendments have any relevance to this case. I note that the amendments allow a party to set aside the dismissal.
37 The respondent says that if they are wrong and there was discretion to extend the time to hear the application, it would only be exercised 'if the court was satisfied that the case could be conducted in a timely manner'. In those circumstances they prefer, as does the appellants, that I deal with the matter rather than remit it to the Magistrates Court.
38 They say the discretion should not be exercised in the appellants favour because the cause of action arose almost nine years ago. The claim was filed almost six years ago. The last court appearance before the case was placed on the inactive cases list was 9 December 2011. The appellants had six months to make an application to remove it from that list and filed its application a few weeks before the expiry of the six-month period. There is a real dispute as to whether the Magistrates Court has jurisdiction on the basis that the claim involved a building dispute, the issue being raised by the magistrate on 9 December 2011 and not resolved. They point out the case is currently not entered for trial and the respondent are entitled to have their case dealt with in a timely fashion.
Conclusion
39 Rules and regulations are subsidiary legislation and cannot be inconsistent with the Act under which they are made: Interpretation Act 1984,s 43; Hunter Resources Ltd v Melville (1988) 164 CLR 234, 244. However, the Act and the Rules do not conflict.
40 Section 16(1)(a) enables the court to 'extend the time for complying with any rule of court or practice direction or any order made by the court' (even if the time for complying has expired) or shorten it.
41 In my opinion the same reasoning as in Rowe v Stoltze applies. I accept that the provisions in that case are different to those being considered in this case. However r 44G considered in Rowe is almost identical in terms to r 95F. Rule 95F does not operate because a party has failed to comply with a rule of the court within a stipulated time or otherwise. Rule 95F operates because a matter has been on the inactive cases list for six continuous months.
42 Order 3 r 5 of the Rules of the Supreme Court 1971 under consideration in Rowe refers to the court extending the period within which a person is 'required' or 'authorized' to do any 'act'. Section 16(1)(a) of the Act refers to extending the time for 'complying' with any rule of court, practice direction or court order. As in Rowe, there is nothing for the appellants to 'comply with'. There may have been rules to 'comply' with to ensure the matter did not go onto the inactive cases list, however once it is in that list there is nothing to 'comply' with. When a matter has been on the inactive cases list for six continuous months, the case is dismissed.
43 For those reasons I dismiss the appeal. His Honour did not err in law in concluding that once the six months had elapsed the claim was dismissed and it was beyond the power of the court to deal with the application to have the case removed from the inactive cases list.
44 If I be wrong in this regard and there is the discretion to extend the time within which to hear the application, I would grant the extension and order the case removed from the inactive list.
45 In exercising the discretion to remove the case from the inactive cases list the court should have regard to the adequacy of explanation for the non-compliance with the rules: Hall v Hall [2011] WASC 110; Lashansky v Legal Practice Board (No 2) [2010] WASC 159; Mammoth Nominees Pty Ltd v Greg Rowe Pty Ltd [2016] WASC 33.
46 The reasons for the delay in prosecuting the case are explained in the affidavit of Ms Gimisis of 31 July 2015. Due to an administrative error the file was placed on hold and nothing was done from December 2011 until November 2014. These reasons are barely adequate. I note the case was placed on the inactive cases list on 17 February 2015 and there is no explanation from the appellants as to what action took place after the 'on hold' period but before the matter was placed on the inactive list.
47 The explanation for the delay needs to be weighed up against the effects of the failure and case management consideration: Mammoth Nominees Pty Ltd. As Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 establishes a just resolution of the proceedings, speed, efficiency, delay, expense, the strain of litigation on the parties and the need for finality are all taken into account. Case management however is not an end in itself: The State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 154.
48 The Magistrates Court Act (s 13) enshrines principles of just result efficiency, economics and expeditiousness. Against that has to be weighed the fact that if the case is dismissed the appellants will be shut out of the court process in a case involving a substantial amount of money.
49 Many factors weigh against the exercise of the discretion to extend the time to hear the application and grant the application. These factors include that the claim relates to events occurring approximately nine years ago, the claim was issued approximately six years ago. The last court appearance before the case was placed on the inactive cases list was 9 December 2011, approximately 4 1/2 years ago. The last communication between the lawyers was a phone call on 4 September 2012 (AB 5).
50 Even after the case was placed on the inactive list the application to remove it from that list was filed only 14 days before the six-month period expired. The case is not ready for trial. The only evidence that the matter would move forward in a timely fashion is the solicitor's affidavit saying 'once this claim has been taken off the inactive list we will liaise with the Defendants solicitor as to whether they wish to inspect the floors and further programming orders may be necessary'. Given the past history of the matter, that hardly inspires confidence. The reason for the inaction is not of the respondent's making. There is a need for finality in litigation and for claims to be progressed promptly.
51 The respondent also claims it may suffer prejudice from witnesses' unavailability, loss of records, weakness of witnesses' memory, failure to join appropriate parties, and changes to alleged damages. I note these matters were raised in submissions to the learned magistrate but unsupported by evidence, however the court recognises delay inevitably causes some prejudice and stress to litigants.
52 However, the application was filed in time and sought to be dealt with on an ex parte basis without service on the respondent. Past applications have been dealt with on an ex parte basis; Mammoth Nominees Pty Ltd v Greg Rowe Pty Ltd [47] being one example. Ms Gimisis' and Ms Darges' affidavits of 29 September 2015 and 21September 2015 respectively establishes that the application was filed on 3 August 2015, and enquiries were made by their firm with the court on 3, 4, 7, 11 and 17 August 2015 and on another date, which appears to have been 14 August 2015, to see when the matter would be listed within the six-month period. It appears the court was advised of the urgency of the application, further attendances were made by an outside clerk to the Perth Registry on 14 August 2015.
53 Clearly it is the appellants' responsibility to have the matter determined by the court prior to the expiration of the six-month period. They cannot presume that the court will deal with the application ex parte. Neither can they expect or rely on Registry staffs' advice that the magistrate 'could still deal with it' (Ms Gimisis' affidavit, par 12 AB page 14). It is not appropriate that Registry staff give such advice.
54 Surprisingly, and significantly, no application was made for an expedited hearing of the application. Such an application is the appropriate way to ensure the matter is listed urgently. However enquiries were made of the Registry by the appellants and the urgency of the matter brought to their attention. It appears the application was brought to the learned magistrate's attention on 11 August 2015 (AB47) (the reference to 'put before me' must mean the file was bought to his Honour in the absence of the parties by the Registry).
55 For those reasons, if I had the power to do so, I would extend the time within which to hear the application.
56 Courts are naturally reluctant to close the door on litigants. I also recognise that the courts are also experienced with dealing with cases relating to events occurring some time ago. The respondent alluded to prejudice caused by the delay, to which I have referred, but produces no evidence to support lost records, unavailable witnesses or the need to join other parties.
57 Considering the prejudice to the respondent, the extreme prejudice to the appellants, the length of the delay that led to the matter being placed on the inactive list, the reasons for that delay, the community's interest in the timely prosecution of litigation, the need for finality, the date the application was filed, and that there were some efforts, albeit deficient, made by the appellants to have the matter heard within the six months and the other matters I have referred to, I would exercise my discretion and remove the case from the inactive cases list.
58 It is not, in my opinion, in the interest of justice for the appellants' case to be dismissed other than on its merits. However, as I have said, I am clearly of the view that the court has no such power.
59 Accordingly, I dismiss the appeal and order that the appellants pay the respondent's costs to be taxed or agreed.
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