S and Z Maintenance Solutions Pty Ltd v Goalmine Fitness Pty Ltd as trustee for BENNYFIT No 2 TRUST t/as Anytime Fitness Kalgoorlie - [2017] WADC 43

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: S & Z MAINTENANCE SOLUTIONS PTY LTD -v- GOALMINE FITNESS PTY LTD as trustee for BENNYFIT NO 2 TRUST t/as ANYTIME FITNESS KALGOORLIE [2017] WADC 43

CORAM: REGISTRAR KINGSLEY

HEARD: 30 NOVEMBER 2016

DELIVERED : 12 MAY 2017

FILE NO/S: CIV 3567 of 2014

BETWEEN: S & Z MAINTENANCE SOLUTIONS PTY LTD
Plaintiff
AND
GOALMINE FITNESS PTY LTD as trustee for BENNYFIT NO 2 TRUST t/as ANYTIME FITNESS KALGOORLIE
Defendant

Catchwords:

Practice - Application to set aside the dismissal of an action pursuant to r 44G of the District Court Rules 2005

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr M Curwood
Defendant: Mr J MacDonald

Solicitors:

Plaintiff: Taylor Smart
Defendant: MacDonald Rudder

Case(s) referred to in judgment(s):

Griffiths v The Queen (1989) 167 CLR 372
Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73
The Owners of SP13443, 129-133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133

REGISTRAR KINGSLEY: On 3 November 2014 by an indorsed writ, wrongly headed statement of claim, the plaintiff claimed the sum of $136,068.69 for construction services provided by the plaintiff to the defendant. The defendant entered an appearance on 27 November 2014. On 19 December 2014 the defendant brought an application for security for costs.
The application for security for costs was dismissed in March 2015. In the meantime, in January 2015, the plaintiffs filed an amended writ of summons including an amended statement of claim. The defendants appealed the registrar's decision to dismiss the security for costs application and the appeal was listed to be heard before a judge on 22 June 2015. On 19 June 2015 the appeal was, by consent, dismissed with no order as to costs.
By consent orders made 24 July 2015 the action was listed for a mediation conference to be held on 21 October 2015. On 27 August 2015 the action was placed on the Inactive Cases List for failure to enter the case for trial within the time specified in the notice of default.
At the mediation conference on 21 October 2015 the mediation was adjourned sine die and the entry for trial was extended to 30 January 2016. It would appear, having regard to the pending mediation, the plaintiff did not earlier enter the action for trial.
On 1 February 2016 the plaintiff was given notice that, unless the plaintiff entered the action for trial on or before 16 February 2016, the action would become inactive. A notice that the case is on the Inactive Cases List was issued on 17 February 2016.
By notice issued 26 August 2016 the parties were notified that on 17 August 2016, as the case had been on the Inactive Cases List for six continuous months, the case was dismissed pursuant to District Court Rules 2005 (WA) (DCR) r 44G.
On 20 October 2016 the plaintiff brought an application seeking orders that the dismissal of the action be set aside, the case be removed from the Inactive Cases List and a mediation be re‑listed. The application to set aside the dismissal is supported by the affidavits of Steven Andrew Smith sworn 6 October 2016 (Smith's first affidavit), the affidavit of Neil Billington sworn 10 October 2016 (Billington's affidavit) and the affidavit of Steven Smith sworn 17 November 2016 (Smith's second affidavit).
A number of paragraphs of the Smith affidavits have been objected to by defendant's counsel on the grounds the particular paragraph is irrelevant or inadmissible. Rather than make a determination on each paragraph, the application proceeded on the basis that if the particular paragraph was a necessary part of my reasons then a determination would be made as to the admissibility of that particular paragraph, or the weight to be given.

Legal framework

Rule 44G(5) DCR provides that the court may in exceptional circumstances, and on such terms as it thinks just set, aside the dismissal of a case. The phrase 'exceptional circumstances' has been considered by Davis DCJ in the The Owners of SP13443, 129-133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133 (Maylands) and by Wager DCJ in Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73 (Sovereign Grange).
Davis DCJ held in Maylands at [40]:
Having regard to the ordinary meaning of the word 'exceptional', all of the authorities and the principles of statutory construction, I consider that for circumstances to be 'exceptional' under r 44G(5) they must be out of the ordinary, unusual, special or uncommon. They do not need to be unique or unprecedented, or very rare, however they will not be exceptional if they are not regularly, or routinely, or normally encountered.
Davis DCJ went on to say at [48] that exceptional circumstances must be causally related to the dismissal of the action;
It is not sufficient that the applicant plaintiff establishes that there are exceptional circumstances generally in relation to the subject matter of the action, or that the plaintiff may be deprived of the opportunity of pursuing any action because of the expiry of the limitation period. What must be established is that the circumstances which led to the dismissal of the action are exceptional.
Exceptional circumstances may be a single exceptional matter or maybe a combination of ordinary factors which, when taken together in combination, may reasonably be regarded to be amounting to exceptional circumstances: Griffiths v The Queen (1989) 167 CLR 372, 379.
If exceptional circumstances, causally connected to the dismissal of the action are established, then the discretion as to whether to set aside the dismissal of the case is enlivened.
If the discretion is enlivened then, as Davis DCJ determined in Maylands, that discretion should be exercised having regard to the interests of justice after considering factors such as:
(a)whether there has been a delay in bringing the r 44G(5) application;
(b)the merit of the plaintiff's case;
(c)the prejudice to the plaintiff if the dismissal of the action is not set aside; and
(d)the prejudice to the defendant if the dismissal is set aside.

Are there exceptional circumstances?

Smith's first affidavit suggests that the plaintiff company is a small business and that Smith is a working director. Smith deposes to being out on jobs and working onsite with his working hours between 4.00 am to 7.00 pm each work day. The plaintiff company had an accounts/administrative assistant who left the plaintiff's employment in November 2015. As a cost saving exercise the plaintiff employed Smith's wife as the accounts/administrative assistant.
The matter went to mediation in October 2015. As a consequence of the mediation it was apparent to the plaintiff's solicitor that to progress the claim further information was required. The plaintiff's solicitor made request of Smith on 28 October 2015 to supply the information.
At par 12 of Smith's second affidavit (a disputed paragraph) Smith deposes that in May 2015 his administrative assistant had sent information to the plaintiff's solicitor. There is no detail as to what information was sent to the solicitor. Smith deposes that in December 2015 he sent time sheets to his solicitor. Smith believed those documents were all the relevant documents held by the plaintiff relating to the action.
However, Smith had deposed in his first affidavit, that the information his previous administrative assistant had collated had not been sent to his solicitor and he sent it to his solicitor on 5 December 2015.
Paragraph 8 of Billington's affidavit details the further information sought from the plaintiff so the claim could be progressed. Whilst timesheets are one of the items of further information sought I am not informed what other information had been sent to Billington by the plaintiff that would enable the claim to be progressed. There is no detail in Smith's affidavits to enable me to determine if relevant information had been sent. Other than the statement about sending timesheets to the plaintiff's solicitor in December 2015, I attach little weight to par 12 of Smith's affidavit.
In both Smith's first affidavit (par 23) and his second affidavit (par 13, a disputed paragraph) Smith deposes as to his belief that he provided all documents to his solicitor. This is notwithstanding a request by his solicitor on 27 January 2016 for further information. There is no substance in Smith's affidavits to determine how his belief was formed. I give little weight to Smith's assertion that he provided all documents to his solicitor.
In his first affidavit Smith deposes that he was under pressure at work as he had to cover for air‑conditioning installers who had left his employment, as well as undertaking his own job.
Smith in his first affidavit (par 27) concedes there may have been a misunderstanding as to what further information he was to provide to his solicitor. Combined with that misunderstanding, and work pressure, there was delay in his responding to his solicitor's request dated 27 January 2016. At par 15 of Smith's second affidavit, Smith deposes he responded to his solicitor on 21 July 2016.
Smith in his second affidavit deposes that in his belief he understood his solicitor would be preparing an application and affidavit. Whilst redacted, the email from his solicitor dated 4 July 2016 merely says that the matter has been placed on the Inactive Cases List and an application to the District Court to have it removed will need to be made: 'To that end I will need to file an affidavit setting out what has been happening and the reason for the delay. For that purpose are you able to tell me: … '
Smith in his second affidavit uses expressions such as understanding that his solicitor would take steps to remove the action from the Inactive Cases List (par 10), that he formed an impression that his solicitor would do what was needed (par 11 second affidavit), that he truly believed the documents have been all the relevant document (par 12). There is no evidentiary basis to assist me in determining whether Mr Smith's belief or impression has a basis in fact.
In submissions plaintiff's counsel stated that it was an exceptional circumstance having regard to the fact the plaintiff's solicitor, Mr Billington, had prepared a chamber summons and affidavit. Billington deposes he was mindful the action was on the Inactive Cases List (par 11, and 14, Billington affidavit). At par 15, Billington deposes he received a case management timetable dated 28 July 2016. The timetable referred to the action having to be entered for trial on or before 8 August 2015.
Billington deposes he did not know why the timetable was issued, and in any event misread the date for the entry for trial as 8 August 2016 not 8 August 2015. The plaintiff's counsel submits this was an exceptional circumstance and a causative factor in the dismissal of the proceedings.
I do not accept counsel's submission. That the matter was on the Inactive Cases List was well known to Billington. By June 2016 Billington had prepared a draft summons and a draft affidavit. In my opinion having regard to the 27 August 2015 notification the case was on the Inactive Cases List, and the 21 October 2015 extension of the entry for trial to 30 January 2016, it would have been obvious the case management timetable dated 28 July 2016 was issued in error. At least the timetable could have been the subject of enquiry to the District Court.
On the evidence before me I have a litigant who, due to work constraints, is devoting limited time to his legal affairs. The plaintiff deposes to his belief in forwarding documents to his solicitor, but there was no objective basis to test that belief. Further, responses to his solicitor have been slow. Objectively I cannot determine if the responses to his solicitor in fact dealt with the questions that his solicitor was asking.
Whilst understandable that the plaintiff would devote his time and energy to his work that, in itself, is not an exceptional circumstance. It is not exceptional, in the sense of being out of the ordinary, unusual, special or uncommon, for litigants to be placed under work pressures whilst in the course of conducting litigation.
In my opinion the plaintiff has not demonstrated exceptional circumstances such that my discretion is enlivened. Accordingly the plaintiff's application to reinstate the action is dismissed. The costs of the application and hearing are the defendant's costs.