Sabourne v Harvey Industries Group Pty Ltd - [2012] WADC 39

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SABOURNE -v- HARVEY INDUSTRIES GROUP PTY LTD [2012] WADC 39

CORAM: WISBEY DCJ

HEARD: 7 NOVEMBER 2011

DELIVERED : 16 MARCH 2012

FILE NO/S: CIV 1498 of 2010

BETWEEN: WAYNE JOHN SABOURNE
Plaintiff
AND
HARVEY INDUSTRIES GROUP PTY LTD
Defendant

Catchwords:

Practice and procedure - Appeal from decision of deputy registrar striking out statement of claim - Leave to re-plead - Turns on own facts

Legislation:

Nil

Result:

Plaintiff have leave to file and serve statement of claim

Representation:

Counsel:

Plaintiff: Mr G T Stubbs
Defendant: Mr K M Pettit and Ms A L Casellas

Solicitors:

Plaintiff: Chapmans
Defendant: Clayton Utz

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

Rogan‑Gardiner v Woolworths Ltd [2010] WASC 290
Vassilou v Roberman [2007] WADC 145

WISBEY DCJ: On 5 August 2011 the deputy registrar ordered (inter alia) that the statement of claim filed 16 September 2010 be struck out and the plaintiff have 14 days from the date of the order in which to file and serve a replacement statement of claim.
On 23 August 2011 the plaintiff filed a notice of appeal seeking an order setting aside the order of the deputy registrar striking out the statement of claim. The notice of appeal was out of time, and as a consequence on 29 September 2011 the plaintiff filed an amended notice in similar terms additionally seeking an order that the time within which the plaintiff file and serve a notice of appeal be extended to 23 August 2011.
The amended notice of appeal is in reality an interlocutory application for an extension of time and it has been so treated.
When the matter came before me, counsel for the defendant advised that the defendant did not oppose the granting of leave, and counsel for the plaintiff responded by advising that the plaintiff no longer sought leave, and expected that the appeal would be dismissed.
The defendant's contention however is that notwithstanding the plaintiff no longer challenges the decision of the deputy registrar, it is entitled to use the occasion to seek an order pursuant to O 20 r 19 of the Rules of the Supreme Court 1971 striking out the action on the ground that in all the circumstances the indorsement on the writ fails to disclose a reasonable cause of action. That essentially amounts to a cross‑appeal and as such encounters a number of procedural difficulties.
(i)Order 20 r 19 provides that the court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action on the ground that it discloses no reasonable cause of action provided that an application for such an order is made within 21 days of the service of the writ or pleading to which the application refers.
In this case the action was commenced by the filing of a writ with a general indorsement on 19 May 2010, and a statement of claim was filed on 16 September 2010. Although it appears that the defendant perceived there were significant deficiencies in the statement of claim, a defence was filed and delivered on 14 October 2010. Thereafter, although a case management timetable was issued by the court requiring that the action be entered for trial by 11 February 2011, nothing transpired until 14 December 2010 when the defendant's solicitor wrote to the plaintiff's solicitors addressing a number of procedural steps which it was claimed required attention. The letter was accompanied by a minute of proposed consent orders dealing with the provision of discovery and further and better particulars. The plaintiff's solicitors responded by facsimile dated 17 December 2010 indicating that they did not believe there was need for any further interlocutory orders, and advising that they would provide, and required discovery, and that the matter would be entered for trial prior to 11 February 2011. On 23 December 2010 the defendant's solicitor wrote to the plaintiff's solicitors forwarding a detailed request for further and better particulars. By facsimile dated 31 January 2010 the plaintiff's solicitors noted that the defendant had not given discovery and that the plaintiff would be entering the action for trial. On 14 February 2011 the court issued a notice of default, and as a consequence of non‑compliance the matter became inactive on 1 March 2011. On 11 April 2011 the plaintiff's solicitors took out a summons seeking orders in respect to discovery and a direction that the action be removed from the inactive list and entered for trial no later than 22 April 2011. On the hearing of the chamber summons on 3 May 2011 the defendant's solicitors made reference to the alleged deficiencies in the statement of claim, and the registrar made orders that the defendant file and serve its request for further and better particulars within 14 days and that the plaintiff respond to the request within 14 days thereafter; that there be mutual discovery within 42 days; and that the matter be entered for trial by the plaintiff by 4 July 2011. The plaintiff defaulted in providing the further and better particulars, and by facsimile dated 26 May 2011 the defendant's solicitors addressing the default, advising that unless the particulars were provided by 4.00 pm on 1 June 2011 an application would be made to strike out the statement of claim. On 15 June 2011 the defendant filed and served a chamber summons to strike out the statement of claim which resulted in the order of the deputy registrar which the plaintiff originally sought to challenge.
The defendant's application to strike out was successful insofar as it related to the statement of claim, but not in respect of the action generally, and the plaintiff was given 14 days within which to file and serve a fresh statement of claim. Having regard to the plaintiff's original intention to challenge the deputy registrar's decision that has not happened. Any strike out application is out of time.
(ii)Each party had 10 days in which to appeal the decision of the deputy registrar if dissatisfied therewith. It is apparent that the defendant was content to accept it. The plaintiff sought to challenge the decision but his notice of appeal was out of time. In the circumstances the notice was a nullity, and procedurally it was necessary for the plaintiff to take out a summons seeking an extension of time within which to file and serve a notice of appeal. What the plaintiff in fact did, was to file an amended notice in which he sought an extension of time; a step that was procedurally incompetent, although apparently not of concern to the parties. What was required was for the plaintiff to take out a summons seeking an extension of time within which to file a notice. Unless and until leave was granted the notice was a nullity, and as it happens always remained so, particularly when the plaintiff advised that leave was no longer sought. It is not a basis for either party to seek relief.
(iii)So far as the defendant is concerned, the order sought striking out the action is in reality an appeal from the decision of the deputy registrar. It is not in a position to challenge the deputy registrar's decision without filing a notice of appeal (see Vassilou v Roberman [2007] WADC 145).
The practical reality however is that the parties appeared before me having made detailed written submissions addressing the position taken by them, and in accordance with case management principles I propose to now regard this matter as an application by the plaintiff for leave to file and serve an amended statement of claim; and by the defendant to strike out the action on the ground that the indorsement on the writ does not disclose a cause of action. In the circumstances it is appropriate that I deal with those matters in reverse order.
The starting point is necessarily the indorsement in the writ which identifies a claim for damages as a result of the breach of employment contract and/or wrongful dismissal and/or breach of statutory duty on or about 18 March 2009.
The defendant contends that it is apparent from all the documentation filed by the plaintiff to date, that his claim is not one based on breach of statutory duty, and I did not understand counsel for the plaintiff to suggest otherwise.
The defendant also maintains that it is apparent from the history of the matter that there is no claim for breach of employment contract if that expression is intended to refer to a cause of action independent of wrongful dismissal. In that respect the defendant refers to Rogan‑Gardiner v Woolworths Ltd [2010] WASC 290 [125], where his Honour Hall J, when dealing with such a cause of action stated:
In my view, the following principles can be distilled from the cases I have referred to:
1.An employment contract will generally include an implied term that an employer will not, without reasonable and proper cause, act in a manner calculated or likely to cause serious damage to the relationship of trust and confidence between it and its employees;
2.Such a term applies to conduct during the currency of the employment;
3.The term does not apply to dismissal or the manner of dismissal;
4.Where an employee claims for loss on the basis on an alleged breach of the good faith term it will be necessary to prove that such loss was caused by conduct of the employer which preceded, and was independent of, any subsequent dismissal.
That exposition of the law is entirely apposite to any alleged non‑dismissal breaches of the contract of employment.
The defendant states that essentially the plaintiff seeks damages for wrongful dismissal, simpliciter. The fact that is the basis of the plaintiff's claim is confirmed in the plaintiff's submissions dated 3 November 2011 where it is stated:
9.The plaintiff says he was wrongfully dismissed by the defendant as a result of his involvement in his union's campaign opposing the proposed new agreement. This is his cause of action - wrongful dismissal.
10.This cause of action is set out in the general indorsement in the plaintiff's writ filed 19 May 2010.
…
42.The defendant cannot argue that there is no cause of action or that they do not know [sic] what the cause of action is. The action is a wrongful dismissal claim.
The court can only make an order striking out the action if satisfied that it is unarguable that the plaintiff cannot obtain damages for wrongful dismissal.
The defendant's argument, based substantially on a reference to the dismissed statement of claim and the material in the plaintiff's written submissions, that it is difficult to discern a cause of action, has considerable merit. I am not persuaded however that it is appropriate to constrain the plaintiff and/or assess the merit of the proposed claim by reference to what has gone before, although I suspect that the plaintiff may be in a difficult position to identify and plead a claim consistent with the indorsement. I am however unable to conclude affirmatively that cannot be done and am of the view that it is appropriate to give the plaintiff the opportunity to do so.
In all the circumstances the plaintiff will have leave to file and serve a statement of claim within 28 days of the date of this decision. The defendant will have 21 days from the date of the service of a statement of claim upon it, to file an application to strike out the action. In the event of the plaintiff failing to file and serve a statement of claim within the time stipulated, the action is to stand dismissed with costs to the defendant to be taxed.
I extend the time by which the action must be listed for trial to 1 August 2012.