Stewart v Meehan

[2006] WASC 244

STEWART -v- MEEHAN & ORS [2006] WASC 244

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 244
Case No:	CIV:1726/2003	Heard:	30 OCTOBER 2006
Coram:	MASTER SANDERSON	Delivered:	3/11/06
No of pages:	4	Judgment Part:	1 of 1
Result:	Orders set aside
Category:	B
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Parties:	ANTHONY PAUL STEWART GRAHAM MEEHAN OMNILABS LTD SONETTI INVESTMENTS LTD
Catchwords:	Practice and procedure Application to set aside orders made on oral motion heard ex parte
Legislation:	Rules of the Supreme Court 1971 (WA), O 54, O 54 r 3(1), O 54 r 3(2), O 54 r 4, O 54 r 5(1)
Case References:	Cox v Mann [2006] WASC 125 Allesch v Maunz (2000) 74 ALJR 1206 Singh v Singh [2006] WASC 182 Taylor v Taylor (1979) 53 ALJR 629

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : STEWART -v- MEEHAN & ORS [2006] WASC 244 CORAM : MASTER SANDERSON HEARD : 30 OCTOBER 2006 DELIVERED : 3 NOVEMBER 2006 FILE NO/S : CIV 1726 of 2003 BETWEEN : ANTHONY PAUL STEWART

Plaintiff

AND

GRAHAM MEEHAN
First Defendant

OMNILABS LTD
Second Defendant

SONETTI INVESTMENTS LTD
Third Defendant

Catchwords:

Practice and procedure - Application to set aside orders made on oral motion heard ex parte

Legislation:

Rules of the Supreme Court 1971 (WA), O 54, O 54 r 3(1), O 54 r 3(2), O 54 r 4, O 54 r 5(1)

(Page 2)

Result:

Orders set aside

Category: B

Representation:

Counsel:

Plaintiff : Mr M L Bennett
First Defendant : Dr P R MacMillan
Second Defendant : Dr P R MacMillan
Third Defendant : Dr P R MacMillan

Solicitors:

Plaintiff : B W Duckham & Co
First Defendant : MacKinlays
Second Defendant : MacKinlays
Third Defendant : MacKinlays

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

Cox v Mann [2006] WASC 125

Case(s) also cited:

Allesch v Maunz (2000) 74 ALJR 1206
Singh v Singh [2006] WASC 182
Taylor v Taylor (1979) 53 ALJR 629

(Page 3)

1 MASTER SANDERSON: By application dated 12 August 2005, the plaintiff sought to amend his statement of claim. The matter came on for hearing on 15 February 2006. Orders were made requiring the filing of a minute of proposed amended statement of claim within 28 days. The matter was adjourned to 16 March 2006.

2 On 9 March 2006 the plaintiff's solicitors requested that the defendants' solicitors consent to an extension of time to file the amended pleadings. The defendants' solicitors responded immediately declining any extension. When the matter came before the Court on 16 March 2006, leave to amend in the terms of the minute of proposed statement of claim put forward was refused. The application was adjourned to 20 April 2006 to allow a new or substituted statement of claim to be filed.

3 On 19 April 2006 the defendants' solicitors forwarded to the plaintiff's solicitors an affidavit in support of an application for the plaintiff's claim to be struck out. There was no chamber summons or motion filed to ground this application. But the plaintiff's solicitor had a copy of the defendants' affidavit in support of the oral motion and the plaintiff's solicitor was aware of the hearing of 20 April 2006.

4 No-one appeared to represent the plaintiff at the hearing on 20 April 2006. Affidavits have been filed on behalf of the plaintiff, which I accept establish that the failure to attend was due to an oversight on the part of the plaintiff's solicitor or some confusion within his office. The confusion was unfortunate, but I accept that the failure to attend was due to inadvertence, not a deliberate decision not to appear.

5 At the hearing on 20 April counsel for the defendants moved for judgment based on the plaintiff's failure to comply with the order to file an amended pleading. After some debate with counsel I made the order. It has now been extracted with the effect that the order has been perfected.

6 The plaintiff now applies for an order that the order I made on 20 April 2006 "be recalled". He then seeks to have the time for compliance with the orders made 15 February 2006 extended. As an alternative, it is alleged that there was no notice of motion lodged by the defendants and the order made on 20 April 2006 was a "nullity".

7 The issue that arises on this application is whether or not I have power to set aside the order that I made on 20 April 2006. The matter is to be determined by the application of O 54 and, in particular, O 54 r 3(1). The motion for judgment in this case was not one which could properly be made ex parte. Therefore the defendants were required to give notice to

(Page 4)

the plaintiff of the motion. This was not a case where there is any suggestion that the delay caused by giving notice might entail irreparable or serious mischief to the defendants such as to require the order being made ex parte. Rule 3(2) specifically allows a party in the position of the plaintiff to apply to set the order aside.

8 Under r 4 there must be at least two clear days between the service of a notice of motion and the day named in the notice for hearing of the motion. Under r 5(1) the form of the notice is specified. In this case, no form was filed or served. Notice of the motion was given to the plaintiff but it was not given two clear days before the motion was made.

9 Accordingly, in my view, this is one of those rare cases where a perfected order can be set aside. The position in this case is materially different to the facts in Cox v Mann [2006] WASC 125. In that decision, Master Newnes recognised that in certain circumstances a perfected order may be set aside: see par 25. This is one of those cases and I am prepared to set aside the order.

10 I would also be prepared to extend the time within which the plaintiff can comply with the order to file a minute of proposed amended statement of claim. A minute has now been provided, and while the defendants have not yet commented upon that minute, it does appear to have dealt with all the defendants' objections to the earlier minute. As counsel for the defendants has not had the chance to consider the proposed amended statement of claim in detail, I would not presently make an order that the minute stand as the statement of claim.

11 The difficulties in this matter have been occasioned by the omissions of the plaintiff or his solicitors. It is therefore appropriate that they bear the costs. I will hear the parties as to the precise form of orders.