| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : STRZELECKI HOLDINGS PTY LTD -v- JORGENSEN [2013] WADC 121 CORAM : STAUDE DCJ HEARD : 19 JUNE 2013 DELIVERED : 26 JULY 2013 FILE NO/S : CIV 1811 of 2011 BETWEEN : STRZELECKI HOLDINGS PTY LTD Plaintiff
AND
STEPHEN LAURENCE JORGENSEN
ROBYN MIRIEL JORGENSEN
Defendants
Catchwords: Procedure - Dismissal of inactive case pursuant to r 44G of the District Court Rules 2005 - Whether standard timetable as varied by order of deputy registrar applicable - Whether filing of a Form 1 (entry for trial) by a plaintiff while a case is on the inactive cases list has the effect of taking the case off the list - Whether an order for dismissal can be made where rules operate automatically - Whether filing of Form 1 can amount to an abuse of process Legislation: District Court Rules 2005
Rules of the Supreme Court 1971
(Page 2)
Result: Appeal allowed
Representation: Counsel:
Plaintiff : Mr G J Douglas
Defendants : Mr N Dillon
Solicitors:
Plaintiff : Hotchkin Hanly Lawyers
Defendants : Murcia Pestell Hillard
Case(s) referred to in judgment(s):
Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209
Ruby v Doric Constructions [2013] WASCA 94
Strzelecki Holdings Pty Ltd v Wiebel [2013] WADC 27
(Page 3)
Introduction 1 This appeal by the plaintiff is by way of a new hearing of an application by the defendants by chamber summons dated 20 September 2012 for an order dismissing the proceedings herein pursuant to the District Court Rules 2005 r 44G(1) and ancillary orders pursuant to r 44G(4). 2 On 29 November 2012 the learned registrar ordered: 1. The plaintiff's action having been on the inactive cases list for six continuous months, it is adjudged that as of 18 September 2012 the plaintiff's action has been dismissed. 2. The plaintiff pay the defendants' costs of the plaintiff's action, including any costs reserved, and including the defendants' costs of the application dated 22 October 2012, such costs to be taxed. 3 Directions were made on the defendants' counterclaim, including an order that it be entered for trial by 30 March 2013. 4 Counsel for the defendants explained at the hearing of this appeal that the defendants' application for dismissal was made after the defendants' solicitors had inquired of the court registry whether the case had been dismissed by operation of r 44G(1) and been informed that it had been removed from the inactive cases list by reason of the plaintiff filing on 14 September 2012 an entry for trial. The defendants argued at first instance that the entry for trial was invalid and of no effect. 5 By way of background, the action is for the forfeiture of a deposit and damages for breach of contract. It arises from a contract for sale of an apartment in a residential development at Mandurah. The defendants agreed to buy a unit off the plan for $650,000 and paid a deposit to a stakeholder. The defendants failed to complete in accordance with the contract. The defendants dispute liability. They allege breach of contract by the plaintiff, breach of a collateral contract, misrepresentation and unconscionable conduct. The defendants counterclaim for a declaration that the contract was lawfully terminated by the plaintiff, the return of the deposit and other relief. (Page 4)
The issue 6 The principal issue in this appeal is whether the case was dismissed automatically by operation of r 44G(1) on the basis that it was on the inactive cases list for six continuous months from 16 March 2012. The determination of this issue depends firstly, on whether the case was validly placed on the inactive cases list, and, secondly, whether the filing by the plaintiff of a Form 1 (entry for trial) on 14 September 2012 had the effect of taking the case off the list.
Extension of time 7 The plaintiff requires an extension of time within which to appeal. The notice of appeal was lodged on 26 February 2013 almost three months after the decision and well outside the 10 days allowed by r 15(2). 8 The application for an extension of time is supported by an affidavit sworn by Andrew Cecil Thorpe, director of the plaintiff, who deposes that he is responsible for the conduct of the legal affairs of the plaintiff and for giving instructions to solicitors on its behalf. Mr Thorpe states that the plaintiff made a decision not to appeal pending the outcome of an appeal in another action in which it was involved: Strzelecki Holdings Pty Ltd v Wiebel [2013] WADC 27 (CIV 1978 of 2011). The question in that appeal was whether a plaintiff is entitled to file an entry for trial once a case is on the inactive cases list. 9 On 26 February 2013 Bowden DCJ concluded that either party can file a Form 1 while a case is on the inactive cases list. The effect of filing that document is that the case is taken off the list, notwithstanding that the entry for trial may later be countermanded. Following that decision, the plaintiff promptly lodged this appeal. According to Mr Thorpe, the plaintiff did not want to incur costs in this matter which would be wasted if the decision in the other matter was unfavourable. 10 The proper course in those circumstances would have been to lodge an appeal within time and to seek a direction that the appeal be stayed pending the resolution of the other appeal. Notwithstanding that this prudent course was not taken, it cannot be said that the plaintiff acted unreasonably. The appeal has merit in that it raises a similar question to that decided by Bowden DCJ favourable to the plaintiff in Wiebel. 11 It is submitted by the defendants that it will be prejudiced if time is extended. The submission misconceives the notion of prejudice in this situation where the defendants have effectively obtained a default (Page 5)
judgement. The defendants still have a counterclaim to press which will involve a determination of the merits of their termination of the contract. 12 The length of the delay is not excessive in the context of an action which was commenced in June 2011 following an alleged breach of contract in April 2011. The chronology below demonstrates that but for the plaintiff's default in entry for trial the case was progressed in a timely manner. 13 In all the circumstances I consider that time should be extended to the date of the filing of the appeal. To refuse the application would simply put the plaintiff in the position of having to commence a fresh action, the cause of action not being statute-barred.
Chronology of events 14 In summary, the history of the matter is as follows: (1) 1 June 2011: writ of summons issued. (2) 8 June 2011: memorandum of appearance filed and served. (3) 10 June 2011: statement of claim filed and served. (4) 14 July 2011: defence and counterclaim filed and served. (5) 22 July 2011: plaintiff granted leave to bring a summary judgment application. (6) 23 August 2011: directions hearing with respect to summary judgment application. (7) 2 September 2011: amended defence and counterclaim filed and served. (8) 10 November 2011: plaintiff's summary judgment application dismissed with costs; case management timetable adjusted such that the latest date for entry for trial be 29 February 2012. (9) 16 November 2011: notice of appeal filed and served by the plaintiff with respect to the costs order made on 10 November 2011. (10) 1 February 2012: plaintiff's appeal allowed in part. (Page 6)
(11) 10 February 2012: directions made that the plaintiff file and serve any reply and defence to counterclaim by 24 February 2012, that the parties exchange discovery by 9 March 2012, that the matter be listed for a mediation conference on or before 16 March 2012 and that the directions hearing be adjourned to 20 April 2012. (12) 24 February 2012: defence to counterclaim filed and served. (13) 28 February 2012: notice by the court to the parties of a mediation conference on 17 May 2012. (14) 1 March 2012: Form 2 notice of default (entry for trial) issued by court stating that unless the plaintiff enters the action for trial on or before 16 March 2012 the action will become inactive. (15) 8 March 2012: affidavit of discovery of defendants sworn by Stephen Laurence Jorgensen. (16) 26 March 2012: notice issued by court that case is on the inactive cases list. The notice stated, in part: Pursuant to District Court Rules 2005 (WA) r 44E the only documents which can be filed in the court are: (a) a summons for directions pursuant to r 44F; (b) a consent order finalising the action; (c) entry for trial papers, which may be filed by any party; (d) a summons for an order dismissing the case for want of prosecution; or (e) any document that relates to a document listed above. The notice also informed the parties that if a case is on the inactive cases list for six continuous months it is taken to have been dismissed for want of prosecution: r 44G(1). (17) 17 May 2012: mediation conference (no order made). (18) 18 May 2012: plaintiff's chamber summons for orders that: 1. These proceedings be replaced on the active list. (Page 7)
2. The time for the plaintiff to file its list of documents be extended to seven days after the date of hearing of this application. 3. The plaintiff have the costs of the mediation hearing listed on 17 May 2012. 4. The proceedings be listed for mediation on 25 June 2012 or such altered date as shall be allocated by the court, and other orders, filed and served. (19) 14 June 2012: notice given by the court that the plaintiff's chamber summons listed for a special appointment on 26 July 2012. (20) 25 July 2012: Form 1 (entry for trial) and plaintiff's particulars of damage filed and served; plaintiff's affidavit of discovery served. (21) 26 July 2012: application to remove action from the inactive cases list withdrawn at hearing; entry for trial countermanded. (22) 14 September 2012: Form 1 (entry for trial) filed and served by plaintiff. (23) 18 September 2012: notice from court to the parties advising pre-trial conference on 24 October 2012. (24) 20 September 2012: defendants' application by chamber summons for dismissal of proceedings pursuant to r 44G(1) and ancillary orders pursuant to r 44G(4) filed and served. (25) 20 September 2012: affidavit of Bernard Arthur John Cummins (on behalf of the defendants) filed and served. (26) 23 October 2012: directions made in relation to defendants' application for dismissal. (27) 29 November 2012: order dismissing claim made by Registrar Kingsley.
Strzelecki Holdings Pty Ltd v Wiebel15 The appeal in Strzelecki Holdings Pty Ltd v Wiebel concerned an action which, as in this case, arose from an alleged breach of a contract for sale of land between the plaintiff as vendor and the defendants as purchasers. Indeed, it concerned a residential unit from the same development and the issues would appear to be very similar. (Page 8)
16 In that case the court sent a Form 2 (notice of default) to each party on 6 March 2012 requiring the plaintiff to enter the case for trial by 21 March 2012. On 22 March 2012, no Form 1 (entry for trial) having been lodged, the case was placed on the inactive cases list. On 29 March 2012 the court sent to the parties a notice to that effect. 17 On 19 September 2012 the plaintiff's solicitors requested the defendants' solicitors' unsuitable dates for a pre-trial conference, a request which, by r 37(4)(a), was required to be made at least 14 days before the plaintiff entered the case for trial. 18 On 24 September 2012 the plaintiff filed and served a Form 1 (entry for trial) with the result that the case was removed from the inactive cases list. But for the filing of the Form 1, the case would have been taken to be dismissed the following day by operation of r 44G(1). 19 The defendants applied by chamber summons dated 5 October 2012 for orders that the entry for trial be countermanded and the case dismissed for want of prosecution. The defendants contended that the case had not been properly entered for trial as the certificate contained in the Form 1 was defective and the matter was not in all respects ready for trial. The defendants pointed, inter alia, to the fact that the defendants' solicitors' unsuitable dates for a pre-trial conference had not been requested timeously and that the plaintiff had not complied with orders for discovery made on 12 March 2012. 20 The learned deputy registrar on 1 November 2012 ordered that the entry for trial be countermanded, but dismissed the defendants' application for dismissal of the case for want of prosecution. Both parties appealed. 21 The issue on appeal was whether, after the expiration of a Form 2 (notice of default), the plaintiff could file a Form 1 (entry for trial). The defendants' contention was that on a proper construction of the rules only a party other than the plaintiff could file a Form 1 after the expiration of a Form 2 notice. 22 Bowden DCJ held: (Page 9)
3. An order countermanding the entry for trial did not have the effect of rendering the entry for trial null and void, such that it should be treated as not having been filed. 4. An order countermanding an entry for trial takes effect from the day it is made; the entry for trial is not treated as if it had never been made. 5. In order to prevent an abuse of its processes the court had power, inherent and pursuant to O 33 r 9(5) of the Rules of the Supreme Court 1971 (RSC), to order that the entry for trial be treated as if it had never been made, such that by operation of r 44G(1) the case would be taken to be dismissed for want of prosecution if it had been on the inactive cases list for six months continuously. 23 On the last point, his Honour cited, as an example, a situation where a solicitor, in order to avoid a case being dismissed by operation of r 44G(1), knowingly certified a case to be in all respects ready for trial when it was not. 24 Order 33 r 9(5) confers power on the court on the hearing of a summons to countermand entry for trial, in addition to countermanding an entry or allowing it to stand, or directing that the entry take effect upon the happening of certain events or at the expiration of a certain time, to 'make such other order or give such other direction as it thinks proper'. 25 This court has no inherent civil jurisdiction as such, but does have incidental power to prevent abuses of its procedures: Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209. Furthermore, O 33 r 9(5) confers a discretion to make such orders on an application to countermand an entry for trial as the court thinks fit. In the exercise of that discretion a court, it seems to me, may well decide that the filing of a defective Form 1 amounts to an abuse of process, such that it should be treated as invalid and of no effect. In that event the order would not be that the entry for trial be countermanded, for that assumes that the entry was valid, but rather that the Form 1 be treated as if it had not been filed. Needless to say, not every defect in a Form 1 would necessarily render it an abuse of process so as to justify such an order.
Was the case validly placed on the inactive cases list? 26 Rule 38(1) provides that if the plaintiff does not enter the case for trial on or before the date for entry for trial in the timetable applicable to the case the registry must send each party a Form 2. By r 44, if a plaintiff (Page 10)
does not obey a Form 2, the case is taken to be inactive. Being on the inactive cases list has the consequences prescribed by r 44E and r 44G. 27 A standard timetable is set out in r 30(1). 28 Rule 32(2) empowers a registrar to order that the standard timetable or some variation of it applies to a case. Although r 32 expressly refers to orders that can be made at a case management hearing, r 26 provides that the court may, when hearing a summons for directions or any other application in a case, make any order that could be made under r 32(2). 29 Significantly, however, there was no case management hearing at which, for the purposes of r 32 (2), a registrar reviewed the documents on the court file and inquired into, inter alia, whether the standard timetable in r 30 was appropriate to the case, or for that matter, whether r 38(1) should not apply, as r 32(1) requires a registrar to do at such a hearing. 30 The Court of Appeal held in Ruby v Doric Constructions [2013] WASCA 94 that the standard timetable prescribed by r 30 has no application in the absence of an order to that effect pursuant to r 32(2)(a) or r 33. Where no direction has been made as to an applicable case management timetable there is no basis for a Form 2 for the purposes of r 38(1). Newnes JA (Pullin & Murphy JJA agreeing) held at [29] that a case cannot be placed on the inactive cases list by operation of r 44(2) where there is no proper basis for a Form 2 to be sent. 31 In this case the defendants submit that an order of the deputy registrar on 10 November 2011, consequent to an order dismissing the plaintiff's application for summary judgement, had the effect of fixing the latest date for entry for trial, so as to impose an obligation on the plaintiff to enter the action for trial by that date. The defendants argue that the order fixing the latest date for entry for trial was an order pursuant to r 32(2)(a) 'that the standard timetable in r 30 or some variation of it applies'. The deputy registrar's order was in the following terms: The timetable within which the action be conducted be adjusted such that the latest date for entry for trial be 29 February 2012. 32 I do not accept the defendants' contention. The order of the learned deputy registrar assumed that the case was governed by the standard timetable, but no order had been made to that effect. A notice by the court to the parties dated 15 July 2011, issued administratively, did not have that effect: Ruby v Doric Constructions [27]. (Page 11)
33 I am unable to construe the order of 10 November 2011 as an order that the standard timetable in r 30 apply, subject to the adjustment of the latest date for entry for trial. It is not an order that enlivens the inactive cases list provisions of the rules. Even if the order could be construed as an order requiring the plaintiff to enter the case for trial by a certain date, which I do not accept, that would not be sufficient in my view to bring r 38 into play. The rule specifically relates to a default in respect of an applicable timetable. It does not apply to a failure to obey a direction to do an act by a certain date. Given the potential consequences to the plaintiff of the case being placed on the inactive cases list a strict approach to the construction of the order is indicated. 34 As in Ruby v Doric Constructions, no order was made making the standard timetable, or a variation of it, applicable to the case. Accordingly, there was no proper basis for the issue of a Form 2. The case could not, therefore, be taken to be inactive at any time by reference to r 44(2). Consequently, r 44G(1) could not operate to cause the case to be taken to be dismissed for want of prosecution. The placement of the case on the inactive cases list was invalid. For this reason the defendants' chamber summons dated 20 September 2012 should be dismissed.
Did the plaintiff's filing of a Form 1 (entry for trial) have the effect of taking the case off the inactive cases list? 35 It is appropriate, having regard to the way in which the appeal was argued on both sides, to determine the issue of whether the case was on the inactive cases list for six months continuously from 16 March 2012. For this purpose I will assume that the deputy registrar's order of 10 November 2012 applied a timetable which required the plaintiff to enter the matter for trial on or before 29 February 2013. 36 The plaintiff contends that, in keeping with Wiebel, the court should hold that the plaintiff's filing of a Form 1 on 14 September 2012, and for that matter on 25 July 2012, had the effect, by operation of r 44F(1), of taking the case off the inactive cases list, such that the case was not on the list for six continuous months. 37 The defendants, on the other hand, contend that the decision in Wiebel is wrong and that the relevant rules, properly construed, do not allow a plaintiff to enter a case for trial which is on the inactive cases list. Alternatively, the defendants contend that in this case the Form 1 filed by the plaintiff on 21 July 2012 and on 14 September 2012 should each be treated as having no effect. (Page 12)
38 Although the registrar's decision of 26 July 2012 is not appealed, it is necessary to consider the correctness of the decision because of its significance in terms of the defendants' submission that the Form 1 filed on 25 July 2012 was defective, rendering the purported entry for trial irregular, such that r 44F(1) was not enlivened. 39 On the question of whether the plaintiff may file a Form 1 in a case which is inactive, I respectfully agree with Bowden DCJ for the reasons given by his Honour. Rule 44E expressly provides that if a case is on the inactive cases list, a Form 1 can be filed. It does not preclude a plaintiff from doing so. 40 Rule 37(1) requires a plaintiff to enter the case for trial by a date fixed by an applicable timetable. Rule 38 provides that if a plaintiff defaults, then a Form 2 must be sent. Rule 44(1) provides that a plaintiff who receives a Form 2 must enter the case for trial by the date specified, which must be at least 14 days after the form is sent, and, in the event that the plaintiff does not do so, that the case be taken to be inactive. Rule 38(2) expressly permits any party, other than the plaintiff, after receiving a Form 2, to enter the case for trial at any time. 41 I do not take from the use of the words 'a party, other than the plaintiff' an intention to exclude the plaintiff. Rather, the subrule simply states the circumstance in which another party may enter for trial. I do not accept that r 38(6) informs the construction of s 38(2) in a way that supports the defendants' contention. The rules are not ambiguous, and do not require any aid in their interpretation from rules which have been repealed (r 45) or from the RSC. The rules do not preclude a plaintiff from filing a Form 1 at any time. It would make no sense for them to do so. The rules require that the plaintiff enter a case for trial, but permit another party to do so after a Form 2 has been received. 42 This construction and that of Bowden DCJ is wholly consistent with the practice of the court to inform the parties, when a case is placed on the inactive cases list, that an entry for trial may be filed any party, as it did in this case. 43 The next question is whether the filing of a Form 1 by the plaintiff, on either 25 July 2012 or 14 September 2012, had the effect of taking the case off the inactive cases list in accordance with r 44F(1). 44 It is clear from the words used in the rules which set out the consequences of a case being placed on the inactive cases list that the system of managing cases in this way operates both administratively and (Page 13)
judicially. Rule 44(2) speaks of a case being 'taken to be inactive'. Similar wording is found in r 44A and r 44D(1). Rule 44F(1) speaks of a case 'being taken to be taken off the list' and r 44G(1) of a case being 'taken to be dismissed for want of prosecution'. Those words denote automatic consequences involving no judicial consideration. 45 On the other hand, the rules also empower a registrar, exercising judicial discretion, to order that a case be put on the inactive cases list (r 44B) and be taken off the list (r 44F). 46 A Form 1 is a document signed by a party or its lawyer by which a matter is entered for trial. It contains a certificate that all interlocutory matters have been attended to, that relevant rules have been complied with, and that the matter is in all respects ready for trial. 47 The filing of a Form 1 has the automatic affect of taking a case off the inactive cases list: r 44F(1). The court does not look behind the form. No question of sufficiency or validity necessarily arises for determination. The filing of the document, complete on its face, is all that is required for r 44F(1) to have effect. Accordingly, when, on 25 July 2012, the plaintiff filed a Form 1, the case was automatically removed from the inactive cases list. 48 That is the same conclusion reached by Bowden DCJ in Wiebel. In that case, however, as I have noted, his Honour went on to observe that, in his opinion, the court could, in order to prevent an abuse of process, countermand the entry for trial and order that the Form 1 be treated as if it had never been filed, with the result that the case was dismissed for want of prosecution by operation of r 44G. Such an abuse might occur if a solicitor certified a matter ready for trial when he knew it was not, in order to avoid the case being dismissed. 49 On the strength of his Honour's opinion, the defendants contend that the learned registrar on 26 July 2012 was correct in countermanding the entry for trial. The defendants rely on the transcript to demonstrate that the learned registrar did so because he considered the certificate in the Form 1 to be defective. It is argued that the entry for trial on 25 July should be seen as an abuse of process. 50 The hearing on 26 July 2012 was of the plaintiff's application pursuant to r 44F(2), but the solicitor for the plaintiff informed the learned registrar at the outset that the application was not pursued, the plaintiff having filed a Form 1. (Page 14)
51 The defendants argued, as they have unsuccessfully in this matter, that the rules did not permit the plaintiff to file a Form 1 after the case had become inactive. The defendants also challenged the accuracy of the certificate, complaining that the plaintiff's discovery was incomplete in that it did not include discovery of documents relating to the plaintiff's claim for legal costs on an indemnity basis pursuant to the disputed contract. The defendants also submitted that inspection had not been given and that the plaintiff had not complied with the requirement in r 37 to request the defendants' unsuitable dates for a pre-trial conference at least 14 days before it intended to enter the matter for trial. 52 Furthermore, the defendants observed that no directions had been made with respect to expert evidence adduced at trial. The defendants' submission was that the registrar had power under O 33 of the RSC to countermand the entry for trial and inherent jurisdiction to strike out the Form 1 on the basis that it was an abuse of process. 53 The solicitor for the plaintiff submitted that his client was ambushed by the application to countermand the entry for trial, observing that there had been no conferral as required by r 22. It was also submitted that r 44E did not prevent the plaintiff from entering the matter even though it was on the inactive cases list. The plaintiff submitted that if the defendants sought to countermand the entry for trial then it should apply in accordance with the rules. 54 Order 33 r 9 of the RSC, which applies perforce of s 87 of the District Court Act 1969, permits an application by summons on two clear days' notice to the party who has entered a matter for trial for an order countermanding the entry. The summons should be supported by affidavit unless otherwise ordered. Order 33 does not otherwise permit a court to countermand an entry for trial. 55 The learned registrar held that it was not open for the plaintiff to enter the matter for trial as it could only do so within two weeks of the Form 2 issued on 1 March 2012. With respect, the learned registrar erred in law in so finding for the reasons I have given. 56 The learned registrar went on to find in any event that the certificate in the Form 1 was not a proper certificate. The reasons for this finding are not clear, but it appears that he was not satisfied that expert evidence directions were not required or that discovery of documents related to the claim for indemnity costs could not be made. The submission of the plaintiff had been that it was not proposing to rely on expert valuation (Page 15)
evidence, but rather on empirical sales evidence to prove loss, and that a claim for indemnity costs if proved would lead to a taxation of such costs. Pre-trial discovery was not required, quantum not being an issue at trial. 57 The learned registrar did not find that the plaintiff's action in entering the matter for trial was an abuse of process. Nor did the learned registrar find that the Form 1 should be taken not to have any effect on the running of time in the inactive cases list. 58 In my view, the learned registrar had no jurisdiction to countermand the entry for trial in the absence of an application made in accordance with O 33 r 9 of the RSC. In any event, I do not find that the learned registrar's order that the entry for trial be countermanded had the effect of ordering that the filing of the Form 1 did not affect the operation of r 44F(1). No order was made which had the effect of rendering the Form 1 nugatory.
The defendants' application to dismiss 59 I come then to the application from which this appeal arises, the defendants' chamber summons dated 20 September 2012. Although, as a matter of law, this case was taken off the inactive cases list by the filing of a Form 1 on 25 July 2012, it would seem that by reason of the learned registrar's decision of 26 July 2012, it was treated as having been on the list until 14 September 2012 when, the plaintiff having filed another Form 1, it was taken off, prompting the defendants' application. 60 To the extent that the application was for an order pursuant to r 44G(1) dismissing the case it was otiose. Rule 44G(1) operates to dismiss a case automatically for want of prosecution if it is on the inactive cases list for six continuous months. No order of the court is required. Rule 44G(2) provides that if a case is dismissed under r 44G(1), the principal registrar must give all parties to the case written notice of the fact. Rule 44G(4) provides that upon dismissal of a case by the operation of r 44G(1) a party may apply to the court for orders needed as a consequence of the dismissal. The rules did not empower a registrar to make an order for dismissal for want of prosecution in the circumstances that existed at the time of the application. 61 The defendants did not apply in accordance with O 33 r 9(1) to countermand the entry for trial. Had they done so, an order might have been sought pursuant to r 9(5) (along the lines of that conceived by Bowden DCJ in Wiebel) that the filing of the Form 1 be set aside as an abuse of process. (Page 16)
62 No such application having been made, I am unable in this appeal to decide that issue, even though it formed the central plank of the defendants' submission. The defendants challenged the correctness of the certificate of the plaintiff's solicitor as set out in the Form 1 and argued that non-compliance with the requirements of r 37(4) (with respect to timely enquiry of the other party as to their unsuitable dates for a pre-trial conference) renders a Form 1 invalid. They are not questions that arise for my determination in this appeal. 63 It is apparent from my review of the history of this matter that until the Form 2 was sent on 1 March 2012 the case had proceeded in a timely manner from its commencement by writ dated 1 June 2011. The case was, at the time of the issue of the Form 2, listed for mediation. Although r 35(2) provides that a direction to confer with a mediator does not operate as a stay of proceedings, as I have found, there was no timetable applicable to the case. 64 I make one further observation. The order appealed from purported to preserve the counterclaim by extending the time for entry for trial to 1 April 2013. In my view, if a case is dismissed by operation of r 44G(1) it is the entire proceeding. 65 'Case' means 'any proceeding in the court involving or in connection with the court’s civil or appellate jurisdiction, irrespective of how it was commenced' (r 3). A proceeding may involve a claim and a counterclaim. (Order 18 r 2(1) RSC provides that a defendant who has a claim against a plaintiff may 'instead of bringing a separate action, make a counterclaim … and add the counterclaim to his defence'). When a Form 1 is filed, both the claim and counterclaim are entered for trial. The rules place the obligation on the plaintiff to enter the case for trial, but in the event of a default by the plaintiff which results in a Form 2 being sent, any party can enter. Rule 38(2) and r 44F(1) contemplate circumstances in which a party other then the plaintiff may wish to enter a case for trial. A defendant who has a counterclaim which is no more than a set-off may have an interest in entering the case for trial and may do so. If the defendant does not avail of that opportunity and the case is placed on and remains on the inactive cases list for six months, then in my view, the effect of r 44G(1) is to dispose of both the claim and the counterclaim.
Conclusion 66 The appeal is allowed. The orders of the registrar dated 29 November 2012 are set aside. The defendants' chamber summons (Page 17)
dated 20 September 2012 is dismissed. I will direct that the matter be listed for a case management hearing.
|