| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : STRZELECKI HOLDINGS PTY LTD -v- MARK ANTHONY [2013] WADC 87 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 24 APRIL 2013 DELIVERED : 7 JUNE 2013 FILE NO/S : CIV 3880 of 2012 BETWEEN : STRZELECKI HOLDINGS PTY LTD Plaintiff
AND
ALEXANDER MARK ANTHONY
ALEXANDER SUZANNE
Defendants
Catchwords: Practice - Practice under the inherent jurisdiction of the District Court - Application to dismiss action as an abuse of process Legislation: Nil Result: Application dismissed
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Representation: Counsel:
Plaintiff : Mr G J Douglas
Defendants : Mr D Dillon
Solicitors:
Plaintiff : Hotchkin Hanly
Defendants : Mercia Pestell Hillard
Case(s) referred to in judgment(s):
Nil
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1 DEPUTY REGISTRAR HARMAN: According to the statement of claim the parties to the action were the parties to an agreement for the sale and purchase of real estate. The plaintiff pleads that on 1 April 2011, it gave notice to the defendants that unless they performed the terms of the agreement, it would be entitled to particular remedies. By the action the plaintiff seeks a declaration that under the agreement it is entitled to the deposit and to recover damages, interest and its costs on an indemnity basis.
2 Upon entering a conditional appearance the defendants filed an application to dismiss the action, alternatively for a permanent stay. The relief sought calls for the exercise of unfettered discretion. The applicants carry the onus of persuasion. 3 The grounds of the application are as follows: 1. The causes of action sought to be agitated in the within proceedings are the same as the causes sought to be agitated in the proceedings CIV 1977 of 2011 ('First District Court Proceedings') 2. On 12 November 2012, the First District Court Proceedings were dismissed by force of Rule 44G, such dismissal being confirmed by order made 15 January 2013. 3. In the premises, the within proceeds (sic) are an abuse of process as being contrary to the effect of the dismissal pursuant to Rule 44G or, alternatively, given the failure of the Plaintiff to comply with the Court's orders in the First District Court Proceedings was contumelious, the within proceedings are an abuse of process and subject to dismissal or permanent stay. 4 There is no evidence relating to the order of 15 January 2013, however I am satisfied that on 12 November 2012, CIV 1977 of 2011 was dismissed by operation of r 44G of the District Court Rules 2005. It is common ground that the cause of action presented in this case is identical with the subject of that action. 5 As for the second proposition advanced in Ground 3, there is no evidence that in CIV 1977 of 2011, the plaintiff had been in breach of any order: indeed the application rested on the fact that the plaintiff had been in default of the rule that establishes the date of entry for trial. 6 Implicitly the applicants propose that the rule would be characterised as amounting to a peremptory order and that the combination of the plaintiff's breach, its failure to respond to notices issued by the court and (Page 4)
the absence of any explanation for both the breach and failure to respond to those notices as evidence of contumelious disregard of the court. 7 The fundamental flaw with that construction is that the relevant engagement in the action by the court had been no more than by the identification of the date for entering the action for trial, notification of that date and informing the parties of the consequences of it not having been entered for trial by that date. I accept that judgments have issued consequent upon default in circumstances where with a degree of abstraction, the action required to have been undertaken might be considered to be as insignificant as the plaintiff's default in CIV 1977 of 2011. The important distinction between such a case and that now presented before me is that that the action required to have been undertaken had been expressed by the court in the context of its deliberation and in the form of a determination. There is no scope to consider that in issuing any of the notices in CIV 1977 of 2011 the court had made an assessment as to whether the action either at some future date would be or at the date of default had been ready to be entered for trial. 8 Accordingly whilst I do not have any difficulty with the proposition that the rule may be constituted as a significant feature of the landscape of litigation in the District Court and that the court has engaged resources to promoting a particular strategy, the rule does not have the character of a peremptory order. Neither failure to act in accordance with the rule nor in response to notification of breach amounts to conduct that would justify consideration that the relevant party had exhibited contumelious conduct. 9 As for the first of the propositions advanced in Ground 3; implicitly the applicants would contend that a particular effect of the operation of r 44 G would either preclude the plaintiff from bringing a fresh action or require the plaintiff in circumstances such as that generated by the application, to satisfy the court that by the commencement of the fresh action the defendant had not been subjected to an abuse of process. 10 According to r 3, the reference in r 44G to 'case' is to an action, not the cause upon which it is brought. Rule 44G is silent on both the question of survival of a cause of action and the bringing of a fresh action on the same cause. It follows that the defendants' proposition would depend upon an interpretation that would extend the impact of the rule. I note that the rule borrows the characterisation of the dismissal of an action as having been 'for want of prosecution' from the common law. The reported reasons for decisions given by various courts in that context (Page 5)
recognise the survival of a cause of action. No rule of interpretation would operate to establish the proposition put by the defendants. The fact that the court has opened the undesirable prospect of cases being dismissed only to have fresh actions commenced is of no particular moment. It follows that there is no reason to conclude that the rule would have any greater impact than that it expresses. 11 That leaves the prospect that by embarking upon the application the applicants would effectively establish a requirement that the plaintiff satisfy the court that by bringing the action it had not subjected them to an abuse of process. The extent to which obiter comment on the subject of what generally is characterised as case management outweighs ratio and to which resources of the court have been allocated to case management would promote such a requirement. In my opinion the scope for such a perception establishes the need for reflection. Generally a respondent to an application is obliged to do no more than bring evidence in support of any submission that it cares to make. Case management is nothing more than the manifestation of a strategy to the end of ensuring that actions progress to their conclusion in a timely manner. In my opinion the dismissal of an action for failure to enter it for trial by a particular date is not of sufficient moment to establish an onus on a plaintiff in an application such as that now brought by the defendants. 12 Accordingly I do not accept the applicants' first proposition. The only consequence of the operation of the rule has been the characterisation of the dismissal as having been for want of prosecution as the result of the plaintiff's failure to enter the action for trial by a particular date. 13 The next consideration is whether the particular features of the context presented by the application would justify the exercise of discretion to prevent an abuse of process. 14 The abuse for which the applicants contend is that they have been vexed by the commencement of this action. The context that informs that contention includes not only what transpired in CIV 1977 of 2011 but also that related proceedings that had previously been taken against them by the plaintiff in the Supreme Court. In those proceedings the plaintiff had sought an injunction to prevent them from engaging in conduct to the end of encouraging other purchasers from the plaintiff to breach the terms of similar agreements to that which founds the cause of action the subject of these proceedings. It failed and the action was discontinued (Page 6)
approximately one month prior to the commencement of CIV 1977 of 2011. 15 The defendants portray themselves as having been exposed to a multiplicity of proceedings at the instance of the plaintiff such that it would be grossly unfair if the plaintiff was able to re-commence CIV 1977 of 2011. The impact upon which the applicants rely draws upon their relief on the dismissal of CIV 1977 of 2011 and distress upon the commencement of this action. 16 At the commencement I will observe that the defendants do not suggest either that the plaintiff's cause of action does not have merit or that the plaintiff's conduct has been other than to the end of pursuing an entitlement. I would add that it appears that in CIV 1977 of 2011 the plaintiff had considered it appropriate to bring an application for summary judgment. 17 The cause of action the subject of this proceeding and the law that would be engaged to the end of judgment in favour of the plaintiff would be properly considered to be uncontroversial. Success for the plaintiff may be of significant magnitude. I have already addressed the propositions advanced by the applicants in Ground 3. In considering whether in bringing the action the plaintiff had abused the court's processes, the court would be careful to ensure that there was sufficient to justify that conclusion. In my opinion the evidence given by the applicants is no more than would be expected of any litigant. In the context presented by the application, the impact of the two prior actions on the applicants is of no particular significance. I perceive that the strength of their case was that due to the dismissal of CIV 1977 of 2011 the court would adopt an approach that was adverse to the plaintiff. The issue of the notices and their receipt provide scope for drawing inferences but there is no particular reason to do so and no reason to draw particular inferences adverse to the plaintiff other than to the end of assisting the applicants. I am not persuaded that it is appropriate to do so. 18 Other than that it was brought on a different cause than that in the present proceeding there is nothing that needs to be recorded regarding the Supreme Court proceedings. As for CIV 1977 of 2011, it was dismissed because the plaintiff had not entered it for trial within time. At that point I refer to the content of the notice of default that was sent to the parties dated 17 May 2012 by which they were informed of the plaintiff's default and the consequences of any failure by the plaintiff to act. It is difficult to imagine that the defendants would not have been made aware of the fact (Page 7)
that even if the action was dismissed that such dismissal would somehow defeat the plaintiff. 19 As I see the context presented by the application, in effect the plaintiff has chosen not to explain its failure to respond to the notices that it received. However, that failure is projected it could not amount to a consideration for the purposes of establishing either that by commencing this action the plaintiff embarked upon an abuse of process or that by allowing the action to proceed the court would facilitate an abuse of process. 20 In my opinion the applicants have failed to discharge the onus and accordingly the application must fail.
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