Strzelecki Holdings Pty Ltd v Wiebel
[2013] WADC 27
•26 FEBRUARY 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: STRZELECKI HOLDINGS PTY LTD -v- WIEBEL [2013] WADC 27
CORAM: BOWDEN DCJ
HEARD: 22 FEBRUARY 2013
DELIVERED : 26 FEBRUARY 2013
FILE NO/S: CIV 1978 of 2011
BETWEEN: STRZELECKI HOLDINGS PTY LTD
Plaintiff
AND
MARTIN RUDOLF WIEBEL
SERGIO COTELLESSA
Defendants
Catchwords:
Inactive list - Does the District Court Rules entitle a plaintiff to enter a case for trial after it is placed on the inactive case list? - If an entry for trial is countermanded is that entry treated as if it had never been made for the purposes of r 44G? - Costs
Legislation:
District Court Rules 2005
Result:
A plaintiff is entitled to enter a case for trial after it is placed on the inactive case list
If an entry for trial is countermanded it is not treated as if it had never been made for the purposes of r 44G, unless otherwise ordered so by the court
Representation:
Counsel:
Plaintiff: Mr G J Douglas
Defendants: Mr T O'Coyle
Solicitors:
Plaintiff: Hotchkin Hanly
Defendants: Lavan Legal
Case(s) referred to in judgment(s):
Brocx v Hughes [2010] WASCA 57
Buyquick.com Ltd v Foxgold Pty Ltd [2000] WASC 216
BOWDEN DCJ:
Introduction
This appeal stems from an action arising from the sale 'off the plans' of an apartment in Oceanic Retreat, The Lido, Mandurah by a contract entered into on 1 April 2007.
The real issues are whether a plaintiff is entitled to file an entry for trial once the case is on the inactive list and if so whether a court order countermanding an entry for trial means the entry for trial is treated as never having been made for the purpose of r 44G.
The question is of great significance in this case because at the time the entry for trial was filed the case was on the inactive list pursuant to the District Court Rules 2005 (DCR).
Rule 44G DCR provides:
(1)A case that is on the Inactive Cases List for 6 continuous months is taken to have been dismissed for want of prosecution.
…
The entry for trial was filed on the last permissible day so that if it had not been filed the matter would have been dismissed for want of prosecution.
Subsequently, the entry for trial was countermanded by order of the deputy registrar. Although other orders made by the deputy registrar are appealed the parties agree the entry for trial ought be countermanded.
The defendant says firstly that the DCR did not permit the plaintiff to file an entry for trial once the case was on the inactive list and alternatively if it did once an order countermanding the entry for trial is made, the entry for trial is treated as never having been made for the purposes of r 44G and the plaintiff's case is therefore dismissed for want of prosecution.
How the case was placed on the inactive cases list
The registry sent to each party, pursuant to r 38(1) DCR, a Form 2, (notice of default) entry for trial, on 6 March 2012. This notice was issued as a result of the plaintiff's failure to enter the case for trial on or before the date for entry for trial in the timetable applicable to the case. The date specified in Form 2 was 21 March 2012.
Rule 44 DCR provides:
44Notice of default, effect of disobedience to
(1)If a Form 2 is sent in relation to a case, the plaintiff must, on or before the date specified in the form (which must be at least 14 days after the date of the form), enter the case for trial.
(2)If a plaintiff does not obey a Form 2, the case is taken to be inactive.
On 22 March 2012 the matter was placed on the inactive cases list pursuant to r 44 due to the plaintiff's failure to enter it for trial by 21 March 2012.
On 29 March 2012 the principal registrar issued a notice, pursuant to r 44D DCR, dated 29 March 2012 which specified 22 March 2012 as the date the case had been placed on the inactive cases list.
The notice said inter alia:
Pursuant to District Court Rules 2005 (WA) r 44 the only documents which can be filed in the Court are:
(c)entry for trial papers, which may be filed by any party, or …
The consequences of the case being on the inactive cases list is specified by r 44E DCR which states:
44EConsequences of case being on Inactive Cases List
If a case is on the Inactive Cases List, only these documents can be filed in the case -
(a)a Form 1 (Entry for trial);
(b)a consent order finalising the case;
(c)a summons for an order under rule 44F(3);
(d)a summons for an order dismissing the case for want of prosecution;
(e)any document that relates to a document listed above.
The manner in which a case can be removed from the inactive cases list is provided by r 44F DCR which states:
44FRemoving cases from Inactive Cases List
(1)If a Form 1 (Entry for trial), or a consent order finalising the case, is filed in a case on the Inactive Cases List, the case is taken to have been taken off the list.
(2)Any party to a case on the Inactive Cases List may apply to the Court for an order that the case be taken off the Inactive Cases List.
(3)The Court may order a case be taken off the Inactive Cases List if satisfied the case will be conducted in a timely way or for any other good reason.
(4)An order that a case be taken off the Inactive Cases List may include any conditions necessary to ensure the case is conducted.
…
If a case remains on the inactive cases list for six continuous months the case is dismissed for want of prosecution by virtue of r 44G, DCR which provides:
44G(1) A case that is on the inactive cases list for six continuous months is taken to have been dismissed for want of prosecution.
…
(4)If a case is dismissed under subrule (1) any party to it may apply to the court for, and the court may make, any orders needed as a consequence of the dismissal.
On 19 September 2012 the plaintiff's solicitors wrote to the defendants' solicitors requesting, inter alia, the defendants' unavailable dates for a pre‑trial conference. Rule 37(4)(a) DCR required such a request to be made at least 14 days before the plaintiff entered the matter for trial.
On 24 September 2012 the plaintiff filed and served a notice of entry for trial. The defendants say the certification made in that notice is incorrect as the plaintiff had not complied with orders made by the deputy registrar on 12 March 2012 which required the plaintiff to provide further and better discovery by 23 March 2012 and the matter was not in all respects ready for trial.
The 24 September 2012 was the day before the matter would have been dismissed pursuant to r 44G, DCR.
The effect of the plaintiff filing the notice of entry for trial was that the case was not on the inactive case list for six months thereby avoiding the case being dismissed for want of prosecution.
The defendants' chamber summons of 5 October 2012
Upon receipt of the entry for trial, the defendants by chamber summons dated 5 October 2012 sought orders that the plaintiff's entry for trial be countermanded, the matter be dismissed for want of prosecution and costs be determined.
The basis for the application was that the plaintiff had not indicated that it would conduct the case in a timely manner; did not seek the defendants' unavailable dates 14 days prior to filing the entry for trial; and had not complied with all directions and orders made by the court at case management hearings and the matter was not in all respects ready for trial.
The orders made by the deputy registrar
This application came before Deputy Registrar Hewitt who, on 1 November 2012 ordered, inter alia, that the entry for trial be countermanded; the application for dismissal of the action for want of prosecution be dismissed; and the plaintiff pay the defendants' costs of the application in any event.
Both parties appeal those orders.
The appeals
The defendant seeks orders that the time within which they may file and serve their notice of appeal be extended to 15 November 2012; the entry for trial be countermanded; the matter be dismissed for want of prosecution; and the plaintiff pay the defendants' costs of the application and appearance.
The plaintiff seeks orders that the entry for trial be countermanded; the application for dismissal of the action for want of prosecution be dismissed; and the defendants pay the plaintiff's costs of the defendants' application in any event.
The principles applying to this appeal
Pursuant to the r 15(6) DCR this is a new hearing of the defendants' chamber summons of 5 October 2012.
This court looks at the matter afresh and reaches its own decision and it is not necessary for any party to show an error of law or fact in the decision subject to the appeal.
The application for an extension of time within which to appeal
Rule 15 DCR provides that an appeal must be commenced within 10 days of the decision appealed from or such longer period as the judge may allow.
The defendants' appeal was filed four days out of time. The application for an extension of time was not opposed and, accordingly, I allow an extension of time.
The issues before this court
Both parties agree that the entry for trial ought to be countermanded.
The defendant says firstly that the DCR did not permit the plaintiff to file an entry for trial once the case is on the inactive list.
Alternatively the defendants say if the DCR permits that to be done and that entry for trial is later countermanding the entry is treated as never being made for the purposes of r 44G with the consequence that the plaintiff's action is thereby dismissed for want of prosecution.
The plaintiff disagrees with these interpretations.
Both parties disagree on the costs orders that should be made.
The defendants' first proposition – do the DCR permit the plaintiff to file an entry for trial once the case is on the inactive list?
The defendant says the plaintiff cannot enter a case for trial once the case is on the inactive list.
To support this argument they rely on r 38:
38Plaintiff failing to enter case for trial, consequences
(1)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 relevant registry must send each party a Form 2 (Notice of default (entry for trial)).
(2)At any time after receiving a Form 2, a party, other than the plaintiff, may enter the case for trial.
(3)Rule 37(3), with any necessary changes, applies if a party other than the plaintiff enters the case for trial.
(4)If a party other than the plaintiff enters the case for trial, then, for the purposes of completing Form 1, all other parties (including the plaintiff) are to be taken to be available to attend a pre‑trial conference on any date unless notice to the contrary is filed prior to when the date of the pre‑trial conference is set.
(5)If under sub‑rule (2) a case is entered for trial at a time when, by virtue of the Form 2 sent to the parties and r 44(2) the case is inactive, the case ceases to be inactive.
(6)Sub‑rules (2) and (5) do not prevent the plaintiff from complying with r 44(1).
The defendant argues that the words 'a party, other than the plaintiff' in r 38(2) means that only a party other than the plaintiff can enter the case for trial whilst the case is on the inactive list.
The defendant acknowledges that the court notice issued pursuant to r 44D specifies that the 'entry for trial papers … may be filed by any party …'. However they say the notice is defective because the rules only allow the defendant or other party (excluding the plaintiff) to file an entry for trial and the DCR govern the situation, not the registrar's notice.
The defendants argue that the permissive effect of r 38(2) and r 38(6) coupled with the imperative in r 44 has the effect that after the expiration of the period for entry for trial specified in Form 2 only the defendants can enter the action for trial and the plaintiff's only option, once the case is on the inactive list is to apply under r 44F(2) for an order for the case to be taken off the list and this can only be done if the court is satisfied the case will be conducted in a timely way or for any other good reason (s 44(F)(3)).
I cannot accept the defendant's arguments.
Rule 38(2) permits a party other than the plaintiff, once it has received a Form 2, to enter the case for trial, either before or after the case is placed on the inactive cases list. The plaintiff can file a Form I and thus enter the matter for trial pursuant to r 44E. That is the plain effect of r 44E. The plaintiff is not excluded by that rule from filing an entry for trial.
The defendant's argument would mean that a plaintiff whose action is ready for trial would, rather than simply filing an entry for trial, have to apply under s 44F for an order that the case be taken off the inactive cases list.
The defendant says this is only fair because for the matter to have reached that stage, the plaintiff must first of all have failed to enter the matter for trial by the date specified in the case timetable, and the date specified in Form 2 and in those circumstances it is consistent with the scheme of the rules for the plaintiff to be required to apply to the court for an order taking the case off the inactive cases list rather than achieve that aim by simply filing an entry for trial.
I reject this.
In my opinion, r 44E and r 44F are clear. The filing of an entry for trial once the case is on the inactive list is expressly permitted, r 44E, once that is filed the case is taken off the inactive cases list, r 44F. The plaintiff is not excluded by those rules from filing an entry for trial. The entry for trial form envisages that any party to the action can file it.
There is nothing that requires or warrants interpreting the rules so as to prevent the plaintiff from filing the entry for trial once the matter is on the inactive list. Either the plaintiff or a party other than the plaintiff can file that entry for trial and thereby remove it from the inactive list.
The defendants second Argument - Does the countermanding of the entry for trial mean the plaintiff's action is dismissed for want of prosecution pursuant to r 44G(1)?
The defendant says once the court countermands an entry, that entry is effectively treated as a nullity with the consequence, in this case, that pursuant to r 44G the plaintiff's action is dismissed for want of prosecution as the case had been on the inactive cases list for six continuous months.
They say it would be inconsistent with the principles and the scheme of the rules for a plaintiff to escape the sanction of having their case dismissed for want of prosecution by filing an entry for trial on the last day thereby removing the case from the inactive cases list even when the entry is subsequently countermanded. To do so, they say, would effectively allow that plaintiff to take advantage of its own error in certifying the action as fit for trial and thereby further delay the matter and avoid the consequences of their tardiness.
The defendants urge me to read r 44F (1) as if it contained the additional words:
Except if the entry for trial is countermanded under O 33 r 9 of the Rules of the Supreme Court 1971 in which case the case will not be taken to have been taken off the list.
The plaintiff says that on the proper interpretation of r 45F(1) and r 44G(1) the case was taken off the inactive case list as a result of filing the entry for trial and, accordingly, there is no basis to dismiss the matter for want of prosecution even though the entry for trial was later countermanded.
They say that if an entry for trial is countermanded, it does not mean it is considered void ab initio.
They say that if the defendants' appeal were successful there is nothing preventing the plaintiff from commencing new proceedings in the same cause of action: Brocx v Hughes [2010] WASCA 57 provides that a claim may be recommenced after dismissal for want of prosecution except if there is a finding that the claim is vexatious.
The plaintiff says it is a waste of the court's and the parties' resources to adopt a procedure that would result in a dismissal of their claim for want of prosecution when they would simply recommence proceedings.
In my opinion on a plain reading of r 44F( 1) the case is taken off the inactive case list once the matter is entered for trial. An order countermanding the entry for trial takes effect from the day it was made. It does not have a retrospective effect nor does it mean that the entry for trial is treated as never having been made.
Rule 44F(1) must be given its clear natural meaning and once an entry for trial is filed the matter is deemed to be taken off the inactive list even if the court later countermands that entry.
This is not to say that in the appropriate case the court could not make an order, when countermanding an entry for trial, that the entry for trial be treated as if it had not been made.
Both O 33 r 9(5) of the Rules of the Supreme Court 1971 and the court's inherent power to prevent abuses of the court provide the court with the power in the appropriate case, where, for example, a solicitor had knowingly certified a case was in all respects ready for trial when he knew it was not and did so for the purposes of avoiding the case being dismissed for want of prosecution, to countermand the entry for trial and order that it be treated as if it had never been made and that in the appropriate case may, as a result of r 44G, result in the plaintiff's claim being dismissed for want of prosecution.
Costs
The plaintiff says that although the defendants were successful in countermanding the entry for trial, the defendants' costs should not be allowed because the defendants did not confer as required under r 22 prior to making the application and as soon as they received the application the plaintiff wrote to the defendants saying they would consent to the countermanding and enclosed a minute of consent orders for signature.
They say r 22 requires the parties to confer no matter how unlikely it is that they will reach complete agreement or narrow the issues: Buyquick.com Ltd v Foxgold Pty Ltd [2000] WASC 216.
The plaintiff says the only real issue in contention was whether the action should be dismissed for want of prosecution and the plaintiff was successful in opposing that order and as there was no conferral and they were the successful party their costs on that application should be paid by the defendants.
Their fallback position is that if the court takes the view that the application was made because the matter was not ready for trial due to issues arising from the plaintiff's discovery the appropriate order is for costs be in the cause.
The defendants say the original chamber summons was brought due to the plaintiff's defective entry for trial. They accept that conferral did not occur but say it would not have changed the result as the plaintiff would not have consented to dismissing the action.
They say the real issue was the application to dismiss for want of prosecution and although they were unsuccessful, the application was as a direct result of the plaintiff filing an incorrect entry for trial and therefore the plaintiff should pay the defendants' costs of the appeal and the appearance before the registrar.
The defendants say the entry should not have been filed, and the solicitor's certification that the matter was ready for trial was inaccurate.
The plaintiff says they consented to the countermand because after the entry for trial was filed and the defendant made the application they decided not to oppose it so there could be further conferral and potentially further discovery.
Although I am not called upon to determine the basis upon which the plaintiff consented to the countermand, it is quite clear that the plaintiff's then lawyer certified the matter as ready for trial and within a very short period of time, the plaintiff consenting to the entry for trial being countermanded. The inference I draw was that the matter was not ready for trial despite the plaintiff's then solicitor certifying it was.
Whilst there was no conferral and the defendant was unsuccessful in both their arguments before me those arguments clearly have their genesis in the action of the plaintiff's then solicitor who filed an entry for trial on the last permissible day and certified the matter was in all respects ready for trial in circumstances where but for it being filed, the plaintiff's action would have been dismissed for want of prosecution. As soon as the defendant challenged the entry for trial the plaintiff agreed to it being countermanded. Clearly the inference is appropriately drawn that the matter was not ready for trial despite the plaintiff's then solicitor certifying it was.
I accept that the normal course of events is for the successful party to be awarded their costs however ultimately, it is a question of doing justice between the parties.
In those circumstances, notwithstanding the defendant's lack of success and the absence of conferral, I think justice is done between the parties by ordering that the costs of the application before the registrar and the costs of the appeal be paid by the plaintiff.
The orders that I make therefore are as follows:
1.The time within which the defendants' notice of appeal be filed is extended to 15 November 2012.
2.The entry for trial is countermanded.
3.The application to dismiss the action for want of prosecution is dismissed.
4.The plaintiff pays the defendants' cost of the application and appearance before the deputy registrar and the appeal.
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