Swick Nominees Pty Ltd v Norncott Pty Ltd

[2008] WASC 24

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SWICK NOMINEES PTY LTD -v- NORNCOTT PTY LTD [2008] WASC 24

CORAM:   MASTER SANDERSON

HEARD:   5 FEBRUARY 2008

DELIVERED          :   5 FEBRUARY 2008

PUBLISHED           :  4 MARCH 2008

FILE NO/S:   CIV 1252 of 2000

BETWEEN:   SWICK NOMINEES PTY LTD (ACN 008 850 619)

Plaintiff

AND

NORNCOTT PTY LTD (ACN 008 841 352)
First Defendant

DRESSER INDUSTRIES
Second Defendant

LEROI INTERNATIONAL INC
Third Defendant

Catchwords:

Application to have action removed from Inactive Cases List - Principles to be applied

Legislation:

Nil

Result:

Case removed from List

Category:    A

Representation:

Counsel:

Plaintiff:     Mr I A Morison

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     Mr C S Gough

Solicitors:

Plaintiff:     McCallum Donovan Sweeney

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     Minter Ellison

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

Nil

1. MASTER SANDERSON:  This is the plaintiff's application to have this action removed from the Inactive Cases List (List).  The application was opposed by the third defendant.  (The first defendant is not represented.  It is not clear that the first defendant was notified of this application.  At present, the second defendant is represented by the same solicitors who represent the third defendant.  However, counsel advised that he had no instructions from the second defendant.  He indicated he was not in a position to say that the second defendant was aware of the application.)  At the conclusion of the hearing, I made an order that the matter be removed from the List.  I indicated I would publish my reasons at a later date.  These are those reasons.

2. This action has had a tortured history.  It commenced in 2000.  It entered the case management regime initially under the control of the Principal Registrar and in 2002 Registrar S Boyle became the case manager.  It was entered for hearing in 2003.  After entry the plaintiff made various applications to amend its statement of claim, all of which were opposed by the defendants.  The action was removed from the trial list by Owen J and sent back for case management.  Thereafter the progress was slow.  As is conceded by the plaintiff, almost all of the delays were its responsibility.

3. In November 2006, Registrar S Boyle evaluated the case.  She ordered on 21 February 2007 that the plaintiff achieve entry for trial by 5 April 2007.  That did not occur.  The learned registrar then issued a summons under O 29A r 17 requiring the plaintiff to show cause why the matter should not be put on the List.  Prior to the return of that summons, the plaintiff made a further application to amend its statement of claim.

4. The matter came on for hearing before Registrar S Boyle on 22 August 2007.  The learned registrar did not deal with the plaintiff's application for leave to amend its pleading.  She did, however, hear argument as to whether or not the matter ought be placed on the List.  Counsel for the third defendant appeared at this hearing and supported the matter being put on the List.  The learned registrar agreed and made an order accordingly.  Although the application to amend was referred to during the course of the argument, it was not determined and its fate was left at large.

5. Under O 29A r 21(1), if a case has been on the List for six continuous months, then it is 'to be taken to have been dismissed for want of prosecution'.  On 4 December 2007, the plaintiff issued this application to have the matter removed from the List.  The application was first returned on 13 December 2007 when it was programmed for a hearing.  The matter was called on again on 24 January 2008 when it was re‑programmed.  Both parties were of the view that unless the matter was resolved in the plaintiff's favour on or before 6 February 2008, r 21(1) would operate and the action would be dismissed.

6. Part 4 of O 29A dealing with the List came into operation on 1 March 2007.  It would appear that this is the first case where an application to remove a case from the List has been opposed.  The question, then, is what principles are to be applied in determining such an application.

7. Counsel for the parties adopted different approaches.  Counsel for the plaintiff approached the matter in the way he would have responded to an application to strike out for want of prosecution.  That is to say, extensive evidence was filed dealing with various steps that had been taken in the proceedings, the prejudice that would flow to the plaintiff if the matter was not removed from the List and various other matters.  In support of this approach, counsel pointed to the fact that r 21(1) refers to cases which are not removed from the List within the six‑month period being taken to be dismissed for want of prosecution.

8. Counsel for the third defendant approached the matter as if entry on to the List was a springing order.  There is reference in r 18 to a judge, master or registrar making a springing order which would result in a case being placed on the List.  It is difficult to see how this could be the proper approach.  After all, there is no step in the proceedings that could be taken by a plaintiff which would satisfy a condition or an order and result in the matter automatically being removed from the List.  There is then a logical difficulty in arguing that the principles to be applied equate with the principles governing the variation of a springing order.

9. In the absence of any authority, it is necessary to determine what approach should be adopted.  In my view, an application to be removed from the List should be granted provided that the party and its solicitors are serious about taking some steps in the proceedings.  In this case for instance, the evidence filed by the plaintiff establishes that they wish to amend the statement of claim and proceed with the action with some expedition.  This approach invites the making of programming orders which can ensure that the case progresses in an expeditious fashion.

10. There is no purpose to be served in treating an application to be removed from the List as a defence to an application to strike out for want of prosecution.  To do that is to add another layer of complexity to case management.  If after a matter is removed from the List a party seeks to strike out the action for want of prosecution, then the principles which apply to such applications can be considered.  Those principles are well established and the cases are numerous.  To introduce a subtle but significant change, and by forcing a party to effectively defend an application to strike out for want of prosecution, serves no useful purpose.

11. Having said that, I should emphasise that an application for removal from the List should not be regarded as mechanical.  Some evidence should be advanced to show both that the party and its solicitors are committed to advancing proceedings.  Ideally, a timetable should be set, perhaps backed up by a springing order.  If in opposing an application for removal from the List a party takes the view that an application to strike out for want of prosecution would succeed, then such an application can be programmed.  This approach allows for the effective operation of the List without unduly complicating the process of litigation.

12. It was for these reasons that I ordered this matter be removed from the List.  I will hear from the parties as to the precise form of orders and as to costs.