Technident Pty Ltd v CJM Contractors Pty Ltd - [2011] WADC 57

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: TECHNIDENT PTY LTD -v- CJM CONTRACTORS PTY LTD [2011] WADC 57

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 30 MARCH 2011

DELIVERED : 30 MARCH 2011

FILE NO/S: CIVO 114 of 2009

BETWEEN: TECHNIDENT PTY LTD
Plaintiff
AND
CJM CONTRACTORS PTY LTD
Defendant

Catchwords:

Dismissal of action for want of prosecution

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr P E Jarman
Defendant: Mr W G Vogt

Solicitors:

Plaintiff: Jarman McKenna
Defendant: Vogt Graham Lawyers

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

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Smith v Commissioners of the Rural & Industries Bank of Western Australia [2009] WASC 100
The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93

PRINCIPAL REGISTRAR GETHING: [This judgment was delivered extemporaneously on 30 March 2011 and has been edited from the transcript.]

The application before me is a chamber summons dated 2 February 2011 by the defendant, CJM Contractors Pty Ltd (CJM), to dismiss the plaintiff's claim in the District Court for want of prosecution.
In support of its application, the defendant filed an affidavit of Matthew Sanders, a director of the defendant, dated 2 February 2011. In response, the plaintiff filed affidavits of Elisa McLennan, who is a solicitor for the defendant's solicitor, dated 15 February 2011 and 3 March 2011.
The background to the action is that the defendant, CJM, commenced proceedings in the Magistrates Court in September 2008 in relation to a claim of $28,875 pursuant to an agreement by which the plaintiff, Technident, purchased a business known as Limescapes Custom Limestone from CJM.
In April 2009 CJM was granted summary judgment against Technident in respect of this claim. The order for summary judgment provides for the payment of interest.
Technident filed a counterclaim in the Magistrates Court in which it raised a series of breaches of the sale agreement. The amount claimed in the counterclaim is in excess of $65,000. In the materials before me, it is stated to be a claim, if successful, in the region of $120,000.
By originating summons filed in the District Court in November 2009, Technident sought orders transferring the Magistrates Court action, by then only the counterclaim, to the District Court. By consent, orders were made to that effect in February 2010.
In or about August 2010 the solicitor for Technident sought to lodge entry for trial papers at the District Court. They were advised that prior to doing so, orders transferring the action to Magistrates Court needed to be extracted.
The draft order was lodged on or about 30 August 2010, but not extracted until February 2011. Upon its return, the entry for trial papers were filed and the action now has been allocated to a pre‑trial conference in the court on 20 April 2011.
The relevant law in relation to the application is conveniently set out in the judgment of the Full Court in The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93 [100]:
But as with so many areas in the law, it is one thing to identify general principles and another properly to apply them. It should always be borne in mind that the power to dismiss for want of prosecution calls for the exercise of discretion. It is a discretion that must be exercised judicially but is otherwise open. It exists to serve the ends of justice. Caution should therefore be employed so that these general principles are appropriately to be seen as guidelines indicating some of the matters to which the court should have regard in exercising the discretion. The court's discretion to dismiss an action for want of prosecution is not fettered by any absolute or inflexible rules. There are however five matters to be considered which will usually be relevant to the court's decision to exercise the discretion:
•the length of the delay;
•the explanation for the delay;
•the hardship to the plaintiff if the action is dismissed and the cause of the action left statute-barred;
•the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and
•the conduct of the defendant in the litigation.
Ulowski v Miller [1968] SASR 277 at 280 (FC); Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998.
Turning then to the five factors set out in the judgment of Steytler P and Owen JA in the Hancock case, the first factor is length of the delay. The overall length of the delay relevantly is between 19 February 2010, which is the date by which Registrar Kingsley ordered that the matter be entered for trial, and 24 February 2011, which was the date on which the action was entered for trial. That is a delay of just over 12 months.
In terms of the explanation for the delay, the explanation falls into basically two time periods. The first is the period between February 2010 and August 2010 prior to the attempt by the plaintiff to have the action entered for trial in the District Court. The relevant delay there is said by the counsel for Technident to be caused by a change in solicitors. He used the phrase - 'The matter fell between the cracks' - in relation to that delay.
The second delay is between August 2010 and February 2011. That delay in part was caused by the court in the time taken to extract the consent order transferring the action. Counsel for the defendant stated that it was incumbent on the plaintiff's solicitors to follow up those delays with the court.
Counsel for the defendant also raised the issue that there was correspondence between the parties in which the defendant's solicitors inquired as to the progress of the action. The first such correspondence appears to be a letter of 26 June 2010. There is then correspondence throughout July, August and September 2010.
The third factor is the hardship to the plaintiff if the action is dismissed. In this case, the cause of action would not be statute barred if dismissed. It seems to me that the most likely course of action that would occur is that if the present case is dismissed for want of prosecution, the plaintiff will recommence proceedings in this court by a new writ. That is likely to cause more delay in the resolution of the proceedings.
In the present case, assuming the pre‑trial conference goes ahead in April, the action is likely to go to trial in, say, August, with a written judgment by the end of this year. If a new action is commenced, the timetable for resolution is likely to be put back by at least six, probably 12, months. The hardship to the plaintiff of that occurring is not only more delay but more costs. Those costs are to be considered in the context of a claim of $120,000.
The prejudice to the defendant, CJM, if the action is allowed to proceed, notwithstanding the delay, is, on the submissions before me, threefold. The first is the general delay. There is authority to the effect that litigation is presumptively stressful and that the court should take into account that delay of any kind is prejudicial to parties on the receiving end of that delay: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 [100], [137].
The second is that CJM has not been able to take steps to recover its Magistrates Court judgment in the amount of $28,875. In the affidavit before me in support of the application Mr Sanders states that 'this delay is causing significant financial prejudice to the defendant'. The prejudice referred to is not supported by any particulars, therefore its weight must be minimal.
The third prejudice is the costs of pursuing Technident in seeking to get the action progressed in a timely manner.
The final factor is the conduct of the defendant in the litigation, CJM. In this regard the parties referred me to the comments of Roberts‑Smith JA in Hancock [100] that there is no obligation upon a defendant to press a plaintiff to prosecute an action against the defendant. That proposition was accepted by the Chief Justice in Smith v Commissioners of the Rural & Industries Bank of Western Australia [2009] WASC 100 [56]. Against that proposition, the defendant has on a number of occasions written to the plaintiff seeking to progress the action.
There is a further factor that the defendant, CJM, submitted I should take into account, which is that in this case there has been an abuse of process. As a matter of principle, given the width of the discretion set out in the Hancock case, it seems to me that I am able to take into account whether there is a conduct amounting to an abuse of process in determining whether or not to grant the application.
The argument of CJM is that the abuse of process arises from three main facts. The first is that Technident knew that there was a judgment. The second is that Technident knew that it was likely that they could not enforce the judgment because of the ongoing counterclaim. The basis there is that if there were attempts to enforce it, it is likely that an application for a stay would be successful. The third factor is that Technident failed to take any steps to progress the action at a faster rate than it did, despite requests by the solicitors for CJM and notice of a pending application to dismiss the application for want of prosecution.
On the materials before me the factual basis is insufficient to allow me to form a conclusion that there has been an abuse of process. Neither is it sufficient for me to form the view that the delay has been in any way contumelious.
The key issue, it seems to me, is balancing the risks of injustice. In balancing the risks of injustice the issue of proportionality is one that I am required under the Rules of the Supreme Court 1971 (WA) (RSC) to pay particular regard to. The Supreme Court amended RSC O 1 r 4B, in the middle of 2010, to place added weight on the question of proportionality. It included into RSC O 4B r 1 par (e) and par (f). Those paragraphs are as follows:
(1)Actions, causes and matters in the court will, to the extent that the resources of the court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of:
…
(e)ensuring the procedure applicable and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute, and
(f)that the procedure applicable and the costs of the procedure to the parties are proportionate to the financial position of each party.
It seems to me that, in the interests of justice, the application ought to be dismissed. The length of the delay is not inordinate compared with other decisions in which applications for want of prosecution have been declined. Importantly, the source of the delay, namely the delay in entering the matter for trial, has fallen away.
The action is listed for a pre‑trial conference on 20 April 2011. If it doesn't resolve the pre-trial conference, the court's usual practice would be to list it for a listing conference and then through to trial.
The explanation for the delay in terms of changes of solicitors is not one that is strongly suggestive of granting the application.
The key factor, it seems to me, is the issue of proportionality. The claim, at its highest, is for about $120,000. If the action is dismissed, as I have already noted, it seems to me that the most likely course will be that the plaintiff will recommence. If it does recommence, that is going to lead to more delay and cost to the parties. It is also going to increase the risk that the cost of the litigation is going to be out of all proportion to the amounts in issue.
It is in the interests of justice, both to the parties and to the use of public resources, that this action should proceed to trial in its current form. On that basis, the application ought to be dismissed, and I will hear from counsel on the question of costs.