The Griffin Coal Mining Company Pty Ltd v Wigmore Tractors Pty Ltd (in Liquidation) - [1999] WADC 105

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: THE GRIFFIN COAL MINING COMPANY PTY LTD -v- WIGMORE TRACTORS PTY LTD (IN LIQUIDATION) & ORS [1999] WADC 105

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 14 OCTOBER 1999

DELIVERED : 4 NOVEMBER 1999

FILE NO/S: CIV 6799 of 1992

BETWEEN: THE GRIFFIN COAL MINING COMPANY PTY LTD
Plaintiff
AND
WIGMORE TRACTORS PTY LTD (IN LIQUIDATION)
Defendant
HIH CASUALTY AND GENERAL INSURANCE LIMITED
First Third Party
TYCO AUSTRALIA PTY LTD
Second Third Party

Catchwords:

Practice - Western Australia - Application under O14, Rules of the Supreme Court - Estoppel - Waiver - Joinder of a party.

Legislation:

Limitation Act, s38.

Result:

Application dismissed.

Representation:

Counsel:

Plaintiff:     Dr Schoombec
Defendant:     Mr McCormack
First Third Party           :     No Appearance
Second Third Party       :     No Appearance

Solicitors:

Plaintiff:     Downings Legal Solicitors
Defendant:     Talbot & Olivier
First Third Party           :     Not Applicable
Second Third Party       :     Not Applicable

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

Leadbitter v Hodge Finance Ltd (1982) 2 All ER 167
The Commonwealth v Verwayen (1990) 170 CLR 394

Case(s) also cited:

Berno v Green's Steel Constructions Pty Ltd (1991) 103 FLR 133
Bridge Shipping Pty Ltd v Grant Shipping SA (1991) 173 CLR 231
Darle Main Colliery Co v Mitchell [1886] 11 AC 127
Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62
Do Carmo v Ford Excavations Pty Ltd (1984) 58 ALJR 287
Elliot v Williams (1996) 15 SR (WA) 336
Fernance v Nominal Defendant [1989] 17 NSWLR 710
Hill v Luton Corporation [1951] 2 KB 387
Judamia & Ors v State of Western Australia, unreported; SCt of WA; Library No 960114; 1 March 1996
Ketteman v Hansel Properties Pty Ltd (1988) 1 All ER 38
Kimberley Downs Pty Ltd & Ors v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Latimer v Shaffron [1983] WAR 273
Letang v Cooper [1965] 1 QB 232
Liff v Peasley [1981] 1 WLR 781
Liptons Cash Registers v Hugin (1982) 1 All ER 595
McKechnie v Campbell (1996) 17 WAR 62
Morgan v Banning; unreported, FCt SCt of WA; Library No 990199; 21 April 1999
Moullin v Westralian Farmers Co-Operative Ltd, unreported; SCt of WA; Library No 8455; 31 August 1990
Sheldon v Brown Bayley's Steel Works Ld and Dawnays Ld [1953] 2 QB 393
Silkline Investments Pty Ltd v Monteleone & Anor, unreported; SCt of WA; Library No 980610; 22 October 1998
Silverstone Holdings Pty Ltd v American Home Assurance Co, unreported; SCt of WA; Library No 970633; 21 November 1997
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Yorkshire Regional Health Authority v Fairclough Building Ltd [1996] 1 WLR 210

DEPUTY REGISTRAR HEWITT: The application for determination which is before me is that of the defendant which seeks a summary judgment in the action. That application is based upon a statute of limitations point which was introduced into the defence by an amendment earlier this year. The defendant contends that the action against it was not commenced within six years after the cause of action had arisen and as a consequence it is statute barred. The relevant provision relied upon by the defendant is s38 of the Limitation Act which requires that an action based in either tort or contract be commenced within six years of the date upon which that cause of action arose. It is common ground in these proceedings that the cause of action arose at the latest by 16 February 1990. It is therefore necessary to examine the manner in which the present defendant became a party to these proceedings and hence the date upon which the action was commenced against it within the meaning of the statutory provision.
Initially the writ named Australian Consolidated Investments Limited as first defendant and Wormald Australia Pty Ltd as a second defendant. The action against the first defendant was discontinued on 4 February 1993 and that against the second defendant was dismissed for want of prosecution in March 1996. The plaintiff, having obtained the leave of the Supreme Court of Western Australia to commence proceedings against Wigmore Tractors Pty Ltd, made application to this Court and the following orders were made on that application on 13 February 1996:
"1.The plaintiff have leave to join Wigmore Tractors Pty Ltd (in liquidation) in substitution for Australian Consolidated Investments Ltd as the first defendant to this action;
2.Copies of all Court documents to be served on Messrs Jackson McDonald by the plaintiff within 10 days and throughout the proceedings;
3.No execution to issue against Wigmore's in any judgment obtained in this Court without leave of the Supreme Court;
4.No order as to costs."
The order has not been extracted and the terms which I have recited above are a verbatim account of the fiat which is written on the summons save that where abbreviations have been used I have replaced those abbreviations with the full word intended.
A solicitor instructed by the defendant attended the hearing of the application for joinder and clearly acquiesced in the making of orders which I have recited above and indeed had some input into the framing of those orders to accommodate the wishes of the defendant.
It is contended by the defendant that in order for the action to be commenced against it, it was necessary for the plaintiff to have taken the steps which would constitute it a party to the action. Until those steps were taken it contends it was not a party to the action and therefore insofar as it was concerned, the action had not been commenced against it. In particular the defendant relies on O18 of the Rules of the Supreme Court and in particular r8(4a). That rule provides that where a person has been added as a party or is made to be a party in substitution for some other party they shall not become a party until either the writ has been amended and served upon him or, alternatively, if the order is one of substitution under O18, r7 that the order has been served upon him or alternatively noted in the cause book in the event that it is not required to be served.
In the present case the action against the original first defendant was concluded in favour of that defendant when the plaintiff filed a Notice of Discontinuance in February 1993. It is argued therefore on behalf of the defendant that there being no first defendant to the action that the order of 13 February 1996, notwithstanding its mention of the word "substitution" in the text, was in fact an order for joinder of the defendant as a party to the proceedings and that such joinder was not effective until the defendant had been served with an amended copy of the writ. That process was achieved on 23 February 1996 which was a date after the expiration of six years from the date upon which the cause of action arose. The defendant therefore argues that the action against it was not commenced within the six year limitation period and as a consequence the action must fail.
Against that contention the plaintiff raises a number of separate propositions and those have been identified and pleaded in a Minute of Proposed Reply which was referred to at the hearing of the application. The first point which is raised is that the order of 13 February 1996 was effective by its own force to join the defendant as a party to the action. There are some unusual characteristics about the occasion upon which that order was made and the order itself. In the first place the application was attended by a representative of the defendant and additionally, at the request of counsel for the defendant, an order was made that "Copies of all Court documents to be served on Messrs Jackson McDonald by the plaintiff within 10 days and throughout the proceedings."
The second unusual feature is the nature of the first of the orders made on that day. Significantly, there is a reference to the previous first defendant and words indicating that the defendant was to be joined in substitution for that earlier defendant. The defendant agues that it was not competent of the Court to make such an order since the previous first defendant had long since ceased to be a party in the action and there was therefore no first defendant for which the present defendant could substitute. That appears to me to be an attack on the validity of the order itself but such an attack in my view is not encompassed by the application which is before me. I am of the opinion that I should not consider whether the order made on 13 February 1996 was right or wrong or within power or without power since it is not my task to review that decision and amend it or set it aside in the event that I find it to be wanting. My task is, as far as I am concerned, to ascertain the meaning of the order and to determine whether it had, or might have had, the effect contended by the plaintiff of effecting an immediate joinder of the defendant to the proceedings. I feel that the fact that counsel for the defendant attended that hearing and clearly had a hand in framing the orders which were made by the Court on that day is a matter of significance.
Order 2 in effect amounted to an appearance by the defendant. All the essentials which are contained in an appearance were, with the acquiescence of the defendant, included within that order which identified the solicitor to represent the defendant and provided that service of relevant documents upon those solicitors would be sufficient to satisfy whatever procedural requirements might be imposed upon the plaintiff as a consequence of the order and the future conduct of the action. I am of the view that by attending the hearing of the application and acquiescing in the making of an order which in my view effectively placed Messrs Jackson McDonald on the record as the solicitors for the defendant, the order should be construed as having the effect of joining the defendant and that the requirements for service of documents within the time provided should be regarded as a procedural requirement but not one which was necessary to effect the joinder of the defendant as a party to the action. In that conclusion I am strengthened by the decision in Leadbitter v Hodge Finance Ltd (1982) 2 All ER 167 in which a Judge of the English Queen's Bench Division held that an order granting leave to join a party was effective to achieve that joinder on the date of that order for the purposes of considering when proceedings were brought in a limitation context.
It is not necessary for me to make a final determination as to whether the reasoning which I have applied is correct but for the purposes of an application of the kind which is before me it is sufficient for the proposition to be arguable.
There are however considerably more points which were raised by the plaintiff and I will now deal with those. Those issues rely upon the principles of estoppel and waiver.
In the context of the application for joinder of the defendant the evidence makes it abundantly clear that all parties were well aware of the fact that a limitation period was about to expire. The plaintiff says that by attending the hearing and acquiescing to the making of an order which referred to the substitution of the present defendant for the original first defendant, the defendant should be estopped from asserting a case which relies upon the fact that the order of 13 February 1996 was in truth a simple joinder of the defendant rather than a substitution of the defendant for the previous first defendant. The significance of that point is that were the order to be a substitution there would be a continuity within the action such that it would be deemed to have commenced against the present defendant when the writ was first issued namely in 1992.
In analysing this proposition I hasten to reassert my view that the first defendant had ceased to be a party in this action and it was not possible to substitute the present defendant for that first defendant. That however is an attack on the order itself and the very thrust of the plaintiff's argument on this point is that the defendant should be estopped from going behind the order and raising such an argument since it acquiesced in the form of the order which was made by the Court on that day and it should not be permitted to say in its defence that the order was other than a substitution of one party for another.
The principle of estoppel received the consideration of the High Court of Australia and I adopt as a correct statement at the principle the comments by Mason CJ in The Commonwealth v Verwayen (1990) 170 CLR 394 at 413:
"The result is that it should be accepted that there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A central element of that doctrine is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid. It would be wholly inequitable and unjust to insist upon a disproportionate making good of the relevant assumption."
To apply that principle to the present facts it appears to me to be an arguable proposition that by acquiescing to a form of an order purporting to substitute the defendant for a previous party the defendant has induced the plaintiff to act on the assumption that the order was effective according to its tenor and should now be estopped from asserting that the order in truth effected a joinder, not a substitution.
The next point which is made by the plaintiff is that the order of 13 February 1996 fixed a time for service of relevant documents upon the defendant. That order clearly was made with the acquiescence and indeed the active input of the first defendant. The plaintiff says that having actively influenced the Court to make an order in those terms it should be estopped from now asserting that service of the documents in the manner provided by the order (as the plaintiff did) should nonetheless entitle the defendant to a limitation defence. The plaintiff says that the defendant, having agreed that the documents could be served within 10 days, should not now be permitted to say that notwithstanding the fact that the documents were so served the plaintiff's cause of action has been lost. In my view that proposition has sufficient merit to defeat the present application.
The next matter raised by the plaintiff is the proposition that through the acquiescence to the order the defendant waived its entitlement to rely on a limitation defence. On that score I am in complete agreement with counsel for the defendant. It is not possible to waive rights unless those rights exist. At the date of the order there was not entitlement to a limitation defence. As a consequence I accept the argument of counsel for the defendant when he says that in the factual matrix which existed on 13 February 1996 it was not possible for the defendant to have waived its right since it was not possessed of such a right.
The matter is capable of a different slant however. At the time the order was made on 13 February 1996 the defendant was entitled to have the Rules of the Supreme Court governing joinder and substitution strictly observed. Could it be said that by acquiescing in the order made, the defendant waived its rights to that strict observance and is no longer entitled to base its defence on propositions which rely upon the regime created by those rules.
In the context of this case I think that the definition of waiver as "a unilateral release of a right …", Brennan J The Commonwealth v Verwayen supra at 423, is appropriate.
In the present case the defendant acquiesced in the making of an order which:
(a)In effect placed Messrs Jackson McDonald on the record for the defendant.
(b)Provided a mechanism of service (ie on Jackson McDonald) which was a variance with the requirements of the rules, and
(c)Fixed a period of time within which service was to take place.
In that scenario I consider it arguable that the defendant has waived the requirements of the rules and cannot now be heard to mount an argument which has as its basis the need of the plaintiff to comply with the rules rather than the order.
It is interesting to note that the defendant, having being served with the documents in accordance with the order made on 13 February 1996, filed an unconditional appearance and subsequently a defence and that it was not until this year that the first suggestion that the defendant had a limitation defence was raised. A Mr Walsh acted on behalf of the defendant at the relevant time and it was he who was involved in the transactions to which I have referred. The affidavits which were filed at the time of the application and in the Supreme Court proceedings made it clear that a limitation period was about to expire. In my view the solicitors for the defendant, subsequent to the service of the documents, conducted themselves in a way which suggested that no limitation defence was available to their clients. Whilst that is not of itself evidence of anything, it nonetheless does add colour to the suggestion which underlines the whole of the submissions made by the plaintiff namely that the parties appeared to be of the view that the making of the order on 13 February 1996 was effective to create an immediate joinder of the defendant to those proceedings and there was thereafter no particular hurry to serve documents since the very objective of the application had been achieved namely to join the defendant before a limitation to the defence was available to it.
For these reasons I consider that the limitation defence upon which the defendant has based its summary judgment application is not a clear out answer to the plaintiff's claim. There have been, in my opinion, triable issues raised by the defendant of sufficient substance for the application to be dismissed and the matter to proceed to a trial.