The Owners of One Brighton Strata Plan 519488 v Pindan Constructions Pty Ltd
[2018] WADC 77
•5 JUNE 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: THE OWNERS OF ONE BRIGHTON STRATA PLAN 519488 -v- PINDAN CONSTRUCTIONS PTY LTD [2018] WADC 77
CORAM: BOWDEN DCJ
HEARD: 30 MAY 2018
DELIVERED : 5 JUNE 2018
FILE NO/S: CIV 3822 of 2016
BETWEEN: THE OWNERS OF ONE BRIGHTON STRATA PLAN 519488
Plaintiff
AND
PINDAN CONSTRUCTIONS PTY LTD
Defendant
Catchwords:
Practice and procedure - Inactive cases list - Case dismissed pursuant to r 44G District Court Rules 2005 - Application to set aside the dismissal of the case - Exceptional circumstances - Application to extend the validity of the writ - Exercise of discretion
Legislation:
District Court Rules 2005
Representation:
Counsel:
| Plaintiff | : | Mr P Monaco |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | GV Lawyers |
| Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Lamp v Americold Australia Pty Ltd [2018] WADC 52
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185
Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73
Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2017] WASCA 142
JUDGE BOWDEN:
The general background
The dispute between the plaintiff and the defendant arises from the alleged negligence and/or faulty work and/or structural defects and/or defective design of the common property of a building in Mandurah for which the plaintiff claims to have suffered loss and damage as a result of the defendant's negligence and/or breach of contract and/or breach of statutory duty on the part of the defendant and its servants and agents.
The writ was issued on 14 October 2016.
The writ has never been served.
On 18 October 2017 the principal registrar issued a r 44D(1)(a) notice placing the case on the inactive cases list as no document had been filed on the case for the preceding 12 months.
On 31 October 2017 the plaintiff filed an ex parte chamber summons seeking orders that the action be removed from the inactive cases list and that the validity of the writ of summons be extended to 28 February 2018. The application was supported by an affidavit of Mr Monaco sworn 27 October 2017.
Mr Monaco's affidavit of 27 October 2017 deposed to the fact that the failure to serve the writ within 12 months was a 'regretful and inadvertent oversight' on his part in the context that the substantive issues between the parties were being agitated in the State Administrative Tribunal (SAT).
I note that the proceedings in SAT are against Pindan Pty Ltd whilst the proceedings in this court are against Pindan Constructions Pty Ltd.
Attached to Mr Monaco's affidavit were orders made by SAT confirming the matter before it was listed for hearing for nine days from 22 January 2018.
Mr Monaco deposed to the fact that if there were residual issues between the parties remaining after the SAT determination the purpose of the writ was to ensure that the limitation period did not expire and those matters were dealt with in the District Court.
Mr Monaco deposed to there being no prejudice to the defendant if the writ was extended for a further period of six months which would take the writ beyond the nine-day SAT hearing set down for January 2018.
On 14 November 2017 the application was heard and on 17 November the principal registrar dismissed the applications.
On 20 November 2017, within time, a notice of appeal against the principal registrar's decision was filed.
On 13 February 2018 a directions hearing was held and the court made orders including that the plaintiff provide its unavailable dates for hearing by 4.00 pm on 14 February 2018.
The plaintiff provided its available dates on 15 February 2018 outside the time ordered by the court. The plaintiff's available dates were in May and June.
On 19 February 2018 the court advised that the appeal was set down for hearing on Wednesday, 9 May 2018 at 10.30 am. Subsequently, by letter of the same date, the court advised that that hearing had now been set for Wednesday, 2 May 2018 at 10.30 am and asked the parties to disregard the previous correspondence relating to the appeal hearing listed on 9 November 2018 [sic].
On 18 April 2018, pursuant to r 44G of the District Court Rules 2005 (DCR), the plaintiff's action was dismissed because it had been on the inactive cases list for a continuous period of six months.
A further affidavit of Mr Monaco of 30 April 2018 was filed for the purpose of the appeal which provided copies of both the plaintiff's and Pindan Pty Ltd's statement of issues, facts, contentions and responses for the proceedings before SAT and also enclosing the plaintiff's closing submissions. Pindan Pty Ltd’s closing submissions were not enclosed because they were at that stage not due.
Mr Monaco deposed that the defendant would not suffer any prejudice because the issues that would be canvassed in the District Court could not be of any surprise as they were basically the matters raised before SAT.
No direct evidence is before me as to whether Pindan Pty Ltd, the party to the action in SAT, and Pindan Constructions Pty Ltd, the party to the action in the District Court, are related entities or whether the plaintiff has mis‑described the party in one of the actions.
However Mr Monaco’s affidavits sworn 27 October 2017 and 30 April 2018 imply that the plaintiff’s actions in both forums are against the same entity. There has either been a mis‑description of the parties in one of the actions or they are related entities .
In the affidavits Mr Monaco deposes that the District Court jurisdiction was being kept alive to ensure that if matters were not covered by SAT's jurisdiction, they would come within the District Court jurisdiction. He said the facts would not be different, however, the legal consequences and/or entitlements may be different.
At the hearing of the appeal on 2 May 2018 the matter proceeded on an ex parte basis and whilst originally orders were made, they were recalled forthwith and, after hearing further submissions from Mr Monaco, the plaintiff was required to file an application that the dismissal of the case which occurred on 18 April be set aside. This was because it was the court's view that the application to remove the matter from the inactive cases list and an application to extend the validity of the writ could not proceed as the action had been dismissed and an application to set aside the dismissal of the action pursuant to r 44G(5) DCR was required.
Further orders were made requiring the service of the application to set aside the dismissal of the action This was complied with.
On 4 May 2018 the plaintiff filed a chamber summons seeking to set aside the dismissal of the case pursuant to r 44G(5) DCR.
Subsequently all matters were re‑listed for 30 May 2018.
When the matter was called on 30 May 2018, as a courtesy to the court the in-house solicitors for the defendant appeared to acknowledge receipt of the service of the documents but did not seek to appear at the hearing of the various applications.
The applications should be dealt with in the following order. Firstly, the application to set aside the dismissal of this action and remove it from the inactive cases list and then the application to extend the validity of the writ.
Each application must be heard ex parte because the writ has not been served on the defendant and the court has no jurisdiction over the defendant until they have been served: Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79; Lamp v Americold Australia Pty Ltd [2018] WADC 52.
The application to set aside the dismissal of the action
I grant leave for this application to be made before me pursuant to r 11(f) DCR 2005 .
The action was dismissed because the case had been on the inactive cases list for a continuous period of six months pursuant to r 44G(1) of the DCR. Rule 44G(5) DCR provides that a court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of the case from the inactive cases list.
For the circumstances to be 'exceptional' under r 44G(5) they must be out of the ordinary, unusual special or uncommon. They do not need to be unique or unprecedented or very rare, however, they will not be exceptional if they are regularly or routinely or normally encountered: Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd[No 2] [2017] WASCA 142 [26]. Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73.
Whether circumstances are exceptional involves an evaluative judgment. The court must consider the rationale of the statutory provision and carefully consider the facts of a particular case: Sovereign Grange Pty Ltd.
The rationale of r 44G (5) is to secure the just and efficient determination of proceedings before the court, the efficient use of court resources and the timely disposal of the court's business.
The nature of the exceptional circumstances must be such as to warrant the exercise of the discretion to set aside the dismissal of the action. The reference to exceptional circumstances regulates the manner in which the court's discretion under r 44G (5) is to be exercised rather than establishing a condition precedent to the existence of the discretion. The court does not consider, first, whether the circumstances of the case are exceptional and, secondly, whether a residual discretion to set aside the decision should be exercised. Rule 44G (5) poses a single question for the court, that is, whether an exceptional circumstance warrants setting aside the dismissal: Sovereign Grange Pty Ltd [74] – [76].
In Sovereign Grange Pty Ltd, the court referred to the statement of general principles outlined by Wager DCJ in this court which included:
2.The fact that the Inactive Cases List was introduced to further case management must be borne in mind. The wider interest of other litigants wanting to have cases heard and the public interest in the proper and efficient use of scarce public resources of the court must be taken into account.
3.The exceptional circumstances must be causally related to the dismissal of the action and it must be established that the circumstances which have led to the dismissal of the action are exceptional.
4.There is no particular circumstance that can be defined as exceptional. 'Exceptional circumstances' may relate to a single exceptional matter or to a combination of exceptional facts or a combination of ordinary facts that when taken together in combination may reasonably be regarded as amounting to exceptional circumstances. Each case must be determined on its own facts.
5.Rule 44G(5) is not remedial. It should be interpreted as giving the court a broad power to relieve against injustice.
6.Inattention or inadvertence by a solicitor may in some cases be considered an exceptional circumstance. However, r 44G(5) must be considered in the context of case management. Consistent with the principles of case management in r 38 and r 44A of the Rules, the onus is on the party (not the party's solicitors) to enter the action for trial and to file documents. For this reason case management directions and interlocutory orders are made against the party not against the party's lawyer.
7.Mere inadvertence or inattention by a solicitor would ordinarily not constitute an exceptional circumstance that would absolve a plaintiff from any personal responsibility to pursue the action.
8.Factors to be considered in the exercise of the discretion include:
(a)whether there has been any delay in bringing the application to set aside the dismissal and the reason for that delay;
(b)the merits of the plaintiff's case (there being no point in reinstating a case that has no merit);
(c)the prejudice to the plaintiff if the dismissal of the action is not set aside (including the expiry of any relevant limitation period); and
(d)the prejudice to the defendant if the dismissal of the action is set aside.
In relation to whether there has been any delay in bringing the r 44G(5) application to set aside the dismissal, the action was dismissed on 18 April 2018. The application to set aside the dismissal was filed on 4 May 2018, some 16 days later. However, that must be viewed in the context that the notice of appeal against the principal registrar's decision to remove the matter from the inactive cases list had been filed promptly, that is, within three days of the decision dismissing the application, and that application was listed to be heard after the date upon which the matter was taken to have been dismissed.
The applications should have been listed before the matter was automatically dismissed pursuant to r 44G(1), that is, before 18 April 2018. It was the plaintiff's responsibility to ensure that occurs.
However, in circumstances where the plaintiff had an existing application before the court which had been listed but not heard and as soon as it was brought to their attention, that they were required to file a further application, filed that application within three days, I do not consider the delay in making the application is excessive or was such a delay that would disqualify the plaintiff from seeking and obtaining the relief it now seeks.
As to the merit of the plaintiff's case, Sovereign Grange Pty Ltd makes it clear that the rules do not exist to dispose only of the cases which are hopeless as well as inactive. The fact that a dismissal of an action means the plaintiff may be deprived of a reasonably arguable claim is a relevant but not controlling consideration when the court exercises its discretion under r 44G(5). The rules do not demand the court set aside a dismissal of an action which may have merit where the plaintiff has given but failed to take advantage of a reasonable opportunity to prosecute the claim.
However, the plaintiff's case is closely aligned to the matters being determined in the SAT against what must be either a related entity to the defendant, or the defendant, in the District Court matter. It is clearly a complex dispute. The closing submissions of the plaintiff before SAT was some 171 pages. Its statement of issues, facts and contentions was 46 pages. The responsive statement of facts, issues and contentions by Pindan Pty Ltd was some 56 pages. Having read those materials, it cannot be said that the plaintiff's case against Pindan Pty Ltd is devoid of merit. The plaintiff clearly has an arguable claim against the mis‑described party or the related entity, however, that is just one factor to be considered and weighed with all the other factors.
As to the prejudice to the plaintiff if the dismissal of the action is not set aside, Mr Monaco's affidavit of 27 October 2017 deposes to the substantive issues between the parties being agitated in SAT stating that if there are 'residual issues between the parties the purpose of the writ is to ensure that the limitation period did not expire'.
If the dismissal of the action was not set aside, the plaintiff would not be left without remedy because the substantive issues against the mis- described party or related entity are currently before SAT. However, in circumstances where the plaintiff has properly litigated the substantive issues before SAT and those matters have been heard but a decision has not been delivered there would be prejudice suffered by the plaintiff if they were not able to pursue any residual issues against the named defendant in these proceedings. I accept the submission that the facts to be agitated in the District Court would remain basically the same as those agitated at SAT, however, the legal remedies available are somewhat different. In my view, the plaintiff would be prejudiced if they were not able to pursue their claim in the District Court.
As to the prejudice to the defendant it suffers inherent prejudice, including increased costs and the inconvenience of litigation, when a matter previously dismissed and statute barred is reinstated. However, in relation to witnesses' memories, retrieving documents and the like, that must be considered in the context of the ongoing dispute litigated in SAT against a mis-described or related party in relation to the construction of the apartment building such that there is no real prejudice to the defence in those areas. If Pindan Constructions Pty Ltd is neither a related or mis‑described party and these District Court proceedings are not in any way related to its activities, that is the plaintiff in this court has sued the wrong party, any prejudice suffered by it can be removed by an appropriate cost order upon the dismissal of the claim.
The rationale of r 44G (5) is to secure a just and efficient determination of proceedings before the court, the efficient use of court resources and a timely disposal of the court's business: Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd.
The relevant background is that the plaintiff has manifested an intent to pursue its claims in relation to the construction of the apartment building as is evidenced by the January 2018 hearing before SAT against the either incorrectly named defendant or a related party and the extensive submissions filed by the parties in that regard. The plaintiff's District Court action had been placed on the inactive cases list because of the inadvertence of the plaintiff's solicitors in failing to serve the writ; a prompt application was made to remove the matter from the inactive cases list, that application was dismissed, an appeal against that dismissal was instituted promptly, however, that appeal was not listed before the plaintiff's action was automatically dismissed. The delay in bringing the application to set aside the dismissal (16 days) is not great and occurred within three days of the plaintiff being advised that such an application was required. It cannot be said that the plaintiff's claim lacks merit. There will be prejudice to the plaintiff in having the claim dismissed. The prejudice to the defendant, in my view, is slight. The defendant is aware of the issues between the parties.
The plaintiff ought to have served the writ within the 12-month period and should have ensured that the application to remove the case from the inactive cases list was listed before the matter was dismissed and should have been aware of the need to make a separate application to set aside the dismissal without being told by the court. Notwithstanding these matters, I am satisfied the plaintiff will pursue this action expeditiously in the District Court. As stated, it has manifested an intention to pursue these matters, albeit in another forum. Those matters in that forum have now been heard. If it does not pursue this action expeditiously, then it is open to the defendant to take the appropriate action under the case management rules or bring a separate application to dismiss the matter for want of prosecution.
The totality of the circumstances are unusual or out of the ordinary such that they warrant the exercise of the discretion to set aside the dismissal of the action. The court's wide power to relieve against injustice means that the application should be allowed and, accordingly, I set aside the dismissal of the case.
The appeal – removing the case from the inactive cases list, and extending the validity of the writ
An appeal from a registrar is a new hearing. The matter is to be decided afresh. It is not necessary for the plaintiff to demonstrate any error of law or principle in the decision of the principal registrar. The court may exercise its discretion to admit additional evidence: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.
I have received a further affidavit of Mr Monaco sworn on 3 May 2018 which I admit as additional evidence.
Removing the case from the inactive cases list
For the reasons expressed in setting aside the dismissal of the matter, I further order that the matter be taken off the inactive cases list.
Extending the validity of the writ
Order 7 r 1(2) of the Rules of the Supreme Court 1971 (RSC) provides:
1.Duration and renewal of writ
(2)Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application is made to the Court before that day or such later day (if any) as the Court may allow.
The power conferred by O 7 r 1 is a wide and unfettered discretion to be applied to ensure that justice is done in all the circumstances: Lamp [25] and cases therein cited.
In Lamp Davis DCJ identified a number of factors which need to be considered in determining whether to exercise the discretion to extend the validity of a writ. I gratefully adopt those principles which are relevant to the case before me:
(a)The statutory limitation period applying to the plaintiff's cause of action has now expired.
(b)The plaintiff has made use of the 12-month period to pursue their action in another forum against the defendant or a related party before SAT. There has been a hearing and there have been extensive submissions filed by the parties in that matter. The plaintiff has manifested its intent to pursue the issues in relation to the construction of the apartment building against the defendant or its related party.
(c)The defendant has notice of the particulars of the claim as a result of the matter being pursued in SAT.
(d)Although there were some delays (16) days in applying for an extension of the validity of the writ, in my view those delays are not extensive.
(e)The plaintiff did not choose to live by a technicality in not serving the writ but, on their own admissions, their lawyers overlooked the service of the writ. I accept that the onus is on the party, not the party's solicitors, to serve the writ. It was not a deliberate tactical decision to not serve the writ.
(f)There will be, in my view, prejudice suffered by the plaintiff if the validity of the writ is not extended. I accept that, on the plaintiff's own submission, it is only the residual matters of the action which are being pursued in the District Court, with the main event occurring in SAT. On one view it may be seen the plaintiff is acting out of an abundance of caution, however building disputes are often complex and, on some occasions, overly technical and I find that there would be prejudice suffered by the plaintiff if the writ is not extended and they are not able to pursue the matter in the District Court.
(g)The plaintiff applied for an extension of the validity of the writ 16 days after the initial 12-month period from the date of the issue of the writ. The failure to serve the writ was an error on behalf of the solicitors and did not involve any fault on behalf of the plaintiff personally. Whilst not decisive, this is another factor of relevance: Skahill v Kestral Holdings Pty Ltd(in liq) [2000] WASCA 185; Esther Investments Pty Ltd v MarkalingaPty Ltd (1989) 2 WAR 196; Lamp [30].
(h)The defendant will suffer some prejudice because of the delay in any matter being heard in the District Court and the reinstatement of a stale writ and statute barred claim, however, against that is the fact that they have been on notice of the claim and they or a related party, filed extensive submissions in relation to the claim before SAT.
No one factor is decisive. All factors are to be considered.
In my view, it is appropriate to extend the validity of the writ. Not to do so would create an injustice.
I consider it appropriate that the writ be extended by a period of approximately two months from today, so that it must be served before 31 July 2018.
The orders I make are as follows:
(1)Dismissal of the action under r 44 G(1) DCR is set aside pursuant to r 44G(5) DCR.
(2)The appeal is allowed.
(3)The action be removed from the inactive cases list.
(4)The time within which to service the writ is extended until 31 July 2018.
(5)There be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MO
ASSOCIATE TO JUDGE BOWDEN5 JUNE 2018
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