Thomson v Raute Corporation [No 3] - [2011] WADC 105

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: THOMSON -v- RAUTE CORPORATION [No 3] [2011] WADC 105

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 29 JUNE 2011

DELIVERED : 29 JUNE 2011

FILE NO/S: CIV 3208 of 2009

BETWEEN: IAN JOHN THOMSON
Plaintiff
AND
RAUTE CORPORATION
Defendant

Catchwords:

Practice and procedure - Leave to set aside order discontinuing an action

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr A J Stewart
Defendant: Ms K A Vernon

Solicitors:

Plaintiff: Chapmans
Defendant: DLA Phillips Fox

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

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217
Thomson v Raute Corporation [2010] WADC 173
Thomson v Raute Corporation [No 2] [2011] WADC 28

PRINCIPAL REGISTRAR GETHING: [This judgment was delivered extemporaneously on 29 June 2011 and has been edited from the transcript.]

By application dated 19 April 2011, the plaintiff sought leave to extend the validity of the writ in this action, and also to make a fresh application for leave to serve the writ outside the jurisdiction. There is a preliminary issue, which is whether or not the application may be made because the action has come to an end through being discontinued by order of the court.
The claim by the plaintiff started off as an originating motion for leave to serve out of the jurisdiction which was filed in this court on 8 April 2009. The court granted leave on 20 October 2009. The writ was subsequently lodged on 28 October 2009.
After service of the writ on the defendant in Finland, the defendant brought an application to have the leave to serve out of the jurisdiction set aside. By a decision delivered on 29 November 2010 (Thomson v Raute Corporation [2010] WADC 173), I set aside leave to serve out of the jurisdiction. The formal orders that I made on that application are as follows:
1.Leave to serve notice of the writ of summons outside of the jurisdiction is set aside.
2.The action be, and is hereby, discontinued.
3.The plaintiff do pay the defendant's costs of the application and of the action and any reserved costs to be taxed if not agreed and paid within 21 days of taxation.
That decision was the subject of an appeal. The appeal was heard before his Honour Judge Eaton, who delivered reasons on 1 March 2011 (Thomson v Raute Corporation [No 2] [2011] WADC 28). His Honour dismissed the appeal. The effect of the dismissal of the appeal is that the orders I made on 29 November 2010 stand.
The importance to the plaintiff of getting the order discontinuing the action countermanded in some way is that the limitation period in relation to the events the subject of the writ has expired.
The general principle is that, absent a statutory provision to the contrary, a perfected order of the court cannot be set aside: Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 [124] and [151]. The policy behind the general principle is the public interest in the finality of court judgments and orders: Lashansky [151]. The learned authors of Civil Procedure Western Australia list the exceptions to this general principle in the following way: par 43.3.4:
The general principle that perfected orders must generally be varied by appeal is subject to a number of exceptions:
(a)where there is a specific statutory power to vary;
(b)where a party has not been given a reasonable opportunity to be heard;
(c)where all parties consent to a variation;
(d)where a judgment or order entered by consent is vitiated by a factor that would vitiate an agreement under general contractual principles;
(e)where a judgment, or order, has been obtained by fraud; and
(f)query, under the court's inherent jurisdiction so as to prevent injustice.
On my understanding of the authorities, that is a fair summation of them.
In the present case, the only one of these paragraphs that is relevant is par (f).
The submissions made by the plaintiff can basically be divided into two parts. The first is to the effect that the order made does not appropriately reflect the reasoning in the decision. The second is that in the exercise of the inherent jurisdiction of the court, the order ought to be set aside.
Turning to the first, the learned authors of Civil Procedure Western Australia at par 43.3.10 state that:
There are some authorities to the effect that a court has inherent jurisdiction to vary or recall orders where the entered judgment incorrectly expresses the court's decision.
It is not necessary for me to delve into the issue of whether or not this proposition of law is correct, because in my view, the entered judgment does correctly express my initial decision. In [50] of the [2010] WADC 173 decision, I stated as follows:
There then remains the form of the view order. My preliminary views follow. The application by the defendant seeks dismissal of the proceedings. This would have the consequence of barring the plaintiff from commencing any further proceedings falling within the writ. As noted, the endorsement of claim on the writ is in broad terms. It is not limited to negligence and/or breach of statutory duty arising out of the design, common manufacture or installation of the machinery. It would theoretically be possible for the plaintiff to commence a fresh action against the defendant based on a breach of duty arising out of its ongoing control, maintenance and modification of the relevant conveyor system. It seems to me that the order made in these proceedings should only go so far as is necessary. No ruling has been made on whether or not it would be appropriate for the plaintiff to have leave to serve out of the jurisdiction based on a claim other than the design, manufacture and installation of the relevant machinery. It does seem sufficient to me that the writ be set aside and the action be discontinued. If the plaintiff wishes to commence a fresh action, then the issues in that action will need to be determined on their merits. This would no doubt include potential abuse of process issues.
And then in paragraph 51:
I will hear from counsel on the question of costs, as well as any further submissions on the final form of the orders in the light of my preliminary views.
An advance copy of those reasons was provided to the parties ahead of the hearing on 29 November. At the hearing of 29 November, I heard submissions from counsel for both parties on the form of the orders. Following that hearing, the final orders were made in the form which I have set out. The orders made on 29 November accurately express the reasoning set out in [50] of the decision. The orders consciously use the word 'discontinue the action' in distinction to 'dismiss the action'.
The reference in [50] to the plaintiff commencing a fresh action makes it clear that the intent was that the orders were not to prevent that occurring. The difficulty for the plaintiff is that the limitation period has expired. This means that the combined effect of the orders made and the limitation period means that what I identified at [50] as being theoretically possible is not in fact possible.
The second issue is whether or not there is a basis elsewhere in the inherent jurisdiction of the court so as to prevent an injustice to make orders setting aside the discontinuance. Again, it is not necessary for me to make a final determination as to whether or not there is such an inherent jurisdiction in relation to this case. This is because, even if there were, I would not be minded to set aside the order discontinuing the action.
In the present case, the impact of an action being discontinued is clear. It has a clear legal meaning. The plaintiff had the opportunity to challenge the decision that I made on appeal. It would, for example, have been possible on appeal to have argued that even if leave were to be set aside, the appropriate order was that the action be stayed pending a further application for leave to serve out of the jurisdictions. That would have made it clear that there was a window being left open in the action as opposed to making it theoretically possible for the plaintiff to commence a fresh action.
In my view the policy underlying the general principle that perfected orders cannot be set aside, save for an appeal, ought to be given effect to. This is the public interest in the finality of court judgments and orders.
The plaintiff has had an opportunity to aerate the issue of whether or not leave ought to be granted to serve the action outside the jurisdiction. In the High Court's decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 [112], dealing with case management powers, the High Court made it clear that what justice requires that a party is given sufficient opportunity to present their case. This is what has occurred in the present case. The plaintiff has had the opportunity to seek leave to serve the writ outside the jurisdiction; it has not been successful in doing so. The plaintiff had the opportunity to argue that a form of orders ought to be put in place to leave it open to make a further application in relation to the present writ for leave to serve it outside the jurisdiction. It did not exercise that opportunity.
In these circumstances, I am not prepared to set aside the order discontinuing the action. This means that the application dated 19 April 2011 ought to be dismissed. I will hear from counsel on question of costs.