Thorpe v Westpac Banking Corporation
[1999] WASC 100
•26 JULY 1999
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: THORPE -v- WESTPAC BANKING CORPORATION & ANOR [1999] WASC 100
CORAM: MASTER SANDERSON
HEARD: 16 JULY 1999
DELIVERED : 26 JULY 1999
FILE NO/S: CIV 1645 of 1997
BETWEEN: ANDREW CECIL THORPE
Plaintiff
AND
WESTPAC BANKING CORPORATION
First DefendantACTON REAL ESTATE PTY LTD
Second Defendant
Catchwords:
Appeal - Decision of Registrar - Leave to administer interrogatories - Delay in application - Case management principles
Legislation:
Nil
Result:
Appeal allowed in part
Representation:
Counsel:
Plaintiff: Mr R W Richardson
First Defendant : Ms A C Parker
Second Defendant : Mr T Darbyshire
Solicitors:
Plaintiff: C H Edwardsd & Associates
First Defendant : Clayton Utz
Second Defendant : Kott Gunning
Case(s) referred to in judgment(s):
High Court in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Case(s) also cited:
Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229
Attorney General v Gaskill (1882) 20 Ch D 519
Boxall v Mayne, unreported; SCt of Tasmania; 29 May 1997
Eade v Jacobs (1877) 3 Ex D 335
Elliot Bros v Bonnington (1893) 10 WN (NSW) 46
Hawter v Stevens, unreported; SCt of WA; Library No 970645; 25 November 1997
Hennessy v Wright (1890) 24 QB 445
Marriot v Chamberlain (1886) 17 QB 154
McBride v Sandland [1917] SALR 249
Orr v Holmes (1948) 76 CLR 632
Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101
Ratnam v Cumarasamy [1965] 1 WLR 8
Re Jokai Tea Holdings Ltd [1992] 1 WLR 1192
Stothard & Ors v White, unreported; SCt of WA; Library No 990148; 24 March 1999
Vickers v Mayne, unreported; FCt SCt of WA; Library No 980391; 17 July 1998
MASTER SANDERSON: This is an appeal from a decision of a Registrar. The appeal is brought under the provisions of O 63A. The appeal has arisen in slightly unusual circumstances. At a case evaluation conference heard 29 April 1999 a springing order was made requiring the plaintiff to enter this action for hearing by 1 June 1999. The case evaluation conference was then adjourned sine die. On 28 May 1999 the plaintiff issued an application for leave to issue interrogatories. This application came on before a Registrar on 31 May 1999 in the guise of a further case evaluation conference and the plaintiff's application was dismissed. By his notice of appeal the plaintiff actually seeks, in lieu of the orders made by the learned Registrar, programming orders allowing for hearing of the application for leave to administer interrogatories, such application to be heard before a Master. As I understand the position, when the matter came on before the Registrar on 31 May 1999 the plaintiff's counsel anticipated that due to the nature of the argument the matter would not be dealt with, but would simply be programmed. In the event, on the hearing of the appeal the merits of the plaintiff's application for leave to administer interrogatories was considered. Thus if the appeal is successful the interrogatories will be allowed and there would be no need for programming orders as sought in the notice of appeal.
The claim itself relates to certain property of which the plaintiff was the registered proprietor, located at 16 Beagle Street, Mosman Park ("the land"). The first defendant held a mortgage over the land. The second defendant is a licenced real estate agent. The plaintiff intended to develop the land and he borrowed from the first defendant for that purpose. By May of 1997 he was in default under the mortgage. The first defendant moved to sell the land. The plaintiff, in his statement of claim, does not deny that he was in default under the mortgage or challenge the right of the first defendant to sell the land. However, he claims that the first defendant as mortgagee, owed him certain duties on the sale of the land. It is alleged that there was a breach of these duties by the first defendant as a consequence of which the plaintiff has suffered loss and damage. There is an additional claim in trespass, although this is not relevant for present purposes.
As against the second defendant it is pleaded that it accepted an appointment as the first defendant's agent to sell the land. It is claimed that at the time this appointment was accepted the second defendant was the plaintiff's agent acting in relation to other property owned by the plaintiff. Although it is not expressly pleaded, it would appear that what is alleged by the plaintiff is that the second defendant breached its fiduciary obligations. The pleading, to be found in par 15 of the further amended statement of claim, simply alleges a breach of duty without particularising the duty or detailing how it arises.
The action itself has something of a history. Proceedings were issued on 10 June 1997. On the same date the plaintiff applied for an interlocutory injunction preventing the first defendant from selling the land. The injunction was granted, but has subsequently been discharged and I understand the land has been sold. The matter first came on for a status conference on 17 July 1997. At that conference the plaintiff was ordered to file a statement of claim by 7 August 1997. Other orders were made and the status conference was adjourned sine die. A further status conference was convened on 21 August 1997 and a springing order was made requiring the filing of a statement of claim by 4 September 1997. The status conference was once again adjourned sine die.
There was a further status conference on 25 September 1997 at which programming orders were made and which anticipated that discovery and inspection would be complete by 4 December 1997. On 23 December 1997 case management directions were issued on papers only with no appearances programming an application by the first defendant to strike out the amended statement of claim. On 6 March 1998 I struck out the amended statement of claim and allowed 14 days for re‑pleading.
Further case management directions were made on 16 April 1998. The time for filing the amended pleading was extended to 20 April 1998 and the status conference was adjourned to 11 May 1998. Further case management directions were made on 11 May 1998 including a requirement that the plaintiff answer any request for particulars by 4 June 1998. The matter was then adjourned to 15 June 1998. It was then almost precisely 12 months since the date of the issue of the writ and the plaintiff had not provided adequate particulars of his claim. The case had gone virtually nowhere.
Further case management directions were made on 15 June 1998. The plaintiff still had not provided answers to the first defendant's request for particulars and the time for provision of those answers was extended to 25 June 1998. The case management Registrar also directed that any application by the plaintiff for leave to issue interrogatories was to be filed and served by 25 June 1998. The status conference was adjourned to 2 July 1998. It is perhaps significant that the plaintiff was ordered to pay the first defendant's costs of the attendance on 11 May 1998 and on 15 June 1998. When the matter came before the Registrar on 2 July 1998 the particulars requested by the first defendant still had not been provided by the plaintiff. The Registrar made a springing order requiring the provision of particulars by 17 July 1998. The plaintiff was ordered to pay the second defendant's costs at that appearance.
A further status conference took place on 13 August 1998. This dealt with the provision of discovery and anticipated all parties having provided discovery and inspection by 25 September 1998. The Registrar also ordered that any application by the plaintiff for leave to issue interrogatories should be filed and served by 2 October 1998. This appears to be an extension of the time provided at the status conference on 15 June 1998. The status conference was then adjourned to 12 October 1998.
When the matter came on again on 12 October 1998 the time for giving discovery by both parties was extended to 27 October 1998. Inspection was to take place by 10 November 1998. The status conference was adjourned to 19 November 1998. At the status conference on 19 November 1998 a question of the provision of particulars by the plaintiff to the first defendant was considered. Further, the time for inspection of documents was extended to 27 November 1998. The plaintiff was ordered to serve his affidavit of discovery on the second defendant by 20 November 1998. The conference was adjourned to 11 December 1998. When the matter came back on 11 December 1998 the plaintiff still had not provided particulars to the first defendant. A springing order was made. The status conference was then adjourned to a case evaluation conference listed for 4 February 1999.
The first case evaluation conference was duly held on 4 February 1999. The first defendant was ordered to finalise all aspects of discovery and provide an affidavit to the plaintiff by 19 February 1999 and the parties were ordered to complete inspection by 5 March 1999. The plaintiff was ordered to achieve entry for trial by 19 March 1999. The case evaluation conference was adjourned sine die. The case evaluation conference was relisted on 29 April 1999. The plaintiff was ordered to finalise all aspects of discovery by 7 May 1999 and the time for entry for trial was extended to 1 June 1999. Once again, the case evaluation conference was adjourned sine die. There was one further case evaluation conference. This was the hearing of 31 May 1999 when the plaintiff's application for leave to issue interrogatories was dismissed.
Prior to the hearing of this appeal the plaintiff applied for and was granted a stay of the springing order requiring listing of the action by 4 June 1999. This appeal was first listed on 14 June 1999 and as a result of confusion between the plaintiff's solicitor and counsel, the plaintiff was not represented at the hearing. I dismissed the appeal. On 18 June I recalled the orders dismissing the appeal and relisted the matter for hearing. It is regrettable that no hearing dates prior to mid July were available.
There have now been 11 status conferences and 3 case evaluation conferences in this matter and still the action is not ready for trial. It is not a complicated matter. The pleadings are relatively simple and the issues between the parties are quite straight forward. While it is difficult to ascertain from the orders made at various status conferences and case evaluation conferences which of the parties has been responsible for the delay in bringing this matter to trial, it certainly appears as though most of the difficulty has been occasioned by the plaintiff. On a number of occasions it has been necessary for the case management Registrar to issue springing orders. While there does appear to have been some delay on the part of the first defendant in providing full discovery, in the context of the time taken to progress the matter to this stage, very little blame can be sheeted home to the first defendant. The plaintiff has not handled this matter in an expeditious fashion.
There are two further factors which need to be taken into account in determining whether, by his approach to the interlocutory process, the plaintiff has placed himself in a position where an order allowing interrogatories is inappropriate. First, at the case management conference held on 15 June the plaintiff was ordered to apply for leave to issue interrogatories by 25 June 1998. At the case management conference on 13 August the time for any application for leave to issue interrogatories was extended to 2 October 1998. In fact the minute of interrogatories is dated 28 May 1999. It is therefore almost 12 months from the date upon which interrogatories were first contemplated that the minutes of the proposed interrogatories were delivered to the defendants.
It is the plaintiff's position that it was only after the completion of the discovery that it was possible to ascertain whether or not interrogatories were required. In support of the appeal counsel relied upon an affidavit of the plaintiff sworn 11 June 1999. Paragraph 10 of the affidavit is in the following terms:
"By letter dated 24 February 1999 my solicitors wrote to Clayton Utz requesting sworn discovery. Discovery was provided by the first defendant on 2 March 1999. That discovery listed three further classes of document which had not been listed in the informal discovery nor made available at inspection and on 6 May 1999 my solicitor requested copies of document no. 185 being invoices rendered to the first defendant. After receipt of these documents on or about 14 May 1999 I was alerted to the fact that, from the accounts, it appeared that the first defendant had communicated with Willy Porteous, a director of the second defendant. The second defendant had pleaded that it had not accepted instructions from the first defendant in respect of the exercise of the mortgagee's power of sale but that Dalgon Pty Ltd had accepted those instructions. From the documents discovered by the second defendant it appears that Willy Porteous is not a director of Dalgon Pty Ltd. He had however acted as an employee of the second defendant which had been my sub‑agent pursuant to a conjunctional arrangement with my listing agent. Mr Porteous had introduced Mr and Mrs Sheldrick as purchasers of the land."
It is the plaintiff's position then that the importance of the interrogatories only became apparent once discovery and inspection had been completed and, indeed, once discovery of particular accounts had been completed. Although the plaintiff does not say as much in his evidence, it is implicit that the importance of the interrogatories now directed at both the first and second defendant only became apparent once discovery was compete. However, that position is not consistent with the plaintiff's foreshadowed intention to issue interrogatories dating back to June of 1998, nor is it consistent with the nature of the interrogatories themselves.
Turning first to the interrogatories directed to the first defendant, as drafted they are nine in number. However, at the hearing of this appeal counsel for the plaintiff indicated that it was intended only to seek answers to interrogatories 1, 2, 8, 9(a), (b), (d) and (e). The first two of these interrogatories have nothing whatever to do with the alleged appointment of the second defendant as the first defendant's agent. Questions 8 and 9 are directed at that issue. Both these questions seek information about any appointment by the first defendant of the second defendant as his agent. However, the second defendant's defence, which denies that it was the first defendant's agent, has been in its present form since 11 June 1998. It is difficult to see what, if anything, has emerged from discovery which gives rise to a need to interrogate. The same is true of questions 8 and 9. While both questions relate directly to the engagement of the second defendant by the first defendant, neither appears to be dependent upon recent discovery. Precisely the same comments can be made in relation to the interrogatories directed to the second defendant. They are four in number and they are couched in very broad terms. Taking the best possible view of the matter so far as the plaintiff is concerned, it might be said that questions 3 and 4 could possibly have arisen subsequent to discovery. But that is certainly adopting the most favourable approach possible to the plaintiff.
When the matter is looked at in totality, it is difficult to see, bearing in mind case management principles, that the plaintiff can make out any reasonable argument for an order that these interrogatories be answered. The simple fact is that interrogatories in their present form could have, and probably should have, been administered 12 months ago. The delay flies in the face of all that the case management regime seeks to achieve. That provides a strong basis for refusing to allow these interrogatories to be administered.
Counsel for the plaintiff, during the course of argument, referred, almost inevitably, to the decision of the High Court in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. I fully accept that case management is not an aim in itself. But it is a mechanism employed by the courts to ensure that cases are disposed of expeditiously in the interests of all the parties. When one party does not cooperate with the system, it is justice to the other party which requires sanction, not the failure to comply with the case management regime.
Having said all of that I come to the second point to be considered and I am satisfied, in this case, that I ought permit the plaintiff to deliver some of the interrogatories. I have reached that conclusion for the following reason. It is the second defendant's position that the plaintiff has sued the wrong party. Essentially what the second defendant says is that the plaintiff has sued a business known as Acton Consolidated Dalkeith rather than the business known as Acton Consolidated Cottesloe. It is a classic case of a defendant claiming the plaintiff is suing the wrong party. It is in no‑one's interest that this case get to trial only to find that the defence raised by the second defendant is made out. If that possibility can be eliminated by the administering of interrogatories then, in my view, it is in the interests of justice that these interrogatories be administered. Looked at another way, it is at least possible that the answers to the interrogatories may bring the action to a premature end without the need for a trial. That would be in the interests of all the parties and in the interests of justice.
Having reached that conclusion I am not prepared to allow all of the interrogatories as sought by the plaintiff. In my view interrogatories 1 and 2 directed to the first defendant are irrelevant. They simply do not relate to an issue between the parties. However, interrogatories 8 and 9 (a), (b), (d) and (e) are directly on point. I will allow these interrogatories to be administered with answers to be provided on oath.
In relation to the second defendant, the interrogatories are very widely drawn. However, to require them to be redrafted would do nothing more than add to the delays which have bedevilled this matter. On that basis I would not permit interrogatories 1 and 2 to be administered because they seem to me to be irrelevant. In relation to interrogatory 3, I would permit that to be administered save that the words "or any officers or employees of it" should be removed. These words broaden the interrogatory to an unacceptable extent. The same is true of the reference to "any officers or employees of it" in the second and third lines referring to the first defendant. In other words, I would permit the interrogatory in the following form:
"Was the second defendant approached by the first defendant with a view to the appointment of an agent to effect a mortgagee sale of the land?"
Subject to that amendment of question 3, I would permit question 4 to be answered. Once again, the answers to these interrogatories should be provided on oath.
In all the circumstances then I would allow this appeal in part. I will hear the parties as to the precise form of the orders.
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