Trend Ceramics Pty Ltd (as Trustee for the Trend Superannuation Fund) v Hub Group of Companies Pty Ltd

[2014] WADC 136

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   TREND CERAMICS PTY LTD (as Trustee for the Trend Superannuation Fund) -v- HUB GROUP OF COMPANIES PTY LTD [2014] WADC 136

CORAM:   PRINCIPAL REGISTRAR MELVILLE

HEARD:   1 OCTOBER 2014

DELIVERED          :   6 OCTOBER 2014

FILE NO/S:   CIV 2005 of 2014

BETWEEN:   TREND CERAMICS PTY LTD (as Trustee for the Trend Superannuation Fund)

Plaintiff

AND

HUB GROUP OF COMPANIES PTY LTD
First Defendant

PASQUALE FORGIONE
Second Defendant

Catchwords:

Summary judgment - Non-compliance with O 14 r 2

Legislation:

Rules of the Supreme Court 1971

Result:

The defendant's oral application that the summary judgment application be dismissed is dismissed
The plaintiff file and serve any affidavits in support of its summary judgment application within seven days

Representation:

Counsel:

Plaintiff:     Dr Henderson

First Defendant            :     Mr A Metaxas

Second Defendant        :     Mr A Metaxas

Solicitors:

Plaintiff:     Borrello Legal

First Defendant            :     Metaxas & Hager

Second Defendant        :     Metaxas & Hager

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

Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536

Scaffidi Nominees Pty Ltd v Scaffidi (Unreported, WASCA, Library No 960588, 11 October 1996)

1. PRINCIPAL REGISTRAR MELVILLE: On 20 June 2014 the plaintiff issued a writ against both defendants to which a memorandum of appearance was filed on 2 July 2014.  The action was listed for a directions hearing on 8 August 2014 but on 6 August 2014 orders were made by consent requiring the plaintiff to file and serve a statement of claim by 15 September 2014 and extending the time by which the plaintiff may apply for summary judgment to 15 September 2014.  It was ordered the first return date of any application for summary judgment be at a directions hearing on a date not before 29 September 2014.

2. By chamber summons dated 12 September 2014 the plaintiff applied for summary judgment.  The summons was given a return date for 1 October 2014 at 10.00 am this being the date set for the directions hearing.  No affidavit was filed with the chamber summons or at any time leading up to 1 October 2014.

3. On 1 October 2014 the defendants submitted the summary judgment application should be dismissed due to the plaintiff's failure to support the application with an affidavit and to serve it on the defendants not less than seven days before the return day of the summons.

4. The plaintiff's explanation, from the bar table, for the failure to file an affidavit was that, it was anticipated directions would be made on 1 October in respect of filing affidavits and that it was in a position to do so within two days.

The law

1. Order 14 r 2(1) requires an application to be made by summons supported by an affidavit verifying the facts on which the claim is made and stating that in the deponent's belief there is no defence to that claim.  Order 14 r 2(2) provides an affidavit may contain statements of information or belief with the sources and grounds thereof.  Order 14 r 2(3) requires the summons and a copy of the affidavit in support and any exhibits therein referred to, to be served on the defendant not less than seven days before the return day of the summons.

2. In my view, reference to the words 'the affidavit in support' in O 14 r 2(3) is a reference to the affidavit referred to in O 14 r 2(1).  However questions arise as to whether reference in O 14 r 2(1) to the application being made by a summons '… supported by an affidavit …' means the affidavit must be filed at the same time as the chamber summons or whether those words allow for an affidavit to be filed after the chamber summons but in any event no later than the time necessary to comply with O 14 r 2(3).

3. The cases are replete with examples of affidavits being filed on behalf of the plaintiff not only after the issue of the chamber summons, but after the return day of the summons, and for the purpose of remedying deficiencies in the evidence previously filed.  It is difficult to see why, if plaintiffs are permitted to file subsequent affidavits to make good deficiencies or weaknesses in the evidence previously filed, they cannot file an affidavit after the time prescribed in order to make good a deficiency in their evidence constituted by the failure to file an affidavit at all.

4. Order 14 r 2(1) does not, in its terms, say the affidavit in support must be filed at the same time as the chamber summons.  In my view the affidavit can be filed before the chamber summons, as was the position in Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536, 549, or afterwards. Either way it can be said the application for summary judgment is support by an affidavit. All that is required by the combination of O 14 r 2(1) and r 2(3) is that the summons and the affidavit which supports it is served not less than seven days before the return day of the summons.

5. Where there has been non‑compliance with O 14 r 2(1) and r 2(3) the question becomes one of what becomes of the application given judicial comments that O 14 should be strictly complied with.

6. In determining the answer to this question it is necessary to consider the purpose of O 14 and the comments of Ipp J in Lill.  In his reasons for decision Ipp J said (548):

   The purpose of the rule requiring a plaintiff (or an appropriate person on its behalf) who applies for summary judgment to file an affidavit stating that in the deponent's belief there is defence to the claim, is to ensure that the application is not made merely 'to induce the defendant to make an affidavit and so get information on oath as to the nature of his defence' per Buckley LJ in Symon & Co v Palmer's Stores (1903) Ltd [1912] 1 KB 259, 266 – 267.

7. Ipp J expressed the view (549 – 550) that it was not correct to say the jurisdiction of the court was dependent on strict compliance with O 14 r 2(1).  He went on to say that although the failure to comply with O 14 r 2(1) will ordinarily result in the summary judgment application being dismissed that is not an inevitable consequence.  In other words, his Honour was saying failure to comply with O 14 did not deprive the court of jurisdiction to entertain the application but would ordinarily result in the application being dismissed.

8. Whilst there may have been divergent views between the members of the court as to the degree of strictness with which O 14 should be applied, in my view the judgment of Ipp J was endorsed unanimously in Scaffidi Nominees Pty Ltd v Scaffidi (Unreported, WASCA, Library No 960588, 11 October 1996). In that case Murray J, with whom Rowland J and Steytler J agreed said:

   I would agree that the ordinary practice is to dismiss an application for summary judgment where O 14 r 2(1) is not satisfied, but, in my opinion, that consequence is not inevitable.

9. In my opinion the discussions regarding the strictness with which O 14 r 2 should be complied with, tend to be focused on the quality of the evidence filed to support the summary judgment application particularly where the affidavits contain statements of information or belief as permitted by O 14 r 2(2).  In Lill's case at (551) Ipp J appears to endorse the view that the purpose of the strictness 'is to ensure that the summary procedure never results in the plaintiff obtaining a judgment against the defendant which he would have been unable to obtain if the action had gone to trial in the ordinary way'.  It is for that purpose the court is concerned with strictness, not for strictness for strictness sake.

10. Hence the need to strictly apply the provision of O 14 is constituted by:

    (a)the need to ensure O 14 r 2 is not exploited simply to have a defendant make an affidavit so as to get information on oath as to the nature of his defence;

    (b)the need to ensure the evidence found in the affidavit, including any hearing or opinion evidence justifies summary judgment and the plaintiff is not getting a judgment it would not get if the action went to trial in the ordinary way.

Conclusion

1. In this case the plaintiff has failed to comply with O 14 r 2(1) in that the summons is not supported by an affidavit verifying the facts and served on the defendants not less than seven days before the return day of the summons.  Ordinarily the application should be dismissed.

2. However, in my view the application should not be dismissed in this instance.  In essence, the failure to file the affidavit I am told was due to mistake, it being believed orders would be made regarding the filing of affidavits at the return date.  It seems to me the plaintiff should have known it was going to be required to file an affidavit in support of the application in order to have any success.  Notwithstanding it is a fact that people make mistakes.  To allow the plaintiff further time to file and serve an affidavit works no injustice or prejudice to the defendants other than it potentially creates one unnecessary attendance in chambers, which prejudice can, in this case, be adequately ameliorated by a costs order.

3. In this case the defendants are not yet required to file any affidavit and it can hardly be said the evidence presently filed against them, of which there is none, presents a danger to a judgment wrongly being entered against them.

4. Under the circumstances this becomes an exercise of weighing the general rule that ordinarily an application will be dismissed for non‑compliance against the warning not to be strict for the sake of strictness.  On balance, it is my view to dismiss the application, in these circumstances, would constitute being strict for the sake of strictness and does not advance the interests of justice or give life to the desirability that disputes be resolved cheaply and quickly where possible.

5. Accordingly the defendants' oral application for dismissal of the summary judgment application is dismissed and I will order the plaintiff to file and serve any affidavits in support of the application within seven days.