West Australian Newspapers Ltd v Fairhead - [2013] WASCA 151

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WEST AUSTRALIAN NEWSPAPERS LTD -v- FAIRHEAD [2013] WASCA 151

CORAM: PULLIN JA
BUSS JA
NEWNES JA

HEARD: 5 DECEMBER 2012 & 19 APRIL 2013

DELIVERED : 24 JUNE 2013

FILE NO/S: CACV 47 of 2012

BETWEEN: WEST AUSTRALIAN NEWSPAPERS LTD
First Appellant
SOUTH WEST PRINTING AND PUBLISHING COMPANY LTD
Second Appellant
AND
ALAN FAIRHEAD
First Respondent
DAVID REGAN & CO PTY LTD t/as DONNYBROOK REAL ESTATE
Second Respondent
FRANCIS BARRON STEPHENSON HAYGARTH
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
File No  :CIV 2654 of 2002

Catchwords:

Practice and procedure - Inactive Cases List - O 29A, now O 4A - Appeal against decision of master to order removal of case from Inactive Cases List - Procedure to put case on Inactive Cases List - Crossappeal to set aside master's decision on ground that case never put on Inactive Cases List

Legislation:

Rules of the Supreme Court 1971 (WA), O4A r 24, O4A r 25, O4A r 28; O 29A r 18A, O 29A r 19, O 29A r 21

Result:

Appeal dismissed
Cross-appeal allowed
No order as to costs in this court or below

Category: B

Representation:

Counsel:

First Appellant              :     Mr R C Andersen
Second Appellant          :     Mr R C Andersen
First Respondent           :     Mr N D C Dillon
Second Respondent       :     Mr N D C Dillon
Third Respondent         :     Mr N D C Dillon

Solicitors:

First Appellant              :     Lavan Legal
Second Appellant          :     Lavan Legal
First Respondent           :     Slee Anderson & Pidgeon
Second Respondent       :     Slee Anderson & Pidgeon
Third Respondent         :     Slee Anderson & Pidgeon

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

Hall v Hall [No 2] [2011] WASC 110
Timcal Pty Ltd v Sons of Gwalia Ltd [No 2] [2011] WASC 58

PULLIN JA: I agree with Newnes JA.
BUSS JA: I agree with Newnes JA.
NEWNES JA: This is an appeal against a decision of Master Sanderson, who ordered that the respondents' action be removed from the Inactive Cases List. The appellants contend that the master erred in doing so.
Following argument on the appeal, the respondents filed, by leave, a cross‑appeal to raise an issue which had arisen in the course of argument, namely, that the action had never been entered on the Inactive Cases List and the question of its removal did not therefore arise. The respondents sought to have the master's decision set aside on that basis.
For the following reasons, the appeal should be dismissed and the cross‑appeal allowed.

Background

On 5 December 2002, the respondents commenced proceedings for defamation against the appellants. The claim against the first appellant related to an article published in 'The West Australian' newspaper on 14 November 2002, and against the second appellant (a company controlled by the first appellant) it related to an article about the same subject‑matter published on 21 November 2002 in 'The South West Times'.
At that time, the second respondent operated a real estate agency which was controlled by the third respondent, a licensed real estate agent. The first respondent was a real estate salesman employed by the second respondent. He left the second respondent's employ in 2003.
After the usual initial flurry of activity, the action settled down to a leisurely pace. That, it seems, was due at least in part to the respondents' financial constraints. The parties also became embroiled in various interlocutory disputes, with the result that it was not until 21 August 2007 that a defence was filed by the appellants. The pace did not seem to pick up noticeably after that and the action appears to have ebbed to a halt in 2008 with issues of discovery still unresolved. At the time, the respondents were also seeking expert evidence on damages, a pursuit which also seems to have stalled for lack of funds.

In an affidavit filed in the application before the master, the respondents' solicitor says that, on 25 August 2011, he telephoned the court and spoke to an unidentified person in Central Office. The person told him that, on 21 February 2009, the action had been placed on the Inactive Cases List but that no notice had been forwarded to the parties.
The respondents' solicitor then approached the appellants' solicitors regarding, among other things, the removal of the action from the Inactive Cases List. He was informed that the appellants opposed its removal and, moreover, that as the case had been on the Inactive Cases List for more than six months it was taken to have been dismissed under (then) O 29A r 21 of the Supreme Court Rules 1971 (WA).
On 4 November 2011, the respondents filed an application for an order that the action be removed from the Inactive Cases List. On 16 May 2012, the master made the order sought. He ordered the respondents to pay the appellants' cost of the application.
In substance, the master found that because the notice required by O 29A r 21(2) that the action had been put on the Inactive Cases List had not been given to the parties, the action was not taken to have been dismissed under O 29A r 21. In so finding, the master followed and applied an earlier decision of the court, Timcal Pty Ltd v Sons of Gwalia Ltd [No 2] [2011] WASC 58. He therefore found that the action remained on the Inactive Cases List. In the exercise of his discretion, the master concluded that it should be removed.
The appellants have appealed against the order that the action be removed from the Inactive Cases List. The appellants contend that the master erred in finding that the action was not taken to have been dismissed under O 29A r 21 and, in the alternative, that he erred in the exercise of his discretion in ordering that the action be removed from the Inactive Cases List. They seek orders that the master's order be set aside and the respondents' application to have the case removed from the Inactive Cases List be dismissed. The respondents have cross‑appealed on the ground that the action was never entered on the Inactive Cases List and therefore no question of its removal arises.

Disposition of the appeal and the cross-appeal

I should note in passing that the rules concerning the Inactive Cases List are now contained in O 4A of the Supreme Court Rules, rather than O 29A, as a result of amendments which took effect on 29 July 2010. The amendments do not affect this appeal.
It is unnecessary to canvass the rules in any detail. The Inactive Cases List is defined as 'a list of inactive cases kept by the Principal Registrar under r 19(1) [now O 4A r 25]'. Rule 19(1) provided, in effect, that where an order was made that a case be put on the Inactive Cases List, or where a case was deemed to be inactive under r 18A (now O 4A r 24), the Principal Registrar must:
(a)put the case on the Inactive Cases List; and
(b)give all parties to the case written notice that the case is on the Inactive Cases List and the effect of r 21 (now O 4A r 28).
The effect of r 21 was that a case which was on the Inactive Cases List for six continuous months was taken to have been dismissed for want of prosecution.
On the hearing of the appeal, an issue arose as to the operation of the Inactive Cases List at the relevant time. The court therefore requested the Principal Registrar to provide a written report to the court 'concerning the operation of O 29A Part IV up until 29 July 2010 generally, and in relation to this case (CIV 2654 of 2002)'.
The Principal Registrar provided a report dated 1 February 2013, a copy of which was provided to the parties. It was in the following terms:
In June 2011 I became aware there appeared to be some confusion in relation to the management and operation of the Inactive Cases List as specified in the Rules of Court. The confusion appears to have arisen as a consequence of the status of 'inactive' given to cases by operation of a computer program in ICMS where the case met certain computer programming rules. Those programming rules predated the creation of the Inactive Cases List and do not necessarily involve the application of the criteria specified in the Rules of Court.
In June 2011, the Civil Practice Committee of the Court met and resolved to implement procedures that would avoid this confusion. Prior to that date some cases were placed on the Inactive Cases List. Manual input into the computer system is required for a case to be placed on the Inactive Cases List. At the time the manual input is undertaken, notices to the parties are generated. The Inactive Cases list is maintained in ICMS but is quite separate to the list of cases which had been assigned the status of 'inactive' by the computer program. A printed Inactive Cases List is generated each month using the Cognos Reporting Tool.
The case which is now before the Court of Appeal would not have been placed upon the Inactive Cases List as provided by the Rules of Court unless the manual input into the computer system was undertaken to bring this about.
I have made enquiries in relation to this case and have been advised that no manual input was made placing the matter on the Inactive Cases List and no notice was sent to the parties.
I should note that ICMS is an abbreviation of Integrated Court Management System, which is a computerised system for the management and recording of all legal proceedings commenced in the court.
Following the provision of the Principal Registrar's report, the respondents' counsel said the respondents would file a cross‑appeal to raise the point that the case had never been put on the Inactive Cases List. With the leave of the court, an amended notice of the respondents' intention, seeking leave to cross‑appeal, was filed on 1 May 2013 and a cross‑appeal was filed on 16 May 2013. The appellants have not filed an answer to it.
As foreshadowed by their counsel, in the cross‑appeal the respondents contend that the master erred in making an order that the case be removed from the Inactive Cases List as the case had never been on the Inactive Cases List and accordingly the master had no jurisdiction to order that it be removed. The respondents seek orders that the appeal be dismissed, the orders of the master be discharged, and the respondents' application to have the case removed from the Inactive Cases List be dismissed.
It might be thought that that was the end of the matter. However, counsel for the appellants, in what I think can fairly be described as a courageous submission, argued that it was not. He sought to rely on two points. The first was that, having regard to what he described as the 'shortcomings' in the Principal Registrar's report, the court should prefer the affidavit evidence of what the respondents' solicitor had been told by an unnamed person in Central Office, namely, that the case had been put on the Inactive Cases List.
There do not, however, seem to me to be any relevant 'shortcomings' in the Principal Registrar's report. The bold proposition that it should be rejected in favour of hearsay evidence about what an unidentified person in Central Office had said cannot be accepted.
The second point sought to be made by counsel for the appellants relied on an earlier decision of Simmonds J in Hall v Hall [No 2] [2011] WASC 110, which counsel said was at odds with the report of the Principal Registrar and was to be preferred to the report. The essential contention was that the list of cases assigned the status 'inactive' in ICMS also constituted an Inactive Cases List within the meaning of the rules. In short, there were two Inactive Cases Lists, although the Principal Registrar had not appreciated that fact. There was the list of cases created by the manual input referred to in the Principal Registrar's report and there was the list of cases assigned the status 'inactive' in ICMS.
In Hall v Hall [No 2], the case (as with this case) had been designated 'inactive' under the heading 'Current Matter Status' in the ICMS computer programme. Simmonds J found that was sufficient to establish that the case was on the Inactive Cases List and that it had been put there by the Principal Registrar. His Honour considered that on the basis of the material before him, the presumption encapsulated in the maxim omnia praesumuntur rite esse acta [all things are presumed to have been done rightly and regularly] applied. That is, that the Principal Registrar had duly authorised those who programmed and maintained ICMS to programme it to put cases on the List in accordance with his instructions and to maintain the List on his behalf, that they had done that programming within the terms of their authority, and that the programming had operated to put the applicant/plaintiff's case on the List. His Honour rejected a submission that there was evidence which rebutted the presumption.
In this case, there is no room for the operation of the presumption. The Principal Registrar's report to the court is quite plain. Certain cases were designated 'inactive' by the ICMS programme by reason of the application of certain criteria in the programme which predated the introduction of the Inactive Cases List and which did not necessarily reflect the criteria set out in O 29A (now O 4A). Those cases were not on the Inactive Cases List. The Inactive Cases List, the list of inactive cases kept by the Principal Registrar under O 29A r 19(1), was a separate list. Cases were put on the Inactive Cases List by a process of manual input. When that manual input occurred, notice that the case had been put on the Inactive Cases List was sent to the parties. The respondents' case had not been put on the Inactive Cases List and accordingly no notice had been sent to the parties.
No question of the removal of the respondents' case from the Inactive Cases List therefore arises. The case is not, and was never, on the Inactive Cases List. It follows that the order of the master must be set aside and the respondents' application to the master to have the case removed from the Inactive Cases List must be dismissed.
That leaves the question of costs. In the cross‑appeal, the respondents seek orders that the appellants pay the respondents' costs of the appeal and cross‑appeal from 13 February 2013 (when the report of the Principal Registrar was provided to the parties); that there be otherwise no order as to the costs of the appeal and cross‑appeal; and that the order as to costs below be set aside and there be no order as to costs below. It was submitted that those were the appropriate orders in circumstances where the original application had been made only as a result of information from the court which had turned out to be incorrect and where the appeal had been pursued by the appellants even after the true position was revealed by the Principal Registrar's report.
The appellants, on the other hand, submitted that they should have their costs of the appeal and the order for costs in their favour below should not be disturbed. It was argued that the process had been set in train by the failure of the respondents to pursue the action with diligence. The respondents had made the application to the master in the mistaken belief that it was necessary because of their dilatoriness and the appellants had been put to the costs of responding to it. The order of the master had now been overturned.
The court has a wide discretion as to costs but the general rule is that the successful party is entitled to its costs: O 66 r 1 of the Supreme Court Rules. This is not, however, a case where that would be the appropriate order. The outcome does not lend itself to such an order and it is a case where both parties have contributed to costs being incurred. The respondents' extraordinary delay in prosecuting the action led the parties to accept, quite reasonably, that the action had been put on the Inactive Cases List. In fact, had it not been for confusion within the court about the operation of the List, no doubt the case would - and should - have been put on the Inactive Cases List. The respondents then brought an application before the master to have the case removed, unnecessarily as it turns out.
On the appeal, however, whilst the order of the master was set aside, the appellants were substantially unsuccessful. The effective outcome of the appeal is that the respondents' action remains on foot. In addition, after receiving the Principal Registrar's report the appellants continued to pursue the appeal on a basis which was clearly unsustainable.
In my opinion, in the unusual circumstances of this case justice would best be served by no order as to costs of the appeal or the cross‑appeal, or of the application to the master.

Conclusion

I would make the following orders:
1.the appellants have leave to appeal;
2.the appeal be dismissed;
3.the respondents have leave to cross‑appeal and the cross‑appeal be allowed;
4.the orders of the master of 16 May 2012 be set aside;
5.the respondents' application, dated 4 November 2011, to have the case removed from the Inactive Cases List be dismissed;
6.there be no order as to the costs of the appeal or the cross‑appeal; and
7.there be no order as to the costs of the application, dated 4 November 2011, before the master.