Zaghloul v Woodside Energy Ltd
[2018] WASCA 191
•29 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ZAGHLOUL -v- WOODSIDE ENERGY LTD [2018] WASCA 191
CORAM: MURPHY JA
MITCHELL JA
ALLANSON J
HEARD: 12 OCTOBER 2018
DELIVERED : 29 OCTOBER 2018
FILE NO/S: CACV 108 of 2017
BETWEEN: HASSAN MOHAMED MOHAMED ZAGHLOUL
Appellant
AND
WOODSIDE ENERGY LTD
First Respondent
ROBERT MALE
Second Respondent
MICHAEL HAMBLIN
Third Respondent
MELISSA HILL
Fourth Respondent
MICHAEL BRAMELD
Fifth Respondent
RICHARD VAN LENT
Sixth Respondent
STEPHANIE CROFTS
Seventh Respondent
MORYS (BILL) DAVIES
Eighth Respondent
ASHURST AUSTRALIA
Ninth Respondent
ON APPEAL FROM:
For File No: CACV 108 of 2017
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: ZAGHLOUL -v- WOODSIDE ENERGY LTD [2017] WASC 316
File Number : CIV 2757 of 2016
Catchwords:
Practice and procedure - Where appellant seeks to appeal interlocutory decision without application for leave - Whether appeal incompetent
Practice and procedure - Where master dismissed applications for summary and default judgments brought after appellant had filed and given written notice of discontinuance - Whether notice of discontinuance effective - Whether master erred in dismissing applications for judgment as incompetent
Practice and procedure - Whether leave to withdraw notice of discontinuance ought to have been granted - Whether primary proceedings were an abuse of process
Legislation:
Rules of the Supreme Court 1971 (WA), O 23
Supreme Court Act 1935 (WA), s 4, s 60(1)(f)
Result:
Appeal dismissed
Application to adduce additional evidence dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| First Respondent | : | Mr J B Blackburn SC |
| Second Respondent | : | Mr J B Blackburn SC |
| Third Respondent | : | Mr J B Blackburn SC |
| Fourth Respondent | : | Mr J B Blackburn SC |
| Fifth Respondent | : | Mr J B Blackburn SC |
| Sixth Respondent | : | Mr J B Blackburn SC |
| Seventh Respondent | : | Mr J B Blackburn SC |
| Eighth Respondent | : | Mr J B Blackburn SC |
| Ninth Respondent | : | Mr J B Blackburn SC |
Solicitors:
| Appellant | : | In Person |
| First Respondent | : | Ashurst Australia |
| Second Respondent | : | Ashurst Australia |
| Third Respondent | : | Ashurst Australia |
| Fourth Respondent | : | Ashurst Australia |
| Fifth Respondent | : | Ashurst Australia |
| Sixth Respondent | : | Ashurst Australia |
| Seventh Respondent | : | Ashurst Australia |
| Eighth Respondent | : | Ashurst Australia |
| Ninth Respondent | : | Ashurst Australia |
Case(s) referred to in decision(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Beijing Joseph Investment Co Ltd v Starr World Investment Ltd [2015] WASC 110
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Forty Two International Pty Ltd v Barnes [2010] FCA 397
Fox v Star Newspaper Co Ltd [1898] 1 QB 636
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd [2007] WASC 254; (2007) 35 WAR 190
Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104
HFM043 v The Republic of Nauru [2018] HCA 37
K&S Corporation Ltd v Number 1 Betting Shop Ltd [2005] SASC 228
Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283
Perazzoli v BankSA, a division of Westpac Banking Corporation Ltd [2017] FCAFC 204
Ponnambalam v The State of Western Australia [2015] WASCA 185
Re B & J Engineering Pty Ltd (In Liquidation) v Daroczy [1984] FCA 404; (1984) 4 FCR 524
Riddick v Thames Board Mills Ltd [1977] QB 881
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Silbert v Steinberg [2010] WASCA 113
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
The Bell Group Ltd (in liq) v Westpac Banking Corporation [2001] WASC 315
The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
UBS AG v Tyne [2018] HCA 45
Wilson v Metaxas [1989] WAR 285
MURPHY & MITCHELL JJA:
Summary
We agree that the appeal should be dismissed for the reasons given by Allanson J. Even if we were wrong in that conclusion, we would dismiss the appeal for an additional reason, based on the notice of contention. That additional reason arises if the master erred in failing to deal with the appellant's application to withdraw the notice of discontinuance in the primary proceedings. In that event, it would be necessary for this court to consider whether it was appropriate to grant leave to withdraw the notice of discontinuance. For the following reasons, any application for leave to withdraw the notice of discontinuance should have been refused.
Factual background
In order to explain why leave to withdraw the notice of discontinuance should have been refused, it is necessary to say something more about the circumstances in which the primary proceedings were commenced and discontinued.
Between 2008 and 2013, the appellant was employed by the first respondent (Woodside) as a structural engineer. The appellant claims to have suffered a severe psychological injury which resulted in him taking sick leave from 13 April 2011, and prevented him from working since that time. He attributes that injury to 'bullying, harassment, and victimisation by Woodside's employees' as a result of him expressing opinions as to the risk of increasing loads on an offshore platform.[1]
[1] Affidavit of Hassan Zaghloul affirmed on 9 October 2017, pars 22 - 26.
On 29 April 2011 and 22 August 2011, the appellant requested Woodside to investigate his allegations of bullying. In September 2011, Woodside engaged Meridian Security and Investigation (Meridian) to conduct an investigation into the appellant's complaint. On 16 December 2011, Meridian provided Woodside with a report of its investigation (Meridian Report). While Woodside provided the appellant with a summary of the findings in the Meridian Report, it refused his requests for a copy of the report.[2]
[2] Affidavit of Hassan Zaghloul affirmed on 9 October 2017, pars 29, 32 - 33; affidavit of Jacqueline Elizabeth Young affirmed on 23 October 2017, pars 7 - 8.
On 27 August 2012, the appellant commenced proceedings in the Federal Court of Australia, claiming in tort and contract against Woodside (Federal Court proceedings). The ninth respondent (Ashurst) was engaged as Woodside's solicitors in those proceedings.[3]
[3] Affidavit of Hassan Zaghloul affirmed on 9 October 2017, pars 34 - 35; affidavit of Jacqueline Elizabeth Young affirmed on 23 October 2017, pars 9 - 11.
On 15 October 2014, the appellant applied for discovery of the Meridian Report in the Federal Court proceedings. After other matters were dealt with, the discovery application was listed for mention on 16 February 2016.[4]
[4] Affidavit of Jacqueline Elizabeth Young affirmed on 23 October 2017, pars 12 - 14.
On 9 February 2016, Ashurst wrote a letter to Mr Andrew Gill, who was then the appellant's solicitor in the Federal Court proceedings. The letter indicated that Woodside was prepared to provide the appellant with a copy of the Meridian Report without an order of the court directing discovery of that document. On 11 February 2016, as agreed between the appellant and Woodside, the appellant discontinued his discovery application and a copy of the Meridian Report was sent by Ashurst to Mr Gill.[5]
[5] Affidavit of Jacqueline Elizabeth Young affirmed on 23 October 2017, pars 16 - 18, annexures JEY1 - JEY5.
On 7 October 2016, the appellant commenced the primary proceedings in the General Division of this court. He did so by filing a writ of summons. The indorsement on the writ indicated that the appellant made a claim for defamation in respect of statements which had been made by the second to eighth respondents, who were employees of Woodside, to the investigator which were reproduced in the Meridian Report. The only publication of those allegedly defamatory statements, identified in the indorsement to the writ, was the provision of the Meridian Report by Ashurst to Mr Gill on 11 February 2016.
On 19 October 2016 the appellant, who was self-represented in the primary proceedings, sent emails to Ashurst indicating that he was going to discontinue the primary proceedings. A notice of discontinuance was filed on 20 October 2016. The notice was served on Ashurst, who indicated that they acted for all respondents, on 21 October 2016.[6] The appellant also filed and served an affidavit entitled 'Affidavit in Regard to Discontinuance' in which he deposed:[7]
I discontinue this proceeding without prejudice on the basis of what I have found yesterday to be a technicality that could form the basis to dismiss my application, notwithstanding my belief that I have a course of action against the defendants, and to avoid waste of the Court's valuable resources.
[6] Affidavit of Hassan Zaghloul affirmed on 2 October 2017, par 5 - 6; affidavit of Jacqueline Elizabeth Young affirmed on 23 October 2017, pars 21 - 24.
[7] Affidavit in Regard to Discontinuance affirmed 20 October 2016, par 3.
In February 2017, the respondents filed a bill of their costs in the primary proceedings. On 11 April 2017, that bill was taxed in the amount of $10,567.75. The appellant's objection to the registrar signing the allocator was dismissed on 11 October 2017. At taxation and on objection, the taxing registrar rejected the appellant's argument that the primary proceedings had not been discontinued.[8]
[8] Affidavit of Jacqueline Elizabeth Young affirmed on 23 October 2017, pars 25 - 39.
On 2 October 2017, the appellant filed a summons seeking summary judgment, alternatively judgment in default of appearance, and a statement of claim in the primary proceedings. In submissions filed in support of his summons, the appellant submitted, in effect, that if the notice of discontinuance was effective then the court had power to grant leave to uplift the notice.[9]
[9] Outline of Submissions in Support of the Application for Summary Judgment dated 23 October 2017, par 85.
Why leave to withdraw the notice of discontinuance should have been refused
The master clearly had power to grant the appellant leave to withdraw his notice of discontinuance of the primary proceedings, and the principles governing the exercise of that discretion are well established.[10] However, in our view, it would not have been appropriate to grant the appellant leave to withdraw his notice of discontinuance for the following reasons, considered in combination.
[10] Ponnambalam v The State of Western Australia [2015] WASCA 185 [29] - [32].
First, the evidence indicates that the appellant understood the effect of the notice of discontinuance when he filed it.
Secondly, there was a 12 month delay between the filing of the notice of discontinuance on 20 October 2016 and the first occasion on which the issue of withdrawal was raised in submissions on 23 October 2017.
Thirdly, the respondents acted on the basis that the primary proceedings had been discontinued, including by incurring the expense of having their costs taxed. The appellant's submission that he should have leave to withdraw the notice of discontinuance was made after the respondents' costs had been taxed.
Fourthly, there is no adequate explanation of the reasons for the appellant's change of heart in wishing to pursue the proceedings or the delay in seeking leave to withdraw the notice of discontinuance. The appellant has merely indicated that he decided to discontinue the primary proceedings because he had identified an unstated 'technicality' which subsequent research 'resolved'.[11]
[11] Affidavit in Regard to Discontinuance affirmed 20 October 2016, par 3; affidavit of Hassan Zaghloul affirmed on 2 October 2017, par 9; affidavit of Hassan Zaghloul affirmed 9 October 2017, par 13; appeal ts 43 - 44.
Fifthly, the primary proceedings constitute an abuse of process, given that the only allegedly actionable publication of the Meridian Report on 11 February 2016:
(1)was made following the appellant's demand and application for discovery and inspection of the report in the Federal Court proceedings; and
(2)was by way of informal discovery and inspection in the Federal Court proceedings.
Having been discovered in the Federal Court proceedings, the Meridian Report was subject to an implied undertaking not to use the discovered document other than in relation to that litigation.[12] The appellant's commencement of the primary proceedings without being released from the undertaking by the Federal Court was a breach of that implied undertaking, and an abuse of this court's process.[13]
[12] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, 32 - 33; Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [96]; The Bell Group Ltd (in liq) v Westpac Banking Corporation [2001] WASC 315 [280] - [291]; Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 [20]; Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 [9] - [18].
[13] Riddick v Thames Board Mills Ltd[1977] QB 881, 896 - 897, 901 - 903, 910 - 912; Forty Two International Pty Ltd v Barnes [2010] FCA 397 [94]; K & S Corporation Ltd v Number 1 Betting Shop Ltd [2005] SASC 228 [50]; Perazzoli v BankSA, a division of Westpac Banking Corporation Ltd [2017] FCAFC 204 [269].
Further, quite apart from the issue of the implied undertaking, the primary proceedings were an abuse of the court's process on the basis that they involved a use of the court's procedures in a manner which would bring the administration of justice into disrepute.[14]
[14] As to which, see Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [5] ‑ [10], [118] - [119]; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [25]; UBS AG v Tyne [2018] HCA 45 [1], [83], [126].
The alleged publication the subject of the primary proceedings was made to one person, who was the appellant's agent and solicitor in the Federal Court proceedings, to whom the appellant had demanded the report be given. In our view, it was an abuse of process for the appellant to bring an action for defamation in respect of the alleged publication on 11 February 2016 to the person who was relevantly the appellant's agent for the purpose of receiving material that the appellant insisted on receiving and used the court process to obtain. The abuse lies in the appellant using the process of a court to compel conduct which is then said to form the basis of liability in later proceedings. For this court to sanction that approach would clearly bring the administration of justice into disrepute.
In the above circumstances, it would have been inappropriate for the master to grant the appellant leave to withdraw his notice of discontinuance of the primary proceedings. That is so irrespective of the strength of the appellant's claim. In that regard, it is unnecessary to deal with the appellant's allegations that the alleged defamatory statements were made with malice - to which, he said, the application for adducing additional evidence in the appeal was directed.
Conclusion
For the above reasons, and for the reasons explained by Allanson J, the appeal should be dismissed, and the appellants' application to adduce additional evidence should be dismissed.
ALLANSON J:
By an appeal notice filed 21 November 2017, the appellant seeks to appeal a decision of the master dismissing the appellant's application for summary judgment and default judgment.
The decision of the master was interlocutory,[15] and no appeal lies without leave.[16]
[15] See Silbert v Steinberg [2010] WASCA 113 [2].
[16] Supreme Court Act 1935 (WA) s 60(1)(f).
The appellant has not applied for leave to appeal. On 22 December 2017 and 23 March 2018, on applications for orders in the appeal, the appellant was told that if he needed leave to appeal and failed to apply for leave, that would be a problem in the appeal itself.
In the absence of an application for leave, the appeal should be dismissed as incompetent.
Further, for the reasons set out below, the correctness of the master's orders are not attended by sufficient doubt to justify the grant of leave to appeal.
Background
On 7 October 2016, the plaintiff commenced proceedings against the respondents for defamation. The writ was served on all but the eighth respondent.
On 19 October 2016, before any of the respondents had filed appearances, the appellant told them by email that he had decided to discontinue. Later on the same day he sent another email attaching a 'Defamation Discontinuance'.
The appellant filed a notice of discontinuance on 20 October 2016.
On 20 October 2016, Ashurst Australia, the ninth respondent and solicitors for the first eight respondents, asked the appellant to confirm that he was wholly discontinuing the proceeding against all respondents and had filed a notice of discontinuance. Ashurst asked the appellant to provide a copy of the filed notice. Ashurst told the appellant that they would file a conditional appearance unless so notified.
Later that day, Ashurst filed conditional appearances for the first and ninth respondents.
Ashurst then advised the appellant that they acted for all respondents and again requested a copy of the filed notice.
On 21 October 2016, the appellant replied with a copy of the notice of discontinuance and an affidavit in support.[17]
[17] The facts are taken from the affidavit of Jacqueline Elizabeth Young affirmed 23 October 2017, Green AB 75 ‑ 88.
In February 2017, the first respondent filed a bill of costs for its costs in the action, which was taxed.
On 2 October 2017, the appellant filed a statement of claim. On the same day, he filed an application for summary judgment, and for default judgment against those respondents who had not entered appearances.
On 2 November 2017, the master heard and dismissed the appellant's application, with the decision to operate from the date the master published his reasons.
The decision of the master
The master published short reasons on 6 November 2017.
The master did not accept the appellant's contention that the notice of discontinuance was of no effect and that the appellant was entitled to continue with the proceedings. In particular, he did not accept the appellant's submission that an action cannot be discontinued without leave before the entry of an appearance.[18] The master concluded:
Accordingly the action has been discontinued by the steps taken by the plaintiff. He did not need leave to discontinue and there was no impediment to his filing a notice which terminated the action. Having done so the proceedings are at an end and no further interlocutory steps can be taken in the proceedings. The application for summary judgment is incompetent.[19]
[18] Primary reasons [8].
[19] Primary reasons [11].
Orders were not made immediately. It was only on 17 August 2018 that a registrar extracted orders that:
1.The summary judgment application is dismissed.
2.The plaintiff shall pay the defendants' costs of the application for summary judgment.
3.These orders will date from the date of publication … of the Master's reasons for judgment.
The appeal
On 21 November 2017, the appellant filed an appeal notice. He appeals on seven grounds.
The respondents have filed a notice of contention with regard to one aspect of the appellant's case. The appellant contends that the master ought to have determined his request (made in written submissions) for leave to withdraw the notice of discontinuance. The respondents contend that if the master erred in failing to do so:
(a)any such error could not have affected the determination of the summary judgment application; and
(b)on the available evidence, any such application ought to have been dismissed and ought now be dismissed for the reason that the action which the appellant seeks to continue is an abuse of process and has no reasonable prospects of success.
The appellant applied to adduce additional evidence and to amend the orders wanted. On 14 May 2018, Murphy JA referred those applications to the hearing of the appeal.[20] Those applications only arise if the appellant would be otherwise successful in the appeal and the court is required to determine the notice of contention.
[20] Yellow AB 1.
The master's orders are clearly interlocutory in nature. As a result the appellant requires leave to appeal against those orders under s 60(1)(f) of the Supreme Court Act 1935 (WA). Generally, leave should not be granted unless the decision below is plainly wrong or is attended by sufficient doubt to justify the grant of leave and a substantial injustice would be done if it remains undisturbed.[21]
[21] Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374 [80] - [81]; The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, 54 ‑ 57; Wilson v Metaxas [1989] WAR 285, 294.
The issues
Order 23 of the Rules of the Supreme Court 1971 (WA), provides, relevantly:
1A party who has entered an appearance in an action may withdraw the appearance at any time with the leave of the Court.
2(1) The plaintiff may, at any time before receipt of the defendant’s defence, or after the receipt thereof before taking any other step in the action, by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant’s costs of the action, or, if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.
(2)The costs referred to in subrule (1) shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.
(3)Save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court, but the Court may before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out.
In oral submissions, the appellant identified three areas in which he contended that the decision of the master was wrong and that his action against the respondents remains on foot. First, the appellant submitted that he had taken action in the proceedings subsequent to giving notice of discontinuance and, pursuant to O 23 r 2(2), the discontinuance was not a defence to those subsequent actions. Second, he submitted that he had applied for leave to withdraw his notice of discontinuance and the master had not determined that application. Third, he submitted that his notice of discontinuance was not effective because it was given without leave of the court.
Subsequent actions
The appellant's first argument was that, pursuant to O 23 r 2(2), his subsequent actions continue the proceedings and the notice of discontinuance is not a defence to those actions. In answer to a question from the court, the appellant identified the filing of the statement of claim and the summons for summary judgment and default judgment as the relevant subsequent actions.
The argument proceeds on a misunderstanding of what is meant by 'subsequent action' in O 23 r 2(2) (see also O 23 r 4). Subsequent action does not mean a later step in the proceedings, but another action seeking the same relief as the action which has been discontinued.[22]
[22] See definition of 'action' in Supreme Court Act 1935 (WA) s 4.
The application to withdraw the notice
In his submissions before the master, the appellant identified the issues as including 'whether there can be an order to uplift the Notice to Discontinue'.[23] He submitted that it was in the interests of justice to allow him to withdraw the notice where a fresh action may be subject to limitation defences.[24]
[23] Blue AB 56 [4].
[24] Blue AB 58 [14] - [16].
In affidavits filed in support of the application before the master, the appellant deposed that he had discontinued the primary proceedings because of an unspecified technical issue which he later resolved.[25]
[25] Green AB 28 -29.
It is not in dispute that the court has power to permit a notice of discontinuance to be withdrawn.[26]
[26] Ponnambalam v The State of Western Australia [2015] WASCA 185 [29] - [32].
The master did not deal with the question of setting aside the notice. It would have been open to the master to deal with the matter on the basis that the appellant, by his submissions, had so applied. However, the master could only have done so in a manner that was procedurally fair to the respondents. This would have required the respondents to be given notice that the court would proceed on this basis, and to be given an opportunity to raise issues, which could involve additional evidence, as to why leave to withdraw the notice of discontinuance should be refused.
Even if the master had permitted the appellant to withdraw the notice of discontinuance, that could not, in my opinion, have affected the decision to dismiss the application for summary judgment. Summary judgment should properly be granted only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial.[27] The appellant's case is not one on which summary judgment could properly be granted in his favour. The application for default judgement must also have failed. It could not be suggested that the respondents were obliged to enter an appearance in an action which had been discontinued.
[27] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [51] - [55].
In those circumstances, any failure by the master to deal with the application to withdraw the notice of discontinuance does not occasion any substantial injustice to the appellant. The orders made by the master - to dismiss the appellant's application for summary judgment - would have followed even if leave to withdraw the notice of discontinuance had been granted.
Did the appellant require leave to discontinue?
The appellant's third issue turns on the effect of the notice of discontinuance which the appellant filed on 20 October 2016, notice of which he gave to the respondents on 20 October and again on 21 October 2016.
The appellant says that the notice is not legally effective because it was filed without leave before the entry of an appearance.
The appellant relied on Re B & J Engineering Pty Ltd (In Liquidation) v Daroczy.[28] The facts of Daroczy were that, in December 1979, the plaintiff had filed but not served a notice of discontinuance. The matter proceeded until 1984, with the defendant unaware that the notice had been filed. In 1984, the defendant sought a declaration that the action had been discontinued, and the interlocutory steps taken in it were invalid. The plaintiff sought to uplift the notice of discontinuance on the grounds that it was a nullity. The trial judge made orders as sought by the plaintiff. The defendant appealed.
[28] Re B & J Engineering Pty Ltd (In Liquidation) v Daroczy [1984] FCA 404; (1984) 4 FCR 524.
Dismissing the appeal, Davies and Everett JJ held that the action by the respondent (plaintiff) had not been effectively discontinued because written notice of discontinuance had not been given to the appellant (defendant) as required by the rules.
Sheppard J, agreed but relied on a different ground. It is on his judgment that the appellant relied. His Honour said:
In my opinion, Order 30, rule 1(1) of the Rules has no application to the circumstances of a case such as this. That is because the writ had not been served at the time the notice of discontinuance was filed. In my opinion this case is governed, not by Order 30, rule 1(1) but by Order 30, rule 1(2). There could be no discontinuance without the leave of the Court.
My reasons for this view stem from a consideration of a number of the provisions of the rules, including those of Order 30, rule 1. The words of that rule make it clear that in a case where there are no pleadings and no appearance has been entered, there can be no discontinuance without leave. The relevant part of the rule provides that, where there are no pleadings, the plaintiff may, within 15 days after appearance, discontinue. In such a case there is no entitlement to discontinue as of course either before appearance or after the expiration of 15 days from the entry of the appearance. [29]
[29] Re B & J Engineering Pty Ltd (In Liq) v Daroczy, 530.
In a passage relied on by the appellant, Sheppard J said:
In cases where a writ has not been served or has been served but no appearance has been entered, a plaintiff will always be able to seek the leave of the Court to discontinue the action pursuant to Order 30, rule 1(2). In my opinion the rule needs to be understood as though the words 'after appearance and' were inserted after the words 'at any time' so that it reads, 'The plaintiff may, where there are pleadings, at any time after appearance and before the receipt of the defendant's defence … wholly discontinue his action …'[30]
[30] Re B & J Engineering Pty Ltd (In Liq) v Daroczy, 531 ‑ 532.
The master rejected this argument. He was correct to do so.
First, the words of O 23 r 2(1) do not support the appellant's argument.
On its proper construction, the rule applies to proceedings in which pleadings will be exchanged.[31] The appellant's action was commenced by writ and, as a claim in defamation, could only proceed on pleadings.[32] It was an action to which O 23 r 2(1) applied.
[31] Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd [2007] WASC 254; (2007) 35 WAR 190 [40]; Beijing Joseph Investment Co Ltd v Starr World Investment Ltd [2015] WASC 110 [32] ‑ [35].
[32] See Rules of the Supreme Court 1971 (WA) O 20 r 21.
The rule prescribes a time after which proceedings cannot be discontinued without leave. It does not specify any time or procedural step which must occur before a party may discontinue without leave.
The fundamental task of the court is to construe the words used, having regard to the objectively ascertained legislative purpose.[33] There is no textual or contextual basis for the appellant's construction of the provision as operating differently before and after an appearance is entered. Further, the limitation which the appellant would import is unnecessary to give effect to the principle underlying the rule. In Heartlink Ltd v Jones, Martin CJ cited Fox v Star Newspaper Co Ltd, where Chitty LJ said in relation to the corresponding English rule:
It seems to me that Order XXVI, is intended to form a complete code applicable to the whole subject of discontinuing an action … The principle of the rule is plain. It is that after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest … The substance of the provision is that, after a stage of the action has been reached at which the adversaries are meeting face to face, it shall only be in the discretion of the judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the right of bringing another action for the same subject-matter.[34]
[33] See the discussion in Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77] - [85].
[34] Fox v Star Newspaper Co Ltd [1898] 1 QB 636, 639; cited in Heartlink Ltd v Jones [38].
I can see no reason why the rule should require a plaintiff wishing to withdraw to wait until the parties have incurred unnecessary expense before it may 'avoid the contest' without seeking leave of the court. Fairness requires that after the proceedings have reached a certain stage the plaintiff should not be permitted to abandon them except on terms determined by the court. Before that stage is reached, neither the text of the rule nor the principle underlying it require leave of the court.
This is not a case where a purposive approach would justify the court in reading O 23 as if it contained additional words.[35]
[35] Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [38] - [40], [65]; discussed in Australian Unity Property [87] - [91]. See also HFM043 v The Republic of Nauru [2018] HCA 37 [24].
In my opinion, the appellant did not require leave to discontinue his action. The notice filed on 20 October 2016 and provided to the respondents, through their solicitors, was effective to discontinue the proceedings.
The other grounds
Nothing in the appellant's other grounds or written submissions provides sufficient basis for doubting the correctness of the decision below.
Conclusion
For these reasons, the appeal should be dismissed.
It is not necessary for the court to determine the notice of contention, or the appellant's applications in the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZW
ASSOCIATE TO THE HONOURABLE JUSTICE ALLANSON29 OCTOBER 2018
3
20
2