Practice and procedure - Application for summary judgment under O 16 - Turns on own facts

Bristile Ltd v The Buddhist Society of Western Australia Inc & Anor [1999] WASC 259

Russell-Davison v Prosin & Ors, unreported; SCt of WA; Library No 980277; 22 May 1998

1 MASTER BREDMEYER: This is an application for summary judgment by the first and second defendants ("the defendants") under O 16 of the Rules of the Supreme Court. The defendants would like the application to proceed and to be heard at a special appointment fixed for 9 May 2000, at which the defendants' application to strike out parts of the statement of claim, and other interlocutory applications, will be heard. The plaintiffs say that the application is flawed and should be dismissed because:

(1) it is out of time and leave to bring it out of time has not been sought;

(2) no proper prior consultation has taken place under O 59 r 9; and

(3) no affidavit has been served with the application seven days prior to the return date as required by O 16 r1(2) and (4).

2 I do not consider that the application is out of time and hence it does not require leave. By O 16 r 1(1) the application may be brought within 21 days after the appearance, or at any later time by leave. The appearance of these defendants was filed on 3 March and this application was filed on 23 March.

3 I consider that proper prior consultation under O 59 r 9 has not taken place. By a facsimile sent on Wednesday 22 March at 5.06pm, the defendants' solicitors advised the plaintiffs' solicitors as follows:

"We refer to the statement of claim filed by your clients in the above matter.

From our review of the statement of claim filed by you for your clients it is apparent that so far as it deals with claims by the first plaintiff, it does not disclose a cause of action against the first and second defendants. Accordingly, we request that the first plaintiff consent to her action against the first and second defendants being dismissed with costs.

Unless we have your response by tomorrow morning application will be made for summary judgment against the first plaintiff."

4 The application for summary judgment was lodged the next morning. I consider the time frame was inadequate to give the solicitors for the plaintiff time to consider the matter and to obtain instructions on that. Nevertheless, a failure to consult prior to bringing an application is not necessarily fatal. It would probably prevent any substantive order being made on the first return date. In this case the defendants want the substantive matter to be heard at the special appointment already fixed for 9 May and I will direct that the defendants file and serve an outline of submissions which will better inform the plaintiffs of the basis of the application. The defendants' failure to consult properly may have an impact on costs which I will consider later at the special appointment.

5 The third objection is that under O 16 r 1(2) an application for summary judgment shall be supported by an affidavit verifying the facts upon which the application is made, and by subrule (4), the summons and the copy of the affidavit in support and annexures shall be served on the plaintiff not less than seven days before the return date of the summons. All this was not done. The principal affidavit in support of the first defendant, although sworn on 21 March, was filed on 30 March and served at that time or shortly afterwards on the plaintiffs' solicitors. That is clearly a breach of O 16 r 1(2) and (4). I am also told that two further affidavits in support have been prepared and they are in the process of being served on the plaintiffs' solicitors. I think draft copies of those affidavits have already been served. These are serious omissions but are not necessarily fatal to the progress of this application: see Lill v Merchant (WA) Ltd (1996) 15 WAR 536 at 550 per Ipp J, with whom Franklyn J agreed. Is it just to overlook these deficiencies and allow this application to be heard on the merits? As far as I can see, and I have not seen the two new affidavits, it is not unjust to let it proceed. The chamber summons sets out the grounds for the application, namely that the written statement of claim discloses no reasonable cause of action by the first plaintiff against the first and second defendants, is frivolous and vexatious and the first and second defendants have a good defence on the merits of the claims against the first plaintiff and the action of the first plaintiff ought to be disposed of summarily. I suspect that there is a fair overlap between the matters to be raised here and the matters raised on the strike-out application. I note that by the statement of claim the causes of action are misleading and deceptive conduct and fraud and they both arise out of certain representations made by the first defendant to a representative of the second plaintiff. It is not alleged that those representations were made to the first plaintiff or to an agent of the first plaintiff. Those representations are said to have induced the second plaintiff to enter into a contract of sale to purchase the defendants' property. The first plaintiff is not a party to that contract of sale, although it is said that she paid the deposit and borrowed a large sum of money to finance the purchase. The affidavit in support, already mentioned, will not take the plaintiffs by surprise. It says little apart from annexing a number of documents which are common to the parties. On the present papers I do not consider that the hearing of this summary judgment application will take up much additional time on the hearing of the defendants' strike-out application. I therefore propose to allow this application to proceed to be heard at the special appointment fixed on 9 May.

6 The chamber summons will be adjourned to 9 May for hearing. I will direct the defendants to file and serve an outline of submissions on this application on or before 21 April. I will direct the plaintiffs to file and serve any affidavits in reply, together with an outline of submissions, on or before 5 May. I will reserve on the question of costs.