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[2017] WASC 316
Supreme Court of WA
2017-11-06
Mr J
Original judgment source is linked above.
1 MASTER SANDERSON: This was the return of the plaintiff's application for summary judgment or alternatively default judgment. After hearing argument I dismissed the summons and indicated the order would take effect from the date of publication of reasons for my decision. These are those reasons.
2 This is a defamation action. The writ was filed on 7 October 2016. It was served on the first and ninth defendants on 10 October 2016. It was served on the other defendants, save the eighth defendant, at various dates after 10 October 2016. The eighth defendant was never served and although represented by the ninth defendant he has played no part in these proceedings. All of the other defendants who were served instructed the ninth defendant to act on their behalf.
3 In opposition to the plaintiff's application the defendants filed an affidavit of Jacqueline Elizabeth Young affirmed 23 October 2017. That affidavit has attached to it a number of emails passing between the plaintiff and the ninth defendant. They commence at JEY6 which is an email from the plaintiff to Ashurst which was sent on 19 October 2016 at 10.57 am. In that email the plaintiff said he had decided to discontinue the proceedings. He confirmed his position in another email sent the same day at 1.44 pm. As an attachment to that email there was a document referred to as 'Defamation Discontinuance'. Although the draft is in a slightly odd form it is clearly a notice of discontinuance. On 20 October 2016 at 12.30 pm Ashurst sent the following email to the plaintiff:
We refer to your emails dated 19 October 2016 notifying us of your decision to discontinue the above proceeding and attaching a draft Notice of Discontinuance.
Please confirm that you have notified the Court of you wholly discontinuing the proceeding against all defendants by filing the Notice of Discontinuance. In addition, please provide us with the stamped Notice of Discontinuance.
If you do not do so before 3.00pm AWST today, the first and ninth defendants will file conditional appearances in the proceeding.
4 In conformity with that email a representative of Ashurst attended at the Supreme Court Registry intending to inspect the file to ensure a notice of discontinuance had been filed. For reasons which are not entirely clear it was not possible for the representative to inspect the court file. So, out of an abundance of caution conditional appearances were filed on behalf of the first and ninth defendants. Having filed those appearances Ashurst sent an email to the plaintiff at 6.02 pm on 20 October 2016. Relevantly it read as follows:
We confirm your advice that you filed a Notice of Discontinuance in the above proceeding. We were unable to obtain a copy of the filed Notice of Discontinuance from the Court which advised that you are required to serve it on the defendants in the proceeding. Please promptly provide us with a copy of the filed Notice of Discontinuance.
We understand that you also filed an affidavit in relation to the proceeding. Please also promptly provide us with a copy of the affidavit.
Finally, as we are engaged to act on behalf of all the defendants in the proceeding, please direct any further correspondence concerning the proceeding (including without limitation, copies of the Notice of Discontinuance and the affidavit referred to above) to Ashurst and not to the individual defendants.
5 The plaintiff responded by email dated 21 October 2016 and sent at 12.19 am. It provided a copy of the notice of discontinuance which had indeed been filed and a copy of the affidavit in support.
6 The defendants not unreasonably proceeded on the basis that the action had indeed been discontinued. They moved to tax their costs. The plaintiff now says that the notice of discontinuance which was filed is of no effect and he is entitled to continue with the proceedings. It is the defendants' position the matter has been discontinued and the application for summary judgment is incompetent.
7 Order 23 r 2(1) of the Rules of the Supreme Court 1971 (WA) is in the following terms:
(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.
(4) The Court may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence or counterclaim, or any part thereof, without such leave.
8 The rule is quite straightforward and not at all difficult to understand. The plaintiff may discontinue 'at any time before the receipt of the defendant's defence'. The rule says nothing about an appearance. There is no reason why as was submitted by the plaintiff that an action cannot be discontinued prior to the entry of an appearance or if an appearance has been entered before the filing of a defence. There is simply no warrant for reading the rule in that way.
9 The plaintiff relied upon the decision in B & J Engineering Pty Ltd (in liq) v Daroczy (1984) 57 ALR 240. That case was dealing with O 30 r 1(1) of the Rules of the Supreme Court (ACT). That rule was in the following terms:
The plaintiff may, where there are pleadings, at any time before the receipt of the defendant's defence, or, after the receipt thereof, before taking any other proceeding in the action (save any interlocutory application), and, where there are no pleadings, the plaintiff may, within fifteen days after appearance, 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 the defendant's costs of the action, or, if the action is not wholly discontinued, the costs occasioned by the matter so withdrawn. Such costs shall be taxed, and such discontinuance or withdrawal (as the case may be) shall not be a defence to any subsequent action.
10 This rule is in entirely different terms to the rule applicable in this jurisdiction. The case has no application to the facts in this matter.
11 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.
12 The plaintiff ought pay the defendants' costs of the application.
(1984) 57 ALR 240