Cps Credit Union Co-Operative (ACT) Ltd v Armitage [1998] ACTSC 110 (13 October 1998)

Last Updated: 13 October 1999

CPS Credit Union Co-Operative (ACT) Ltd v Armitage

[1998] SCACT 110 (13 October 1998)

CATCHWORDS

PRACTICE & PROCEDURE - Application to reinstate the action following the matter being entered in the List of Inactive Cases - Taken to have been dismissed for want of prosecution - Court's discretion to reinstate the action under special circumstances - Grounds sufficient to establish "special circumstances".

ACT Supreme Court Rules: Order 2 rule 30, 31(1), 31(2)(b)

No. SC 609 of 1997

Coram: Master T Connolly

Supreme Court of the ACT

Date: 13 October 1998

IN THE SUPREME COURT OF THE )

) No. SC 609 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CPS CREDIT UNION

CO-OPERATIVE (ACT) LTD

Plaintiff

AND: WAYNE R ARMITAGE

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 25 September 1998

THE COURT ORDERS THAT:

1. The subject action be reinstated pursuant to Order 2 rule 31(2)(b) of the Supreme Court Rules.

1. This action was an application pursuant to Order 2 rule 31(2)(b) to reinstate an action which had been taken to have been dismissed for want of prosecution pursuant to Order 2 rule 31(1) as having remained for two months on the list of inactive cases. Order 2 rule 31(2)(b) provides that such a matter may be reinstated by the Court in special circumstances. I made an order on 25 September reinstating this action, and indicated that, as this was the first such matter to appear in my list since the commencement of the new Order 2 provisions relating to originating applications commenced on 1 July 1997, I would publish my reasons for making the order.

2. The new provisions concerning originating applications were introduced as the first stage of a comprehensive review of the Rules of this Court and were intended to simplify the commencement of proceedings and encourage the provision of information between the parties at an early stage in proceedings, and also to encourage prompt conduct of proceedings. A feature of the last goal was the adoption of Division 3 of Order 2 dealing with inactive cases. These rules, contained in Order 2 rules 27-31 were modelled on provisions in the South Australian Supreme Court Rules (Rule 10.06), and provide a new regime for dealing with cases which have been commenced but not progressed.

3. The Rules require the Registrar to maintain a List of Inactive Cases. An action shall be entered on to this list 7 months after it has been commenced where no application has been made to renew the proceeding under Division 2 of Order 2, no appearance has been entered by a defendant, and the plaintiff has not applied to the Court for default judgment. The Registrar is required to give notice to the plaintiff that the matter is to be entered onto the list. The Registrar is required to remove a matter from the List if, within two months of its entry on the List, the originating application is renewed, an appearance is entered by the defendant, or a default judgment is obtained. A plaintiff may also apply for an order for a matter to be removed from the List

(O.2 r30(d)).

4. If an action remains on the List for two months it is to be taken to be dismissed for want of prosecution. Such dismissal is no bar to the recommencement of an action, and there is a discretion to reinstate the action in "special circumstances".

5. In this action an originating application was filed and sealed on 27 August 1997. The action is for the recovery of an unpaid debt, alleged to be owed to the plaintiff by the defendant arising from the defendant's alleged default, from January 1994, to continue to make repayments on a loan agreement entered into in October 1985. The sum representing the outstanding principal and interest at the date of the commencement of the proceedings was $2,672.88.

6. The defendant was at the time of the issue of the proceedings resident in Vanuatu. An application was properly brought to issue the proceedings out of the Commonwealth, and on 29 August 1987 I made an order granting the plaintiff leave to serve the proceedings out of the Commonwealth. An affidavit of service was before me in this application which showed that the defendant was served by a solicitor who had personally known him for some four years on 12 November 1997.

7. There the matter stood. No appearance was entered by the defendant. On 6 March 1998 the Registrar issued a Notice pursuant to Order 2 rule 28 that the matter would be entered the List of Inactive Cases if no action was taken. On 9 April 1998 the Registrar issued a Notice pursuant to Order 2 Rule 30 that the matter had been entered on the list, and that the matter would be taken to be dismissed for want of prosecution if the requirements or Order 2 rule 30 were not met. No action was taken by the plaintiff, and so the matter was taken to have been dismissed on 9 June 1998.

8. The plaintiff applied to have the matter reinstated. An affidavit was filed by the solicitor for the plaintiff which states that on 3 April 1998 he was advised by a debt collection service that the defendant had undertook to make payments to discharge the debt, and that such payments were in fact being made. Accordingly, the plaintiff undertook not to enter a default judgment. No action was taken by the plaintiff pursuant to this agreement, and repayments were being made as time passed and the matter entered the List of Inactive Cases, and was then taken to be dismissed for want of prosecution. The defendant has now ceased making payments, and the plaintiff seeks to reinstate the action.

9. Division 3 of Order 2 was introduced to discourage delay in proceedings. It introduces quite tight time frames for parties, tighter indeed than the South Australian rules on which it was based. But while parties are to be strongly discouraged from delay, it seems to me appropriate in debt recovery actions particularly that the parties be provided some latitude to encourage settlement and compromise of actions. Very few debt recovery actions commenced in this Court ever come to trial, and this is, of course, a good thing. In this case the plaintiff commenced proceedings, and following service, received an offer to discharge the debt. Rather than incur additional legal expenses by immediately taking out a default judgment, the plaintiff agreed to hold off while payments were made. If the defendant had maintained his payments, the matter would have not been revived. By breaching his undertaking, the plaintiff has sought to revive the action, and has found that it has now been deemed to have had its action dismissed for want of prosecution. In these circumstances, it seems to me appropriate that the action be reinstated. Where a plaintiff can show that the reason for failure to take the action required by Order 2 rule 30 has been that genuine negotiations have been taking place in good faith to secure a compromise that may avoid the need for the entry of a default judgment and thus to save both legal costs and court time, this will be a strong ground to establish the special circumstances needed to enliven the discretion to reinstate an action pursuant to Order 2 rule 31(2)(b).

I certify that this and the three (3) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 13 October 1998

Counsel for the Plaintiff: Mr M Van Gelder

Instructing Solicitors: Van Gelder & Co

Counsel for the Defendant: No appearance

Instructing Solicitors:

Dates of hearing: 25 September 1998

Date of judgment: 25 September 1998

Date of Reasons for Decision: 13 October 1998