Arman v Harbour Radio Pty Limited; Whiting v Harbour Radio Pty Limited

[2018] NSWDC 321

District Court

New South Wales

Medium Neutral Citation:	Arman v Harbour Radio Pty Limited; Whiting v Harbour Radio Pty Limited [2018] NSWDC 321
Hearing dates:	18 October 2018
Date of orders:	25 October 2018
Decision date:	25 October 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiffs’ notice of motion filed on 24 September 2018 granted; time for compliance with the self-executing order of 30 August 2018 is extended to 19 September 2018. (2) The costs of the applications are to be borne by the solicitor for the plaintiffs, Mr Simon Campbell Maxwell of Sanford Legal, with liberty to apply within 14 days to vary this order or to seek to set it aside.
Catchwords:	PRACTICE AND PROCEDURE – failure to comply with self-executing order – whether application under UCPR r 36.16 brought within time – whether time runs from the date of the order not complied with or from the time of non-compliance – whether order in its present form entitled the defendant to judgment and costs or an additional order was necessary – whether any further order was judicial or administrative – whether any further order could be subject to a further application under UCPR r 36.16 – time could be extended in relation to any future order for judgment and costs, if brought – COSTS – repeated failures to comply with timetables – solicitor for clients in default personally liable for costs of the application
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 Supreme Court Act 1970 (NSW), s 121 Supreme Court Rules 1970 (NSW), Pt 2 r 3 Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 36.11, 36.15 and 36.16
Cases Cited:	Abbott v O'Donnell [2000] NSWSC 965 ACN 092675164 (in liquidation) v National Builders Group Pty Ltd [2014] VSC 530 Bailey v Marinoff (1971) 125 CLR 529 Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244 Cyril Smith & Associates Pty Ltd v Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245 Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Katter v Melhem [2015] NSWCA 213 Mills v Futhem Pty Ltd [2011] NSWCA 252 Mohareb v Kelso [2017] NSWDC 208 Mohareb v Kelso (No 2) [2017] NSWCA 173 Nominal Defendant v Livaja [2011] NSWCA 121 O’Donnell v Abbott [2001] NSWCA 184 Paino v Hofbauer (1988) 13 NSWLR 193 Ridge Lane v Gadzhis [2007] VSC 212 at [39]; [2015] VSCA 260 Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248 Thunder Studios Inc (California) v Kazal (No 5) [2017] FCA 1572
Category:	Procedural and other rulings
Parties:	Plaintiff in 2017/27005: Amy Arman Plaintiff in 2017/278166: Ashleigh Whiting Defendant: Harbour Radio Pty Limited
Representation:	Counsel: Plaintiffs: Mr R Rasmussen Defendant: Ms L Barnett   Solicitors: Plaintiffs: Sanford Legal Defendant: Banki Haddock Fiora
File Number(s):	2017/27005; 2017/278166
Publication restriction:	None

Judgment

The applications before the court

1. These are defamation proceedings commenced by way of statements of claim filed (in the case of Ms Amy Arman) on 27 January 2017 and (in the case of Ms Ashleigh Whiting) on 13 September 2017.

2. There are two applications before the court. The first is the plaintiffs’ notice of motion filed on 24 September 2018 seeking the following orders:

1. Pursuant to r 1.12 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the time for the plaintiff to comply with order 1 made on 30 August 2018 be extended up to and including 19 September 2018; or

2. In the alternative, pursuant to r 36.15(1) UCPR, order 2 made on 30 August 2018 be set aside; or

3. In the alternative, pursuant to r 36.16(1) UCPR, order 2 made on 30 August 2018 be set aside.

4. Such further or other order as this Honourable Court deems appropriate.

3. The defendant opposes these applications. The defendant does not, however, seek entry of judgment in accordance with the self-executing order made on 30 August 2018 by reason of the plaintiffs’ failure in each of these actions to comply with those orders, or of any costs order, but argues instead that these are administrative matters for a registrar following upon the plaintiffs’ failure to comply with the self-executing orders.

The evidence on the application

4. The plaintiffs rely upon the following:

1. Affidavits of Simon Campbell Maxwell sworn on 19 September and 16 October 2018; and

2. Affidavits from each of the plaintiffs sworn on 16 October 2018.

5. The defendant relies upon the affidavits of Courtney Elise Gillette Scallan affirmed on 15 August 2018 filed in each of the proceedings.

Background

6. The affidavits of Ms Scallan set out the history of delay by the plaintiffs in relation to the conduct of these proceedings in the course of directions hearings. The procedural history is, with one exception, not in dispute.

7. The proceedings commenced by Ms Arman and Ms Whiting arose from the same publication and, in both cases, were one of four actions each had commenced for defamation.

8. From the beginning of the litigation, there were complaints from the defendant about the failure of both plaintiffs to answer correspondence as well as of inadequate answers to particulars and discovery. In relation to both plaintiffs, the defendant attempted to resolve these by negotiation rather than formal legal argument, as is evidenced by the correspondence, where errors in the Reply, missing discovery documents and inadequacy of particulars were set out at length. Amended pleadings and a supplementary List of Documents were provided but, according to the correspondence dated 15 and 17 May 2018 in the Arman matter, these documents were deficient, and copies of the documents in the supplementary list were still outstanding.

9. On 21 May 2018, the defendant notified the court that an application to strike out the Reply was to be brought in both plaintiffs’ actions, providing submissions in support. The parties came to an agreement to resolve the argument and the listing date was vacated.

10. On 7 June 2018, by consent, I made the following orders in the Arman action:

“(1) The Reply filed 28 March 2018 is struck out with leave to replead (14 days).

(2) Plaintiff to pay the defendant’s costs of and occasioned by the defendant’s application to strike out the Reply filed 28 March 2018, with leave to seek indemnity costs in relation to any challenges to the repleaded Reply.

(3) Plaintiff to serve her verified Supplementary List of Documents, and provide to the Defendant copies of the documents referred to in that List, by 21 June 2018.

(4) Plaintiff to serve her verified answers to interrogatories by 21 June 2018.

(5) Proceedings listed for further directions in the Defamation List at 9:00am on Thursday 28 June 2018.

(6) Liberty to relist the matter on three days’ notice.”

11. I made similar orders in relation to Ms Whiting.

12. Each of the plaintiffs failed to comply with the orders referred to in orders 1, 3 and 4 and on 28 June 2018 I made the following orders, again by consent:

“(1) The time for the plaintiff to file and serve any Reply be extended to 12 July 2018.

(2) Plaintiff to serve her verified Supplementary List of Documents, and provide to the Defendant copies of the documents referred to in that List, by 12 July 2018.

(3) Plaintiff to serve her verified answers to interrogatories by 26 July 2018.

(4) Proceedings listed for further directions in the Defamation List at 9.00am on 16 August 2018.

(5) Plaintiff to pay the defendant’s costs of the listing today.”

13. I made similar orders in relation to Ms Whiting.

14. On 9 August 2018, the solicitors for the defendant wrote the following letter in the Arman matter:

“Dear Mr Maxwell

ARMAN v HARBOUR RADIO PTY LIMITED

District Court of New South Wales case No. 2017/27005

We refer to the orders made by Gibson DCJ on 28 June 2018.

We note that your client has failed to comply with orders 1-3 in that your client has not served any Reply, her verified Supplementary List of Documents (and copies of the documents referred to in that List), or her verified answers to interrogatories. Further, we note that the timetable set down on 28 June 2018 was made in circumstances where your client had failed to comply with orders 1, 3 and 4 of the previous timetable set down on 7 June 2018.

We request that your client serve these documents by no later than 12pm on Monday, 13 August 2018, failing which, our client intends to make an application to the Court at the listing on 16 August 2018 for the proceedings to be dismissed pursuant to rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW).

Yours sincerely,

Phillip Beattie

Partner”

15. Mr Maxwell replied as follows:

“Dear Phillip

I refer to the failures by the above Plaintiffs to comply with the Court timetable/s, and to your letters dated 10 August 2018 regarding same.

I apologise for the delays.

I am endeavouring to bring these matters up to date.

I was away overseas for 2 weeks in July, and the recent death of Mr Evatt has also caused me problems with progressing the matters.

Regards,

Simon Maxwell

Senior Associate”

16. The reason for the need for some haste in these proceedings is that, as noted above, Ms Arman had brought proceedings in relation to the same publication that was the subject of Ms Whiting’s claim. The imputations were the same and there were considerable overlap. There was a proposal that their proceedings could not only be heard together, but perhaps at the same time as other proceedings commenced by one or both of the plaintiffs. The solicitors for the defendant had written to the solicitors for the plaintiffs on 4 October 2017 concerning these issues, but there was no reply. A further letter was sent on 11 July 2018 but that letter did not receive a reply either. These failures to reply were yet another issue of tension between the parties.

17. On 15 August 2018, the solicitors for the defendant foreshadowed, and then brought, an application pursuant to r 12.7 UCPR to strike out the whole of the proceedings for both Ms Arman and Ms Whiting for want of prosecution. The basis was the continued inadequacy of the Reply, the failure to provide the Supplementary List of Documents as well as the documents contained in it, and the failure to answer correspondence from 2017 concerning the proposal for consolidation. Ms Scallen’s affidavit of 15 August 2018, which is relied upon for this application, was provided to the court.

18. The application for summary dismissal was opposed. Once again, the parties sought to resolve the application by negotiation. In those circumstances, I suggested to the parties that a further timetable, with a provision for a self-executing order if failure to comply still continued, was preferable to hearing a summary dismissal application in circumstances where the result might well be the same.

19. The parties agreed to this and accordingly on 16 August 2018 I made the following orders by consent:

“(1) Direct the plaintiff to serve the verified Supplementary List of Documents and answer Answers to Interrogatories by 4:00pm 29 August 2018.

(2) Matter listed on Thursday 30 August 2018 in the Defamation List for further directions, on which date peremptory orders will be made if the non-compliance continues.

(3) Plaintiff pay the defendant’s costs of any incidental of the listing today.”

20. The conduct of proceedings commenced by Ms Whiting followed a similar trajectory. The same delays occurred in relation to the same issues. The main difference is that the proceedings for Ms Whiting were not commenced until 13 September 2017, some nine months after the proceedings commenced by Ms Arman.

21. There was, the defendant argues, no compliance with the orders of 16 August 2018. As the 16 August 2018 orders had not been complied with, the solicitors for the defendant had prepared short minutes of order which included the foreshadowed self-executing order.

22. As the orders previously made foreshadowed a self-executing order if there was no compliance, that was naturally the order the defendant sought in relation to both proceedings. The following exchanges took place on 30 August 2018:

“BARNETT: Can I hand up to your Honour a set of short minutes in each matter.

MAXWELL: Your Honour, you made some orders on 16 August in terms of in each case the plaintiff's discovery and answers to interrogatories.  They've been complied with.  I'm in general agreement with my friend's‑‑

HER HONOUR: I can list it on 6 September if it's just to get a trial date; there won't be any argument.  There is a list on 6 September but it's just a call over.

MAXWELL: I'm not in agreement with o 2.

HER HONOUR: What's o 2?

MAXWELL: It's a guillotine order, your Honour.  I don't think it's necessary or appropriate.

BARNETT: Your Honour, just to explain the background of why that order is sought‑‑

HER HONOUR: Is this the one where there were [Ms Scallen’s] affidavits?

BARNETT: Yes, your Honour.  Firstly, in June, your Honour had made an order that the plaintiff serve a list of documents and copies of her discovery documents by a date in July.  Last week when the matter was before your Honour, we had served affidavits and sought guillotine orders.  The short minutes of order I handed to your Honour last week included an order that the plaintiff serve discovery documents.

In fairness to my friend, I should say I don't think it made its way into the order your Honour in fact made. The order your Honour made was that lists of documents be served, but it didn't refer to copies of the discovery documents being served, but, certainly, the intention of the application my client was bringing last week was to get the plaintiff to bring all of the outstanding interlocutory steps up to speed by yesterday afternoon. We did receive lists of documents and answers to interrogatories yesterday afternoon in compliance with your Honour's order, but discovery documents haven't yet been provided. That's the basis upon which I seek o 2.

HER HONOUR: I'll tell you what I think I might do:  I would keep the guillotine order if I can give you until 20 September.  There has been a lot of delay in this case.  In other words, because of the delay in this matter, the basis upon which I would keep the guillotine order would be that the matter go over to 20 September. It just means it's a delay of two weeks.  Then what I'd do is I'd list it for 20 September.  If they haven't done it then, you can apply for your guillotine‑‑

MAXWELL: If your Honour was going to stand it over to the 20th, then I'd ask for a date on 12 September for the production of documents.

HER HONOUR: That's what I mean.  Instead of making it 6 September, I'd make it, say, the 12th; what about that?

BARNETT: Is o 1 amended to 12 September?

HER HONOUR: Yes, that's right.  Order 1 is 12pm on 12 September 2018.

MAXWELL: I'm content with that, your Honour.

HER HONOUR: I'm amending both of those.  The next one is proceedings listed in the defamation list on 20 September 2018.

Orders in accordance with the short minutes of order filed in Court today, which I will get Daniel to set out in full in the orders.

Proceedings are listed in the defamation list 9am 20 September 2018.

BARNETT: Just so we're clear, your Honour, o 2 has been made but the plaintiff has longer.

HER HONOUR: All those orders are going to go onto JusticeLink in that exact form.  The only changes are going to be the changes to the dates.  You've got until the 12th to produce those documents.

MAXWELL: Yes, your Honour.

HER HONOUR: I'll list it on the 20th.  If they've been produced, you'll go down and get a hearing date.  If they haven't been produced, there will be an application accordingly.

ADJOURNED TO THURSDAY 20 SEPTEMBER 2018 AT 9AM”

23. The orders agreed to by the parties and entered by the court were as follows:

“(1) Orders in accordance with the Short Minutes of Order handed up today:

1. Plaintiff to provide to the Defendant copies of all documents referred to in her Supplementary List of Documents dated 29 August 2018, by 12pm on 12 September 2018.

2. In the event that the Plaintiff fails to comply with order 1, the proceedings be automatically dismissed pursuant to UCPR 12.7, with costs.

3. Pursuant to UCPR 28.5 these proceedings 17/27005 (Amy Arman v Harbour Radio Pty Limited) be heard together in a joint trial with proceedings 2017/278166 (Ashleigh Whiting v Harbour Radio Pty Limited), with the evidence in former matter to be evidence in the latter, and vice versa.

4. Proceedings be listed in the Defamation List at 9:00am on 20 September 2018, at which time (subject to compliance with order 1 above) it is expected that the matter is to be allocated a trial date.

5. Plaintiff to pay the defendant’s costs of and incidental to the listing today.

(2) The proceedings are listed in the defamation list at 9:00am on 20 September 2018.”

24. Mr Rasmussen is critical of the process of these orders being made as a result of negotiation between the parties when, as he put it, Mr Maxwell said twice that he did not want to agree to a self-executing order. He submits that Mr Maxwell should have been entitled to a hearing in relation to the order to be made, and that I should not have made the self-executing order at all.

25. The role of the case managing judge in a specialist list is to case-manage, not to encourage parties to resolve case management issues such as timetable compliance as much as possible. However, while the benefits of a hearing on whether or not a self-executing order was warranted must be doubted, if Mr Maxwell had not been prepared to agree to such an order, all he had to do was to say so, and there would have been a date for argument given. He did not do so.

26. Unfortunately, when the proceedings came before me on 20 September 2018, Mr Maxwell provided an affidavit (sworn 19 September 2018) stating that he had still not complied with the timetable step the subject of the self-executing order. He stated:

“17. I have no excuse for not complying with this order (that is, to provide the defendant copies of all documents referred to in her Supplementary List of Documents dated 19 August 2018, by 12 pm on 12 September 2018).

18. The order was made on 30 August 2018. I can only say that through the pressure of work and juggling too many court commitments I neglected to do so.

19. On 19 September 2018 I served the defendant’s solicitors (via email and by hand delivery) with a letter that enclosed copies of documents within the plaintiff’s Supplementary List of Documents that are within the plaintiff’s possession. Annexed hereto and marked with the letter “A” is a copy of my letter to Banki Haddock Fiora dated 19 September 2018.

20. There have been delays in the plaintiff making her action ready for trial, but these have now all been corrected. The plaintiff has answered the defendant’s lengthy interrogatories, she has served her List of Documents, and she has given what discovery that she can. I submit that the plaintiff should not be penalised because of my actions.”

27. No order for judgment had been entered by the defendant on JusticeLink. As is set out in more detail below, this is described by the defendant as a mere administrative step. Nevertheless, it had not been done, and Mr Rasmussen, who appeared for the plaintiffs on 20 September 2018, sought an order that no such order should be entered, an order to which the defendant consented.

28. On 20 September 2018, I made the following orders:

“(1) On or before 27 September 2018, the plaintiff is to file and serve any Notice of Motion seeking relief in relation to order 2 made on 30 August 2018, together with submissions relied upon.

(2) On or before 4 October 2018 the defendant is to file and serve any evidence in relation to the plaintiff’s notice of motion, together with submissions relied upon.

(3) The matter be listed for argument, with a 1-2 hour estimate on 18 October 2018 at 2:00pm.

(4) Costs reserved.

(5) Until further order, the parties agree that no further orders be sought or entered on JusticeLink, including any orders asserted to be the consequence of orders already made.”

The relevant statutory provisions

29. The plaintiff relies upon Rules 1.12 and 36.16 UCPR. Reliance upon r 36.15(1) UCPR was not pursued (I note submissions to the contrary were provided in writing dated 27 September 2018 but this was not the argument put forward before me).

30. Rule 1.2 UCPR provides:

“1.12 Extension and abridgment of time

(1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.

(2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.”

31. Rule 36.16 UCPR provides:

“36.16 Further power to set aside or vary judgment or order

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2) The court may set aside or vary a judgment or order after it has been entered if:

(a) it is a default judgment (other than a default judgment given in open court), or

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:

(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.”

32. An application was also made (albeit faintly) on the basis that the court has inherent jurisdiction. The District Court of New South Wales is a creature of statute and has only the powers conferred by the Civil Procedure Act 2005 (NSW) and the UCPR. However, the UCPR must be interpreted in accordance with case management provisions of the kind set out in ss 56 – 62 Civil Procedure Act, which may result in an inquiry to determine if the order in question is in the interests of justice and whether the sanction is proportionate: ACN 092675164 (in liquidation) vNational Builders Group Pty Ltd [2014] VSC 530 at [9], citing Ridge Lane v Gadzhis [2007] VSC 212 at [39]; [2015] VSCA 260 (appeal allowed on other grounds).

Applicability of r 36.16 UCPR

33. The principal basis upon which the plaintiffs argue the order containing the self-executing sanction could be set aside would be if an application under r 36.16 UCPR had been brought in time. Mr Rasmussen submits that such an application has been brought in time in that the date of the notice of motion is within 14 days of the date for compliance, namely 12 September 2018.

34. This is an attractive argument, but the terms of r 36.16 require careful consideration. The date for the notice of motion for the setting aside or variation of a judgment or order is “within 14 days after the judgment or order is entered”. The order in question was made and entered on 30 August 2018. The date of 12 September 2018 is the date that the failure to comply crystallised, but the time does not run from the date of failure to comply but from entry of the order. The period of “within 14 days” under r 36.16(3)(b) therefore runs from 30 August 2018 and not from 12 September 2018.

35. Accordingly, r 36.16 UCPR cannot assist the plaintiff in relation to the orders made on 30 August 2018.

Rule 1.12 UCPR

36. Rule 1.12 UCPR permits the court to extend or abridge time fixed by any judgment or order of the court, including after the time expires even if an application for extension is made after the expiry. This may even include a consent order, although an exceptional case must generally be made out: Paino v Hofbauer (1988) 13 NSWLR 193. An extension of time of this kind was granted by Hunt J in Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126.

37. As a matter of statutory interpretation, r 1.12 UCPR needs to be construed within the rubric of the provisions of r 36.16. It would defeat the purpose for r 36.16 peremptory orders if a party was entitled to look behind an order in this fashion outside the two-week period. If, as a result of orders being made and entered onto JusticeLink bringing the litigation to finality, the court is functus officio, then r 1.12 UCPR cannot be invoked.

38. This leads to a consideration of whether the litigation has in fact been brought to finality by entry of the relevant order on JusticeLink and whether the operation of these rules is in any way impacted by ss 56 – 62 Civil Procedure Act.

The power to extend time where the court has made orders which had been entered on JusticeLink

39. The key to this application is the UCPR’s description of the method of entry of electronic orders on JusticeLink and the observations made by the Court of Appeal on this process in that Court’s decisions as set out in more detail below.

40. The relevant provision is rule 36.11 UCPR, which provides:

“36.11 Entry of judgments and orders

(1) Any judgment or order of the court is to be entered.

(2) Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system.

(2A) If the court directs that a judgment or order be entered forthwith, the judgment or order is taken to be entered:

(a) when a document embodying the judgment or order is signed and sealed by a registrar, or

(b) when the judgment or order is recorded as referred to in subrule (2), whichever first occurs.

(3) In this rule, a reference to a judgment or order of the court includes a reference to any judgment, order, determination, decree, adjudication or award that has been filed or registered in the court, or of which a certificate has been filed or registered in the court, as referred to in section 133 (2) of the Civil Procedure Act 2005.

(4) This rule does not limit the operation of rule 36.10.”

41. The court orders made on 30 June 2018, like all prior orders, were entered on the date made when they were recorded in the computerised court record system: r 36.11(2); Katter v Melhem [2015] NSWCA 213 at [59]-[60]. If no order is entered (for example, the JusticeLink entry merely says “orders in accordance with the Short Minutes of Order”), the orders have not been entered on JusticeLink and accordingly are not in force as orders.

Were the orders in fact entered on JusticeLink?

42. The correct method of entry of orders on JusticeLink has been considered by the New South Wales Court of Appeal in a series of decisions commencing with Nominal Defendant v Livaja [2011] NSWCA 121, Cyril Smith & Associates Pty Ltd v Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245 and Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248.

43. The operation of JusticeLink as the repository of court orders is explained in some detail in Mills v Futhem Pty Ltd [2011] NSWCA 252. Allsop P, with whom Beazley JA and Handley AJA agreed, said at [27]:

“[27] The proper construction of r 36.11 is, it seems to me, that unless a court orders otherwise for r 36.11(2) or unless a court directs, in the manner set out in r 36.11(2A), entry under the Rules is not effected otherwise than by recording in the court’s computerised court record system contemplated by r 36.11(2). Recording the orders means just that: setting them out. There is no recording of the orders if all that is stated is that some orders exist. It would undermine the integrity of a computerised record system to have mere references to pieces of paper in files treated as a recording of the judgment or order in the computerised record system. In my view, that is not what the rule means. To the extent that the record in the computerised system might be seen as some form of incorporation by reference, it does not record the judgment or orders. One cannot even ascertain the amount of the judgment in order 1. One can put the two together, by looking at the file, but that is not adequate.”

[Emphasis added]

44. There can be no doubt that there is no order on JusticeLink to the effect of “proceedings dismissed”. All that is to be found on JusticeLink is the self-executing order. Is that sufficient, or is it “some form of incorporation by reference”, requiring a further order such as the entry of judgment?

What is the correct interpretation of the orders on JusticeLink?

45. The order made in these proceedings is effectively the same as the order the subject of the decision of the High Court in Bailey v Marinoff (1971) 125 CLR 529. The text of that order, as set out in the judgment of Menzies J, was as follows (at 531):

“IT IS ORDERED that the Appellant file and serve the appeal books herein on or before the 31st day of March 1970 AND IT IS FURTHER ORDERED that if the Appellant does not file and serve the appeal books herein on or before the 31st day of March 1970 the appeal is to stand dismissed for want of prosecution AND IT IS FURTHER ORDERED that the costs of this motion be costs in the appeal of the Respondent.”

46. Menzies J noted that the result was as follows:

“This order was signed and sealed on 5th March 1970. Appeal books were filed on 31st March but were not served until 6th April. The appeal, therefore, in accordance with the order that had been made, stood dismissed.”

47. Barwick CJ stated at 530:

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. In my opinion, none of the decided cases lend support to the view that the Supreme Court in this case had any inherent power or jurisdiction to make the order it did make, its earlier order dismissing the appeal having been perfected by the processes of the Court. I would add that, however hard the case might seem for the would-be appellant the loss of its right of appeal derived from its own conduct or from that of persons for whom it must take responsibility. The finality of the order dismissing the appeal does not seem to me to partake of injustice in the circumstances or to call for any departure from well settled principles, themselves essential in my opinion to the due administration of our system of law.”

48. In Abbott v O'Donnell [2000] NSWSC 965, Bell J departed from this view and extended time after there was failure to comply with self-executing orders. The order in question was framed in the following terms:

“3(a) Plaintiff to file DCM document on or before 4 PM on 21/8/96 together with particulars requested in correspondence of 9/2/95.

9. If above orders are not complied with Statement of Claim is dismissed with costs by force of this order.”

49. Bell J noted that in FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 the High Court had confirmed that the decision of Bailey v Marinoff dealt only with the inherent power of a court and that no statutory rule was involved. However, her Honour was able to rely upon Pt 2 r 3 of the Supreme Court Rules 1970 (NSW) which were then in force concerning which Wilson J in FAI General Insurance Co Ltd v Southern Cross Exploration NL at 283 had stated:

“The plain meaning of these words is very wide. The Court may extend “any time” fixed by “any ... order” and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired ... It is a remedial provision which confers on a Court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a Court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance.”

50. Bell J noted Gaudron J’s observations in FAI General Insurance Co Ltd v Southern Cross Exploration NL at 289 as follows:

“Although it has been common to speak of a conditional order for dismissal as self-executing or of a proceeding upon which such an order has operated as "dead", that seems to me to obscure the fact that a conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time. Where such an issue remains to be determined in relation to a proceeding it cannot be said that the Court is functus officio. That being so, there seems to me no relevant distinction between a proceeding in which a conditional order for dismissal has been entered and a proceeding in which an order has been made but not entered, notwithstanding the decisions in Goodwin (Goodwin v Southern Tablelands Finance Co Pty Ltd (1968) 42 ALJR 309) and Bailey. However, it is neither necessary nor appropriate to pursue that issue, the respondents having made their case without direct challenge to the actual decisions in those cases.”

51. Bell J considered the court had jurisdiction to entertain the motions and to determine whether they had in fact been non-compliant and/or should suffer the penalty for non-compliance:

“[16] The terms of the orders made on 28 October 1996 embody an assertion of the Court's satisfaction that in each case the plaintiff had failed to comply with the Master's orders of 28 February 1996. That satisfaction is not that of the Master nor of a Judge. I do not consider that the principles referred to in DJL governing the finality of perfected orders made by a superior court of record after trial have application in the present case.

[17] In accordance with the reasoning of the Court in FAI General Insurance I am of the opinion that Pt2 r3 of the SCR confers power to enable this Court to extend the time fixed by the Master's order of 28 February 1996 notwithstanding the entry of an order by the Deputy Registrar on 28 October 1996 purportedly dismissing the proceedings. In so holding I express no opinion on the merits of the plaintiffs' application.

[18] I am concerned in these reasons to deal only with what was identified as a preliminary jurisdictional issue. In the way the matter proceeded I was informed that the defendant requires a number of the deponents to affidavits filed on the plaintiffs' behalf to attend for cross-examination. One of those persons was not present on the last occasion. It was expected that the hearing of the plaintiffs' motion would take in excess of the day that had been set aside for it. In those circumstances it was agreed that the convenient course would be for me to rule on the jurisdictional issue without embarking on hearing the evidence upon which the plaintiffs propose to rely in support of the motions.

Orders

[19] I hold that I have jurisdiction to entertain the Motions filed in each of the proceedings…”

52. Bell J’s orders in O’Donnell v Abbott [2001] NSWCA 184, were set aside, as the Court of Appeal unanimously concurred that Bell J had erred in relation to jurisdiction. Crucially, however, this was because the party seeking the defaulting order took the next step of having the orders in question entered:

“[10] It is not entirely clear what happened in the course of this hearing, but the parties informed the Deputy Registrar that they agreed that the opponents had not provided the particulars directed by Master Greenwood. The Deputy Registrar made the following note on the Court file: "Direct that orders of Master Greenwood made 28/2/96 be entered". The Deputy Registrar settled and signed a minute, which is sealed and dated 28 October 1996. The document so signed and sealed thereupon constituted an order of the Court. It provided:

"1. In accordance with the orders of Master Greenwood made on 28 February 1996, and upon the court finding the plaintiff [opponent] has failed to comply with the said orders, the proceedings are dismissed.

2. The plaintiff [opponent] is to pay the defendant's [claimant's] costs of the proceedings".

53. It is common ground that this did not occur here. However, while the orders of Bell J were set aside, that was not the end of the road for the defaulting party, who was still entitled to hear the application to set aside the orders under s 121(3) Supreme Court Act 1970 (NSW):

“[22] It follows, therefore, that the orders of 28 October 1996 made by Deputy Registrar Haggett remain of effect until set aside. Until then they are final orders and therefore attract the rule in Bailey v Marinoff and DJL. At the stage that the matters were before Bell J, the opponents had not applied to set them aside.

[23] Accordingly, as the proceedings commenced by the opponents stood dismissed by the orders made on 28 October 1996 by Deputy Registrar Haggett, Bell J had no jurisdiction to set aside the orders of Master Greenwood of 28 February 1996 or to extend time to the opponents to provide the particulars required by that order. It would have been open to her Honour to set aside the Deputy Registrar's order pursuant to s121(3) and then to proceed to review the Master's orders of 28 February 1996. But, as I have mentioned, the opponents did not make the necessary application to her Honour.

[24] At the conclusion of argument on appeal, this Court granted leave to the opponents to amend the notices of motion before Bell J so as to seek (in addition to the orders already claimed thereby) orders extending time to apply to set aside the Deputy Registrar's order of 26 October 1996 and setting aside that order. The opponents have given notice that that amendment has been made.

[25] In the circumstances, I would grant the applications for leave to appeal, uphold the appeals, remit the matters to Bell J for determination according to law and order the opponents to pay the claimant's costs of the appeal. The opponents to have a certificate under the Suitors' Fund Act. No order as to costs was made by Bell J and I would make no order as to the costs of the proceedings before her Honour.

[26] When the matter returns to Bell J, her Honour will be seized with the issue whether or not the orders made by the Deputy Registrar on 28 October 1996 should be set aside. It will be for her Honour to make whatever orders are necessary for the giving of any additional evidence in that connection. Should the opponents succeed in having the orders of 28 October 1996 set aside, it will be open to them to continue with their applications to set aside the orders made by the Master on 28 February 1996 or to seek orders extending the time for the provision of the particulars specified by the Master.”

54. As s 121 is in very different terms to r 36.16, that rule is of no assistance to the plaintiffs. What is clear, however, is that the order before the court was not the self-executing order (i.e. the equivalent of the 30 August 2018 order in these proceedings) but the order for entry of judgment and payment of costs, which the defendant has not yet sought, and from which a fresh application under r 36.16 could be made.

Computerised records and UCPR r 36.16

55. However, Ms Barnett submits that the position has changed since the enactment of the Civil Procedure Act 2005 (NSW) and the UCPR, essentially as a result of computerised entry of orders.

56. The question of whether an order disposes of the proceedings can be reopened was considered in Katter v Melhem where the Court of Appeal stated at [69]-[75]:

“[69] In Bailey v Marinoff, Barwick CJ said:

Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.

[70] Bailey v Marinoff concerned the ability of the NSW Court of Appeal to alter a self-executing order that proceedings be dismissed if certain procedural steps were not taken. DJL v Central Authority similarly concerned the inability of the Full Family Court to reopen an order (apparently duly entered — see DJL at [7]–[8]) dismissing an appeal. However, the principle that an entered final order is beyond recall, except insofar as a statutory provision permits it to be varied or set aside or (pursuant to a power derived from equity) if the order has been obtained by fraud, applies generally, not just to orders that dismiss proceedings.” (Footnotes omitted)

57. The court went on to say:

“[71] The reason for this is that once a judgment that states the extent of a defendant’s liability on a cause of action has been pronounced and entered it gives rise to a res judicata — Latin for “a thing that has already been judicially decided”. So far as that cause of action is concerned, the proceedings are at an end. Spencer Bower and Handley, Res Judicata say (footnote included):

A final judgment perfected by formal entry becomes res judicata in the proceedings. An oral judgment is provisionally effective, but until formally entered it can be withdrawn, altered or modified by the court or judge which pronounced it. As the High Court of Australia said (Burrell v R (2008) 82 ALJR 1221, 1227 para [20]):

Identifying the formal recording of the order of a superior Court of record as the point at which that Court’s power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that Court, and provides conclusive certainty about … the end result in that Court.

[72] Some remarks in De L v Director-General, New South Wales Department of Community Services might be consistent with the High Court of Australia having a general power to reopen final orders by virtue of its special position as a final court of appeal. However, De L was a case in which the order in question had not been entered, and the fact that it had not been entered was an “important consideration” in the court’s decision to reopen the order. Since those remarks were made, a five member Bench of the High Court has said, concerning them, “there is, as yet, no decision of this court which turns upon the position after entry of its final orders”. The remarks in De L at 215 provide no basis for an argument that any court that falls below the High Court in the appellate hierarchy has power to reopen a final order that has been entered, except pursuant to a statutory power or if the order has been obtained by fraud.

[73] UCPR 36.15, 36.16 and 36.17 are examples of statutory exceptions to the general principle that a final judgment, once entered, is beyond recall. However, they have never been invoked in relation to the judgment pronounced on 7 August 2012 and entered at some time on or before 1 April 2013.

[74] If a final judgment has been given on a cause of action that cause of action is merged in the judgment. That is to say, the cause of action has ceased to exist as a cause of action, and in its place the successful party has the rights that are conferred by the judgment. “Any person in whose favour an English judicial tribunal of competent jurisdiction has pronounced a final judgment, is precluded from recovering before any English tribunal a second judgment on the same cause of action”. The same applies concerning Australian tribunals.

[75] There is no “special circumstances” exception to the rule that a cause of action that has merged in a judgment cannot be sued on again: the rule is inflexible. An entered order “marks the end of the litigation in that court and provides conclusive certainty about what was the end result in that court”.” (Footnotes omitted)

Reconciliation of the competing authorities

58. This court is not required to exercise a further judgment as to whether or not the condition of the self-executing order has been satisfied. Although Mr Rasmussen sought to argue that there had been compliance and that the self-executing order was not necessary, that is incorrect as both the matter of fact and law. The explanation given by Ms Barnett on 30 August 2018 concerning the provision of the documents is the clear explanation for the failure to comply. In any event, as the transcript shows, Mr Maxwell consented to the orders sought.

59. However, for the court to be functus officio, there must actually be an order finally disposing of the proceedings and it must be in precise terms capable of being recognised as an order of that kind. JusticeLink does not recognise the orders I made on 30 August 2018 as disposing of the proceedings; to the contrary, as the JusticeLink printout shows, these are merely interlocutory case management orders. The file remains open and active until such time as the relevant order finalising the action is made. That order may be an administrative one, rather than a judicial one (in that the defendant could administratively enter judgment, bypassing the Defamation List and the court entirely), but the fact remains that it has not been done, and must be done for these proceedings to be finalised (this would also require a costs order, for the purpose of assessment and/or enforcement, although I was not addressed on this issue).

Are these proceedings functus officio?

60. I accept Ms Barnett’s submission that the entry of orders following the self-executing order is an administrative and not a judicial task. Ms Barnett’s clients have their judgment and the entry of orders consistent with that judgment are not a matter requiring input from a judge, but from the court registry.

61. However, they do not have that order for dismissal entered online, and I have now made an order (by consent) to the effect that they cannot do so until further order.

62. Once a further order is entered, to the effect that the proceedings are dismissed with costs, or some similar provision, then that is a “judgment or order” for the purposes of UCPR r 36.16, and the 14-day period cannot commence to run until that occurs.

63. There could be many reasons for the setting aside of the order; for example, Mr Rasmussen submitted at one stage that Mr Maxwell had effectively complied with the order in that he had provided the supplementary list and had merely not provided the documents in question. Questions of this kind resulted in the setting aside of the entry of judgment in the successful appeal in ACN 092675164 (in liquidation) vNational Builders Group Pty Ltd.

64. Then there is the question of whether JusticeLink would, in fact, accept an entry for the dismissal of these proceedings (plus costs), if presented by the defendant for processing. JusticeLink has a number of gaps and inconsistencies, and the entitlement of a party to seek to enter judgment pursuant to a self-executing order is untested. There is no procedure on JusticeLink to proceed from a self-executing order to judgment or to a dismissal of proceedings; an order for the entry of judgment in this fashion would have had to have been included in the consent orders.

65. Although Ms Barnet says (relying upon the wording of the peremptory order in Bailey v Marinoff) that order 2 of the orders of 30 August 2018 is sufficient for the court not to have to make any further orders, I do not agree that this is sufficient for the entry of final orders for judgment and costs onto JusticeLink in the manner required by Mills v Futhem, as it would still be necessary for the administrative step by the Registrar to make the final order. No such order has yet in fact been entered on JusticeLink. The defendant in these proceedings is therefore in the same unfortunate position as the parties in Mills v Futhem, in that the order disposing of the proceedings has not yet been effectively made by entering the appropriate order on JusticeLink in the same fashion as the parties did in Abbott v O’Donnell.

66. The logical step would be for the defendant to ask to be excused from the consent undertaking not to seek to enter the orders, so that the relevant orders for judgment and costs could be entered. However, the plaintiffs could then bring fresh applications under ss 56 – 62 and rr 1.12 and 36.16 to set aside the judgment. The would not be prevented from doing so by the failure to challenge the previous orders; by definition, the 14-day period in r 36.16 must often be exceeded by the period of default, and r 36.16 would be unworkable if its applicability only extended to defaults of less than 14 days.

67. The court now has a notice of motion before it seeking an extension of time and, thanks to Ms Barnett’s helpful submissions, also raises the relevant issues in the event that there is no order of the kind rendering me functus officio. As a result, I am in a position where I am able to state whether I would make such an order if I were satisfied I should do so, notwithstanding the time period in r 36.16 being exhausted in relation to the 30 August 2018 order. I have accordingly dealt with this application on the basis that, if final orders were made, those final orders would be the subject of an application under r 36.16.

Should an extension of time be granted?

68. The exercise of discretion to extend time despite failure to comply with a self-executing order in circumstances such as the present would need to take into account the following:

1. The fact that the order in question was made by consent: Paino v Hofbauer;

2. Sections 56 – 62 Civil Procedure Act 2005 (NSW) (see Thunder Studios Inc (California) v Kazal (No 5) [2017] FCA 1572); and

3. The need for case management of defamation proceedings to have regard to the obligations of being permitted to conduct cases in a specialist list, which may include dismissal of proceedings in circumstances that might not apply to other causes of action: Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244.

69. Each of the above factors weighs heavily against the application in question. What is of particular concern is the compliance with the order was a relatively simple matter of putting together a few documents. It was not a difficult task, or one which was the subject of any valid objection. It would be difficult to understand why the task created such difficulty, but for the personal explanation of Mr Maxwell.

70. I have read the most recent affidavit sworn by Mr Maxwell. I accept that not only Mr Maxwell but his entire office was thrown into disarray by their distress of the sudden and unexpected death of Mr Evatt and that Mr Maxwell’s level of distress was exacerbated by health problems of longstanding. I note, however, that Mr Maxwell initially stated on oath that he has no excuse for his failure to attend to the simple task that he failed to fulfil, and consider that the explanation which should be taken into account.

71. When determining issues relevant to discretion, it is necessary to take into account a wide range of circumstances; for example, a plaintiff who failed to comply with self-executing orders to serve evidence was refused leave to amend those proceedings but permitted to commence fresh proceedings against other parties where such evidence could be led: Mohareb v Kelso [2017] NSWDC 208 at [24] (self-executing order), [32] and [69]; Mohareb v Kelso (No 2) [2017] NSWCA 173.

72. Some consideration should be given to the different position a defendant may be in (as opposed to a plaintiff) where there is repeated non-compliance. Often the best result that a defendant can hope for is the dismissal of the claim in circumstances where none of the costs can be recovered from the opposing party. It may be that a court should not be too generous with a plaintiff who has repeatedly failed to comply with case management directions, as is the case with both the plaintiffs here.

73. The conduct by the plaintiff of these proceedings has been unacceptably slow. I note, however, that there was only one prior costs order of significance, that there have been no prior “show cause” or summary dismissal applications, that the default the subject of the order was relatively minor and is now cured, and that the future conduct of this litigation has not been imperilled or prejudiced as a result of Mr Maxwell’s tardy performance of his duties.

74. The facts of this case are very similar to Coren v Master Builders Association Pty Ltd; however, in those proceedings, the solicitor failed to provide the information sought, whereas Mr Maxwell complied with the orders within days after the expiry of the self-executing order.

75. Taking all of the above into account, in relation to the exercise of discretion as outlined in Ms Barnet’s alternate submissions, the court should not strike out these proceedings by reason of Mr Maxwell’s failure to comply with the self-executing orders within the time allotted.

Costs

76. I have considerable sympathy for both plaintiffs, who as their affidavits set out, left their matters in the hands of the solicitors who held themselves out as skilled in the conduct of proceedings. They should not have to bear the costs of this litigation. Mr Maxwell should be the party liable for the costs in question.

77. Mr Rasmussen informed me in the course of argument that LawCover had been notified of this application. However, I would prefer to err on the side of caution and to grant leave to apply in the event that LawCover wishes to make submissions in relation to the issue of costs. It may also be the case that the defendant seeks costs orders of a different nature.

78. Accordingly I have set out an order for costs against Mr Maxwell personally, subject to any application to the contrary within 14 days.

Orders

1. Plaintiffs’ notice of motion filed on 24 September 2018 granted; time for compliance with the self-executing order of 30 August 2018 is extended to 19 September 2018.

2. The costs of the applications are to be borne by the solicitor for the plaintiffs, Mr Simon Campbell Maxwell of Sanford Legal, with liberty to apply within 14 days to vary this order or to seek to set it aside.

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