BFB Developments Pty Ltd v Peter Gregory Pav No. 4165 Judgment No. SCGRG 93/1157 Number of Pages 4 Appeals from Interlocutory Orders

[1993] SASC 4165

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Appeals from interlocutory orders - appeal from order of District Court Judge refusing adjournment of application for judgment based on non-compliance with self-executing order for further and better discovery - once leave to appeal to the Supreme Court had been given, date for trial of action necessarily vacated while appeal came on for hearing - observations as to necessity strictly to confine the granting of leave to appeal from interlocutory orders as otherwise the orderly disposal of actions in the District Court may be interfered with.

HRNG ADELAIDE, 6 September 1993 #DATE 6:9:1993
Counsel for appellant:     Mr J.B. Eain
Solicitors for appellant:    Clelands
Counsel for respondent:     Mr M. Agar
Solicitors for respondent: Michael Agar

ORDER
Appeal dismissed.

JUDGE1 PERRY J This is an appeal from an interlocutory order made in an action in the District Court. The appellant is the third named defendant to the action, BFB Developments Pty Ltd. The respondents are the two plaintiffs to the action, Peter Gregory Pav and Joanna Ruth Pav. 2. On the hearing of the appeal, Mr Agar for the respondents intimated that he did not have instructions from the plaintiffs with respect to the appeal, but he remained to see what happened. 3. In order to understand the context of the order appealed from, it is necessary to trace the history of the matter back to an earlier point in time. 4. Throughout the proceedings, the appellant had been endeavouring to obtain what it considered to be full discovery from the plaintiffs. Its solicitors wrote some letters requesting better discovery and, on a failure to evoke a response to those letters, it brought an application which was heard on 1 April 1993 by the learned Judge appealed from. That resulted in an order that the plaintiffs file a supplementary list of documents within 14 days. The order went into some particularity as to the classes of documents of which further discovery was to be made. 5. That order did not result in any action from the plaintiffs with respect to discovery, despite the fact that two further requests were made out of court by the appellant that the order be complied with. 6. The appellant then brought a further application dated 18 May 1993 seeking an order that the action be struck out for failure to comply with the order which had been made on 1 April. 7. That application came on for hearing before the learned Judge on 24 May 1993. His Honour declined to order that the action be struck out. However he ordered that the time within which the plaintiffs were to comply with the orders made on 1 April 1993 be extended to 14 June 1993, and, "3. Subject to the provisions of orders made hereafter, the plaintiff's action herein be and do stand dismissed out of court unless the plaintiffs shall have fully complied with the orders made herein on 1 April 1993 by and not later than Tuesday 15 June 1993." 8. He further directed, "4. That for the purpose of complying with paragraphs 2 and 3 of this order a copy of this order is to be served by the third defendant personally upon the plaintiffs and each of them by and not later than Monday 7 June 1993." I underline the words "plaintiffs and each of them". 9. There was then an attempt to serve the order. It appears that the plaintiffs live in Ceduna. Mr Rowney, a police officer, from Thevenard, swears in an affidavit that on Thursday 3 June 1993 he attended at "the plaintiff's residence at 18 May Crescent Ceduna". In para 2 of his affidavit he says:
    "I knocked upon the door of the premises and through an
    aperture in the door I saw the first-named plaintiff (herein
    referred to as Peter Pav) who is known to me, on the other side
    of the door. Peter Pav did not open the door. I called through
    the door to him and told him that I had some documents to serve
    on him. He replied, 'Fuck off. I'm not accepting any
    documents'. I then pushed the documents under the door and felt
    the documents hit Peter Pav's foot." 10. Clearly that affidavit did not prove service in terms of the order which had been made by the learned judge on 24 May 1993. It did not prove service on the plaintiffs "and each of them". At most it proved service of some documents on the plaintiff Peter Gregory Pav, but it did not identify just what documents. 11. No doubt, realising those deficiencies, the appellant's solicitor, Mr Kain, swore a further affidavit. Paragraph 2 reads: "I refer to the orders made by his Honour Judge Pirone on 18 May 1993, and say that I am advised by Brenton John Rowney and verily believe, that a sealed copy of the said orders were served upon the first-named plaintiff on 3 June 1993." Fortified by that further affidavit, the appellant then launched an application dated 17 June 1993 seeking inter alia an order that the first-named plaintiff's action "be and do stand dismissed out of court". The other orders then sought were as follows:
     2. That the first named Plaintiff meet the third named
    Defendant's costs of action as at the 15th day of June 1993.
     3. That the time within which the second named Plaintiff is
    to comply with the orders made herein on the 1st day of April
    1993 be extended to Friday the 9th day of April. 1993.
     4. That the second named Plaintiff's action herein be and do
    stand dismissed out of Court unless the second named Plaintiff
    shall have fully complied with the orders made herein on the 1st
    day of April 1993 by and not later than Monday the 12th day of
    July 1993.
     5. That a sealed copy of the orders made herein be served by
    the third named Defendant upon the second named Plaintiff by
    forwarding same by prepaid post to the second named Plaintiff
    at: 5.1 18 May Crescent, Elizabeth Vale in the said State, and
    5.2 12 Chaddenwick Road, Elizabeth Vale in the said State, and
    5.3 The Education Faculty Office, University of South Australia,
    4 Magill Campus, Lorne Avenue, Magill in the said State.
     6. That the second named Plaintiff meet the third named
    Defendant's costs of and incidental to this Application in any
    event.
     7. That the trial of this action listed for the 21st day of
    July 1993 be adjourned." 12. The application came before the learned judge on 25 June 1993. Mr Agar for the plaintiff was present. His Honour said with respect to the orders sought in paras 1 and 2: "I am not satisfied that services of the orders previously made by me have been effected upon the first-named plaintiff, and accordingly therefore, I am not satisfied that the first-named plaintiff is in breech (sic) of any orders as made." 13. His Honour then noted that he had been given an assurance by Mr Agar that a supplementary list of documents had in fact by then been provided by the plaintiffs to the defendants, and a further assurance that all relevant documents had by then been discovered. His Honour then went on to intimate that he was not prepared to make the orders sought by the third defendants in paras 1 and 2 of the application. 14. In my opinion, in doing so, he was clearly right, not only for the reasons which he gave, but also because the self-executing order was expressed in terms which could not possibly come into effect unless and until the order had been served on both plaintiffs. 15. The observations made by me so far are sufficient to deal with ground 1 of the appeal to this court, which asserts that the learned judge erred in holding that service of the orders upon the first-named plaintiff was not made, and that he should have found that service was made. 16. The appellant further complains that the learned judge should have yielded to an application to adjourn the matter so that further evidence could be put before the court as to service on the first-named plaintiff. In my opinion there is nothing in that point. The learned Judge was entitled to refuse an adjournment, as the evidence before him did not satisfy him that service had been effected properly, but in the mean time it was made clear to him that discovery had in fact by then been made by the plaintiffs to the defendants. His Honour was entitled to take the view that the self-executing order, not having taken effect, but the process of discovery by the plaintiffs having, on the face of it been completed, there was no point in allowing the question of discovery by the plaintiffs to occupy the time of the court any further. 17. As to paras 3 to 7 of the application before him, the learned judge simply made no order. For the reasons I have already given it seems to me that that was entirely appropriate. The third-named defendant had obtained an order which, if it had been served properly within time, might have resulted in the action being at an end. It failed to comply with service of the order however, which would have given rise to that result, and there was no reason why its efforts to do so should have been resuscitated by the court by allowing the process of applications for discovery to proceed any further. 18. The sad feature of this saga is that by the time leave to appeal was granted by this Court it was no longer possible for the original trial date in the District Court to be adhered to, and the trial has now been put off to a date to be fixed. This case is an illustration of the difficulties that can be posed by appeals to this Court from interlocutory orders. It seems to me that the orderly disposal of matters in the District Court is likely to be interfered with in an unacceptable fashion if appeals on interlocutory matters were to be allowed to be brought to this court too readily. In my opinion it would be proper, if I had power to do so, to revoke the order giving leave to appeal, but in the circumstances I think it is better to allow the appeal to stand so that it can be dismissed. 19. Before parting with the matter I should say that it seems to me that the interlocutory applications and proceedings in this case, having regard to the state of the District Court file, appear to be out of control. In my opinion the matter should be set down for trial and brought to trial at the earliest available date. 20. For these reasons the appeal is dismissed. Unassisted by further argument I would be inclined at the moment simply to order that the respondents have the costs of and incidental to the appeal to this court, save and accept for any costs of the appearance before me today by Mr Agar, and that the question of any costs thrown away by the adjournment of the trial be in the discretion of the trial Judge at the hearing of the action.