| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BODDY -v- MASHIEKA PTY LTD & ANOR [2003] WADC 98 CORAM : REGISTRAR KINGSLEY HEARD : 27 MARCH 2003 DELIVERED : 30 APRIL 2003 FILE NO/S : CIV 2294 of 2001 BETWEEN : JOHN EDWARD BODDY Plaintiff
AND
MASHIEKA PTY LTD (ACN 009 014 715)
First Defendant
MARK YAKSICH
Second Defendant
Catchwords: Practice - Application to extend time - Order 3 r 5(2) Rules of the Supreme Court
Legislation: Nil
(Page 2)
Result:
Application allowed Representation:
Counsel:
Plaintiff : Mr K J Bradford
First Defendant : Mr P J Gethin
Second Defendant : Ms S K Brown
Solicitors:
Plaintiff : Bradford & Co
First Defendant : Patrick Gethin & Co
Second Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Chesson v Green & Ors [2002] WASCA 67
FAI General Insurance Company Limited and Others v The Southern Cross Exploration NL and Others (1988) 165 CLR 268
Skahill & Anor v Kestral Holdings Pty Ltd (in liq) & Ors [2000] WASCA 185
Case(s) also cited:
"Aura" Herbert D Stolle GMBH & Ors v Turbo Chairs International Pty Ltd [1999] WASC 260
Magenta Nominees Pty Ltd v Bonnini & Ors [1999] WASC 88
Weir v Perpetual Trustees, of WA Limited, unreported; SCt of WA; Library No 664; 10 April 1987
(Page 3)
1 REGISTRAR KINGSLEY: The first defendant by a chambers summons dated 20 January 2003 has sought orders that the plaintiff's action be dismissed, the plaintiff having failed to comply with the order of Deputy Registrar Harman made 27 November 2002. The second defendant by a chamber summons filed 5 February 2003 has brought an application seeking orders that the plaintiff's statement of claim be struck out and the action dismissed. The plaintiff by application dated 31 January 2003 seeks orders that pursuant to O 3 r 5 the time for compliance of the orders of Deputy Registrar Harman be extended. Counsel before me agreed that the plaintiff's application be heard first.
2 In September 2002 Deputy Registrar Hewitt ordered that the plaintiff, within 10 days of the date of the order, file and serve further and better particulars of the plaintiff's statement of claim in accordance with four specified requests. Deputy Registrar Hewitt also ordered that the plaintiff, within 28 days of the date of the order file and serve an affidavit stating whether or not the plaintiff has or has had in his possession, custody or power certain stated documents. 3 In November 2002 on the first defendant's application Deputy Registrar Harman made orders in the terms of a springing order. The orders provided that the plaintiff's statement of claim be struck out and the action dismissed unless the plaintiff, within 10 days, file and serve the further and better particulars the subject of Deputy Registrar Hewitt's order made in September 2002. Further, Deputy Registrar Harman ordered that the plaintiff's statement of claim be struck out and the action be dismissed unless the plaintiff within 10 days comply with the order of Deputy Registrar Hewitt in September 2002 requiring an affidavit of specific discovery. 4 A document entitled "Plaintiff's Further and Better Particulars of Statement of Claim" dated 9 December was filed on 9 December 2002 and an affidavit of John Edward Boddy verifying a list of documents sworn 10 December was filed on 10 December 2002. 5 On 27 November 2002 the solicitors for the first defendant forwarded to the court two copies of the order of Deputy Registrar Harman made in November 2002 for settling. For some reason the orders as settled provided that unless within 10 days from the date of service of the order rather than as ordered by Deputy Registrar Harman, the statement of claim be struck out unless the further and better particulars of the statement of claim were filed.
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6 There was a attendance by an articled clerk of the plaintiff's solicitors before Deputy Registrar Harman on 27 November 2002. In an affidavit of Keith John Bradford sworn 31 January 2003, Bradford deposes that Marlene Cowan considered that the orders made on 27 November 2002 to be orders which required extraction and service before they became effective.
7 I have difficulty understanding that comment having regard to annunciation of principles by the Full Court in Skahill & Anor v Kestral Holdings Pty Ltd(in liq) & Ors [2000] WASCA 185 at [18-19]. In that case the Full Court commented that if the party against whom the order is made is present in court personally, or by solicitor, or counsel when a springing order is made then the party can be taken to have had actual knowledge of the making of the order and of its terms and no special steps need be taken by a party seeking to enforce the order. 8 In my opinion by the time the affidavit of John Edward Boddy verifying the list of documents was filed on 10 December 2002 the springing order had sprung. A document purporting to be further and better particulars was filed and served on 9 December 2002 (within time) but there is an issue as to the sufficiency of the document. 9 Notwithstanding that the springing order has sprung, an extension of time to comply with the original order may be granted under O 3 r 5 (FAI General Insurance Company Limited and Others v The Southern Cross Exploration NLand Others(1988) 165 CLR 268 at 286). If a party could clearly demonstrate that there was no intention to ignore or flout the order and that the failure was due to extraneous circumstances, the litigant is not disentitled to rights which they would otherwise have enjoyed. The commentary in Civil Procedure Western Australia by the Honourable Paul Seaman at 43.0.19 suggests that the discretion to extend time must now be exercised in light of the principles and objects of positive case flow management. Under those principles the length of the delay and interests of justice are two important factors. Delay causes general prejudice to an opponent even if no specific prejudice is demonstrated and it cannot be proper for a plaintiff pursuing an action which has merit simply to disregard orders of the court and expect to be indulged. It is fundamental in the interests of justice that parties comply with orders and if plaintiffs wish to pursue actions which have merit they must do so expeditiously and must comply with orders of the court when they are made: (Chesson v Green& Ors [2002] WASCA 67 at 14, 32).
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10 An examination of the answers to the request for particulars shows that the plaintiff has patently not answered the request. In relation to the discovery of particular classes of documents it is again clear that as to the form, the plaintiff has clearly not complied and as much as can be ascertained from the limited information contained within the particulars and the existing discovery there are some doubts as to whether the plaintiff has fully complied with the substance of the order. In my opinion all this gives merit to first defendant's counsel's submissions that time ought not be extended in this action.
11 However, the consequence of this order is that the plaintiff would be deprived of a hearing of his action by the conduct of his solicitor. The plaintiff's cause of action arose in 2000 and the plaintiff could bring his action again. This would cause additional expense and delay. In the circumstances an extension of time is warranted but on condition. I will strike the answers to the further and better particulars of the statement of claim and order the plaintiff to file and serve answers to the request within 10 days of publication of this order. In the event the plaintiff fails to comply with this order the action do stand dismissed as against the first defendant and judgment be entered for the first defendant for costs of the action. 12 With regard to the affidavit of discovery of specific documents, I order that the plaintiff do within 10 days of the date of publication of these reasons comply both in form and substance with the order of Deputy Registrar Hewitt made 24 September 2002. In the event the plaintiff fails to comply with this order that the action do stand dismissed as against the first defendant and judgment be entered for the first defendant for costs of the action. 13 A hearing on 13 March 2003 was adjourned due to the non-appearance of the plaintiff's counsel instructed to appear. It was ordered that the plaintiff's solicitor show cause by affidavit why the costs of the adjournment ought not be paid personally on a solicitor/client basis. No affidavit having been filed by the plaintiff's solicitor it is therefore ordered that the costs of the adjournment of 13 March 2003 be the first defendant and second defendant's costs to be taxed on a solicitor/client basis forthwith. 14 As to the costs of the various applications and of the hearing I will hear counsel.
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