Brocx v Hughes - [2010] WASCA 57

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BROCX -v- HUGHES [2010] WASCA 57

CORAM: PULLIN JA
BUSS JA
NEWNES JA

HEARD: 15 OCTOBER 2009

DELIVERED : 31 MARCH 2010

FILE NO/S: CACV 41 of 2009

BETWEEN: MARGARET BROCX
Appellant
AND
RAYMOND WILFRED HUGHES
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :BROCX -v- HUGHES [2009] WASC 60
File No  :CIV 2490 of 2008

Catchwords:

Practice and procedure - Action by plaintiff dismissed for non-compliance with 'springing order' - Subsequent action brought by plaintiff to enforce same claim - Whether second action an abuse of process - Relevant principles

Legislation:

Nil

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr G A Rabe
Respondent: Mr C S Gough

Solicitors:

Appellant: Stables Scott
Respondent: Minter Ellison

Case(s) referred to in judgment(s):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Birkett v James [1978] AC 297
Brocx v Hughes [2008] WASC 34
Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2001] FCA 173; (2001) 108 FCR 77
Hughes v Gales (1995) 14 WAR 434
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666
Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23
Janov v Morris [1981] 3 All ER 780
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Re Jokai Tea Holdings Ltd [1993] 1 All ER 630
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Securum Finance Ltd v Ashton [2001] Ch 291
Smith v Bank of Western Australia Ltd [2010] WASCA 15
Thirteenth Corp Pty Ltd v State [2006] FCA 979; (2006) 232 ALR 491
Tolley v Morris [1979] 1 WLR 592
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

PULLIN JA: Newnes JA has set out the history of the litigation between the parties which saves me the trouble of doing so. The appellant's claim relates to a promise allegedly made by Mr Hughes in 1993. Mr Hughes has since passed away. If the matter was to go to trial, the appellant has some witnesses to call and those witnesses are now aged 68, 72, 80 and 84, and the 84 year old is not in good health. It would have been sensible for the respondent to have disclosed what the subject matter of the evidence was. I nevertheless, accept that because the solicitor referred to them as witnesses, in an affidavit, they must be witnesses to relevant facts. Sometimes litigation involves elderly witnesses, but if so the litigation should be conducted with promptitude.
The respondent in this case was put to the expense of defending the litigation which was eventually terminated by judgment on 8 February 2007. The respondent would doubtless have felt relieved to have the litigation come to an end, only to be vexed by an application to set aside judgment (which was dismissed) and then vexed again by the institution of an appeal against that dismissal which was abandoned. Doubtless feeling relieved that the litigation had then been unquestionably determined, the respondent was vexed yet again when the litigation was resurrected in the form of a new action. In those circumstances, it was not surprising that the respondent should apply for the action to be dismissed on the basis that the proceedings were an abuse of process. In my view, to allow the second action to proceed would inflict unnecessary injustice on the respondent.
I repeat the view that I expressed in Smith v Bank of Western Australia Ltd [2010] WASCA 15.
The plaintiff's conduct, particularly if it has been of an intentional and contumelious kind, will be a relevant point for consideration, but Batistatos makes it clear that it is not a condition which must be shown before proceedings are struck out or stayed. Whether the plaintiff has been guilty of misconduct or not, the critical issue is whether to allow the plaintiff's case to proceed would inflict unnecessary injustice on the defendant. It is likely that in many cases that intentional or contumelious disobedience to orders of the court will inflict unnecessary injustice on the defendant.
I agree with Newnes JA's conclusion that the appellant's default was contumacious. I also agree with Newnes JA that if the second action were permitted to proceed, the respondent would be unfairly vexed with the claim once more. I also agree that court's resources which could be used to resolve the disputes of other litigants would have to be used to give the

appellant a further opportunity to bring the claim and that to dedicate those resources to resolution of this claim in the circumstances would bring the law into disrepute.

I would therefore grant an extension of time, grant leave to appeal and dismiss the appeal.
BUSS JA: On 3 March 2009, Master Sanderson ordered that the appellant's (plaintiff's) action CIV 2490 of 2008 in the Supreme Court against the respondent (defendant) be struck out on the ground that the action was an abuse of process.
The action was relevantly indistinguishable from an earlier action in the Supreme Court, CIV 2350 of 2003, by the appellant against the respondent.
The first action was dismissed upon the appellant failing to comply with a springing order made by Master Newnes on 13 December 2006. The appellant applied for orders to extend time for compliance with the springing order and to set aside the dismissal of the first action. The application failed. See Brocx v Hughes [2008] WASC 34. An appeal by the appellant against the dismissal of the application was abandoned. The second action was then commenced.
The appellant seeks to appeal to this court against Master Sanderson's order striking out the second action as an abuse of process. She requires an extension of time within which to appeal and leave to appeal. On 28 and 30 April 2009, Pullin JA ordered that the applications for an extension of time and leave to appeal be heard together with the appeal.
I agree with Pullin JA and Newnes JA that an extension of time and leave to appeal should be granted, but that the appeal should be dismissed. My reasons are as follows.

Applicable principles relating to abuse of process

The law relating to abuse of process has been considered by the High Court on numerous occasions, most recently in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75.
Several propositions of relevance to this appeal, as to the nature of abuse of process and what can constitute abuse of process, are discernible from the reasons of French CJ, Gummow, Hayne and Crennan JJ in Jeffery & Katauskas [27] ‑ [28].

First, a court has inherent power to prevent misuse of its procedures in a manner which, although not inconsistent with the literal application of its procedural rules, would nevertheless be 'manifestly unfair to a party to litigation … or would otherwise bring the administration of justice into disrepute among right‑thinking people' (Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536 (Lord Diplock), adopted by the majority (Mason CJ, Deane & Dawson JJ) in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393). Secondly, abuse of process extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment' (Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [14] (Gleeson CJ, Gummow, Hayne & Crennan JJ)). Thirdly, the categories of abuse of process are not closed. A court may exercise its power in relation to an abuse of process 'as and when the administration of justice demands' (Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 74 (Gaudron J), approved in Walton, 394 (Mason CJ, Deane & Dawson JJ)). Fourthly, the categories of conduct which have attracted the intervention of the courts on the ground of abuse of process have included successive proceedings which cause or are likely to cause 'improper vexation or oppression' (Jacob IH, 'The Inherent Jurisdiction of the Court' (1970) 23 Current Legal Problems 23, 43).
A question in this appeal is whether the Supreme Court's power to prevent an abuse of process may be exercised where:
(a)a previous action has been dismissed as a result of the plaintiff's failure to comply with a springing order; and
(b)the plaintiff then commences a new action against the same defendant on causes of action which are indistinguishable from those pleaded in the first action,
notwithstanding that the new action has been commenced within the relevant limitation periods and there is no res judicata or issue estoppel.
In my opinion, the Supreme Court's power to prevent an abuse of process may be exercised in these circumstances if, relevantly, the commencement and prosecution of the second action would cause or be likely to cause:
(a)improper vexation or oppression to the defendant; more particularly, if the second action would be seriously and unfairly burdensome, prejudicial or damaging to the defendant; or
(b)the administration of justice to be brought into disrepute.
Plainly, whether or not the second action should be characterised as an abuse of process, and the action struck out or permanently stayed, will depend on the particular facts and circumstances of the case. The relevant factors requiring consideration will include any explanation for the plaintiff's failure to comply with the springing order in the first action; the conduct of the plaintiff and the defendant in relation to the first action, including any failures to comply with the rules of court or interlocutory (including case management) orders and directions and any delays in the progress of the first action; whether any non‑compliance with the rules of court or any interlocutory (including case management) orders or any delays in the first action by the plaintiff or the defendant were intentional or contumelious; any explanation for or failure to explain any such non‑compliance or delays and any evidence or absence of evidence as to who was responsible for any such non‑compliance or delays; the prejudice to the plaintiff if the second action were to be struck out or permanently stayed; and the prejudice to the defendant if the second action were not to be struck out or permanently stayed. Two points connected with the public interest are relevant in evaluating the seriousness (for the purposes of improper vexation or oppression to the defendant and disrepute for the administration of justice) of any failures to comply with the rules of court or interlocutory (including case management) directions and orders and any delays in the progress of proceedings. They are the public interest in the efficient conduct of litigation in the courts, including the limited judicial and other resources available for the achievement of that object, and the undoubted fact that proceedings which are the subject of frequent or chronic non‑compliance with interlocutory (including case management) orders, delay or neglect consume a disproportionate share of judicial and other resources and, in consequence, adversely affect the judicial and other resources available to other litigants. The factors I have enumerated are not intended to be an exhaustive catalogue of the relevant matters in any case. Although a finding of intentional or contumelious conduct by the plaintiff in the conduct of the first action will be a significant factor in determining whether the second action should be characterised as an abuse of process, the existence of intentional or contumelious conduct on the part of the plaintiff is not an essential condition that must be established by the defendant before the second action may be struck out or permanently stayed. Generally see Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2001] FCA 173; (2001) 108 FCR 77 [21] ‑ [24] (Sackville J); Thirteenth Corp Pty Ltd v State [2006] FCA 979; (2006) 232 ALR 491 [32] ‑ [35] (Jessup J).
In Hughes v Gales (1995) 14 WAR 434, the appellant commenced a Supreme Court action against the respondent on 22 March 1990. In 1994, a master dismissed the action for want of prosecution. He found that the appellant's conduct in permitting the action to lapse for four years was an inordinate and inexcusable delay. The Full Court of the Supreme Court of Western Australia refused leave to appeal. Malcolm CJ (Kennedy & Pidgeon JJ agreeing) concluded that the master's decision to dismiss the action for want of prosecution was 'clearly correct' (450).
Relevantly, for present purposes, Malcolm CJ, in considering whether the master's order was final or interlocutory, made these observations about abuse of process:
The position is that the dismissal of the action for want of prosecution provides no bar to the commencement of a fresh action based upon the same cause of action. Counsel for the appellant contended that this right was illusory because the relevant limitation period had expired. Consequently, it was submitted that any fresh action would be an abuse of process of the court. I do not accept that contention. The limitation point would need to be specifically pleaded as a defence to the action: O 20, r 9 of the Rules of the Supreme Court. The fact that the limitation period had expired or the fact that a previous action had been dismissed for want of prosecution would not justify an application to strike out the statement of claim or dismiss the action as an abuse of process … In my opinion, judged by its legal as distinct from its practical effect, an order dismissing an action for want of prosecution must necessarily be regarded as an interlocutory order. It follows that leave to appeal is necessary and that without such leave the appeal is incompetent (438 ‑ 439).
In my opinion, this passage in Malcolm CJ's reasons must be understood, relevantly, as stating that where a previous action has been dismissed for want of prosecution, that fact will not of itself justify the dismissal of a subsequent action, based upon the same cause of action, as an abuse of process.

The merits of the present appeal

I agree, with respect, with Newnes JA's analysis of the facts and circumstances relating to this appeal and the first and second actions which preceded it, and with his finding that the appellant's conduct was contumacious. It is unnecessary to reproduce the analysis. Also, I agree with his Honour that, on the basis of those facts and circumstances and

that finding, the master's conclusion that the second action was an abuse of process was correct.

In my opinion, the relevant facts and circumstances reveal that if the second action were to proceed, it would be seriously and unfairly burdensome, and would be productive of serious and unjustified trouble for the respondent. It would be manifestly unfair for him to be vexed again with this litigation and the administration of justice would be brought into disrepute.
As I have mentioned, I would grant an extension of time to appeal and leave to appeal. The appeal should, however, be dismissed.
NEWNES JA: This is an appeal against an order of Master Sanderson dismissing the appellant's action as an abuse of process. The action was in all material respects identical to an earlier action which had been dismissed for failure to comply with a 'springing' order. The Master dismissed the action on the ground that in the circumstances it would be oppressive to the respondent and likely to bring the administration of justice into disrepute to allow the appellant to prosecute the action.
The appellant requires leave to appeal and an extension of time within which to appeal. It was ordered that the appellant's applications for an extension of time and leave to appeal were to be heard with the appeal.

Background

On 7 November 2003, the appellant commenced proceedings against the respondent in his capacity as executor of the estate of the late David Herbert Hughes (the first action). In the statement of claim, the appellant pleaded that the late Mr Hughes was the proprietor of a business known as 'Rest Point Caravan Park' and the registered proprietor of some 14 acres of land on which the business was conducted. The business consisted of a caravan park and holiday village.
It was alleged that in December 1991, the appellant met and formed a relationship with John David Hughes, the son of the late Mr Hughes. Soon afterwards the appellant and John Hughes commenced living together. The appellant pleaded that in December 1992, she and John Hughes agreed to spend the summer assisting the late Mr Hughes in running the business. It was the intention of the appellant and John Hughes that the appellant would then return to Perth in March 1993 to continue her studies at Murdoch University. In fact, she did not do so but

instead remained in Walpole with John Hughes and worked in the business.

The appellant pleaded that in 1993 (the date is not specified in the statement of claim) the late Mr Hughes promised the appellant and John Hughes that if they agreed to stay on and join in the business he would transfer an interest in the land to them, share the profits of the business with them, and build a house on the land as their home. The appellant said that the promise was repeated on a number of occasions subsequently (when and in what terms is not pleaded). The appellant alleged that in reliance on the promise, she and John Hughes took up residence on the land and commenced working in the business, and, in addition, she sold several properties that she owned in Perth and used part of the proceeds for purposes associated with the business.
It was pleaded that the appellant and John Hughes separated in August 2000 and the appellant returned to Perth. The appellant alleged that despite his promise, the late Mr Hughes failed to transfer an interest in the land to the appellant and John Hughes or to share the profits of the business with them.
The appellant sought, among other things, a declaration that, in his capacity as the executor of the estate, the respondent holds on trust for the appellant such portion of the land as the court considered just. (Although it is not pleaded, it appears that the late Mr Hughes died in 2001.)
The progress of the first action reveals a sorry tale of delay and inaction on the part of the appellant or her solicitor. I will come later to the issue of where the fault lies. In the meantime, it is necessary to outline the relevant history.
The respondent filed a memorandum of appearance on 8 December 2003. A defence and a request for further and better particulars of the statement of claim were filed on 15 March 2004. The appellant did not provide an answer to the request for particulars until 10 September 2004. The appellant's affidavit of discovery was filed on the same date.
Shortly afterwards, on 29 November 2004, the appellant's solicitor applied for leave to cease to act. The basis of the application was the failure of the appellant to pay the solicitor's costs and counsel's fees. The application was granted on 16 December 2004.
On 16 December 2004, the respondent filed his affidavit of discovery.
On 27 January 2005, a notice of change of solicitor was filed on behalf of the appellant advising that Peter Marks, a sole practitioner, was now acting for the appellant in place of her former solicitors. On 17 February 2005, a status conference was held before a registrar and orders for mediation were made. On 19 May 2005, the registrar was advised by Mr Marks that mediation had been unsuccessful and the matter would have to proceed to trial.

On 31 May 2005, a summons was issued by a registrar of the court requiring the parties to attend a case evaluation conference on 16 June 2005. On 16 June 2005, the case evaluation conference was simply adjourned sine die. It is not apparent why that occurred.
On 19 July 2005, the registrar wrote to Mr Marks requesting an update on the progress of the action. On 26 July 2005, Mr Marks advised the registrar that settlement discussions were taking place. The registrar wrote again on 6 September 2005 seeking a report on the status of the matter. Neither that letter nor a follow up letter of 20 October 2005 evoked any response. On 11 November 2005, notice was sent to the parties of the relisting of the case evaluation conference for 1 December 2005. That appears to have had some effect. On 16 November 2005, Mr Marks wrote to the registrar advising that he had asked counsel to review the matter and determine whether it was ready to be set down for trial.
On 21 November 2005, the respondent's solicitors wrote to Mr Marks suggesting that 'some form of settlement procedure' be attempted. It was subsequently agreed between the parties that a mediation would take place in March 2006, subject to the advice then being sought by the appellant from counsel.
On 1 December 2005, Mr Marks advised the registrar by telephone that the parties would like further mediation as the matter was close to settlement.
On 11 January 2006, the registrar wrote to Mr Marks seeking the parties' unavailable dates if the parties still wished to reconvene the mediation, and, if not, asking to be advised how the appellant intended to progress the matter. In the absence of any response, a follow up letter was sent on 1 February 2006.
On 3 February 2006, Mr Marks replied to the effect that counsel had been reviewing the defence and had advised that it was deficient and 'is susceptible to [being] struck out on the [appellant's] application'. Mr Marks said he had given the solicitors for the respondent 28 days to apply to the court to amend the defence.
On 9 March 2006, Mr Marks wrote to the registrar advising that the respondent had declined to amend his defence and that the appellant would now apply 'as quickly as possible' to have the defence struck out.
No such application was made and, on 4 May 2006, the registrar again wrote to Mr Marks requesting a further report on the current status of the action. No response was received and ultimately the registrar listed the matter for a case evaluation conference on 14 September 2006. On that day orders were made that the appellant file and serve any application to strike out the defence by 6 October 2006. The status conference was adjourned sine die. At the time of the conference, Mr Marks provided the solicitor for the respondent with a copy of an affidavit sworn by Mr Marks in support of a chamber summons to strike out the defence and submissions in support of the application. However, no such chamber summons was ever filed.
The respondent's solicitors wrote to Mr Marks concerning the progress of the action on 26 September, 28 September, 3 October, 23 October, 27 October and 31 October 2006. The respondent's solicitors also made numerous attempts to contact Mr Marks by telephone. They were met with silence.
On 15 November 2006, the respondent applied to a master to have the action admitted to the Commercial and Managed Cases List (CMC List). An order to that effect was made on 13 December 2006, together with further orders in terms of a minute of proposed orders filed on behalf of the respondent, directed to bringing the action to trial. However, as more than one year had passed since the last step in the action, a notice of intention to proceed had to be filed by the appellant. One of the orders made on 13 December 2006 was in the following terms:
Unless within 14 days of the date of this order the plaintiff files and serves a notice of intention to proceed, then judgment be entered for the defendant with the plaintiff to pay the defendant's costs of the action to be taxed.
Mr Marks attended the hearing on 13 December 2006 on behalf of the appellant and consented to the making of the orders.
On 22 December 2006, the appellant's solicitors filed a notice of intention to proceed but failed to serve a copy of the notice on the solicitors for the respondent. Service was not effected on the respondent's solicitors until 10 January 2007.
On 19 January 2007, the respondent's solicitors advised Mr Marks by email that, as the notice had not been served by 22 December 2006, the action was at an end. They went on to say that on 1 February 2007 (the date of the next directions hearing before a master) the respondent would move for judgment. No response was received from Mr Marks, although an email from Mr Marks' personal assistant indicated that the email message had been printed and 'given to Mr Marks for action'. On 30 January 2007, the respondent's solicitors wrote to the court and Mr Marks describing the specific orders they intended to seek at the hearing on 1 February 2007.
On 1 February 2007, there was no appearance for the appellant and the matter was adjourned to 8 February 2007. Following the hearing, the respondent's solicitors sent an email message to Mr Marks advising him of the adjourned date and the fact that the master had indicated that, in the event there was no appearance for the appellant on 8 February 2007, judgment would be entered against the appellant. The email contained a request for an electronic return receipt indicating confirmation of delivery of the email. The confirmation was received later that day.
On 6 February 2007, the respondent's solicitor contacted Mr Marks by telephone, referring to the earlier email and enquiring as to his intentions. Mr Marks said he was meeting with another lawyer on the morning of 7 February 2007 to discuss the future conduct of the matter and that he would call back following that meeting. He did not get back in contact with the respondent's solicitor.
On 8 February 2007, there was again no appearance for the appellant and judgment was entered for the respondent.
The respondent's solicitors attempted on 20 February 2007, and again on 21 February 2007, to contact Mr Marks to discuss the entry of judgment. They were unsuccessful. On or about 22 February 2007, Mr Marks telephoned the respondent's solicitors to say that the matter had been referred to his insurers.
According to the appellant, at about that time she was advised by Mr Marks to seek independent legal advice and, on or about 22 March 2007, she received from Mr Marks copies of correspondence from her file and court papers in the action. On 29 March 2007, she consulted another firm of solicitors, Stables Scott, about her position. On 5 October 2007, those solicitors filed on her behalf an application to set aside the judgment.
It was common ground that Mr Marks died in August 2007, having remained in practice up until his death.
In an affidavit sworn on 5 October 2007 and filed in support of the application to set aside the judgment, the appellant outlined her knowledge of events up to February 2007. The appellant did not refer in the affidavit to the events of 2005 but said that during 2006 she had received reports from Mr Marks to the effect that steps were being taken by him and counsel to prepare and prosecute an application to strike out the defence. Mr Marks told her that he was awaiting a hearing date for that application and said he would contact the court to find out the reason for the delay in setting the date.
The appellant said that, in December 2006, Mr Marks sent her a copy of the orders made by the master on 13 December 2006. He asked her to make an appointment with him in January 2007 so that preparations for trial could be discussed.
The appellant said that she had a meeting with Mr Marks on 15 January 2007 at which they discussed preparation for a trial in April 2007 and that 'there was much to do'. He also told her that a conference with senior counsel was to be arranged for later that month. The appellant does not refer in her affidavit to any mention of the filing and service of the notice of intention to proceed.
According to the appellant, she did not hear further from Mr Marks during January 2007 and she became concerned that the proposed meeting with senior counsel had not been arranged. The appellant says she called Mr Marks' office a number of times and left messages but he did not return her calls. Ultimately, in about mid‑February 2007, she went to his office without an appointment and simply waited until he could see her. The appellant says that Mr Marks then told her that the case had gone 'pear shaped' and, as a result of advice from his professional indemnity insurers, he could not give her any details about the current position or recent developments. Mr Marks advised the appellant to seek independent legal advice. The appellant says she asked for the return of her files. Mr Marks said he would arrange for them to be copied and sent to her.
According to the appellant, she did not learn that judgment had been entered until she consulted another solicitor in late February 2007. The appellant says that she was not aware of the hearings in February 2007 and learned of them only when her new solicitors searched the court file.
The appellant says in her affidavit that to the best of her belief she did all that was required of her by Mr Marks to assist him in the prosecution of the action and she was not dilatory in any way. The appellant says she was always assured by Mr Marks that everything was proceeding in a timely fashion and nothing more was required of her.
The appellant subsequently filed a further affidavit, dated 8 November 2007, in which she said that if the judgment was set aside she was aware of her obligations and those of her legal representatives to be in a position to abide by any new directions programming the action to trial.
As I have mentioned, the appellant received a copy of the papers from her file from Mr Marks on 22 March 2007. The appellant did not explain in her affidavit why the application to set aside the judgment was not filed until 5 October 2007.
On 11 March 2008, the appellant's application was dismissed: Brocx v Hughes [2008] WASC 34. In her reasons for decision, Johnson J observed that no proper explanation had been offered for the failure to prosecute the action diligently or to comply with the springing order. Nor was there any proper explanation for the delay in bringing the application to set aside the judgment. Whilst the appellant had sought to sheet home responsibility for the conduct of the action entirely to Mr Marks, she had not deposed sufficiently to her state of knowledge and her conduct to enable any determination to be made as to whether any responsibility lay with her. Johnson J concluded that on the material before the court no determination could be made as to who, as between the appellant and her solicitors, was responsible for the delay in the action or the delay in bringing the application to set aside the judgment. There was also no material upon which an assessment could be made as to the appellant's prospects of success in the action. Johnson J concluded that no grounds had been shown for setting aside the judgment.
In March 2008, the appellant filed an appeal notice against the decision of Johnson J. That appeal was subsequently abandoned.
On 6 November 2008, the appellant commenced the proceedings which are the subject of this appeal (the second action). The writ of summons was endorsed with a statement of claim. The statement of claim is in all material respects identical to the statement of claim in the first action.
In December 2008, the respondent applied for an order that the second action be dismissed. The respondent contended that in light of the dismissal of the first action, the conduct of the appellant in the second action, and the length of time that had elapsed since the alleged cause of action arose, the second action was an abuse of process.
The appellant relied in opposition to the application on the affidavits she had filed in the application to set aside the judgment in the first action and a further affidavit sworn on 30 January 2009. In the latter affidavit, the appellant dealt with the period of five months which had elapsed between the dismissal of the application to set aside judgment and the commencement of the second action. In substance, the appellant said that that delay had occurred due to protracted negotiations between her solicitors and the insurers of Mr Marks, and medical problems she had experienced arising out of a car accident in May 2001.

The findings of the master

The master dismissed the second action. The master concluded that to allow it to continue would be oppressive to the respondent and likely to bring the administration of justice into disrepute. The master gave three reasons for reaching that conclusion. The first was delay. The master observed that the relevant events were said to date back to 1993 and the cause of action itself appeared to have arisen in about 2000. The late Mr Hughes had died in the meantime. The master considered, first, that it would be unfair to allow the action to continue to hang over the estate and, secondly, that a cause of action of this nature, built as it was on a slender foundation, should not be allowed to endure after such delay.
The master also concluded that, even accepting that her then solicitor conducted the proceedings in a less than appropriate manner, it was difficult to justify allowing the appellant to take further steps in relation to the second action when there was no reason to believe that it would be prosecuted with dispatch.
Finally, the master considered that it was inappropriate for a party who has had an action struck out 'simply to rekindle the action and try again'. To enable the appellant to do so would be unfair and likely to bring the law into disrepute.

Grounds of appeal

The appellant relied, in substance, on the following grounds of appeal:
1.The master erred in failing to have regard to whether the appellant's failure to comply with the springing order was intentional and contumacious. The master should have held there was no abuse of process because:
(a)the failure to comply with the springing order was the fault of the appellant's solicitor and there was no intention on the part of the appellant to flout or obstinately disobey the court's order; and
(b)the respondent had failed to discharge the onus which lay on him of proving that in the first action the appellant had intended to defy the court's authority.
2.The master took into account irrelevant matters, namely:
(a)the delay between 1993 and 2000;
(b)the death of Mr Hughes and the assumed complexity of the evidence;
(c)a finding that the case was built on a slender foundation;
(d)a finding, not supported by the evidence, that to allow the case to continue would be oppressive to the respondent;
(e)a finding, not open to the master, that by reason of the appellant's conduct in the first action there was no reason to believe she would progress the second action with dispatch; and
(f)to permit the second action would bring the law into disrepute.
3.The master failed to give any or sufficient weight to the injustice to the appellant of being denied the opportunity to have her claim determined, in circumstances where the first action was dismissed due to the default of her then solicitor.

Appellant's submissions

It was submitted that in order to make out an abuse of process the respondent must establish that the appellant's failure to comply with the springing order was intentional and contumelious. It had not done so. There was uncontradicted evidence that the appellant did not intend to ignore or flout the order and that the failure to comply with the order was due solely to the negligence of her then solicitor. The master failed to have regard to the fact that the fault lay with the solicitor and that no fault could be attributed to the appellant personally.
The matters to which the master had regard in dismissing the action as an abuse of process were irrelevant, or relevant only to whether it would be oppressive to allow the action to proceed and whether to do so would bring the administration of justice into disrepute.
The finding by Johnson J that the appellant's conduct in the first action 'was unacceptable', was not relevant to the issue before the master. The master should have had regard to the fact that Johnson J did not make any finding on whether the appellant's non‑compliance with the springing order was intentional and contumelious. In considering where the interests of justice lay the master failed to take into account that the first action was dismissed due to the fault of the solicitor, not the appellant personally.

Submissions by the respondent

It was submitted on behalf of the respondent that where previous proceedings have been struck out for contumelious conduct on the part of a plaintiff, subsequent proceedings may be struck out as an abuse of process unless the prior conduct is explained and an undertaking given that the new action would be pursued with diligence. In exercising the discretion to strike out the second action the court will normally have regard to whether the failure to comply with the springing order was contumacious and the likelihood that the plaintiff will fail to comply with orders made in the second action.
The failure of a plaintiff to provide an explanation as to why the springing order was not complied with is an important consideration. It is apparent from the decision of Johnson J that on the application to set aside the judgment the appellant failed to provide any satisfactory explanation, including any explanation to support the appellant's contention that no fault could be attributed to her. On the material before the court, the failure of the appellant to comply with the springing order was contumacious and there was nothing before the master to suggest that the current action would be prosecuted with any greater diligence. The master properly dismissed it as an abuse of process.

The disposition of the appeal

It was not suggested by the respondent either before the master or this court that the dismissal of the first action gave rise to res judicata or an issue estoppel. It appears to have been accepted, correctly in my view, that neither applied. The issue was whether the second action was an abuse of process.
In Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, the majority adopted the statement of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536, that superior courts have an 'inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right‑thinking people'.
The High Court pointed out in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75, that
this does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non‑party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment' [28]. (footnotes omitted)
What constitutes an abuse of process cannot be reduced to hard and fast rules or closed categories because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case: Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 74 ‑ 75; Batistatos [9]. However, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings is capable of constituting an abuse of the process: Batistatos v Roads & Traffic Authorityof New South Wales [2006] HCA 27 [15]; (2006) 226 CLR 256.

It is, I think, clear that, at least in ordinary circumstances, the fact that an earlier action was dismissed for failure to comply with a 'springing' (or self‑executing) order does not, of itself, mean that a subsequent action for the same cause of action is an abuse of process. The question that arises in this case is when, if at all, such an action, brought within the limitation period, will be struck out as an abuse of process.
The issue was touched upon in the decision of the House of Lords in Birkett v James [1978] AC 297. That case, of course, concerned an application to strike out an action for want of prosecution. In the course of his speech, Lord Diplock said:
The court may and ought to exercise such powers as it possesses under the rules to make the plaintiff pursue his action with all proper diligence, particularly where at the trial the case will turn on the recollection of witnesses to past events. For this purpose the court may make peremptory orders providing for the dismissal of the action for non‑compliance with its order as to the time by which a particular step in the proceedings is to be taken. Disobedience to such an order would qualify as 'intentional and contumelious' within the meaning of the first principle laid down in Allen v McAlpine. But where no question of non‑compliance with a peremptory order is involved the court is not in my view entitled to treat as 'inordinate delay' justifying dismissal of the action in accordance with the second principle in Allen v McAlpine, a total time elapsed since the accrual of the cause of action which is no greater than the limitation period within which the statute allows plaintiffs to start that action. To dismiss the action in such circumstances would, in my view, involve an error in principle in the exercise of judicial 'discretion' which it is the function of the appellate court to correct (321).
Lord Salmon said:
I agree with my noble and learned friend Lord Diplock that if an action is dismissed for want of prosecution or even for the contumelious failure to comply with a peremptory order before the limitation period has elapsed, this would not empower the court to strike out a writ for the same cause of action subsequently issued within the limitation period. The fact that the plaintiff or his solicitor has behaved badly in the first action does not make him into a vexatious litigant barred from bringing any further proceedings without permission of the court. Nor does the dismissal of the first action without any decision on the merits constitute res judicata (328).
Lord Edmund‑Davies, having observed that where there appears any likelihood that the plaintiff will issue a second writ the case would have to be quite exceptional for the court to dismiss an action for want of prosecution within the limitation period, continued:
If it be complained that this places the defendant at the mercy of a dilatory plaintiff, a partial answer is that in a flagrant case, the defendant can always seek peremptory orders which, if disobeyed, render the plaintiff liable to have his action struck out on the ground of contumelious default; though there, too, a second writ can properly be issued within the limitation period, unless the circumstances are such that it could, on other grounds, be regarded as frivolous or vexatious (334).
In Tolley v Morris [1979] 1 WLR 592, an infant beneficiary had suffered personal injury. Proceedings were commenced on her behalf, followed by many years of inaction. New solicitors then served a notice of intention to proceed. As the plaintiff was entitled still to issue new proceedings the House of Lords, by majority, held that this meant the proceedings should not be struck out. Lord Diplock considered, however, that the defendants were not helpless in such a situation as they would have been able to obtain peremptory orders requiring compliance with procedural steps. He said:
Disobedience to a peremptory order would generally amount to such 'contumelious' conduct as is referred to in Birkett v James [1978] AC 297 and would justify striking out a fresh action for the same cause of action, as an abuse of the process of the court (603).
Lord Edmund‑Davies and Lord Keith of Kinkel agreed with Lord Diplock. Lord Edmund‑Davies referred to the view he had expressed in Birkett v James that, even if a previous proceedings had been struck out for disobedience to court orders, a plaintiff could commence a fresh action within the limitation period. He said:
I am not presently persuaded that a person who starts an action within the limitation period is liable to have it struck out as constituting an abuse of the process of the court, for the sole reason that a previous suit instituted by him in respect of the same cause of action was itself struck out on the ground that his disobedience to the court's orders (peremptory or otherwise) amounted to contumelious default (604).
The question arose directly in Janov v Morris [1981] 3 All ER 780. In that case, after unexplained delay by the plaintiff an order had been made that the action be dismissed for want of prosecution unless the plaintiff served a summons for directions by 1 April 1980. The plaintiff failed to do so and the action was dismissed. Within the limitation period, the plaintiff brought another action raising the same cause of action. The Court of Appeal held that the new action should be struck out as an abuse of process. It held that the court had a discretion to strike out the second action on the ground that it was an abuse of process. The discretion was to be exercised having regard to the circumstances of the case, but in exercising the discretion the court should be cautious in allowing a second action to proceed and should have due regard to the principle that court orders were made to be complied with and not to be ignored. In that case, there had been no explanation as to why the plaintiff failed to comply with the peremptory order and there was no indication that he would comply with the orders of the court in the second action any more than he had in the first.
In Re Jokai Tea Holdings Ltd [1993] 1 All ER 630, the defendant failed to comply with an 'unless' order requiring it to file further and better particulars of its defence by a specified time. The day before the time limit expired, the defendant filed an application to amend its defence to abandon all of the paragraphs in respect of which particulars had been sought. The primary judge held that the plaintiff was entitled to judgment by reason of the defendant's failure to comply with the order. An appeal by the defendant was allowed. In the course of his judgment, Browne‑Wilkinson VC expressed the view that a litigant who fails to comply with a peremptory order of the court will not normally be permitted to continue to litigate either that or any other action based on the same claim or defence. He continued:
Disobedience to a peremptory order is 'generally' to be treated as contumelious conduct: see Tolley v Morris [1979] 1 WLR 592, 603 per Lord Diplock. Where there has been such contumelious disobedience not only the plaintiff's original action but also any subsequent action brought by him based on the same cause of action will be struck out: see Janov v Morris [1981] 1 WLR 1389. The basis of the principle is that orders of the court must be obeyed and that a litigant who deliberately and without proper excuse disobeys such an order is not allowed to proceed. The rationale of such penalty being that it is contumelious to flout the order of the court, if a party can explain convincingly that outside circumstances account for the failure to obey the peremptory order and that there was no deliberate flouting of the court's order, his conduct is not contumelious and therefore the consequences of contumely do not flow.
In Janov v Morris a plaintiff whose first action had been struck out for failure to comply with an 'unless' order brought a second action based on the same cause of action. The basis of the decision was that the failure to comply with the peremptory order was contumacious: [1981] 1 WLR 1389, 1395H per Watkins LJ. It is clear that the court, in reaching the conclusion that the conduct was contumacious, placed much reliance on the fact that no explanation or excuse had been given by the plaintiff for his disobedience to the order.
In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an unless order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed (1202 ‑ 1203).
Browne‑Wilkinson VC concluded that the defendant's explanation that it was amending its defence to omit the relevant pleas showed that it was not defying or ignoring the court order and that it was impossible to characterise its conduct as contumelious (or as Sir John Megaw, agreeing, suggested, 'contumacious').
In 1998, the Court of Appeal delivered judgment in Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426, a case concerning an application to strike out an action for want of prosecution. At that time the introduction in England of the new Civil Procedure Rules 1998 was pending. (They came into effect on 26 April 1999.) Having set out the principles in Birkett v James, Lord Woolf (giving the judgment of the court) said:
The fact that the limitation period has not expired does not figure to the same degree in a case where there has been contumelious conduct on behalf of a plaintiff or where the proceedings which are being struck out constitute an abuse of process: see Grovit v Doctor [1997] 1 WLR 640. In such circumstances, the plaintiff may well find that if he brings fresh proceedings after the original proceedings are struck out they are stayed because of his conduct (1432).
Lord Woolf referred later in his judgment to the pending new rules and pointed out that in Birkett v James the consequence to other litigants and to the courts of inordinate delay was not a consideration which was in issue. His Lordship said that in future it was going to be a consideration of increasing significance. His Lordship went on to refer to a change in culture which was taking place which would enable courts to recognise more readily than before that a wholesale disregard of the rules is an abuse of process. Lord Woolf said:
The question whether a fresh action can be commenced will then be a matter for the discretion of the court when considering any application to strike out that action and any excuse given for the misconduct of the previous action: see Janov v Morris [1981] 1 WLR 1389. … In exercising its discretion as to whether to strike out the second action, the court should start with the assumption that if a party has had one action struck out for abuse of process some special reason has to be identified to justify a second action being allowed to proceed (1437).
Securum Finance Ltd v Ashton [2001] Ch 291 was also concerned with an application to dismiss an action for want of prosecution. But the approach of the court under the Civil Procedure Rules reflected a quite different attitude to the older cases on the issue of whether an action should be struck out for delay during the currency of the limitation period. Chadwick LJ noted that the overriding objective of the procedural code embodied in those rules is to enable the court 'to deal with cases justly': r 1.1(1). That includes 'allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases': r 1.1(2)(e). Having considered Birkett v James and Lord Woolf's observation in Arbuthnot about the effect of delay on other litigants, Chadwick LJ said:
The effect on other litigants of delay in the proceedings in which that delay has occurred is, now, a factor to which the court must have regard when considering whether to strike out those proceedings. But, equally, the fact that earlier proceedings have been struck out on the grounds of delay is a factor to which the court must have regard when considering whether to strike out fresh proceedings brought to enforce the same claim. The reason, as it seems to me, is that, when considering whether to allow the fresh proceedings to continue, the court must address the question whether that is an appropriate use of the court's resources having regard (i) to the fact that the claimant has already had a share of those resources in the first action and (ii) that his claim to a further share must be balanced against the demands of other litigants (308).
In Australia, the question of whether a second action constituted an abuse of process came before the Federal Court in Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2001] FCA 173; (2001) 108 FCR 77. In that case, an earlier proceeding had been dismissed following the applicants' failure to comply with a self‑executing order which required the applicants to file a statement of claim by a specified date. The applicants subsequently commenced a fresh proceeding on the same grounds and the respondent applied to have it dismissed as an abuse of process. Sackville J considered Janov and Re Jokai but concluded that it was unnecessary to decide whether the principles described in those cases applied in the Federal Court. The applicants had provided an explanation of their conduct in the earlier proceeding which indicated that the failure to comply with the self‑executing order was not the product of contumacious behaviour, but rather was based on counsel's advice that the proceedings were not properly constituted and should not be pursued. The failure to comply with the order did not reflect wilful disobedience or disregard of the order such that the applicants might be expected to flout directions given by the court in the fresh proceedings.
It is evident, however, that in Australia, as in England, there has in more recent times been a change in the approach of the courts to the conduct of litigation and there is now a much greater focus on the effect that the way in which parties conduct litigation has on the court and other litigants. In that connection, the principles referred to in the older cases now fall to be considered in the light of the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. In that case, the court pointed out that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost‑effective resolution of a dispute has an effect upon the court and upon other litigants. Whilst parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute, where a party has had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
Whilst those observations were, of course, made in respect of a late application to amend a pleading, in my view they are of general application. They were made in the context of rules of court which find their counterpart in this court in O 1 r 4B. That rule provides, in effect, that the rules and the processes and procedures of the court are to be applied so as best to attain the just determination of litigation, the efficient use of the resources of the court, and the timely disposal of the business of the court at a cost affordable by parties.
It is axiomatic that peremptory orders are made to be obeyed and they are generally made only where the party in default has already failed to comply with an order of the court, or has failed to pursue the action in accordance with the rules of court and has been responsible for serious delay. As Auld LJ noted in Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666, 1676, an order of this kind is by its nature intended to mark the end of the line for such a party who fails to comply with it. A springing order is a clear message that the willingness of the court to overlook further non‑compliance with its procedures has come to an end. Such orders will often be made before the limitation period has expired and where it is therefore possible for the defaulting party to commence a fresh action of the same nature. It is also notorious that a party who persistently fails to comply with the rules or orders of the court inevitably takes up a disproportionate amount of court time and resources, and unnecessarily increases the costs of the litigation.
The resources of the court are limited and the demands upon them are great. In light of the objects set out in O 1 r 4B, the public interest in the efficient use of those resources and the right of other litigants to have their disputes resolved in an efficient and timely way are properly matters to be taken into account in determining whether proceedings instituted in circumstances such as the present are an abuse of the process of the court. Parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute and must be afforded a sufficient opportunity to resolve their dispute by that process. But that opportunity is not unlimited.
Where a party demonstrates a disregard for the orders or procedures of the court and as a result their claim is dismissed, their right again to invoke the jurisdiction in respect of that same claim cannot be unlimited if the public interest in the efficient use of court resources and the rights of other litigants are to be given due recognition. It cannot be the case that so long as the limitation period has not expired a party can ignore the rules and orders of the court, secure in the knowledge that if the worst happens and the action is struck out they can simply start again. It would bring the administration of justice into disrepute, and be 'productive of serious and unjustified trouble and harassment' to the defendant, if a party whose action had been dismissed by reason of their contumacious conduct could simply institute and proceed with a fresh action and, until the limitation period ran out, could continue to repeat that if and when the same fate befell them. To the extent that statements in the older cases, including Birkett v James and Tolley v Morris, may be understood to suggest that such a party is entitled as of right to prosecute a fresh action, I would not follow them. The High Court pointed out in Batistatos:
The 'right' of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process [65].
Each case must, of course, depend upon its own circumstances. But, in my view, where an action has been dismissed by reason of the failure of a party to comply with a springing order in circumstances where that party's conduct was contumacious, a second action by that party to enforce the same claim will generally be an abuse of process. I do not, however, consider that the fact an action was dismissed for failure to comply with a springing order establishes, of itself, that the conduct of the party in default was contumacious. I do not understand the cases to which I have referred to suggest otherwise. In each case, the court found that the conduct was contumacious in the absence of an explanation which showed that it was not. (I think that for all practical purposes 'contumelious' and 'contumacious' have generally been used interchangeably in the cases as denoting a wilful and obstinate resistance or disobedience to authority.) As Heydon JA (as his Honour then was) pointed out in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274:
A satisfactory explanation on affidavit might negate an inference that the plaintiff's defaults were not [sic] intentional or contumelious. But the absence of any explanation permits that inference to be drawn [54].

In this case it was argued on behalf of the appellant that it was for the respondent to show that the appellant's conduct in the first action was contumacious. I accept that is the case but the particular circumstances which led to default occurring will generally be a matter peculiarly within the knowledge of the defaulting party and their solicitors. It is so in this case. In the absence of a credible and satisfactory explanation by the appellant as to how the default came about, the court is entitled to infer that the conduct concerned was contumacious.
It was submitted that in this case the fault lay not with the appellant but with her solicitor. The blamelessness of a party personally is certainly a relevant factor, although it is not necessarily a complete answer. In this case, however, I consider there is insufficient evidence to enable a conclusion to be drawn as to where the fault lay. It is significant that the springing order which led to the dismissal of the first action was made against a background of continual delay and inaction in the prosecution of the appellant's case.
Those delays can be said to have started by no later than March 2004 when the respondent's request for particulars of the statement of claim went unanswered for some six months. Shortly after the particulars were delivered, the appellant's solicitors had themselves removed from the record on the ground that the appellant had failed to pay their costs and counsel's fees. Mr Marks came on the record for the appellant in January 2005. From September 2004, when the particulars were provided, until the action was dismissed in February 2007, no substantive steps were taken to prosecute the action. The apparently sporadic attempts at settlement appear to have been exhausted by early February 2006. Still nothing happened to move the action along. And even following Mr Mark's advice to the registrar in March 2006 that an application to strike out the defence would be brought 'as quickly as possible', no substantive steps were taken. It was also the case that frequently correspondence from the court, and from the respondent's solicitors, was answered, if at all, belatedly and only after some prompting.
Whether that delay and inaction was attributable solely to the appellant's then solicitor, or whether (or to what extent) it was due to delays by the appellant in responding to requests for instructions from her solicitor or for other reasons attributable to the appellant, does not emerge with any clarity from the evidence. The material which would reveal that is in the hands of the appellant. She has chosen to reveal little of it. The appellant has provided no explanation at all in respect of the period before 2006. Her evidence in relation to 2006 is limited to general and somewhat nebulous statements about communications from Mr Marks concerning a proposed or pending application to strike out the defence. Nowhere is there any account of what (if anything) the appellant did prior to the beginning of 2007 to ensure that the action was pursued diligently. Over the preceding three years it cannot have escaped the appellant's attention that the action was making next to no progress.
There is nothing to suggest that the appellant was not in a position to provide a more detailed explanation if she chose to do so. But the detailed explanation which was plainly called for has not been provided.
It is true that on the application to set aside judgment in the first action, Johnson J did not make a finding that the appellant's non‑compliance with the springing order was intentional and contumelious. But her Honour found that no extraneous circumstances could explain the 'level of dilatory conduct and blatant disregard of general obligations and court orders' that had occurred. It is apparent from her Honour's reasons that the paucity of the evidence provided by the appellant left her Honour in the position of being unable to determine whether, or to what extent, the appellant, as opposed to her solicitor, was to blame. Johnson J concluded that she was unable to say that the appellant had no responsibility. Her Honour found that there was no basis upon which the conduct of the appellant's case could be excused.
The conduct of the appellant's case in the first action reflected an extraordinary disregard of the practices and procedures of the court. On the material available, the most favourable view that could be taken of the appellant's conduct is that she was content to allow the action to drag on in a desultory and entirely unsatisfactory manner and without any concern to see it brought to a timely conclusion. I would add that at no stage of this unhappy saga has the appellant put on any evidence directed to the merits of her claim.
In my view, the only inference reasonably open is that the appellant's conduct was contumacious. No satisfactory explanation has been provided for it. As the conduct has not been explained, the court cannot be satisfied that it will not occur again. Mere assertions to that effect will not suffice.
I consider, with respect, that the master was right to conclude that the second action was an abuse of process. The appellant has had a reasonable opportunity to bring her claim. It was dismissed by reason of her contumacious conduct. If the second action were permitted to proceed, the respondent would unfairly be vexed with the claim once more, court resources which could be used to resolve the disputes of other litigants would have to be used to give the appellant a further opportunity to bring the claim, and the law would be brought into disrepute. To permit the appellant to start afresh would be inconsistent with the objects set out in O 1 r 4B.

Conclusion

The appeal raises a point of some significance for the conduct of litigation in this court and I would therefore grant an extension of time to appeal and grant leave to appeal. I would, however, dismiss the appeal.