Chesson v Green - [2001] WASC 13

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHESSON -v- GREEN & ORS [2001] WASC 13

CORAM: MASTER BREDMEYER

HEARD: 27 OCTOBER & 13 DECEMBER 2000

DELIVERED : 24 JANUARY 2001

FILE NO/S: CIV 1979 of 1999

BETWEEN: SYDNEY JAMES CHESSON
Plaintiff
AND
GRAEME WILLIAM GREEN
WILLIAM JOSEPH GREEN
NORMA GLENYCE GREEN
SHARYN LEE ARNDT (nee GREEN)
JULIE ANNE GREEN
GIANCARLO BONINI
ANGELINA BONINI
Defendants

Catchwords:

Service of writ out of time - Springing order - Extension of time sought after expiration of springing order - FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 applied

Legislation:

Rules of the Supreme Court, O 3 r 5, O 7 r 4

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr G J Coad
First-named Defendant       :     Mr M L Bennett
Second-named Defendant    :     Mr M L Bennett
Third-named Defendant      :     Mr M L Bennett
Fourth-named Defendant     :     Mr M L Bennett
Fifth-named Defendant       :     Mr M L Bennett
Sixth-named Defendant      :     Mr D R Kilpatrick
Seventh-named Defendant   :     Mr D R Kilpatrick

Solicitors:

Plaintiff:     Geoffrey Coad
First-named Defendant       :     Bennett & Co
Second-named Defendant    :     Bennett & Co
Third-named Defendant      :     Bennett & Co
Fourth-named Defendant     :     Bennett & Co
Fifth-named Defendant       :     Bennett & Co
Sixth-named Defendant      :     Williams & Hughes
Seventh-named Defendant   :     Williams & Hughes

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

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
In Re Jokai Tea Holdings Ltd [1989] 1 WLR 1196

Case(s) also cited:

Bailey v Marinoff (1971) 125 CLR 529
Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561
Birkett v James [1977] 2 All ER 801
Coyne v Sun Securities Ltd & Ors (1992) 8 WAR 218
Goodwin v Southern Tablelands Finance Co Pty Ltd, unreported; HCA; 15 August 1968
Lewandowski v Lovell (1994) 11 WAR 124
Manly Estates Ltd v Venedek [1941] 1 All ER 248
R v Bloomsbury and Marylebone County Court; ex parte Villerwest Ltd [1976] 1 WLR 362
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 55 ALJR 243
Whistler v Hancock [1878] 3 QBD 83

MASTER BREDMEYER: The plaintiff has applied by chamber summons dated 11 October 2000 to extend the time within which the plaintiff must comply with the case management directions made by Registrar Johnston on 9 May 2000 to the date upon which the last defendant was served. The application is opposed by all defendants.
In order to understand the application it is necessary to present a history of some of the key steps in this action. On 1 September 1999 the writ of summons was issued herein, endorsed as follows:
"The Plaintiff claims against the Defendants; and each of them damages, compensatory aggravated and/or exemplary damages for:
(a)conspiring to murder the Plaintiff;
(b)aiding and abetting, participating in, or being knowingly concerned in a conspiracy to murder the Plaintiff;
(c)conspiring to injure the Plaintiff by the commission of a crime or by unlawful and/or lawful means;
(d)aiding and abetting or being knowingly concerned in a conspiracy to injure the Plaintiff by the commission of a crime or by unlawful and/or lawful means.
prior to the 1st September 1993, on the 1st September 1993 and subsequently there to.
AND THE PLAINTIFF CLAIMS as against all of the Defendants:-
Interest on all monetary relief awarded and costs."
I note in passing that this action would appear to be one day out of time under the Statute of Limitations in relation to acts of conspiracy which occurred prior to or on 1 September 1993. Six years from 1 September 1993 expires on 31 August 1999.
Order 7 r 4 of the Rules of the Supreme Court provides, in summary, if at any time after six months after a writ is issued it appears to the court that no affidavit of service has been filed and no appearance has been entered to the writ, the court may issue a summons to the plaintiff to show cause why the writ should not be struck out. On the hearing of that summons, if the court is not satisfied that the writ has not been served for good reason, the court may strike out the writ, or make directions as to the service of the writ or as to the time for serving the writ. The rule provides that on being struck out the writ ceases to be valid.
Pursuant to that rule, Case Management Registrar Johnston summoned the plaintiff, who was unrepresented, to appear before him on 16 March 2000. Mr Chesson did not appear as he was called as an expert witness in the Family Court on another matter. He was represented at that hearing by a solicitor, Mr Galic, who sought leave to make a one‑off appearance. The Registrar ordered that by 16 April 2000 the plaintiff was to file an affidavit of service of the writ. He otherwise adjourned the summons under O 7 r 4 sine die. No steps were taken to serve the writ during that period.
The Registrar held another hearing on 9 May 2000 at which there was no appearance by or for the plaintiff. He then made a springing order which was typed:
"1.Unless by 9 June 2000 the plaintiff serves the writ on all defendants and files an affidavit or affidavits of service the writ be struck out.
2.The summons pursuant to O 7 r 4 be adjourned sine die.
3.There be no order as to costs."
I assume that a typed copy of that order was mailed to the plaintiff. That is the court's usual practice. Also Mr Chesson referred to it in his fax to the Associate to Registrar Johnston of 23 May 2000 which stated:
"I apologise for my non‑appearance before the Registrar on 9 May 2000.
Mr Galic appeared for me gratuitously in my absence on 16 March 2000. As a result a new file was opened. Mr Galic does not recall the Registrar stating on 16 March that the matter was to be re‑listed for 9 May 2000. I certainly do not recall Mr Galic advising me so.
The notice advising of the re‑listing of the matter was mistakenly filed on the wrong file by someone in my office.
It was not until the 12 May 2000 when I received your letter of 9 May 2000 that I became aware that the matter had been re‑listed for 9 May 2000.
Once again, I apologise for any inconvenience I may have caused.
I wrote to the Registrar on 18 March 2000. A copy of that letter is attached. I have sought clarification from senior counsel as to whether a writ can be stuck [sic] out for not having been served within six months when a writ is live for 12 months. Unfortunately, no clarification was forthcoming other than to say that it appears to be an anomaly in the rules.
It is currently my intention to proceed with service of the writ, however I am still having difficulty obtaining the information I require to complete my statement of claim.
I seek to have the matter re‑listed prior to 9 June 2000 so that I can explain the situation to the registrar." (Emphasis mine.)
The fax was sent on Mr Galic's fax machine.
As requested in that letter, Registrar Johnston relisted the matter for further directions on 6 June. On that date Mr Chesson appeared and asked for an extension of time. The extension was refused, which meant that he had a further three days to serve the writs.
Mr Chesson instructed Mr Galic to serve the writs on 7 June. Mr Galic, in turn, instructed a process server to serve the defendants. The first second and third defendants were served within time and Bennett & Co filed an appearance on behalf of those three defendants on 9 June 2000. The plaintiff had difficulties, however, serving the other defendants. On 9 June 2000 he faxed Registrar Johnston advising that the process server advised him that the fourth and fifth defendants had moved residences and he was seeking new addresses for them. He hoped to obtain the addresses shortly. He said he was advised by the process server that the sixth and seventh defendants were on holidays and he said they would be served on their return. He received no reply to that letter and I comment that it is not the Registrar's task to respond to a letter such as that.
The fifth defendant, Mrs Arndt, was served on 24 August. Following urgent instructions from Mr Chesson on 22 August to the process server to locate her address and serve her, her address at 35 Chamberlain Court, Bateman was located. That was the address of her husband Daniel Christopher Arndt, as shown in the phone book. The process server visited the residence on 23 August. No‑one was home. He revisited and served Mrs Arndt on 24 August. The sixth defendant, Ms Julie Green, was served on 29 August and they both filed appearances on 29 August. The sixth and seventh defendants were served on 26 June 2000.
The plaintiff seeks an extension of time so that the service of all these defendants can become valid. I consider I have jurisdiction to entertain this application on the authority of FAI General Insurance Co Ltd & Ors v Southern Cross Exploration NL & Ors (1988) 165 CLR 268.
Order 3 r 5 of the Rules of the Supreme Court provides that a court may, on such terms as it thinks just, extend the time within which a person is required to do any act in the proceedings. It also provides that the court may extend the time, although the application for extension is made after the expiration of that period. I thus have a discretion as to whether I will extend time or not. How should that discretion be exercised? Some guidance is found in the decision of In Re Jokai Tea Holdings Ltd [1989] 1 WLR 1196 at 1203, where the Vice Chancellor said:
"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."
What was the plaintiff's reason for the non‑compliance with the springing order of Registrar Johnston made on 9 May? That order required the plaintiff to serve all the defendants and file an affidavit, or affidavits, of service by 9 June, otherwise the writ was to be struck out. Firstly, it should be noted that the first three defendants were served within time. No affidavit of service was filed in relation to them, but that is of no matter as appearances were filed on their behalf on 9 June indicating that they had been served within the prescribed time. There was no default, let alone a contumelious default, in relation to service on those three defendants. I consider it most unjust to deny that that service was good because the other four defendants were not served within time.
The fourth and fifth defendants were served on 24 August and 29 August, respectively. Why were they not served within time? The explanation given is twofold. The first part of it is that the copy writs for service on the fourth and fifth defendants did not have any addresses for them: see par 6 of Mr Chesson's affidavit of 11 October and Mr Galic's affidavit of 11 October. (I note that the writ filed with the court had addresses for service for the fourth and fifth defendants, but both addresses proved to be out of date.) The copy writs were handed by Mr Chesson to Mr Galic on or shortly after 6 June. Mr Galic handed the writs to AAC Process Servers and Investigations, for service. Mr Chesson understood that they would locate these defendants and serve them. It was only on 22 August 2000, when Mr Chesson spoke to Mr Galic on another matter, that he learnt that the process servers had not served the writs because they had no addresses on them. Indeed, the process servers had refused to accept these two writs from Mr Galic because they did not have addresses on them. Mr Galic said he simply overlooked returning the writs to Mr Chesson. It was only on 22 August when Mr Chesson asked Mr Galic about how service was going, that he remembered the problem and handed these writs back to Mr Chesson. Mr Galic said that Mr Chesson had not told him that the springing order was due to spring on 9 June.
These events do not show a deliberate attempt to flout the order of the court but the mistakes made were several, and caused a long delay and were entirely the fault of the plaintiff and his solicitor. The mistakes cannot be blamed on extraneous circumstances. The plaintiff's conduct in not serving these two defendants by 9 June, in accordance with the springing order, does not provide a reasonable excuse for the non‑service.
The second part of the explanation for the non‑service on the fourth and fifth defendants by the deadline is that they had moved residence and the plaintiff took some time to find their new addresses. That is a fairly weak excuse. As previously stated, the writ of summons was issued in this action on 1 September 1999. It showed the addresses of the fourth and fifth defendants as at 22 Nolan Way, Bateman. That is the same address as given for the second and third defendants. I should add that the second and third defendants, Mr and Mrs Green, senior, are the parents of the fourth defendant, Sharyn Arndt (nee Green), and are the parents‑in‑law of Julie Green, the fifth defendant, who is married to their son, Graeme Green. Had the plaintiff chosen to serve this writ at any time after 1 December 1999 he would have discovered that the addresses shown on it were incorrect. Further, it appears that the plaintiff took no steps to obey the order of Registrar Johnston of 16 March 2000 requiring the writ to be served by 16 April. If the plaintiff had obeyed that order he would have discovered, much sooner than he did, that the fourth and fifth defendants had changed their addresses. Further, when the springing order was given on 9 May 2000, which was mailed to the plaintiff, the plaintiff took no immediate action to serve the writ. Instead, as noted in his letter to the Registrar of 23 May 2000, he sought clarification from senior counsel as to whether a writ can be struck out for not having been served within six months when a writ is otherwise live for 12 months. He notes in the letter: "Unfortunately no clarification was forthcoming other than to say that it appears to be an anomaly in the rules". Again, I ask why did he not serve the writ in the period between 9 May and 9 June? Some hint of the answer is given in the same letter:
"It is currently my intention to proceed with service of the writ, however I am still having difficulty obtaining the information I require to complete my statement of claim."
Mr Chesson appeared before the Registrar as stated above on 6 June and asked for an extension of time within which to serve the writ and was refused. A transcript of that hearing before the Registrar is available. It consists of four pages. I quote from parts of that hearing:
"THE REGISTRAR: Thank you, Mr Chesson. I have relisted this order 7 rule 4 conference because you requested me to do so by letter dated 23 May.
CHESSON, MR: Yes.
THE REGISTRAR: The same question remains. Why should this matter not be dismissed for failure to serve it on the defendants?
CHESSON, MR: Registrar, the Red Book or the court orders seem to conflict somewhat in that a writ is live for a year and this requirement is to serve it within 6 months.
THE REGISTRAR: Yes, and if it is not served within 6 months, to explain why not or why it should not be struck out for not having been served.
CHESSON, MR: Yes. Registrar, this is a rather complicated case or complicated situation.
THE REGISTRAR: The case might be complicated.
CHESSON, MR: Yes.
THE REGISTRAR: The writ has been issued. The writ can be served without anything more.
CHESSON, MR: Yes.
THE REGISTRAR: On two occasions now, in March when Galic appeared for you, I directed that the writ be served and affidavits for service filed.
CHESSON, MR: Yes.
THE REGISTRAR: In May I directed that unless it be done by a certain date because it was in default of the previous order, that it be struck out.
CHESSON, MR: Yes, and the last time I think you gave it till the 9th of this month.
THE REGISTRAR: 9 June, yes.
CHESSON, MR: Yes, registrar.
THE REGISTRAR: And it has still not been served.
CHESSON, MR: It hasn't yet, but that's still 3 days away, registrar, but I would seek an extension and I don't think that it would do any harm and it may do some good to extend the time a little. If you would like me to explain some of the background, I'm willing to do so.
THE REGISTRAR: I don't know that it is necessary. The fact is a writ was issued in September last. A writ is a document of public record.
CHESSON, MR: Yes.
THE REGISTRAR: There are named defendants on the writ and the defendants are entitled to be served so that they have the opportunity to take what action they see fit in relation to the writ. They haven't been served. How much extra time do you seek to serve them.
CHESSON, MR: It would appear that I would have to do so by August, registrar, in order to comply in any event, which is only another 8 weeks away. It seems to me if I can given you some of the background. It may assist. Graeme Green conspired to murder me and is currently serving a prison sentence for that offence. While he is in prison, he is still continuing actions along with his father and the other parties to continue to damage my reputation and to continue attempts to damage my business which are having some degree of success.
There is a raft of litigation which is headed by Graeme William Green against me in this court making a range of allegations of fraud and dishonesty which at this stage insufficient particulars have been provided and there is an order made by this court by the long causes judge that they provide particulars by Friday 2 weeks ago which they have not complied with. So it's getting to a situation there of whether they can provide these particulars or not.
The pleadings which would appear in this particular writ are very much along the lines of a defence that I already put in to this court in the cases which I have mentioned that Greens are pursuing against me and Master Sanderson ordered that those defences be struck out because he didn't understand them and because he considered that they should be contained in a separate writ. So as a result of that, I went about issuing the separate writ.
I could go on about how difficult this particular case is, but that doesn't remove the fact that it has some merit. I have had a great deal of difficulty getting information from the freedom of information people. There is still an outstanding reply due to me from the freedom of information commissioner. There has been difficulty with Radalj who is a party who conspired with Green and who had an order not to talk to me until 18 April and at this point in time I haven't been able to get any further with that.
It may be that given the situation that the other case is in, the parties might be able to reconcile their differences at least from a legal point of view and that the whole thing will go away, I would hope that that may be the case, but in any event I don't want to jeopardise my right to sue these parties on the information I have which is very clear that they have conspired to injure me and to do me damage. So I would seek your indulgence in this circumstance.
THE REGISTRAR: I still haven't heard one word as to why they have not been served with the writ in this action.
CHESSON, MR: I have said because I wanted to reserve my position and hold that till there was a need of whether I absolutely have to or not, depending on whether the other matters may resolve themselves. If you don't consider that that's reasonable, then I will serve them.
THE REGISTRAR: No, I don't think that is reasonable. I don't know why the writ is not served. The rule is specific to bring about service of the writ and if I'm not satisfied as to a reason why the writ has not been served - if at the end the court is not satisfied the writ had not been served for good reason, the court may strike out the writ or make directions as to the service of or the time for serving of the writ. On two occasions now I have attempted to force the service of the writ and it still hasn't happened.
CHESSON, MR: I think I have 3 days left of your last order, registrar.
THE REGISTRAR: Yes.
CHESSON, MR: That's why I sought to see you before that time expired.
THE REGISTRAR: Yes, and I brought it on as quickly as possible so that it was done before then.
CHESSON, MR: Yes.
THE REGISTRAR: Is it going to be possible to serve these people within the next 3 days?
CHESSON, MR: I would consider so, registrar. I will organise a process server to do so. Definitely some of the parties, if not all, will be able to be served. Past history would indicate that the parties will duck and dodge and try and avoid service, but I will do everything in my power to make sure that they are served by the 9th.
THE REGISTRAR: Yes, I will leave the previous orders standing. Today I will simply adjourn the order 7 r 4 summons sine die and order no order as to costs and leave the previous order standing as it was.
CHESSON, MR: Thank you, registrar.
THE REGISTRAR: Thank you, Mr Chesson.
CHESSON, MR: Thank you."

In that long passage the plaintiff gives a number of reasons for non‑service. One is that he was having trouble drafting his statement of claim. I consider that is really irrelevant. This writ did not have a statement of claim endorsed upon it. Secondly, he explains something about this action. He has another action against these defendants, or some of them, and he hoped that that might be settled, and, I infer from that, there was no urgent need to prosecute this case while there was a hope of settlement of that case. So this case was a kind of protective action in case the first case was not successful, and it is reasonable to infer that this case was brought on the last day (or I think one day after the last day) of the limitation period in relation to some of the acts of conspiracy, so that it would not be brought out of time.
In relation to the fourth and fifth defendants, I do not consider the plaintiff's explanation is reasonable. As stated above, had he chosen to serve them sooner he would have found out sooner than he did that they had moved addresses. Under the Rules of the Supreme Court he is entitled to delay service of the writ for at least six months. But thereafter O 7 r 4 may apply. In effect, hurry up orders can be made. This plaintiff chose to ignore the Registrar's first order of 16 March to serve the writ by 16 April. A period then elapsed between 16 April and 9 May when the Registrar made his springing order. That is a further three weeks in which the plaintiff could have attempted to serve the fourth and fifth defendants and discovered their changed address. Even when he received the springing order on or shortly after 9 May he took no immediate steps to serve these defendants. He sought some advice from a senior counsel and he arranged a further hearing before the Registrar, hoping to gain more time. In that, he was unsuccessful. After the hearing on 6 June Mr Chesson took steps to serve the fourth and fifth defendants. As previously noted, he instructed Mr Galic, a solicitor, who shares the same floor as his office and shares a common reception desk, to arrange service through a process server. He failed to advise Mr Galic that the order was a springing order. He says in his affidavit of 28 September 2000 in relation to the Registrar's order of 9 June:
"11.As I have said, I am a layman and did not understand the procedure well enough to appreciate what was occurring.
12.I thought that I understood the Rules when I read them and came to the conclusion that I had 12 months in which to serve the writ. I did not understand that the court had power to speed the process up with such final consequences as my action being dismissed."
He further said in connection with the hearing on 9 June:
"16.My understanding of what happened at that hearing was that Registrar Johnston said that we would adjourn it sine die and will see how you go. A copy of the transcript is annexed hereto and marked with the letters 'SJC5'."
I am not willing to accept that explanation as credible. The transcript is clear enough. I realise that Mr Chesson was not handed a copy of the transcript. It was not then available and I believe it needs to be purchased. The dialogue recorded in the transcript is clear enough that the springing order stood.
In the exercise of my discretion, I consider that service on the first three defendants was good. It was done within the time imposed by the springing order and I consider it would be unjust to strike that down because of failure to serve the other defendants within time.
I consider that the plaintiff has offered a reasonable explanation for the late service of the writ on the sixth and seventh defendant - they were away on holidays. An attempt was made to serve them between 6 and 9 June, at the eleventh hour admittedly, but still within time, but due to extraneous circumstances - these two defendants were away for a few weeks - they were served out of time. I consider their non‑service was due to extraneous circumstances and ought to be excused.
A number of matters were put before me on behalf of the sixth and seventh defendants as to why it would be unjust to extend the springing order. One matter put before me was that these defendants said that they would not try and "duck and dodge and avoid service" as claimed by Mr Chesson. They have been in litigation with Mr Chesson on other matters for the past four years and have solicitors Williams & Hughes acting for them. If those solicitors had been approached they would have obtained instructions to accept service on behalf of Mr and Mrs Bonini. Also, it was said that Mr and Mrs Bonini have lived in the same house at 175 Lansdale Road, Lansdale for the past five years and that address is well known to Mr Chesson. They were once close friends and they periodically received mail from him or from one of his companies at that address. I do not consider those two matters are particularly relevant. The relevant matter, which is not denied, is that these two defendants were away on holidays for a few weeks between 6 June, when Mr Chesson got moving on service, and 26 June when they were served.
It was also said that a number of the causes of action in the writ and amended/substituted statement of claim of 11 August 2000 are statute barred so that late service of a defective writ should not be allowed. There may be some causes of action which are statute barred. I have commented on this above, but the appropriate time to consider that is in connection with any strike out application. Mr and Mrs Bonini say that they are self‑funded retirees and all of the money they had set aside to live on in their retirement is tied up in trusts operated by companies controlled by Mr Chesson and nearly all of those funds are either now tied up in the trust the subject of Supreme Court Action CIV 1603 of 1995, or have been consumed in legal fees. They say they only have a small source of income which is enough to live on but not enough to pay their lawyers. Williams & Hughes are acting for them in CIV 1603 of 1995 without any upfront payment of fees. If they are required to pay legal fees upfront they would be required to sell their home and find somewhere else to live. I do not consider that the Boninis' poverty and the causes of it are relevant matters to consider on this application. The plaintiff failed to serve these defendants within time. He seeks an extension of time from the court.
I consider that the plaintiff has not offered a reasonable explanation on why he did not serve the fourth and fifth defendants within time. He did too little too late.
The plaintiff says that if not granted an extension he will be out of time in order to sue these two defendants. So be it. He chose in the writ, which is a public document available for search, to accuse them of conspiring to murdering him, of aiding and abetting, participating in and being knowingly concerned in the conspiracy to murder him and conspiring to injure him by the commission of a crime etc. In his amended/substituted statement of claim of 11 August 2000 it is alleged that Sharyn Arndt made physical threats against him - without particularising the nature of the threats or the dates. He alleged that she supported the physical threats made by Graeme Green and/or Bill Green against him, again without specifying the nature of the threat, the date of the threat and the nature of her support. He has alleged that she conspired with Bill Green and others to harass him with her false claims of dishonesty, fraud and breach of trust - again without particulars. He has alleged that she, together with Bill Green and/or others, or, alternatively, acting alone, in pursuit of the conspiracy, provided a photograph to Graeme Green or Stephen Radalj to be provided to the person she thought was a contract killer for the purposes of identifying Chesson for the purpose of carrying out the contract. I comment that this is a vague pleading. If Mr Chesson has information that she supplied the photograph, why not allege it? Perhaps the answer is, he does not know at this stage who provided the photograph. I remind myself that these events happened prior to September 1993 when Graeme Green and Mr Radalj were arrested and charged for conspiracy for murder. Perhaps another part of the answer is that following the specific allegations made against Ms Sharyn Arndt he says further particulars will be provided following discovery and interrogatories. That is a permissible plea but, where it follows a series of very vague allegations, it is an indication that the plaintiff at present has no hard facts to allege against this defendant.
Likewise, with the fifth defendant, Julie Green, he alleges that she, together with Bill Green and/or Graeme Green and/or others, alternatively acting alone, in pursuit of the conspiracy supported the physical threats made by Graeme and Bill Green against the plaintiff. He does not particularise the physical threats. He does not particularise the date, nor what her role was. She also, together with Bill Green and/or Graeme Green and/or others, alternatively acting alone, in pursuit of the conspiracy instructed solicitors to harass Mr Chesson with false claims of dishonesty, fraud and breach of trust. He also alleges that she, together with Bill Green and/or Graeme Green and/or others, alternatively acting alone, in pursuit of the conspiracy provided funds or agreed to the use of funds to pay the contract killer. Again, I comment that in all these allegations the plaintiff appears to have no hard facts against Ms Julie Green. If he did he would have asserted them rather than pleading the numerous alternatives. Again, his hope is in the plea that further particulars will be provided following discovery and interrogatories. He is hoping to find hard evidence against this defendant by those means.
I would be willing to extend the time within which the plaintiff must comply with the order of Registrar Johnston made on 9 May 2000 to 26 June 2000. That would mean that all but the sixth and seventh defendants have been served within the new time limit. Its effect on Registrar Johnston's first order of 9 May 2000 is as follows:
"Unless by [26 June 2000] the plaintiff serves the writ on all defendants and files an affidavit or affidavits of service the writ be struck out."
It follows however that, even with that extension, the order has not been complied with because not all seven defendants were served by 26 June 2000. I consider that I have no power to amend Registrar Johnston's order to read:
"Unless by [26 June 2000] the plaintiff serves the writ on each defendant and files an affidavit or affidavits of service the writ will be struck out against each defendant not served by that date."
I have no power because this application is not an appeal; neither do I consider I have any inherent power to do so.
Although I would be willing to extend the time for service of the writ on all defendants to 26 June 2000, that order would not save the plaintiff. Because there has been a failure to comply totally with the order of Registrar Johnston, the action stands dismissed. Costs orders should follow the event. I note that all defendants have filed appearances. Subject to contrary argument from counsel, the plaintiff should pay the defendants' costs of the application, including any reserved costs, and costs of the action to be taxed if not agreed.
I will hear the parties on costs.