JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DUROLEK -v- PIER (WA) PTY LTD [No 2] [2019] WASCA 138
CORAM: QUINLAN CJ
MITCHELL JA
VAUGHAN JA
HEARD: 15 AUGUST 2019
DELIVERED : 5 SEPTEMBER 2019
FILE NO/S: CACV 78 of 2018
BETWEEN: BELINDA DUROLEK
Appellant
AND
PIER (WA) PTY LTD as trustee for ISANDI TRUST
First Respondent
JEAN MAURICE PTY LTD (IN LIQUIDATION) (ACN 155 115 656)
Second Respondent
FRANCK DUROLEK
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: KENNETH MARTIN J
Citation: PIER (WA) PTY LTD AS TRUSTEE FOR ISANDI TRUST -v- JEAN MAURICE PTY LTD (IN LIQ)
[No 6] [2018] WASC 204
File Number : CIV 2935 of 2016
Catchwords:
Practice and procedure - Case management - Judgment and orders - Springing or self‑executing orders - Springing order made in relation to freezing or ancillary orders - Whether principles in Firmware Technologies Inc v Asia Platinum Group Ltd applicable - Where no relevant non‑compliance by defendant and defendant unable to effect compliance
Appeal - Right to appeal - Challenge against interlocutory order in appeal against final judgment - Whether springing order affected the final result
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | Mr L A Warnick |
| First Respondent | : | Mr K A Dundo |
| Second Respondent | : | No appearance |
| Fourth Respondent | : | No appearance |
Solicitors:
| Appellant | : | Havilah Legal |
| First Respondent | : | KD Legal (Perth) |
| Second Respondent | : | No appearance |
| Fourth Respondent | : | No appearance |
Case(s) referred to in decision(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Bourke v State Bank of New South Wales [1995] FCA 139
Burns v Lipman [1975] HCA 2; (1975) 132 CLR 157
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767
Dallas Development Corporation Pty Ltd v Western Australian Land Authority [2000] WASCA 49
David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346
Durolek v Pier (WA) Pty Ltd [2018] WASCA 187
Electricity Commission of New South Wales v Lapthorne [1971] HCA 11; (1971) 124 CLR 177
Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630
Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179
Freeman v Rabinov [1981] VR 539
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478
Hahn v Conley [1971] HCA 56; (1971) 126 CLR 276
Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666
Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2012] NSWCA 61
Major Engineering Pty Ltd v Timelink Pacific Pty Ltd [2007] VSCA 228
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
National Australia Bank Ltd v Maher (No 2)
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- Case
- [2019] WASCA 138
- Decision Date
CaseChat Overview and Summary
The court's reasoning was thorough, examining the principles behind the issuance of springing orders and the balance between procedural fairness and the need to enforce court orders. It found that while the case manager had the authority to issue such orders, the decision to do so must be based on clear and just grounds. The court emphasised that springing orders should only be used as a last resort and when no other sanctions are sufficient to ensure a fair determination of the case. It highlighted the importance of ensuring that the criteria for compliance are clear and that the execution of the order does not unfairly prejudice the defendant's ability to argue unrelated matters. The court concluded that in this case, the springing order was not justified because there was no significant non-compliance by the defendant, and the order had the potential to affect the final result of the appeal.
Ultimately, the court allowed the appeal and set aside the springing order, finding that it had not been made on just and appropriate grounds. This decision underscores the need for careful consideration before issuing springing orders and the importance of adhering to the principles of procedural fairness and justice in the administration of court processes.
Orders
Orders of the court
Appeal allowed
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In this court the parties assumed that the primary judge made the springing order as an 'enforcement order'[101] under the power granted to a case manager by O 4A r 5(2)(c).[102] Such an order may be made at any time on the case manager's own initiative after notification.[103] Under O 4A r 5(2)(c) a springing or self-executing order may be made by way of enforcement order as the case manager 'considers just'. There is also a power to make a springing order in the court's inherent jurisdiction.[104] The same broad criterion of whether the order is 'just' informs the exercise of the inherent jurisdiction.[101] Rules of the Supreme Court 1971 (WA) O 4A r 3(c).[102] See WAB 287 (par 21), WAB 310 (par 17).[103] Rules of the Supreme Court, O 4A r 5(1)(a).[104] Dallas Development Corporation Pty Ltd v Western Australian Land Authority [2000] WASCA 49 [9]. Traditionally springing orders have been made in cases of contumacy (ie an intentional perverse and obstinate resistance of authority),[105] persistent dilatory behaviour and where it can be inferred that a litigant will not or is unlikely to take steps as required.[106] Those instances do not exhaust the circumstances in which it may be just to take the drastic step of making a springing order.[107] For example, the court may act to support the integrity of its processes where otherwise the administration of justice would be brought into disrepute.[105] Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666, 1673.[106] Freeman v Rabinov [1981] VR 539, 544.[107] See eg Dallas DevelopmentCorporation Pty Ltd v Western Australian Land Authority [22]. In Firmware the Court of Appeal mentioned five reasons why a springing order should not have been made in that case.[108] Those matters are not exhaustive criteria[109] which establish when a springing order should be made. The touchstone remains whether the order is just. Nevertheless, the reasons given in Firmware provide useful guidance as to some of the relevant considerations for a case manager in determining whether or not to make a springing order.[108] Firmware [44] - [48].[109] Cf Pier No 2 [21]; BAB 198. Adapting the five matters enunciated in Firmware:(1)Where the basis for the springing order is non-compliance with an order of the court consideration should be given to whether the delay has been inordinate. A springing order should ordinarily only be made where a party has, by its conduct, shown a contumelious disregard to compliance with orders of the court.(2)A springing order should only be made where there is no other available sanction which is appropriate and sufficient to enable the court to determine the matter consistently with the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) - in particular the fair and just determination of the litigation. The fair and just determination of the litigation encompasses the concern of procedural fairness expressed in Firmware. The concept acknowledges that a point will be reached where a litigant will have been accorded a sufficient opportunity and that no litigant has an absolute right to avail itself of procedural steps when it has failed to take advantage of its opportunity.[110](3)A springing order sought by way of an enforcement order to secure compliance with a pre-trial case management direction should not be made if its execution would prevent the party from advancing an argument unrelated to the procedural step the subject of the intended springing order.(4)A springing order should only be made if the criterion for compliance is clear and unequivocal.(5)Springing orders should ordinarily only be made as a last resort when necessary to enable the court to fairly and justly determine the substantive matter in dispute. In that regard, before making a springing order, a case manager should take into account the fact that the self-executing nature of a springing order is such that, once made and absent an extension of time for compliance, the only question is whether the order has been complied with. There is no further assessment of the merits of the case or whether it is in the interests of justice for judgment to be entered.[110] Cf Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [94], [102], [112].