Firmware Technologies Inc v Asia Platinum Group Ltd - [2016] WASCA 179

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FIRMWARE TECHNOLOGIES INC -v- ASIA PLATINUM GROUP LTD [2016] WASCA 179

CORAM: MARTIN CJ
BUSS P
MITCHELL JA

HEARD: 18 MAY 2016

DELIVERED : 18 OCTOBER 2016

FILE NO/S: CACV 133 of 2015

BETWEEN: FIRMWARE TECHNOLOGIES INC
Appellant
AND
ASIA PLATINUM GROUP LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :ASIA PLATINUM GROUP LTD -v- FIRMWARE TECHNOLOGIES INC [2015] WASC 310
File No  :CIV 2506 of 2012

Catchwords:

Practice and procedure - Case management - Judgment and orders - Springing or self-executing orders - Springing order made in relation to filing of witness statements - Proper construction of springing order - Whether springing order complied with - Whether orders made upon non-compliance with springing order correct - Proper practice relating to springing orders

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 8
Legal Profession Conduct Rules 2010 (WA), r 39
Rules of the Supreme Court 1971 (WA), O 42 r 5
Supreme Court Act 1935 (WA), s 32

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr J D MacLaurin
Respondent: Mr M C Goldblatt

Solicitors:

Appellant: Metaxas & Hager
Respondent: Milton Graham Lawyers

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

Asia Platinum Group Ltd v Firmware Technologies Inc [2015] WASC 310
Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203
Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185

REASONS OF THE COURT:

Summary

This is an appeal against orders permitting the entry of judgment in favour of the plaintiff, Asia Platinum Group Ltd (Asia Platinum), as a result of the asserted failure of the defendant, Firmware Technologies Inc (Firmware), to comply with a springing order relating to the filing and service of a witness statement. For the following reasons, Firmware did not fail to comply with the springing order and the appeal should be allowed.
In these reasons, references to a 'springing order' are to an order that judgment will be entered unless a party takes a nominated procedural step within a specified time.
This case illustrates the general undesirability of using springing orders to secure compliance with procedural directions made in the course of case management prior to trial. The case was listed to be tried in August 2015. However, the trial was vacated when Asia Platinum successfully moved for judgment on the basis of non-compliance with a springing order. Since then, more than a year has been lost and significant resources of the parties and the court deployed in a procedural side-track concerned only with the question of whether there had in fact been compliance with the court's orders, and which has no connection with the substantive merits of Asia Platinum's claim.
Springing orders prior to trial have two significant disadvantages. First, in the event of non-compliance, they result in the entry of judgment without any assessment of the merits of the case before the court. Second, because they are, in effect, a form of conditional entry of judgment, once such an order has been made and the relevant time has expired,[1] the only issue is whether the order has been complied with, rather than whether, in all the circumstances, it is in the interests of justice for judgment to be entered. A system of case management which addresses the latter question and not merely the former is to be preferred.
[1] In the absence of an application for an extension of time.
The power to make a springing order must be exercised with considerable caution and circumspection. At least generally speaking, a springing order will only be justified if, as a last resort, it is necessary to enable the court to fairly determine the substantive matter in dispute. When justified, it is important that springing orders be expressed in clear and unambiguous terms which do not require a qualitative assessment of the character, efficacy or completeness of the mandated procedural step to determine whether the party has complied with the order.

The circumstances of this case

In May 2012 Asia Platinum commenced proceedings against Firmware in the Supreme Court of New South Wales. In October 2012 those proceedings were transferred to the Supreme Court of Western Australia by consent.
In the proceedings Asia Platinum alleges that it entered into various agreements with Firmware relating to the supply by Asia Platinum of services with respect to the sale of shares in Firmware. It is asserted that those agreements were made by Mr Peter McAleer, on behalf of Asia Platinum, and Mr Jacques Blandin, on behalf of Firmware. Asia Platinum asserts that funds it advanced to Firmware pursuant to those agreements have not been repaid, in addition to fees due to Asia Platinum for services rendered pursuant to the agreements which it had been agreed would be converted into loans accruing interest.
During 2013 - 2014 various procedural directions were made for the purpose of moving the case forward to trial. On occasions the procedural steps ordered were not taken within the time specified. Both parties were at fault.
On 12 February 2015 the Master ordered Asia Platinum to file and serve statements of the evidence to be given by the witnesses it proposed to call at trial by 25 March 2015, and also ordered that Firmware file and serve statements of the evidence to be given by witnesses it proposed to call at trial by 15 April 2015. Orders were also made with respect to the characteristics of the witness statements to be filed and served, including an order that they be prepared in accordance with the Best Practice Guide published by the Western Australian Bar Association (WABA).
Asia Platinum filed and served statements from the witnesses it proposed to call at trial within the time specified in the Master's order. However, Firmware did not file any statements from the witnesses it proposed to call at trial within the time specified.
In March 2015 Asia Platinum filed and served an amended statement of claim. In the prayer for relief concluding that statement of claim, Asia Platinum claimed (among other things) $1,023,000, 'loan charges' at the rate of 10% each month, compounding from the date of commencement of proceedings until the date of judgment, and interest pursuant to s 32 of the Supreme Court Act 1935 (WA). Asia Platinum advanced other claims in the alternative, which it is unnecessary to detail.
On 16 April 2015, by consent, orders were made vacating the trial which had been listed to commence on 11 May 2015, and instead relisting the matter for trial commencing on 10 August 2015.
On 6 May 2015, the Master made various orders for the purpose of preparing the case for trial. Those orders included orders relating to the provision of further discovery by Firmware, the service of an amended defence to the amended statement of claim, the exchange of a list of the documents to be tendered at trial and the preparation of a trial bundle, the exchange of witness statements, and the procedure for the exchange of objections to the admissibility of evidence contained within those statements. More specifically, the Master made the following orders which are pertinent to this appeal:
12.The defendant [Firmware] file and serve its witness statements by 15 May 2015.
13.The plaintiff [Asia Platinum] file and serve any witness statement that is purely responsive to any witness statement served by the defendant by 9 June 2015.
14.Each witness statement shall satisfy the following formal requirements:
(a)It should be set out in numbered paragraphs.
(b)As far as possible, it should be expressed in the witnesses' [sic] own words.
(c)It should contain evidence only in admissible form. For example, inadmissible hearsay should be avoided.
(d)Where the witness statement contains conversations it should, if the witness' recollection permits, be expressed in direct speech. If this is not possible, this fact should be stated and the witness' best recollection or the substance of the conversation may be set out.
(e)Any documents referred to in the statement should be identified by reference to the discovery number of the document. Documents referred to in the statement should not be annexed to, or copied and supplied with the statement. Once the trial bundle has been prepared, a further copy of each witness statement is to be produced by the party serving that statement, marked up [so] as to show the volume of the trial bundle, and the page number within the volume, of each document referred to in the witness statement.
(f)It should contain at the end of the statement the following verification:
'I have read the contents of this my witness statement and the documents referred to in it and I am satisfied that it is correct and that this is the evidence‑in‑chief which I wish to give at the trial of the proceeding'.
(g)It shall be prepared in accordance with [the] best practice guide 01/2009 issued by the Western Australian Bar Association Supreme Court of Western Australia [sic] entitled 'Preparing Witness Statements for Use in Civil Cases' and shall contain a certificate to that effect signed by the practitioner most responsible for its preparation.
…
19.Except with leave of the court, no party may adduce evidence from any witness whose statement has not been served in accordance with this order.
Firmware did not file and serve any witness statements by 15 May 2015. A hearing for directions listed before the Master on 21 May 2015 was adjourned to 4 June 2015 on account of the death of Mr Blandin's father on 14 May 2015. When the matter came back before the Master on 4 June 2015, the Master received an affidavit from Firmware's solicitor who deposed that Mr Blandin had suffered a stroke in August 2013 and had been diagnosed with ongoing symptoms of fatigue, headache and cognitive dysfunction. The solicitor also deposed that Mr Blandin's father died on 14 May 2015, after a long illness, and that the funeral was held on 21 May 2015. The solicitor further deposed that Mr Blandin was, as a consequence of his father's death, principally responsible for the care of his mother, who was 85 years of age and infirm. The solicitor further deposed that he had been instructed by Mr Blandin that the outstanding matters to be addressed from Firmware's perspective could be attended to by 18 June 2015.
On 4 June 2015, the Master ordered that:
Unless by 18 June 2015 the Defendant complies with each of Orders 1, 2 and 12 of the orders of Master Sanderson dated 6 May 2015 the Defendant's defence herein be struck out and there be judgment for the Plaintiff in the sum of $1,023,000, with monthly rests, at the rate of 10% per month, from 1 May 2012 to date of payment, and costs.
Orders 1 and 2 made on 6 May 2015 were concerned with the provision by Firmware of further discovery and an amended defence responding to the amended statement of claim. As it appears to be common ground that those orders were complied with by 18 June 2015, it is unnecessary to set them out in detail.
Two aspects of the order made by the Master on 4 June 2015 should be noted. First, although a springing order was made in relation to compliance with order 12, which required Firmware to file and serve statements from witnesses it proposed to call at trial by 18 June 2015, the springing order does not specifically refer to order 14, which contained detailed specifications with respect to the particular characteristics of the statements that each party was required to file.
Second, the order that Asia Platinum be entitled to enter judgment in the sum of $1,023,000, presumably together with interest at the rate of 10% per month, calculated with monthly rests from 1 May 2012 to the date of payment, exceeded the amount claimed in the statement of claim, in which 'loan charges' pursuant to agreement was only sought up until the date of judgment.[2] Further, although the Master's order does not expressly stipulate that the interest is to be calculated on a compounding basis, the reference in the order to monthly rests, read in the context of Asia Platinum's claim for interest compounding monthly, compels the conclusion that, pursuant to the order, Asia Platinum would be entitled to enter judgment calculated on that basis.
[2] In accordance with the usual practice, in which interest pursuant to agreement is allowed up until the date of judgment, and thereafter interest accrues on the judgment sum in accordance with the Civil Judgments Enforcement Act 2004 (WA), s 8.
Interest calculated in this manner has an extraordinary effect upon the amount for which judgment could be entered by Asia Platinum. An interest rate of 10% per month calculated on a compound basis is equivalent to an annual interest rate of over 200% in the first year, and thereafter also calculated on a compound basis. So, if judgment had ever been entered pursuant to the orders made by the Master (which it has not)[3] in mid-2015, judgment would have been entered for more than $30 million at that date, together with interest accruing at 10% per month on a compound basis until payment, which would have resulted in an amount due under the judgment of more than $100 million by mid-2016, and over $300 million by mid-2017.
[3] See O 42 r 5 of the Rules of the Supreme Court 1971 (WA).
On 18 June 2015, Firmware filed and served a witness statement relating to the evidence to be given by Mr Blandin. The statement comprises 18 pages and responds, seriatim, to the assertions made in the witness statements filed and served by Asia Platinum, and by reference to the numbered paragraphs in those statements. Some of the responses are terse denials, such as 'Did not take place', or 'This did not occur', or 'I did not say this', or 'Denied'. Other responses are more substantive, including various responses in which assertions are made as to events which occurred, the terms of the agreements that were reached from time to time, and the tenor and effect of conversations in which Asia Platinum asserted agreement had been reached. The statement contains a detailed account of Mr Blandin's versions of meetings which took place during August 2011 and which are a critical component of Asia Platinum's claim against Firmware.
The witness statement appears to be signed by Mr Blandin in the presence of his solicitor. After their signatures the solicitor has also signed an endorsement in the following terms:
I, the legal practitioner most responsible for the preparation of this statement, certify that it has been prepared having regard to the Best Practice Guide 01/2009 issued by the Western Australian Bar Association entitled 'Preparing Witness Statements for Use in Civil Cases'.
It appears that the solicitor has also endorsed the statement, in manuscript, with the following:
Due to time constraints in preparing this statement there is additional narrative and attachments which the defendant may apply for leave to put into evidence in advance of the trial.
We digress to observe that there is such a divergence between the witness statement that was filed and served and the approach to the preparation of witness statements contained in the Best Practice Guide published by the WABA that it is impossible to accept that the witness statement was prepared with any reference to that Guide. Certification by legal practitioners is an important component of a number of aspects of contemporary procedure. Those procedures will only work efficiently if practitioners executing such certificates take their responsibility seriously. That does not appear to have occurred in this case. Further, in a context in which a springing order had been made, and the trial was to take place in two months, the practitioner's manuscript reference to the prospect of an application for leave to adduce additional evidence is difficult to justify and is entirely inconsistent with both the contemporary approach to case management and the approach properly taken in the preparation of cases for trial.
Also on 18 June 2015, Firmware filed and served its amended defence to Asia Platinum's amended statement of claim. In that amended defence Firmware asserted that if it were found liable Asia Platinum was not entitled to recover the 'loan charges' claimed, as those amounts were unenforceable because they constituted a penalty.
When the matter came back before the Master for directions on 25 June 2015, Asia Platinum moved for judgment on the ground that Firmware had not complied with that aspect of the springing order made on 4 June 2015 with respect to the filing and service of statements of the witnesses it proposed to call at trial. The Master adjourned that motion to a special appointment on 3 July 2015 and, after hearing argument on that date, made orders that:
1.By reason of the Defendant's failure to comply with the order of Master Sanderson dated 4 June 2015:
(a) the Defendant's defence be struck out; and
(b)there be judgment for the Plaintiff in the sum of $1,023,000, with monthly rests, at the rate of 10% per month from 1 May 2012 to date of payment and costs to be taxed.
2.The judgment ordered in favour of the plaintiff will date from the publication of reasons being 19 August 2015.
As we have noted, no judgment has ever been entered pursuant to those orders.[4]
[4] See O 42 r 5 of the Rules of the Supreme Court 1971 (WA).

The Master's reasons

On 19 August 2015, the Master published reasons for the decision which he had announced on 3 July 2015. In those reasons, the Master expressed the view that because no application had been made for an extension of time within which to comply with the springing order, the question which he was required to address was a question of fact which he expressed in the following terms:
[D]id the document the defendant filed fit the description of a 'witness statement'.[5]
[5] Asia Platinum Group Ltd v Firmware Technologies Inc [2015] WASC 310 [6] (Asia Platinum).
The Master considered that in addressing that question he should adopt the approach enunciated by French J (as his Honour then was) in Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd:[6]
Where compliance requires, as in this case, filing of the applicant's evidence, the failure to file anything at all would have the clear consequence that the application would stand dismissed. Where the evidence filed could be characterised as so incomplete in material respects as to be a derisory or colourable compliance then again there would be little difficulty in concluding that the self‑executing order had not been complied with and that the application stood dismissed.
[6] Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203 [102] (Goodwill).
The Master considered that the extent to which the witness statement which was filed and served complied with the approach enunciated in the Best Practice Guide published by the WABA was relevant to the question which he had to determine. In his reasons he set out significant portions of that Guide. He then observed:[7]
Even a cursory reading of the statement of Mr Blandin makes it clear there has been no attempt to comply with the Guide.
…
The purported witness statement really has no redeeming features. It is difficult to see how anyone who has read the Guide could file such a document. It makes no attempt at a linear narrative. That really is the fundamental requirement of a witness statement. It must be possible to trace what a witness is saying from his identification and introduction through to the conclusion of the dealings relevant to the action. The omissions in this statement are so egregious that it cannot possibly be regarded as a document which complied with the order I made. That is the finding of fact that is crucial to the determination of this application. Having found as a fact there was a failure to comply with the order the plaintiff was entitled to judgment.
[7] Asia Platinum [17], [19].

The grounds of appeal

There are three grounds of appeal:
1.The learned Master erred in fact in finding the defendant did not comply with Order 12 made by Master Sanderson on 6 May 2015.
2.The learned Master erred in fact in finding the witness statement of Jean-Jacques Pierre Georges Blandin De Chalain dated 18 June 2015 ('Witness Statement') did not comply with the Western Australia Bar Association Best Practice Guide 01/2009 - Preparing Witness Statements for Use in Civil Cases ('Guide') in circumstances where the Witness Statement did comply with the Guide.
3.The learned Master erred in law after finding the Witness Statement did not comply with the Guide by awarding the respondent $1,023,000 with monthly rests, at the rate of 10% per month, from 1 May 2012 to the date of payment.
The second and third grounds of appeal can be dealt with briefly. The second ground of appeal is entirely without substance. As we have already noted, there is no apparent correlation whatever between the witness statement filed and served by Firmware and the approach enunciated in the Best Practice Guide published by the WABA. The solicitor's certificate to the effect that the statement had been prepared having regard to that Guide should never have been signed as it is clearly incorrect. The Master was correct to conclude that the witness statement filed by Firmware did not comply with order 14 made on 6 May 2015 and ground 2 should be dismissed.
Conversely, for the reasons we have already given, ground 3 must be allowed. The orders made by the Master would, if allowed to stand, permit Asia Platinum to enter judgment for an amount vastly in excess of the amount sought in its statement of claim by conferring a continuing entitlement to interest at the rate of 10% per month on a compound basis until payment rather than judgment. As we have noted, the difference between judgment in that form and judgment in the form sought in Asia Platinum's statement of claim is, between the middle of 2015, when the Master ordered judgment against Firmware, and the middle of 2017, equivalent to an amount in excess of $200 million. It is a fair inference from that figure that the Master did not appreciate the mathematical consequences of the form of the order which he made.
However, the central issue in the appeal is that raised by ground 1 and, in particular, whether the Master was correct to conclude that Asia Platinum was entitled to enter judgment by reason of Firmware's failure to comply with order 12 made on 6 May 2015.
In our view, it is of significance to the resolution of that question that the springing order made by the Master on 4 June 2015 did not refer to order 14, but only, relevantly, to order 12 made on 6 May 2015. Nevertheless, Asia Platinum submitted, and the Master clearly accepted, that in order to comply with order 12 it was necessary that the statement which was filed and served comply with order 14. In our respectful view, that is an error.
Because of the potential consequences of non-compliance with a springing order, it is essential that such orders be construed strictly. The springing order made by the Master in this case referred only to order 12, and not to order 14. The springing order should not be construed as incorporating, implicitly, an entitlement to judgment if a witness statement filed and served in accordance with its terms did not comply with each and every requirement contained in order 14 of the orders made by the Master on 6 May 2015. For example, order 14 requires that the statement should contain evidence only in admissible form. It would not be reasonable to construe the springing order made by the Master as having the consequence that, for example, inclusion of any inadmissible material in a witness statement would enliven an entitlement to judgment.
So, the question which the Master had to determine was not whether the statement which had been filed and served complied with order 14 but, rather, whether Firmware had complied with the obligation to file and serve a statement of the evidence to be given by the witness or witnesses it proposed to call at trial. That question was to be addressed in the manner enunciated by French J in Goodwill.[8] A document purporting to be a statement of the evidence to be given by Mr Blandin was filed and served within the time specified in the springing order. Accordingly, Asia Platinum was only entitled to judgment pursuant to that order if the statement was 'so incomplete in material respects as to be a derisory or colourable compliance'.
[8] See above at [28]. Although that decision was partially overturned on appeal, the Full Court of the Federal Court did not cast any doubt on the observations of principle made by French J.
In our view, it is not possible to characterise the witness statement that was filed and served as a 'derisory or colourable compliance'. The statement was clearly defective in form and, as we have noted, bore no relationship to a statement prepared in accordance with the Best Practice Guide. However, for the purposes of the springing order, the question was not whether the witness statement was in an appropriate form, or whether it complied with the Guide, but rather whether it was, in fact, a witness statement. As we have noted, the statement responded, seriatim, to almost every assertion made in the witness statements provided by Asia Platinum. Although in many cases the response was a terse denial of the kind we have set out above, it is difficult to see what more a witness who denies that something took place could say, even if the statement had been prepared in proper form. Significantly, however, as we have also noted, in relation to the events that lay at the heart of Asia Platinum's claim, being the meetings which took place in August 2011, the witness statement sets out in considerable detail the evidence which Mr Blandin would give in relation to those events. Accordingly, although the statement provided by Firmware was defective in form and fell manifestly short of a statement which complied with the Best Practice Guide published by the WABA, it was, nevertheless, a 'witness statement' and the Master was wrong to conclude that it was not. Accordingly, ground 1 of the appeal should be upheld and the orders made by the Master on 3 July 2015 set aside.

Rule 39 of the Legal Profession Conduct Rules

Because of the view which we take with respect to the proper construction of the springing order made by the Master, it is unnecessary to deal with the specific submissions made on behalf of Asia Platinum with respect to the extent to which the witness statement provided by Firmware fell short of a statement which complied with the various requirements of order 14 made by the Master on 6 May 2015. However, there is one aspect of those submissions which merits attention, and that is the proposition that, by responding seriatim to the witness statements provided by Asia Platinum, the witness statement provided by Firmware involved a contravention of r 39 of the Legal Profession Conduct Rules 2010 (WA). That rule provides:
(1)A practitioner must not suggest to or advise a witness that the witness should give false evidence.
(2)A practitioner must not make a suggestion to, or condone a suggestion being made to, a prospective witness about the content of evidence which the witness should give at any stage in the proceedings.
(3)A practitioner who -
(a)advises a prospective witness to tell the truth; or
(b)questions and tests in conference the version of evidence to be given by a prospective witness; or
(c)draws the witness's attention to inconsistencies or other difficulties with the witness's evidence,
has not, by that action, breached subrule (1) or (2).
Counsel for Asia Platinum submitted that it was a contravention of this rule for a practitioner to show a prospective witness a statement provided in relation to the evidence to be given by another prospective witness. With respect to counsel, we are quite unable to see how such a course would involve a contravention of r 39 without more. Of course, the rule would be contravened if the purpose of providing a statement of the evidence to be given by one witness to another witness was to enable those witnesses to align their evidence. However, there can be no suggestion that, for example, the provision to Mr Blandin of the statement of the evidence to be given by Mr McAleer was undertaken for the purpose of allowing Mr Blandin to align the evidence he was to give with the evidence to be given by Mr McAleer. Clearly, the purpose of providing Mr Blandin with a copy of the statement provided by Mr McAleer was to enable him to respond to the various assertions contained within it. It is also to be remembered that Mr Blandin is, in effect, the guiding mind of Firmware and the person responsible for the provision of instructions to Firmware's solicitors. It is difficult to see how he could appropriately discharge that responsibility without an awareness of the evidence proposed to be led in support of Asia Platinum's claim.
Accordingly, with respect to counsel's submission to the contrary, there was no contravention of r 39 of the Legal Profession Conduct Rules nor anything inappropriate or improper in providing to Mr Blandin the statements which had been provided by Asia Platinum.

The practice relating to springing orders

The conclusions we have already expressed are sufficient to resolve this appeal. However, the circumstances of this case suggest that it may be timely to provide guidance to case managers and the legal profession with respect to the practice properly adopted in relation to springing orders made in the course of case management prior to trial. It is appropriate to commence those observations with an endorsement of the views expressed by Owen and Heenan JJ in Skahill v Kestral Holdings Pty Ltd (in liq):[9]
Devising and applying appropriate sanctions for non-compliance is one of the major problems which case managers face. An innocent party is entitled to expect that the Court will act to support the integrity of its processes where another party is in default. On the other hand, case management is a means to an end and not an end in itself. All processes and sanctions must be carried out and imposed in a way that will facilitate the achievement of justice.
[9] Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185 [17].
The entry of judgment prior to trial without regard to the merits of a case is, generally speaking, the antithesis of justice. It follows that, at least generally speaking, a springing order which would have that consequence can only be justified where necessary to enable the court to fairly determine the substantive matter in dispute and as a last resort.
There is another more pragmatic reason why springing orders should only be made as a last resort when necessary. As this case demonstrates, and as long experience shows, springing orders can and often do result in a lengthy and expensive diversion from the preparation of the substantive issues in the case for resolution by trial or mediation. We have no doubt that the Master made a springing order in this case for the purpose of enabling the case to be resolved in a timely fashion. However, the order has had precisely the opposite effect.
Although there was no appeal from the springing order made by the Master, and with the greatest of respect to a Master who diligently manages a large number of cases in his daily lists, a springing order should not have been made in this case for a number of reasons. First, although the case had been on foot for a longer period than was desirable, the delay in the provision of Firmware's witness statement had not been inordinate. Witness statements were first ordered to be provided by Firmware by 15 April 2015, and then ordered to be provided by 15 May 2015. The uncontradicted evidence provided to the Master established a cogent and reasonable explanation for Firmware's failure to comply with the requirement to provide its statements by 15 May 2015. In the light of that evidence, it was not appropriate for a springing order to be made on 4 June 2015, less than three weeks after the second time stipulated for compliance had expired. Because a springing order can result in injustice, it should ordinarily only be made when a party has, by their conduct, shown a contumelious disregard for compliance with the orders of the court. Given the evidence which explained Firmware's failure to comply in this case, Firmware's conduct could not be characterised in that manner.
Second, because of the potential for injustice, a springing order should only be made when there is no other less severe, sufficient and appropriate sanction available to enable the court to determine the matter in a manner which is procedurally fair to all parties and which gives them sufficient opportunity to present their cases. There was no justification for a springing order giving judgment to Asia Platinum, as plaintiff, if Firmware, as defendant, did not file witness statements. Firmware was under no obligation to go into evidence, and the court could determine the merits of Asia Platinum's claim on the basis of evidence which Asia Platinum adduced. Rules of procedural fairness require that Firmware be given a sufficient opportunity to adduce evidence in its defence, but do not give Firmware an absolute right to adduce evidence when it has failed to take advantage of that opportunity in conformity with procedural directions which the court has made. In the present case, order 19 of the orders made by the Master on 6 May 2015 expressly provided that if a witness statement was not served by Firmware in accordance with the orders made on 6 May 2015, evidence could not be adduced at trial without leave of the court. That sanction was, in itself, sufficient and appropriate in the event of non-compliance with the orders made on 6 May 2015.
Third, a springing order should not be made if its execution would prevent a party from advancing an argument unrelated to the procedural step the subject of the springing order. So, in the present case, Firmware's contention that the interest claimed by Asia Platinum was unenforceable as a penalty was capable of being advanced without any oral evidence whatever. However, non‑compliance with the springing order would have had the consequence that Firmware would have been prevented from advancing that argument because it had failed to provide notice of any oral evidence which it was to adduce in relation to other issues.
Fourth, springing orders should only be made if the criterion for compliance is clear and unequivocal and the question of whether or not the order has been complied with can be resolved simply and clearly. Springing orders should not be utilised in cases like this, where issues of compliance can be thought to turn upon a qualitative assessment of the character, efficacy or completeness of the mandated procedural step.
Fifth, before making a springing order a case manager should bear in mind that the order is, in effect, self-executing and that, once made, in the absence of an application for an extension of time for compliance, the only question is whether there has, in fact, been compliance. So, even if there is a change of circumstances between the time at which the order is made and the time at which compliance is required, or the time at which the question of whether or not there has been compliance is assessed, in the absence of an application for an extension of time, those changed circumstances cannot be taken into account. Because case management is a means to an end, being the achievement of justice, this is another reason why springing orders should ordinarily only be made as a last resort when necessary to enable the court to fairly determine the substantive matter in dispute.
Finally, we would also observe that, in this case, Firmware's legal representatives did not apply for an extension of time within which to comply with the springing order even when Asia Platinum moved for judgment. On the face of the material before the court, that omission is surprising. It is sufficient for present purposes to observe that when there is a motion for judgment based on a springing order, consideration should always be given to the question of whether there are grounds for an extension of the time for compliance.

Conclusion

For these reasons, this appeal should be allowed and the orders made by the Master on 3 July 2015 set aside.