Glenariff Holdings Pty Ltd v Delta Bay Holdings Pty Ltd [No 3]

[2021] WADC 70

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   GLENARIFF HOLDINGS PTY LTD -v- DELTA BAY HOLDINGS PTY LTD [No 3] [2021] WADC 70

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   1 JULY 2021

DELIVERED          :   15 JULY 2021

FILE NO/S:   CIV 2319 of 2016

BETWEEN:   GLENARIFF HOLDINGS PTY LTD

Plaintiff

AND

DELTA BAY HOLDINGS PTY LTD

Defendant

Catchwords:

Practice and procedure - Application for springing order - Substantial delay in complying with order to give security - Turns on its own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A

Result:

Order that the sum by way of security be paid within 28 days with liberty to relist the application in the event of default

Representation:

Counsel:

Plaintiff	:	Mr C S Williams
Defendant	:	Mr P B Dobson

Solicitors:

Plaintiff	:	Solomon Brothers
Defendant	:	Hotchkin Hanly

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

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

DEPUTY REGISTRAR HEWITT:

1. Before me for determination is an application which was brought by the defendant to this proceeding seeking a number of springing orders.  Before I explore the merits of the application it is necessary to explain something of the history of this action.

2. The action was commenced exactly five years ago on 1 July 2016.  On my reading of the pleadings the cause of action accrued on 8 August 2014 and it is a claim for a contribution from a subsequent subdivider for the cost of infrastructure created by an earlier subdivider which was of benefit to the subsequent subdivision.  The action has had a tortuous history and has been listed for trial twice so far and both of those trials have been vacated and on my reading of the materials on each occasion the trial was vacated because the plaintiff had not complied with orders of court.  The most recent adjournment was that of Judge Troy on 7 November 2018 and the terms of that order were as follows:

   1.The trial be vacated and adjourned to a listing conference before a Registrar on 17 December 2018 at 9.30am.

   2.The plaintiff may not adduce any further expert report without first obtaining leave of a Judge.

   3.The plaintiff is to pay all the defendant's costs thrown away by the adjournment of the trial to be taxed, if not agreed, and paid forthwith.

3. On the first day of the trial a witness subpoenaed by the plaintiff made application to the court to be relieved from his obligation to attend and testify on the grounds that he had been retained to and did prepare a report for use by the plaintiff but he had not been fully paid for that work and did not wish to invest further time and effort on behalf of the plaintiff in the trial.  Judge Troy granted the application and discharged the witness as a consequence of which counsel for the plaintiff applied to vacate the trial on the basis that he was not able to properly continue and run the case in the absence of the witness.  That application was granted and Judge Troy made the order which I have earlier quoted. 

4. The next development in the case was an application by the defendant for security for costs and that application ultimately led to an order that the plaintiff provide security in the sum of $30,000 within 21 days.  That order was complied with and thereafter the defendant brought in a bill of costs for taxation pursuant to the orders which were made by Judge Troy.  That taxation proceeded and as a result the costs were allowed at $26,659.04.  Subsequently that amount together with some other monies which were due from the plaintiff to the defendant were satisfied by payment out from the sum of $30,000 which had been paid into court.  That result was achieved by way of a consent order dated 16 September 2020 the text of which was as follows:

   1.The sum of $29,153.98 from the funds paid into Court by the plaintiff be paid to the defendant to satisfy:

   a.the costs certified by Deputy Registrar Hewitt on 17 August 2020 pursuant to the orders dated 7 November 2018 and interest to 14 September 2020; and

   b.the defendant's costs of preparing the bill, attending taxation and dealing with objections as certified by Deputy Registrar Hewitt on 17 August 2020.

   2.The proceedings be stayed until such time that the plaintiff pays into court $29,153.98 to the credit of this action by way of security for the defendant's costs.

5. To date the requirement for the further sum of $29,153.98 has not been satisfied notwithstanding the fact that some two and a half years have passed since the trial was vacated.  In the absence of a payment in, the action remains stayed. 

6. As a consequence of the delays the defendant applied on 24 March 2021 for the following orders:

   1.Within 14 days of the date of this order, the plaintiff is to comply with paragraph 2 of the Orders made by consent on 16 September 2020, and pay into Court $29,153.98 to the credit of this action by way of security for the defendant's costs.

   2.Within 21 days of the date of this order, the plaintiff is to file any application for leave to adduce further expert evidence in accordance with paragraph 2 of the Orders made on 8 November 2018 or file an application to re-list the matter for trial.

   3.If the plaintiff fails to comply with paragraphs 1 or 2 above, there be judgment entered for the defendant with the plaintiff to pay the defendant's costs of the action, including reserved costs, to be taxed if not agreed.

   4.The plaintiff do pay the defendant's costs of this application, to be taxed if not agreed.

   5.Any other order that this Honourable Court thinks appropriate or fit to do justice to the defendant.

   And that is the application with which I am required to deal.

7. The application was opposed by the plaintiff on a number of grounds and considerable reliance was placed on the decision Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179. Counsel for the plaintiff has extracted a number of propositions from the case which are set out in his submissions as follows:

   6.1.the power to make a springing order must be exercised with considerable caution and circumspection;

   6.2.all processes and sanctions must be carried out and imposed in a way that will facilitate the achievement of justice;

   6.3.generally, the entry of judgment prior to trial without regard to the merits of the case is the antithesis of justice;

   6.4.generally, a springing order which would have the consequence of entering judgment prior to trial can only be justified where necessary to enable the Court to fairly determine the substantive matter in dispute, and as a last resort; and

   6.5.a pragmatic reason why springing orders should only be made as a last resort when necessary is that 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.

   (footnotes omitted)

8. I am in general agreement with the propositions advanced but do not consider them to be exhaustive. That which is most relevant relates to the use of springing orders in order to achieve justice. In that regard I refer to O 1 r 4A of the Rules of the Supreme Court 1971 (WA) which is couched in the following terms:

   The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.

9. It is the duty of this court to have regard to the principles which are set out in the rule.  This is a case where the delays have been extreme and there is no evidence before me that the plaintiff has done anything at all to advance his case or to furnish the security which has been ordered in the time since the matter came before Judge Troy.  I accept that the use of a springing order may bring a harsh result but ultimately the court must be able to control its processes and coerce a recalcitrant party to advance its case.  The fact that expert evidence is necessary in that process is self-evident in that, having lost the expert evidence upon whom the plaintiff intended to rely, counsel moved to vacate the trial on the grounds that he could not proceed in the absence of the witness.  There is no evidence before me that the plaintiff has taken any steps to procure the assistance of an expert or to obtain the leave of a judge to adduce any such evidence.  It is also the fact that the requirement to pay additional monies as security has not been satisfied and no explanation has been offered.  It is obvious that the plaintiff is content for the matter to remain the subject of a stay for as long as possible.  Exactly why that would be the case is not explained but it is not a position which is satisfactory from the point of view of the court.  The action is already five years old and has already been listed for trial on two occasions and each has been vacated because of problems created by the plaintiff.  In my view this is an instance where the coercive power of the court might properly be exercised to persuade the plaintiff to do what is necessary to bring this matter to a conclusion. 

10. I next turn to the argument which is advanced by the plaintiff that the consent orders constituted a binding agreement from which the defendant cannot properly resile.  In my view no agreement between the parties removes from the court the power to properly manage the proceedings which are before it.  And the fact that the consent was confirmed and became an order does not mean that the court may not interfere and require compliance with the order if that is necessary.  The argument which is advanced by the plaintiff is essentially that the defendant is powerless to coerce the plaintiff into action if the plaintiff chooses not to do so. 

11. The next matter which is raised by the plaintiff refers to the case management rules of the District Court Rules 2005 (WA) and in particular the rule which provides that if no document is filed in an action for a year it is deemed to be dismissed and the parties are advised accordingly. That argument is supported by the rules but I do not think it appropriate after the extensive delays which have occurred in this case largely caused by the plaintiff that it is appropriate to allow the plaintiff to do nothing at all or at least nothing observable for a full year relying on that rule. This is an active case within the court, it has chewed up a considerable amount of judicial time already and it ought to proceed as quickly as is reasonable. Waiting to see if the case management system closes the door on the plaintiff is not to my mind an appropriate way to manage such an action.

12. I next turn to the specific orders which are sought by the defendant.  I am reluctant to make a springing order against a party if that party is not in clear breach of an order of court.  No such breach is demonstrated.  No time was set for the payment of the monies into court and it is not an obligation of the plaintiff to adduce expert evidence at the trial and it is perfectly in order for the plaintiff to proceed without relying on expert evidence although if it did so presumably its prospects of success would substantially diminish or even evaporate altogether.  There is therefore to my mind no breach of any order by the plaintiff which would persuade me that a springing order was appropriate at this stage.  What is appropriate is to set a time within which the plaintiff is required to provide the security which was agreed to be given and only if that order is not complied with to then consider whether a springing order should issue.

13. In summary then my decision is that I shall order the plaintiff to bring into court to the credit of this action as security for the defendant's costs the sum of $29,153.98 within 28 days of delivery of this decision.  In the event the plaintiff does not do so I grant the defendant leave to relist its application and seek further orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

AO

Associate

14 JULY 2021