Heal v Harrison

[1988] TASSC 22

[1988] TASSC 22

CITATION:              Heal v Harrison & Ors [1988] TASSC 22; A7/1988

PARTIES:  HEAL
  v
  HARRISON & ORS

TITLE OF COURT:  SUPREME COURT OF TASMANIA
FILE NO/S:  428/1986
DELIVERED ON:  11 March 1988
JUDGMENT OF:  Cox J

Judgment Number:  A7/1988
Number of paragraphs:  14

Serial No 7/1988
List "A"
File No 428/1986

HEAL v HARRISON & ORS

REASONS FOR JUDGMENT  COX J

11 March 1988

1. This is an application for an extension of time in which to appeal against an order of the Master and if that is granted, I have to determine the appeal itself. The order made on the 18 August 1987 was that the appellant, the first named defendant, deliver to the plaintiff's solicitors his list of documents duly verified by affidavit and that in default of his doing so within 14 days, then upon the filing of an affidavit of his non–compliance with the order, his defence be struck out and the plaintiff be at liberty to enter judgment against him for damages to be assessed. He failed to meet the deadline and upon an affidavit being filed, judgment was entered accordingly. Both application and appeal were heard together.

1. The action is one for damages for personal injury sustained by the plaintiff while engaged in an acrobatic performance on a trapeze suspended from a craft having the appearance of a "flying saucer", which was in turn suspended from a crane at the Royal Hobart Show in October 1984. She alleges that the trapeze fell to the ground due to its having been inadequately secured to the "saucer", and that this occurred as the result of the negligence of the first named defendant who is a showman who undertook with the Royal Agricultural Show Society, to provide such entertainment for the Show's patrons, and who it is said, engaged her as his servant for that purpose. The first named defendant denies the relationship of master and servant and says the enterprise was a partnership and furthermore denies negligence on his part.

1. The writ was issued on the 11 April 1986 and the statement of claim is dated the 20 May 1986. The first named defendant was, until about 18 months ago, a partner in a circus and lives in a caravan in Wentworth Park in an inner Sydney suburb. He has no permanent postal or other address, but his sister resides in Sydney and nearly all his mail is forwarded through her. Since leaving that circus in 1986, he has worked with other similar forms of entertainment for the following periods, and in the following places: between December 1986 and about the 20 June 1987 in Perth; between 26 February 1987 and 2 April 1987, in New Zealand with Whirling Bros Circus; between the 14 April 1987 and the 30 July 1987, for that circus in a tour of New Caledonia and Tahiti; and between the 19 August 1987 and the 27 August 1987 in New Zealand for shows staged by his brother.

1. The writ was served on the defendant, or at least came into his possession on the 10 June 1986, and on the 18 June 1986, he instructed a firm of suburban Sydney solicitors whose brass plate happened to catch his eye while in their area. They in turn, instructed a Hobart firm of solicitors to act as agent, and the latter firm appears as solicitor on the record. The defence was delivered in August 1986 and discovery was first requested by the plaintiff‘s solicitors by letter dated the 5 December 1986. On the 29 January 1987 the plaintiff's list of documents, duly verified, was served on the solicitors for the first named defendant and the latter were again asked by letter to make discovery. This request was repeated on the 18 May 1987 and warning given that application would be made to the court if it were not met within 10 days. On the 3 June 1987, an application was lodged seeking an order and on the 25 June 1987, after a short adjournment sought by the first named defendant's Hobart solicitors, the Master ordered the delivery of the list of documents within 21 days, reserving leave to the plaintiff to apply for a sanction in the event of default.

1. On the 18 August 1987 the Master heard the application for a sanction. By consent he made the order appeal from. On the 2 September 1987, that is at the first opportunity, the plaintiff entered judgment by default in pursuance of the Master’s order.

1. The first named defendant's Hobart solicitors had not been dilatory in advising their Sydney principals of the requests and orders that had been made. In fairness, the Sydney principals had not, on the evidence, been dilatory in at least seeking to acquaint the first named defendant with the progress of the case. However I have already noted his movements, and although he was aware of the need to make discovery, it appeared from his evidence that he was confused as to what documents he had to produce and that he did not appreciate that there may be other documents (in fact he later found a few) which he should bring into his solicitors over and above what he had already given them. By the time the plaintiff was seeking formal orders, the first named defendant was in New Caledonia or Tahiti and contact with him was not possible or practicable. The Sydney solicitors managed to get a message to his wife, urging him to contact them on his return which occurred in late July 1987 but whether that was not passed on to him or he simply failed to do anything about it, he had again left the country without contacting them the day after the Master’s final order.

1. When he did return to Sydney on the evening of the 27 August 1987, he received a message from his wife that his Sydney solicitor had rung saying that it was vital for him to contact him. He did so the next morning (Friday) and arranged an appointment for that afternoon. He kept the appointment, bringing in the remaining documents which were relevant, and it was arranged that the Sydney solicitor should engross as a final affidavit a draft which the Hobart agents had prepared and which required only the addition of the items he had brought in (or confirmation that there were no other documents). It was not until the following Tuesday, the 1 September 1987 that the Sydney solicitor telephoned to arrange for the first named defendant to attend his office, go by taxi to the city to swear the affidavit before a Commissioner of the Supreme Court of Tasmania and bring it back for despatch to Hobart. It did not reach Hobart until the 7 September 1987. In the meantime on the 1 September the Sydney solicitors had advised their Hobart agents that the list of documents had been verified by affidavit and that a copy would be sent by facsimile, but that the original would be some time in the mail. The Hobart solicitors tried to deliver a letter to that effect to the plaintiff‘s solicitors, but due to some administrative difficulties that letter was not delivered until after the entry of judgment.

1. The application to extend time and notice of appeal were filed on the 11 September 1987. It is conceded by the plaintiff that the first named defendant has an arguable case and that no prejudice which cannot be cured by an order for costs has been sustained by the plaintiff.

1. In my view it would be unjust if the first named defendant in the circumstances were to be denied the opportunity of presenting his defence to this claim. It may be that some criticism of him is merited for his failure to ensure that he did make disclosure of all relevant documents to his solicitors when first asked, and for his failure to clarify with them just what sort of documents he should be looking for. Some criticism also may be justified of the fact that he left the country for lengthy periods of time without an adequate line of communication to them. His omission to contact them between his return from Tahiti and departure for the short trip to Auckland on the 19 August 1987 also is worthy of criticism. But the fact remains that he is an itinerant showman, and it was an unfortunate chain of circumstances which resulted in his departure, ignorant of the self executing order, the day after it was made. When he did return, he and his Sydney solicitors moved with expedition to complete the list of documents and to have it verified. Had the Master appreciated that the first named defendant was about to depart for New Zealand and would do so before he became aware of the order, he should in my view, at the very least, have allowed a little more time and the default would not have occurred.

1. I am of the opinion that in all the circumstances it would be just to grant an extension of time and to allow the appeal. It is submitted however that as the order was made by consent, I should not do so. Counsel for the plaintiff relied upon the decision of the Court of Appeal in Purcell v F C Trigell Ltd [1971] 1 QB, 358 and to a number of cases which suggest that no appeal lies from a consent order for the rule that such orders can be impeached by action if the underlying contract can be set aside, gives ample protection (see counsel’s argument at p360 and the references cited by Brennan J in Permanent Trustee Co (Canberra) Ltd v Stocks and Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 at pp 198–199). In Purcell v F C Trigell Ltd (supra) the defendant, after a series of inexcusable delays, consented to an order made by a Master that the defence be struck out unless answers to interrogatories were delivered within ten days. Despite later reminders, the defendant persisted in its failure to do so and several months after the expiry of time, the plaintiff availed himself of his right to enter judgment. The Court of Appeal unanimously allowed the plaintiff‘s appeal from a judge’s decision overturning the Master‘s order. Buckley LJ said at p 366 that in his judgment, "this order should be regarded as having a binding contractual effect which the plaintiffs were perfectly entitled to insist upon." However, neither Lord Denning MR nor Winn LJ relied upon the fact of agreement for their decision. Lord Denning MR said at pp 363 – 364:

"Second. The plaintiff says that no appeal lies from an order made with the consent of the parties, except in circumstances in which a contract may be set aside or varied, such as mistake, misrepresentation, and so forth: and that this applies on interlocutory orders as well as to final orders. Mr Hicks for the plaintiff relied in this regard on Toder v Sansam (1775) 1 Bro PC 468. I think that the plaintiff puts his case too high. I think that a party, who gets leave, can appeal from a consent order on wider grounds, at any rate in interlocutory matters. He can appeal, for instance, on the ground of his own mistake: see Mullins v Howell (1879) 11 Ch D 763, where Sir George Jessell MR said, at p766, 'There is a larger discretion as to orders made on interlocutory applications than as to those which are final judgments.' But there is no ground here so far as I can see for setting aside this consent order. It was deliberately made, with full knowledge, with the full agreement of the solicitors on both sides. It cannot be set aside. But, even though the order cannot be set aside, there is still a question whether it should be enforced. The court has always a control over interlocutory orders. It may, in its discretion, vary or alter them even though made originally by consent."

1. The Court of Appeal has however, had occasion to make further observations about the effect of "consent orders" in Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 All ER 377. There, Lord Denning MR said at p 380:

"We have had a discussion about 'consent orders'. It should be clearly understood by the profession that, when an order is expressed to be made 'by consent' it is ambiguous. There are two meanings to the words 'by consent'. That was observed by Lord Green MR in Chandless–Chandless v Nicholson [1942] 2 All ER 315 at 317, [1942] 2 KB 321 at 324. One meaning is this: the words 'by consent' may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words 'by consent' may mean 'the parties hereto not objecting'. In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties. In every case it is necessary to discover which meaning is used. Does the order evidence a real contract between the parties? Or does it only evidence an order made without obligation?"

1. His Lordship then referred to a number of cases and continued:

"... It seems to me that all those cases can be, and should be, explained on the basis that there was a real contract between the parties evidenced by the order which was drawn up.

I cannot put any such interpretation on the order which was drawn up in this case. It often happens in the Bear Garden that one solicitor or legal executive says to the other: 'Give me ten days'. The other agrees. They go in before the master. They say: 'We have agreed the order'. The master initials it. It is said to be 'by consent'. But there is no real contract. All that happens is that the master makes an order without any objection being made to it. It seems to me that that is exactly what happened here. The solicitors for the plaintiffs were saying: 'We do not object to the order. Give us the extra ten days from the time of inspection, and that is good enough.' It seems to me quite impossible in this case to infer any contract from the fact that the order was drawn up as 'by consent'."

1. I think the same observations can be made of the present case. There is no evidence to suggest that the order "consented" to was made after any bargaining. Indeed, it is clear from the affidavits of both the Hobart solicitors who "consented" to the order, that the appellant’s solicitor had unilaterally indicated that he would consent to an order allowing fourteen days grace. I infer that he did that because he anticipated that an order would be made in any event and that he was at risk that the Master might allow less time. In these circumstances I am of the view that there was no binding contract between the parties and that it is therefore unnecessary to resolve whether the existence of such a contract would have precluded me, not merely as a matter of discretion but as of right, from making the order sought.

1. I grant the application to extend time to the date of the filing of the appeal and allow the appeal.