Khan Enterprises (Australasia) Pty Ltd as Trustee for Khan Family Trust v Business Mantra Pty Ltd t/as Business Mantra [No 2] - [2023] WADC 20

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KHAN ENTERPRISES (AUSTRALASIA) PTY LTD as Trustee for KHAN FAMILY TRUST -v- BUSINESS MANTRA PTY LTD t/as BUSINESS MANTRA [No 2] [2023] WADC 20
CORAM:   GETHING DCJ
HEARD:   20 FEBRUARY 2023
DELIVERED          :   28 FEBRUARY 2023
FILE NO/S:   CIV 1354 of 2017
BETWEEN:   KHAN ENTERPRISES (AUSTRALASIA) PTY LTD as Trustee for KHAN FAMILY TRUST
First Plaintiff
AKHTAR HAMEED KHAN
Second Plaintiff
AND
BUSINESS MANTRA PTY LTD t/as BUSINESS MANTRA
First Defendant
ANAND KUMAR GUPTA
Second Defendant
DEEPA GUPTA
Third Defendant
LIBERTY MANAGING AGENCY LTD, ARCH UNDERWRITING AT LLOYDS LTD ON BEHALF OF SYNDICATE 2012, HARDY (UNDERWRITING AGENCIES) LTD as Managing Agents for SYNDICATE 382 AND ASTA MANAGING AGENCY LTD
Third Party

Catchwords:

Appeal from Registrar - Self-executing or springing order against a corporate plaintiff which was not represented by a legal practitioner - Judgment against a party for refusing to provide inspection of discovered documents

Legislation:

District Court Rules 2005 (WA), r 15
Rules of the Supreme Court 1971 (WA), O 26 r 15

Result:

Judgment entered against the first plaintiff and second plaintiff

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
First Defendant	:	Mr J S Slack-Smith
Second Defendant	:	Mr J S Slack-Smith
Third Defendant	:	Mr J S Slack-Smith
Third Party	:	Mr J R Clyne

Solicitors:

First Plaintiff	:	Not applicable
Second Plaintiff	:	Not applicable
First Defendant	:	Pragma Lawyers
Second Defendant	:	Pragma Lawyers
Third Defendant	:	Pragma Lawyers
Third Party	:	Barry Nilsson Lawyers (Vic)

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

A v C [No 2] [2015] WASCA 199
BB v Helena College Council Inc t/as Helena College [No 2] [2022] WADC 81
Do Carmo v Wishaw [2022] WASCA 164
East Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 372; [2000] WASC 178
Fisher v O'Hehir [2023] WASCA 19
Holmes v Dale [2022] WADC 87
Hume v Goldblaze Nominees Pty Ltd as trustee for the Goldblaze Unit Trust [2021] WASCA 177
Khan Enterprises (Australasia) Pty Ltd as trustee for Khan Family Trust v Business Mantra Pty Ltd t/as Business Mantra [2022] WADC 14
Latoudis v Casey (1990) 170 CLR 534
Martincic v Marusco [2016] WASCA 133
Nugawela v Medical Board of Australia (WA Board) [2022] WASCA 156
Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79
Re Hoffman [2004] WASCA 238
Shaddick v JDV Ltd [2012] WASC 120
Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185

GETHING DCJ:

Introduction

In this action, the first plaintiff (Khan Enterprises) made a claim against the first defendant (Business Mantra) and the second defendant (Mr Gupta). The second plaintiff (Dr Khan) claims against the third defendant (Mrs Gupta). Mr and Mrs Gupta counterclaim against Dr Khan. Business Mantra and Mr Gupta have brought a third party claim against the third party (Insurer). The claims generally relate to an Indian restaurant which Khan Enterprises ran in Fremantle more than 10 years ago.
The factual background to the action and its procedural history were summarised in a similar application to the present one by Judge Whitby in Khan Enterprises (Australasia) Pty Ltd as trustee for Khan Family Trust v Business Mantra Pty Ltd t/as Business Mantra.[1] I adopt and do not need to repeat her Honour's summary of the long and tortious history of the action to that point.
[1] Khan Enterprises (Australasia) Pty Ltd as trustee for Khan Family Trust v Business Mantra Pty Ltdt/as Business Mantra [2022] WADC 14 (Khan Enterprises).
The dilatory conduct of the plaintiffs continued, ultimately leading to Deputy Registrar Harman making self-executing orders in the following terms on 11 January 2023 (11 January 2023 Order):
1.unless by 4:00PM on 18 January 2023 each of the plaintiffs do:
(a)file and serve an application for leave to tender documents at trial and to file a list of witnesses; and
(b)serve upon the defendants copies of each of the documents listed in part 1A of the affidavit sworn by the second plaintiff on 5 August 2022 by email to [email protected],
the plaintiffs' claims against each of the defendants be dismissed; and the plaintiffs do pay the defendants' costs of the action, with liberty to apply for costs on an indemnity basis; and
2.the plaintiffs do pay the defendants' and third party's costs of the application in any event.
Neither plaintiff complied with the 11 January 2023 Order.
The 11 January 2023 Order was binding on the parties unless and until set aside. The effect of this order was to entitle the defendants to move for judgment upon non-compliance with the self-executing order, but in a context in which the orders could be reviewed afresh upon an appeal under District Court Rules 2005 (WA) (DCR) r 15.[2]
[2] Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79 [99] (judgment of the court) (Ogbonna).
The plaintiffs sought to appeal the decision leading to the 11 January 2023 Orders being made to a judge, lodging what I have treated as an appeal notice on 21 January 2023.
Ultimately on 20 February 2023 I entered judgment against the plaintiffs. I advised the parties that I would provide written reasons for doing so, which follow. The orders made on 20 February 2023 left the counterclaim to proceed to a trial commencing on 21 March 2023.

Procedural history since February 2022

The first plaintiff is a corporation. It cannot carry on proceedings otherwise than by a legal practitioner.[3] There is no power allowing the court to dispense with this requirement.[4] A document purportedly filed on behalf of a corporate litigant other than by a legal practitioner will be rejected and uplifted.[5] Applying these principles, in Khan Enterprises Judge Whitby held that an application by a corporate defendant who is not represented to extend the time in which to appeal from a decision of a registrar will be dismissed.[6] This decision was handed down on 16 February 2022.
[3] Rules of the Supreme Court 1971 (WA) (RSC) O 4 r 3(2).
[4] Hume v Goldblaze Nominees Pty Ltd as trustee for the Goldblaze Unit Trust [2021] WASCA 177 [15] (judgment of the court) (Hume); East Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 372; [2000] WASC 178 [44] - [47] (Hasluck J); Re Hoffman [2004] WASCA 238 [16] (McKechnie J); Holmes v Dale [2022] WADC 87 [14] - [16] (McGivern PR) (Holmes).
[5] Holmes [21].
[6] Khan Enterprises [36] - [37].
Khan Enterprises did not rectify this position until 25 May 2022. On this date, Rebus Legal filed a notice of representation on behalf of both plaintiffs. It seems that a lawyer from this firm, a Mr Jo, had appeared at a hearing on 14 March 2022 before Registrar Kingsley. At that hearing, the Registrar listed the action for a seven day trial commencing 21 March 2023.
Things started to progress. Programming orders were made for the trial by Registrar Kingsley on 26 April 2022. Judge Whitby then made orders on 1 July 2022, by consent, adjusting the orders made following the earlier hearing before her Honour. On 29 July 2022, Registrar Kingsley made orders further adjusting the date for compliance by consent.
However, by August 2022, progress began to stall. In particular, by application dated 22 August 2022, Rebus Legal applied to be removed as the solicitor on the record for the plaintiffs. An order to this effect was made in chambers on 15 September 2022, with the certificate of service being filed on 3 November 2022. Since then, neither plaintiff has been represented.
By application filed 23 December 2022, the defendants sought orders compelling the plaintiffs to comply with the programming orders that had been made (23 December 2022 Application). Specifically, the orders sought were:
1.Pursuant to Order 26 rule 15 of the Rules of the Supreme Court 1971 (WA):
(a) the Plaintiffs' action against the Defendants be dismissed; and
(b) the Plaintiffs pay the Defendants' costs of that action, to be taxed if not agreed.
2.Alternatively, unless by 4:00pm on 18 January 2023, the Plaintiffs:
(a) file and serve an application for leave of the Court to tender documents at trial and to file a list of witnesses; and
(b) email copies of the documents listed in part 1A of the affidavit sworn by the Second Plaintiff dated 5 August 2022 to [email protected],
the Plaintiffs' action against the Defendant be dismissed; and the Plaintiffs pay the Defendants' costs of that action, to be taxed if not agreed.
3.The Plaintiffs' pay the Defendants costs of the application.
The 23 December 2022 Application was supported by an affidavit of Siqi Lui, a legal practitioner employed by the defendants' solicitors. The basis for the application is outlined in pars 18 - 22:
Plaintiffs' breach of orders
18. Order 7 of the 1 July Orders (as extended by Order 3 of the 29 July Orders) required that the inspection of discovered documents be completed by 19 August 2022. On 5 August 2022, the Plaintiffs filed a supplementary affidavit of discovery, but have failed to provide copies of the documents listed in part 1A (Discovered Documents) to the Defendants, or produce them for inspection.
19. By a letter 6 September 2022, the Defendants requested electronic copies of the discovered documents from the former solicitors of the Plaintiffs. …
20. Order 2 of the April Orders (as extended by Order 4 of the 29 July Orders) required the parties to provide written notice specifying the documents the party intends to tender at trial by 19 September 2022. The Plaintiffs did not provide written notice of documents they intend to tender at trial, and still have not.
21.Order 3 of the April Orders (as extended by Order 10 of the 1 July Orders) required the parties to provide written notice of which documents can be tendered by consent and provide reasons as to why consent is withheld. The Plaintiffs did not provide any such written notice, and still have not.
22. Order 12 of the 1 July Orders required the Plaintiffs to file and serve papers for the Judge, an outline of submissions and a list of witnesses by 28 October 2022. The Plaintiffs did not file any of these documents by the due date, and still have not.
The 23 December 2022 Application was heard by Deputy Registrar Harman on 11 January 2023. There was no appearance on behalf of either plaintiff. The defendants and third party were each represented by counsel. It appears from the materials before the court that Dr Khan did not attend for medical reasons. At this hearing the 11 January 2023 Orders were made.
I observe that the 11 January 2023 Orders made by the Deputy Registrar were not framed so that the plaintiffs were required to comply within a specified number of days after the order had been served on them. This is the form in which the order ought to have been made given that there was no appearance on behalf of either plaintiff.[7] As the Full Court observed in Skahill, '[a]ctual, and not merely constructive, knowledge of such an order is necessary on the part of the person against whom it is made'.[8]
[7] Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185 [14] (judgment of the court) (Skahill).
[8] Skahill [14].
On 18 January 2023, Ms Liu filed an affidavit to the effect that on 11 January 2023 she served a copy of the 11 January 2023 Orders on the plaintiffs by ordinary pre-paid post to 1 Corsair Drive, Willetton and by email to the email address of Dr Khan. The postal address is the plaintiffs' geographical address as set out in the writ, and confirmed in the notice of change or representation filed 25 May 2022. This was also the address on which Rebus Legal certified that they served the orders allowing it to cease to act. The email address used by the defendants' lawyers was the same one used by Rebus Legal in its certification of service. A party is taken to have actual knowledge of a document if the document is served at the address which it has notified the court as being its address for service.[9]
[9] Skahill [14].
In any event, I am satisfied that the plaintiffs had actual knowledge of the 11 January 2023 Orders. This is because by application dated 18 January 2023, and filed 19 January 2023, the plaintiffs sought orders in effect extending the time within which they had to comply with the 11 January 2023 Orders. Dr Khan purported to file this application on behalf of both himself and Khan Enterprises.
The application dated 18 January 2023 was listed for hearing on 7 February 2023.
By letter to the court dated 2 February 2023, Dr Khan withdrew the application filed on 19 January 2023.
By application dated 20 January 2023 and filed 21 January 2023, the plaintiffs sought an order setting aside the 11 January Orders.
The application filed 21 January 2023 came on before me on 8 February 2023. Dr Khan appeared by audio link, and the other parties appeared by counsel. With one caveat, I was prepared to treat this application as an appeal from the decision of the deputy registrar which led to the 11 January 2023 Orders being made (Appeal). The caveat is that Khan Enterprises has not been represented by a lawyer since 3 November 2022. The application filed 21 January 2023 was accordingly not properly filed as regards Khan Enterprises. Applying the principles set out at [8], it should be rejected and uplifted. Accordingly, I made the following orders (8 February 2023 Orders):
1. The chamber summons filed 20 January 2023, insofar as it relates to the second plaintiff, be treated as a notice of appeal from the decision of Deputy Registrar Harman on 11 January 2023 (Appeal), and insofar as it purports to be filed on behalf of the first plaintiff is not accepted for filing.
2. Unless by 15 February 2023, a legal practitioner files a notice of representation for the first plaintiff, the first plaintiff's action against the first and second defendants be struck out with the first plaintiff to pay the costs of the first and second defendants and the third party to be taxed if not agreed, with liberty to apply for indemnity costs.
3. The Appeal be listed for hearing at 9.15am on 20 February 2023.
4. The action be listed for directions at 9.15am on 20 February 2023.
5. Subject to order 6, the second plaintiff attend the hearing at 9.15am on 20 February 2023 in person.
6. If the second plaintiff wishes to be excused from the hearing on 20 February 2023 on medical grounds he is to by 16 February 2023 file and serve an affidavit annexing a medical certificate specifically addressing his fitness to attend a 45 minute hearing on this date.
7. The costs of the hearing today be reserved.
I recently discussed the position of costs in third party proceedings in BB v Helena College Council Inc t/as Helena College.[10]I adopt the general principles which I set out in that decision. The discretion of the court as regards the costs of third party proceedings is set out in RSC O 19 r 12 in broad terms:[11]
The Court may decide all questions of costs as between a third party and other parties to the action, and may order any one or more of them to pay the costs of any other, or others, or give such directions as to costs as the justice of the case may require.
[10] BB v Helena College Council Inc t/as Helena College [No 2] [2022] WADC 81 [16] - [21] (Gething DCJ).
[11] See also DCA s 64(1).
In my view, where a plaintiff's claim against a defendant is struck out for reasons of non-compliance, the fair and just outcome,[12] at least in the circumstances of this case, is that the plaintiff pay not only the defendant's costs but those of the third party.
[12] Latoudis v Casey (1990) 170 CLR 534, 558 (Dawson J); Shaddickv JDV Ltd [2012] WASC 120[12] (Allanson J).
On 15 February 2023, the plaintiffs purported to file an application to extend the time for compliance with self-executing order on par 2 of the 8 February Orders. This was accompanied by an affidavit of 14 February 2023 sworn by Dr Khan. This affidavit addressed two issues. The first was Dr Khan's medical condition, something I will return to later. The second was his attempts since the 8 February 2023 Order was made to obtain legal representation for Khan Enterprises.
The Appeal and the directions hearing in the action came on before me on 20 February 2023. Dr Khan did not appear in person. He did, however, on 18 February 2023 file an affidavit sworn 17 February 2023 detailing his various medical conditions and requesting that he be excused from the requirement to attend in person. At the commencement of the hearing court staff attempted to telephone Dr Khan on the mobile number used for the hearing on 8 February 2023, but he did not answer. I formed that view that he had been given ample opportunity to attend both in person and by audio link, and proceeded with the hearing.

Claim brought by Khan Enterprises

By the time of the hearing on 20 February 2023, no legal practitioner had filed a notice of representation of Khan Enterprises.
Consistent with the principles that I have already outlined ([8]), I made an order that:
1.The application purported to be filed by the first plaintiff on 15 February 2023 to extend the time within which to comply with the self-executing orders made on 8 February 2023 is not accepted for filing.
Consequently, the defendant and the third party were entitled to judgment on the self-executing order made on 8 February 2023.
Before entering judgment, and out of fairness to Khan Enterprises, I considered whether, had the issue been properly before the court, I would have extended the time within which Khan Enterprises had to file a notice of representation. That issue could theoretically have come before the court by way of an oral application by Dr Khan, a director of Khan Enterprises. I have the power to allow a person who is not a legal practitioner to appear before the court on behalf of a party (though not the power to allow such a person to file any document).[13]
[13] District Court of Western Australia Act 1969 (WA) s 39; Hume [16].
The principles governing an application to extend time to comply with a self-executing order are well-settled.[14] In the present case, there is no exception to the rule that a corporate plaintiff must carry on proceedings through a legal practitioner. So this is not a case in which Khan Enterprises has any argument on the underlying merits of the order. I have set out above the circumstances in which the self‑executing order came to be made. It is significant that the directors of Khan Enterprises were on notice of the requirement to be represented at least since the decision in Khan Enterprises was handed down in February 2022. The relationship with Rebus Legal appears to have broken down by the end of August 2022, which is when it applied to get off the record. The annexures to the affidavit of Dr Khan filed 15 February 2023 are to the effect that it was only after the order was made on 8 February 2023 that he began looking for a lawyer to represent Khan Enterprises. This was in the face of a seven day trial due to commence on 21 March 2023. The delay in seeking legal representation was not explained and, in the circumstances, is inexcusable. The prejudice to Khan Enterprises of not extending the order is that its proceedings come to an end. The prejudice to the defendants and third parties of extending the order is that they must continue to prepare for a seven day trial, in the face of serial non‑compliance with trial programming orders, a position that has beset the action throughout its life.[15] I make no comment on the merits of the substantive claim by Khan Enterprises. It is sufficient for me to observe that the fact that a party may have an apparently meritorious claim cannot be permitted effectively to insulate it from the consequence of a failure to comply with a self-executing order.
[14] Do Carmo v Wishaw [2022] WASCA 164 [16] (judgment of the court); Nugawela v Medical Board of Australia (WA Board) [2022] WASCA 156 [25] (judgment of the court); Av C [No 2] [2015] WASCA 199 [2] - [4] (judgment of the court).
[15] Khan Enterprises [9].

The following observations by the Court of Appeal in Martincic v Marusco are apposite to the present case, in particular given the proximity to trial:[16]
The discretion to grant or refuse an adjournment must also be exercised consistently with the obligation of the court to determine disputes in a manner which is procedurally fair. However, it is well established that this does not require that a party be given an unlimited opportunity to present a case or defence. What is required is that the parties are provided with a sufficient opportunity to present their cases. A party who is given a sufficient opportunity to present their case, and who fails to take advantage of that opportunity without reasonable cause, cannot complain that they have been denied procedural fairness because the court has declined to provide a further opportunity to do so.
In considering whether determination of litigation is just, regard must be had to the interest of other parties to the litigation and other litigants in other cases. Speed and efficiency, in the sense of minimum delay and expense, are aspects of the just resolution of proceedings. Considerations of speed and efficiency cannot detract from the requirement that a party to litigation be given sufficient opportunity to present their case. However, where a party has been given a sufficient opportunity to present their case, a decision about an adjournment to provide a further opportunity must take account of the injustice to the other parties which may follow from the delay, expense and disruption which results from a listed trial not proceeding.
[16] Martincic v Marusco [2016] WASCA 133 [46] - [47] (judgment of the court) (footnotes omitted) (Martincic).
In my view, Khan Enterprises has had ample opportunity to present its case. According, I formed the view that even had Dr Khan appeared at the hearing on 20 February 2023 and made an oral application on behalf of Khan Enterprises, reiterating what was in his affidavits, I would have refused that application.
Accordingly, at the hearing on 20 February 2023 I granted judgment against the first plaintiff in the following terms:
PURSUANT TO THE order of His Honour Judge Gething dated the 8th day of February 2023 whereby it was ordered that unless by 15 February 2023, a legal practitioner files a notice of representation for the first plaintiff, the first plaintiff's action against the first and second defendants be struck out with the first plaintiff to pay the costs of the first and second defendants and the third party to be taxed if not agreed, with liberty to apply for indemnity costs, and default having been made, IT IS THIS DAY ADJUDGED that:
1. The first plaintiff's action against the first and second defendants be struck out;
2. The first plaintiff pay the costs of the first and second defendants to be taxed if not agreed, with liberty to apply for indemnity costs; and
3.The first plaintiff to pay the costs of the third party to be taxed if not agreed, with liberty to apply for indemnity costs.
At the hearing on 20 February 2023, I made orders giving the parties liberty to apply in relation to the costs orders made against the first plaintiff.

Claim brought by Dr Khan

That left the position as regards Dr Khan personally.
The Appeal is by way of a new hearing of the matter that came before the registrar which led to the making of the 11 January 2023 Orders.[17] It involves a complete de novo review. The judge hearing the appeal is to treat the application as if it was before the court for the first time, save that the party appealing has the right as well as the obligation to open the appeal. There is no requirement on the appellant to show that the registrar made an error of law or principle in the decision under appeal. As the appeal is by way of a new hearing of the matter that came before the registrar, the parties are not confined to the evidence presented to the registrar, and the court should ordinarily allow the parties to rely on additional evidence, subject to a discretion to exclude.[18]
[17] DCR r 15(6).
[18] Ogbonna [99].
As set out above ([12]), the primary order sought by the defendants in the 23 December 2022 Application was for the plaintiffs' action against the defendants to be dismissed pursuant to RSC O 26 r 15. The self‑executing order was an alternative.
The power in RSC O 26 r 15 is able to be exercised where a party fails to produce documents which have been discovered. In the event of non-compliance, 'the Court may make such order as it thinks just including an order that the action be dismissed or as the case may be, an order that the defence be struck out and judgment entered accordingly'.
By par 7 of the orders made on 1 July 2022, inspection of discovered documents was to be completed by 5 August 2022. The plaintiffs' filed their affidavit verifying their supplementary list of documents on that date. Only 22 documents were identified, comprising emails and financial records. The supplementary list contained a notification that the documents could be inspected on reasonable notice at the offices of the plaintiffs' then lawyers. As set out at [13], the defendants requested electronic copies of these documents by letter of 6 September 2022. So by the time the 11 January 2023 Orders were made, the request had been outstanding for four months. A self-executing order at that stage was entirely appropriate, and remained appropriate by the time of the hearing on 20 February 2023. The real issue for me at that hearing was whether matters had reached the stage at which the interests of justice required judgment to be entered.
It would have been a relatively easy step for Dr Khan to have provided the defendants with copies of these 22 documents. The only reason he gives as to why he failed to do so is his ill health. This is addressed in his affidavit filed 18 February 2023, in particular in a document annexed to the affidavit from his general practitioner, a Dr Hasan. Dr Hasan's report details Dr Khan's medical history going back to 2011. There are two issues. The first is a long-standing issue with his heart. The second are frozen shoulders. Specifically, Dr Hasan reports:
11.AHK [Dr Khan] with this prolong illness and continuos [sic] use of medication has started feeling mental pressures and have complaints of depression and Anxiety Neurosis for this I had referred him to the Psychiatrist
12.AHK has Frozen Shoulders right is more serious than left, he attends Orthopaedic Department of Fremantle Hospital for management of his condition and awaiting surgery
13.AHK also has Trigger Finger - left hand Middle & Little (5^th) Fingers and I prescribed him Inj Cortison for the treatmentt [sic]. So far as he has taken two injections which give him temporary relieve and now he has also has been referred to the Hand Clinic Fremantle Hospital for further management
14.AHK also has been referred to Hand Clinic for his right thumb old injury management
15.AHK also has type 2 Diabetes for which he takes Inj Insuline and oral medicines as well
16.AHK also has complaint of Muscular Cramps and Intermittent Claudication in both legs
17.AHK has previous history of tendency to fall down
18.AHK is on high dose of sedative pain killer - Codeine and now he also suffers and made several complaints about drowsiness, confusion and lack of orientation and concentration and dementia type episodes & cannot perform his routine living activities
19.AHK is on following Medications at present
a.Tab Jardiamet 1000/12.5mg Twice daily
b.Inj. Insuline Glargine 100 units/ml pen 32 units daily
c.Tab Codeine 30mg + Paracetamol 500mg 2 tablets thrice daily
d.Tab Crestor 40mg once daily
e.Tab Coversyl 2.5mg once daily
f.Tab Lengout 500mg once daily
g.Tab Somac 40mg Twice daily
h.Tab Coralan 5mg Twice daily
i.Tab Temazapam 10mg SOS
j.GTN spray SOS
k.Ventolin Inhaler
l.Inj Cortison for both shoulders and left middle finger SOS
m.Tab Mega Magnesium 1 tablet BD
n.Tab Aspirin 100 1 tablet OD
20.Under conditions mentioned at para 11, 12, 17 & 18 above considering his Health & Safety aspects I had asked AHK not to drive and stay home. Because of his deteriorating health conditions he is unable to attend or advise in important matters specifically legal matters until he is on sedative pain management. This pain management, which complicate his mental alertness, cannot be stopped abruptly or reduced until surgery is performed on his shoulder. He is due for surgery and his final Heart Assessment is on 24^th February, 2023 after which a date will be fixed for surgery at Fremantle Hospital.
There is no cogent or reliable evidence[19] that Dr Khan's medical conditions were so debilitating that there was no hour or so in which he was fit enough to have arranged to provide the defendants with copies of the 22 documents in the supplementary discovery, or at least to have allowed them to inspect these documents. This step required no significant legal decision, as the legal decision that the documents were relevant and discoverable had already been made by their inclusion on the supplementary list of discoverable documents.
[19] Fisher v O'Hehir [2023] WASCA 19 [14], [31] (judgment of the court).
I am also far from persuaded that Dr Khan's medical conditions since the 11 January 2023 orders were made were so debilitating that he could not comply with that order. His medical conditions did not stop him from taking steps following the making of the orders on 8 February 2023 to try and secure legal representation for Khan Enterprises as set out in his affidavit dated 14 February 2023. His medical conditions during that time did not prevent him from:
(a)on 19 January 2023, filing a chamber summons seeking leave to tender documents on trial and a list of witnesses;
(b)on 21 January 2023, filing a chamber summons seeking orders to set aside the 11 January Orders, together with a detailed affidavit in support;
(c)on 15 February 2023, filing an application to extend the time for compliance with the self-executing order made on 8 February 2023, accompanied by an affidavit; and
(d)on 18 February 2023, filing an affidavit addressing his medical issues.
Each of these actions, in my view, required far more intellectual effort than the mere provision of the 22 documents the subject of the supplementary list of discoverable documents.
The other factor is the proximity to the trial listed to commence on 21 March 2023. If Dr Khan's medical condition has been as debilitating as he makes out for as long as is suggested in Dr Hasan's report, it was incumbent on him to make alternate arrangements for the conduct of the trial. This action has been on foot since 2017 in this court and 2014 in the Magistrates Court. The events in issue go back over 10 years. It needs to be determined. The observations by the Court of Appeal in Martincic v Marusco which I quoted at [31] are equally applicable to Dr Khan's claim.[20] In my view, he has had sufficient, indeed ample to the point of indulgent, time to prosecute his claim. The interests of justice require his action to be struck out for serial non-compliance.
[20] Martincic [46] - [47].
For these reasons, at the hearing on 20 February 2023, I made orders that:
3.Pursuant to Order 26 rule 15 of the Rules of the Supreme Court 1971 (WA) the second plaintiff's claim against the second and third defendants be dismissed with the second plaintiff to pay the costs of the second and third defendants of his claim against them to be taxed if not agreed.
4.The second plaintiff pay the defendants' costs of the appeal, the hearing on 8 February 2023 and the hearing today fixed in the amount of $3,000 to be paid within 7 days of the date of service of this order.
5.The second plaintiff pay the third party's costs of the appeal, the hearing on 8 February 2023 and the hearing today fixed in the amount of $3,000 to be paid within 7 days of the date of service of this order.
The effect was to leave the counterclaim and third party claim to proceed to the trial commencing on 21 March 2023.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LL
Associate
28 FEBRUARY 2023