LPH Developments Pty Ltd (in liq) (as trustee for the LPH Developments Keegan Street Trust) v Jameson Moore Pty Ltd [No 4] - [2018] WASC 401

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   LPH DEVELOPMENTS PTY LTD (in liq) (as trustee for the LPH Developments Keegan Street Trust) -v- JAMESON MOORE PTY LTD [No 4] [2018] WASC 401
CORAM:   SMITH J
HEARD:   8 DECEMBER 2018
DELIVERED          :   19 DECEMBER 2018
FILE NO/S:   CIV 2343 of 2015
BETWEEN:   LPH DEVELOPMENTS PTY LTD (in liq) (as trustee for the LPH Developments Keegan Street Trust)
Plaintiff
AND
JAMESON MOORE PTY LTD
Defendant
(ORIGINAL ACTION)
JAMESON MOORE PTY LTD
Plaintiff by counterclaim
AND
LPH DEVELOPMENTS PTY LTD (in liq) (as trustee for the LPH Developments Keegan Street Trust)
Defendant by counterclaim
(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Application to substitute or amend the name of plaintiff on grounds of change of trustee - Court not satisfied order should be made until liquidators investigate transactions of directors

Application to strike out plaintiff's claim on grounds of want of prosecution - Principles considered - Springing order sought - Plaintiff's inability to fund litigation considered - Pattern of non-compliance with case management orders - Failure to comply with security for cost order and other cost orders - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 181(1), s 182(1)(a), s 182(1)(b), s 436A, s 446AA(2)
Rules of the Supreme Court 1971 (WA), O 4A r 22(4), O 4A r 23(1), O 4A r 28(1), O 18 r 7(2), O 26A r 3, O 26A r 4, O 52A

Result:

Application to substitute or amend the name of the plaintiff adjourned sine die
Application for springing order granted

Category: B

Representation:

Original Action

Counsel:

Plaintiff	:	Conditional appearance granted to Mr P A Hirschberg
Defendant	:	Ms K R Lendich

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Mettam Legal

Counterclaim

Counsel:

Plaintiff by counterclaim	:	Ms K R Lendich
Defendant by counterclaim	:	Conditional appearance granted to Mr P A Hirschberg

Solicitors:

Plaintiff by counterclaim	:	Mettam Legal
Defendant by counterclaim	:	Not applicable

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Brocx v Hughes [2010] WASCA 57; (2010) 41WAR 84
Construction Industries Australia Ltd (in liq) v WFI Insurance Ltd [2017] WASC 187
Hirschberg v Jameson Moore Pty Ltd [2018] WASC 348
Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWSC 18
LPH Developments Pty Ltd v Jameson Moore Pty Ltd [2015] WASC 416
LPH Developments Pty Ltd v Jameson Moore Pty Ltd [2018] WASCA 95
LPH Developments Pty Ltd v Jameson Moore Pty Ltd [No 2] [2017] WASC 128
LPH Developments Pty Ltd v Jameson Moore Pty Ltd [No 3] [2017] WASC 284
Magenta Nominees Pty Ltd v Bonini [1999] WASC 88
Marriotti v Wanneroo North Pty Ltd [2008] WASCA 243
Read v Prest (1854) 1 K & J 183, 185; 69 ER 421
The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 9] [2016] WASC 68

SMITH J:

The applications

The court has before it two chamber summonses:
(a)An application, filed on 3 September 2018, by Jameson Moore Pty Ltd seeking orders to dismiss the plaintiff's claim on grounds of want of prosecution. In the alternative, Jameson Moore seeks a springing order to the effect that unless the plaintiff pays a further amount of $50,000 for security of costs (pursuant to an order made by Master Sanderson on 22 February 2018) within seven days, the writ of summons and statement of claim be struck out and the plaintiff's claim against Jameson Moore be dismissed (Application (A)).
(b)An application, filed on 14 September 2018, by Philip Allan Hirschberg (as trustee for LPH Developments Keegan Street Trust) (the Keegan Street Trust) to amend the name of the plaintiff on grounds that on 12 September 2018, Mr Hirschberg was appointed trustee of the Keegan Street Trust in place of LPH Developments Pty Ltd (Application (B)).
During the course of the hearing of the applications, Mr Hirschberg sought to adjourn Application (A) and Jameson Moore then made an oral application to substitute Mr Hirschberg (as trustee for the Keegan Street Trust) as the plaintiff in these proceedings.

Summary of background facts relevant to the application to amend the name of or substitute the plaintiff (Application (B))

The plaintiff in these proceedings is LPH Developments Pty Ltd (as trustee for the LPH Developments Keegan Street Trust) (LPH) now in liquidation.
LPH claims a breach of contract and damages as a purchaser by way of an alleged opportunity to acquire and profit from a commercial development site of a property known as 3 Keegan Street O'Connor (Keegan Street Property).
The defendant, Jameson Moore, by counterclaim claims it properly terminated the contract and seeks damages for the loss of the sale (having subsequently sold the property to a third party) quantified at $850,000.
On 9 May 2017, Banks‑Smith J determined that LPH provide $50,000 by way of security for costs to be paid into court. An order was also made staying the proceedings pending payment.[1]
[1] LPH Developments Pty Ltd v Jameson Moore Pty Ltd [No 2] [2017] WASC 128.
In May 2016, LPH applied under O 52A of the Rules of the Supreme Court 1971 (WA) for an order freezing the proceeds of sale of the property sold to the third party.[2]
[2] The facts referred to in [5] ‑ [13] were found by Banks‑Smith J in LPH Developments Pty Ltd v Jameson Moore Pty Ltd [No 3] [2017] WASC 284.
Prior to the hearing of the application for the freezing order, without admitting any obligation to do so, Jameson Moore voluntarily provided the court with an undertaking (the 2016 undertaking) and LPH's application was dismissed by consent.
On 29 June 2017, Mr Hirschberg as sole director of LPH, appointed administrators to LPH under s 436A of the Corporations Act 2001 (Cth). On 11 July 2017, a first meeting of creditors was held. The administrators in their report to creditors recommended that LPH be placed into liquidation or a second meeting of creditors be adjourned so that the administrators could conduct further inquiries.
Having being informed of the administration, on 27 July 2017 Jameson Moore gave the court and LPH 30 days' notice of its intention to withdraw the 2016 undertaking.
On 3 August 2017, a second meeting of creditors was held. Jameson Moore was represented at the meeting. Despite the administrators' recommendation, the creditors resolved to accept a deed of company arrangement (DOCA) proposed by Mr Hirschberg. Under the DOCA, control of LPH reverted to Mr Hirschberg. The DOCA provided that a special purpose entity, Octani Investments Pty Ltd, had been constituted as a vehicle to pursue litigation funding to pursue these proceedings against Jameson Moore. Pursuant to the distribution provisions in the DOCA, Octani Investments was entitled, at its sole discretion, to determine at any time the distribution of any proceeds received as a result of the litigation. Octani Investments was also to receive $525,000 from such proceeds following payment of the administrators' remuneration.
As at July 2017, the most significant creditor of LPH was another company controlled by Mr Hirschberg, Octani Capital Pty Ltd. Octani Capital claimed to be a secured creditor of LPH in the sum exceeding $2.9 million, of which approximately $2.2 million was claimed for advisory services said to have been provided to LPH for managing this action against Jameson Moore.
On 24 August 2017 (before the notice of withdrawal from the 2016 undertaking was due to expire), LPH applied on an urgent basis for a freezing order with respect to the proceeds of sale of the Keegan Street Property.
On 28 August 2017, Banks‑Smith J made an interim order, freezing the proceeds (to be vacated if the security for costs was not paid by 4 September 2017).
On 1 September 2017, LPH paid the security into court in satisfaction of the order made on 9 May 2017.
On 3 October 2017, Banks‑Smith J dismissed the application for a freezing order (which had the effect of discharging the interim freezing order).[3]
[3] LPH Developments Pty Ltd v Jameson Moore Pty Ltd [No 3] [2017] WASC 284.
On 22 February 2018, upon an application from Jameson Moore dated 28 November 2017, Master Sanderson made an order requiring LPH to provide a further amount for security for costs in the sum of $50,000. The Master also stayed the original action and the counterclaim pending LPH's compliance with the order to provide further security for costs.
On 14 June 2018, the Court of Appeal dismissed an appeal by LPH against the orders made by the Master on 22 February 2018.[4] The Court of Appeal made an order requiring LPH to pay Jameson Moore the costs of the appeal fixed at $10,000.
[4] LPH Developments Pty Ltd v Jameson Moore Pty Ltd [2018] WASCA 95.
At the time of hearing Applications (A) and (B), the further amount of security for costs order made by the Master and Court of Appeal costs order remained unsatisfied and the action remained stayed.
By letter dated 25 September 2018, the administrators of LPH served Mr Hirschberg, in his capacity as director of LPH and director of Octani Investments, with a 'notice of default' of the DOCA dated 22 August 2017.[5]
[5] Affidavit of Philip Allan Hirschberg sworn on 29 October 2018, Annexure A page 5.
By letter dated 12 October 2018, one of the administrators, Cameron Shaw (in his capacity as joint liquidator of LPH), notified Mr Hirschberg, as director of LPH, that the DOCA had been formally terminated pursuant to cl 12.1 of the DOCA and s 446AA(2) of the Corporations Act and that a special resolution had been passed to appoint him (Cameron Shaw) and Richard Albarran of Hall Chadwick as joint liquidators on 12 October 2018.[6]
[6] Affidavit of Philip Allan Hirschberg sworn on 29 October 2018, Annexure A pages 11 ‑ 12.
In the notice, Mr Shaw stated the reasons why it had been determined that there had been a contravention of the terms of the DOCA were:[7]
Firstly, the Company has been replaced as trustee of the LPH Developments Keegan Street Trust which by implication means that it will no longer receive any proceeds for facilitating the litigation which was the main purpose for undertaking the DOCA. It is therefore no longer practicable or desirable to continue to implement or carry out the DOCA; and
Secondly, Octani Investments Pty Limited ('the Litigation Funder') has advised via written correspondence that they have suspended litigation funding due to seeking confirmation from the defendant on remaining funds (eg the property sale proceeds) held in regard to the matter. The terms of the DOCA required the Company to secure unconditional funding from the Litigation Funder within six (6) months of the commencement date. Accordingly, the funding was not unconditional if the Litigation Funder is entitled to suspend over recoverability concerns and therefore the terms of the DOCA were breached.
[7] Affidavit of Philip Allan Hirschberg sworn on 29 October 2018, Annexure A page 11.
In written submissions, filed on 24 October 2018, Jameson Moore opposed both Application (B) and for Mr Hirschberg to represent the Keegan Street Trust on grounds that included:
(a)while a trustee may often represent the beneficiaries, this should not be the case where their personal interests are adverse to those of the beneficiary;[8]
(b)one of the reasons the deed administrators placed LPH into liquidation was because of the change of trustee;
(c)LPH is the sole beneficiary under the Keegan Street Trust and is now in liquidation;
(d)the court should find the interests of Mr Hirschberg (whether personally or as trustee) are adverse to those of LPH (in liquidation); and
(e)the court should be reluctant to appoint Mr Hirschberg as trustee in circumstances where he (personally) is facing bankruptcy proceedings.[9]
[8] Read v Prest (1854) 1 K & J 183, 185; 69 ER 421, 422.
[9] Second affidavit of Gregory John Mettam sworn 24 October 2018 [7].
In an affidavit sworn on 14 September 2018 in support of Application (B), Mr Hirschberg deposed that LPH is and remains the sole unit holder of the Keegan Street Trust.[10]
[10] Affidavit of Philip Allan Hirschberg sworn 14 September 2018 [7].
Following the filing of submissions on behalf of Jameson Moore opposing Application (B), Mr Hirschberg filed a further affidavit sworn on 29 October 2018 in which he deposed that on 16 September 2018, the beneficiaries of the Keegan Street Trust were varied such that he, as trustee for Octani Investment Trust, became a majority unit holder.[11]
[11] Second affidavit of Philip Allan Hirschberg sworn 29 October 2018 [12].
Annexed to the second affidavit of Mr Hirschberg sworn on 29 October 2018 is Annexure E which purports to be a register of unit holders of the Keegan Street Trust. The document records in handwriting the following entries to the effect that:[12]
(a)as at 21 November 2013, LPH Developments Pty Ltd as trustee for LPH Development Trust held 10 million ordinary units (unit certificate no 1) for an amount paid of $0.0001 per unit, with no amount outstanding; and
(b)as at 16 September 2018, Philip Allan Hirschberg as trustee for Octani Investment Trust held 100 million ordinary units (unit certificate no 2) for an amount paid of $0.0001 per unit, with no amount outstanding.
[12] Affidavit of Philip Allan Hirschberg sworn 29 October 2018, Annexure E page 26.
At the hearing of Applications (A) and (B), I also heard an application by Mr Hirschberg brought by way of originating motion dated 18 September 2018 and filed on 27 September 2018 in CIV 2709 of 2018. The application in CIV 2709 of 2018 sought an order pursuant to O 26A r 3 and r 4 for discovery against Jameson Moore and each of its directors. The application for discovery in CIV 2709 of 2018 was heard and determined prior to the hearing of Applications (A) and (B).
The principal stated purpose of the application in CIV 2709 of 2018 was for Mr Hirschberg to ascertain whether Jameson Moore, or any of its directors, or any other person, had dissipated a substantial proportion of Jameson Moore's funds of the proceeds of sale of the Keegan Street Property. After hearing from the parties, I made an order dismissing the application and ordered Mr Hirschberg to pay the respondents' costs of the application on an indemnity basis.[13]
[13] Hirschberg v Jameson Moore Pty Ltd [2018] WASC 348.
After I made the orders in CIV 2709 of 2018, Mr Hirschberg informed the court that he wished to reconsider whether to press his application to amend the name of the plaintiff (Application (B)).
After considering the matter over lunch, Mr Hirschberg informed the court that he:
(a)had formed the view that the outcome of an appeal in CIV 2709 of 2018 was relevant as to whether he should pursue Application (B) and whether Application (A) should be opposed; and
(b)intended to file an appeal against the decision in CIV 2709 of 2018.
Mr Hirschberg then made an oral application to adjourn Applications (A) and (B).
Counsel for Jameson Moore informed the court that it opposed the application for an adjournment. Further, counsel stated that Jameson Moore did not now oppose the application made by Mr Hirschberg to amend the name of the plaintiff. However, Jameson Moore sought orders that any such amendment be subject to the plaintiff complying with the order for security for costs made by Master Sanderson on 22 February 2018 and the costs order made by the Court of Appeal. Jameson Moore also sought an order that Mr Hirschberg's application to act on behalf of the Keegan Street Trust be dismissed.
After seeking further instructions, counsel for Jameson Moore then made an oral application to substitute Mr Hirschberg as the plaintiff in his capacity as trustee of the Keegan Street Trust, pursuant to O 18 r 7(2). Mr Hirschberg then informed the court that he did not consent to that application.[14]
[14] ts 8 November 2018, page 204.
After hearing argument, I have formed the opinion that I should not determine either Application (A) or the application to substitute Mr Hirschberg as plaintiff in his capacity as trustee of the Keegan Street Trust.
In forming this opinion, I have had regard to the following statement made by Mr Shaw as joint liquidator in a report to creditors of LPH on 12 October 2018 that:[15]
As Liquidator, I am required to conduct investigations into the affairs of the Company to determine if any offences have been committed by any past or present officer, member or contributory and report my findings to ASIC pursuant to Section 533 of the [Corporations] Act. These investigations would also include determining if there are any transactions that are voidable against the Liquidators and if so, whether it is commercial to commence action to recover these types of transactions.
[15] Second affidavit of Philip Allan Hirschberg sworn 29 October 2018, Annexure C page 14.
Pursuant to s 181(1) of the Corporations Act, Mr Hirschberg as a director of LPH has a statutory duty to act in good faith in the best interests of LPH, and for a proper purpose. Section 182(1)(a) of the Corporations Act requires Mr Hirschberg to not improperly use his position to gain an advantage for himself or someone else and s 182(1)(b) requires him not to improperly use his position to cause detriment to LPH. Whether Mr Hirschberg has breached these provisions of the Corporations Act by removing LPH as trustee of the Keegan Street Trust and/or varying the unit holdings of the Keegan Street Trust by issuing 100 million units in the trust to himself as trustee for the Octani Investment Trust, is a matter for the liquidators of LPH to consider and determine.
In the absence of evidence or a submission from the liquidators of LPH as to whether they intend to take steps to set aside the transactions effected by Mr Hirschberg relating to the trustee of the Keegan Street Trust, the court should not at this point in time substitute Mr Hirschberg as the plaintiff in these proceedings.
In the absence of the appearance of the liquidators of LPH in the hearing of Application (B), the application to substitute or otherwise amend the name of the plaintiff should be adjourned sine die.

Application (A) ‑ principles ‑ dismissal of proceedings for want of prosecution

The court as part of its inherent jurisdiction has power to dismiss a proceeding for want of prosecution. Whether the court should do so in a particular case is a function of the broader consideration that the court must ensure that justice is done in any cause brought before it.[16]
[16] The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 [90] (Steytler P and Owen JA).
The inherent power to dismiss proceedings for failure to comply with orders of the court in the case management era was considered by the Court of Appeal in The Hancock Memorial Foundation Ltd v Fieldhouse by Steytler P and Owen JA who relevantly observed:[17]
The court has inherent power to prevent its processes from being abused and the corresponding power to protect their integrity once they are set in motion: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391. The court also has inherent power to dismiss actions for gross disregard of case management orders. The rules have always prescribed time frames within which particular steps are to be taken in proceedings. Their effect is that the legal advisers for the parties are responsible for bringing cases to a reasonably expeditious conclusion. Until recently, as a general rule delay in bringing proceedings to a conclusion was only considered by the court on an application to strike out for want of prosecution. Today the position is different. The inherent jurisdiction to dismiss an action for want of prosecution is to be exercised having regard to the case flow management principles set out in the O 1 r 4A and r 4B and O 29 Rules of the Supreme Court 1971 (WA); Hughes v Gales (1995) 14 WAR 434 at 450 (FC).
The effect of O 1 r 4A is that the court takes its own positive steps to require parties to conduct litigation with proper expedition. Order 1 r 4B introduces management and supervision of litigation by the court to the extent that its resources permit in accordance with a system of positive case flow management. If a party fails to comply with case flow management orders, that party runs grave risks: Inform Formwork Pty Ltd v McInnes Concrete Service Pty Ltd, unreported; FCt SCt of WA; Library No 950611; 15 November 1995 per Ipp J at 9 ‑ 11 (in the context of a summary judgment application).
On the other hand, the courts have acknowledged that case management is not an end in itself and that the ultimate aim of the court is the attainment of justice which no principle of case management can be allowed to supplant: Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; Levi v Stirling Brass Founders Pty Ltd, unreported; FCt SCt of WA; Library No 970209; 9 May 1997.
[17] The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 [93] ‑ [95].

Steytler P and Owen JA identified the applicable principles that a defendant must meet when seeking an order for dismissal of proceedings for want of prosecution. A defendant must show:[18]
(a)whether any default has been intentional and contumelious, for example, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or
(b)whether there has been inordinate and inexcusable delay on the part of the plaintiff or his or her lawyers, and, if so
(c)whether such delay:
(i)will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action; or
(ii)is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.
[18] The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 [99].
Their Honours then went on to find that the following five matters are guidelines and are usually relevant to the court's discretion in determining an application to strike out for want of prosecution:[19]
(a)the length of the delay;
(b)the explanation for the delay;
(c)the hardship to the plaintiff if the action is dismissed and the cause of action left statute‑barred;
(d)the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and
(e)the conduct of the defendant in the litigation.
[19] The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 [100].
The fact that a plaintiff's action is not statute‑barred may now not be relevant in light of the principles enunciated by the High Court in Aon Risk Services Australia Ltd v Australian National University.[20] In Aon, French CJ observed that there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings and that the time of the court is a publicly funded resource.[21]
[20] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
[21] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [5].
Justice Heydon in Aon importantly made the following observations about the need for the efficient and timely disposition of commercial litigation:[22]
While in general it is now seen as desirable that most types of litigation be dealt with expeditiously, it is commonly seen as especially desirable for commercial litigation. Its claims to expedition may be less than those of proceedings involving, for example, extraordinary prejudice to children; or the abduction of children; or a risk that a party will lose livelihood, business or home, or otherwise suffer irreparable loss or extraordinary hardship, unless there is a speedy trial. But commercial litigation does have significant claims to expedition. Those claims rest on the idea that a failure to resolve commercial disputes speedily is injurious to commerce, and hence injurious to the public interest. As Rogers J stated in Collins v Mead:
'For example, if banks are unable to collect overdue loans from borrowers speedily, if small traders cannot recover moneys owed to them speedily the commercial life of the [c]ommunity is detrimentally [a]ffected. The consequences of delay in the hearing of a commercial dispute … will impact not just on the two or three persons or companies who are the immediate parties, but may have an effect on the creditors of the business, on employees, and perhaps on other traders unrelated to the immediate dispute.'
Commercial life depends on the timely and just payment of money. Prosperity depends on the velocity of its circulation. Those who claim to be entitled to money should know, as soon as possible, whether they will be paid. Those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay. In each case that is because it is important that both the claimants and those resisting claims are able to order their affairs. How they order their affairs affects how their creditors, their debtors, their suppliers, their customers, their employees, and, in the case of companies, their actual and potential shareholders, order their affairs. The courts are thus an important aspect of the institutional framework of commerce. The efficiency or inefficiency of the courts has a bearing on the health or sickness of commerce.
[22] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [137].
In Brocx v Hughes, Newnes JA made relevant observations, in an appeal from an order dismissing proceedings as an abuse of process in an action that was in all material respects identical to a claim in a former action which had been dismissed for noncompliance with a springing order.[23] In particular, after referring to the principles in Aon, Newnes JA pointed out:[24]
Whilst parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute, where a party has had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
[23] Brocx v Hughes [2010] WASCA 57; (2010) 41WAR 84.
[24] Brocx v Hughes [2010] WASCA 57; (2010) 41WAR 84 [93].
Importantly, Newnes JA went onto observe that:[25]
Where a party demonstrates a disregard for the orders or procedures of the court and as a result their claim is dismissed, their right again to invoke the jurisdiction in respect of that same claim cannot be unlimited if the public interest in the efficient use of court resources and the rights of other litigants are to be given due recognition. It cannot be the case that so long as the limitation period has not expired a party can ignore the rules and orders of the court, secure in the knowledge that if the worst happens and the action is struck out they can simply start again. It would bring the administration of justice into disrepute, and be 'productive of serious and unjustified trouble and harassment' to the defendant, if a party whose action had been dismissed by reason of their contumacious conduct could simply institute and proceed with a fresh action and, until the limitation period ran out, could continue to repeat that if and when the same fate befell them. To the extent that statements in the older cases, including Birkett v James and Tolley v Morris, may be understood to suggest that such a party is entitled as of right to prosecute a fresh action, I would not follow them. The High Court pointed out in Batistatos:
'The "right" of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.'

The grounds upon which Jameson Moore seeks an order that LPH's action be dismissed for want of prosecution (Application (A))

[25] Brocx v Hughes [2010] WASCA 57; (2010) 41WAR 84 [97].

Jameson Moore claims LPH's action should be dismissed on two grounds. The first is that there has been intentional default by the controller of LPH, Mr Hirschberg, and its litigation funder, Octani Investments, to leave the further security for costs order made by the Master on 22 February 2018 unsatisfied despite the fact that there is evidence before the court that the litigation funder is in a position within a short period of time to pay the outstanding security costs order and other outstanding costs orders and to fund the litigation.[26]
[26] Draft affidavit of Philip Allan Hirschberg filed on 15 October 2018 [144]. On 9 October 2018, the court granted leave to Mr Hirschberg to file and serve a draft of an affidavit that would be filed in opposition to Application (B) in the event that Application (A) was granted. At the hearing of Application (B) on 8 November 2018, after Mr Hirschberg sought to adjourn or withdraw Application (A), counsel for Jameson Moore informed the court that it had no objection to Mr Hirschberg being heard by the court on behalf of LPH in Application (B) (see ts 8 November 2018, page 201).
In a draft affidavit filed on 15 October 2018, Mr Hirschberg deposes:[27]
Since the Plaintiff has come out of administration under the deed of company arrangement the litigation has been funded through the support of Octani Investments, which is an investment vehicle I formed for the primary purposes of funding this litigation. A new entity was registered to allow funders behind it to invest in a clean legal structure with no history.
I am the sole director of Octani Investments and the company is owned by myself as trustee for Octani Investment Trust.
Due to the issues arising from the Defendants refusal to provide disclosure of at least the balance in the Account, Octani Investments has suspended providing any further large amounts of funding until such time as such disclosure can be secured and it can be satisfied that the balance in the Account justifies providing any further significant funding to the Plaintiff.
Octani Investments is willing to and indeed has continued to pay smaller expenses of the Plaintiff including filing fees and more recently the two outstanding costs orders in this matter. Attached at Annexure Z is correspondence from Mettam Legal to myself dated 5 October 2018 which confirms receipt of the payments.
Octani Investments is able to provide full funding for the proceedings through to and including trial with the support of its own financial backers which have to date already loaned Octani Investments well over $100,000 including $50,000 for the first security for costs which was paid in 1 September 2018 shortly after Octani Investments began providing funding, however it is not prepared to do so in circumstances where even the basic details of the only asset of the Defendant are still not clear.
[27] Draft affidavit of Philip Allan Hirschberg filed on 15 October 2018 [179] ‑ [183].
Jameson Moore claims that this evidence demonstrates a clear strategic decision to delay the prosecution of the action while Mr Hirschberg prosecuted his application for discovery in CIV 2709 of 2018. It says that this conduct is contrary to the case management system which is designed to promote just and efficient determination of litigation with a goal of the elimination of delay.
The second ground relied upon by Jameson Moore is that whilst there are many aspects of the plaintiff's conduct which should be regarded on their own as factors upon which it would be appropriate to make an order to dismiss LPH's action, LPH's conduct in this matter, when considered as a whole, establishes there has been inordinate and inexcusable delay.

Application (A) - relevant history of the litigation[28]

[28] This history is compiled from the court record of filed documents and from the history of the litigation set out in an affidavit sworn by Gregory John Mettam on 3 September 2018 on behalf of Jameson Moore.

On 26 August 2015, LPH commenced the proceedings. Its lawyers on the record were Norton Rose Fulbright.
On 10 September 2015, Jameson Moore filed and served its defence and counterclaim. On 17 September 2015, the plaintiff filed and served its reply and defence to counterclaim.
On 21 September 2015, the matter was admitted to the CMC list.
On 1 October 2015, Jameson Moore filed and served an application for security for costs. The first security for costs application was determined on the papers by Beech J, who, on 4 November 2015, dismissed the application and ordered Jameson Moore to pay LPH's costs forthwith,[29] which it did.
[29] LPH Developments Pty Ltd v Jameson Moore Pty Ltd [2015] WASC 416.
On 8 December 2015 and 4 March 2016, respectively, LPH and Jameson Moore gave discovery.
On 10 March 2016, Jameson Moore settled on the subsequent sale of the Keegan Street Property to a third party. The property was sold for $2.25 million from which existing loans were paid.
On 23 March 2016, the parties attended a mediation.
Shortly after the mediation, LPH changed its lawyers to Borrello Graham Lawyers. Borrello Graham Lawyers made an application on behalf of LPH for a freezing order to freeze the proceeds of sale of the Keegan Street Property. Jameson Moore's solicitors were instructed that it did not wish to deplete its limited resources by defending an interlocutory application, and to avoid the unnecessary costs filed the 2016 undertaking with the court.
The 2016 undertaking remained in place until October 2017. On 12 May 2016, Beech J made an order that the freezing order application be discontinued.
On 31 May 2016, the court made programming orders (by consent) requiring LPH to file and serve its amended reply by 15 June 2016, and made programming orders for expert evidence.
On or about 27 May 2016, Jameson Moore filed an amended defence and counterclaim. On 24 June 2016, LPH filed an amended reply but delayed the filing of its expert evidence.
On 25 August 2016, Beech J made a springing order (by consent but after affidavits were filed on the matter). The springing order required LPH to provide Jameson Moore with a copy of the reports of the substance of the evidence of any expert witness (whose evidence is to be adduced by LPH in the original action) by 4.00 pm on 5 September 2016, otherwise the writ of summons was to be struck out and the original action be dismissed with an order that LPH pay Jameson Moore's cost to be taxed, if not agreed. Beech J also made orders:
(a)requiring LPH to file and serve a reply by 29 July 2016;
(b)requiring Jameson Moore and LPH to provide further and better discovery by 15 August 2016 and 5 September 2016, respectively; and
(c)requiring LPH and Jameson Moore to file and serve their lay witness statements by 22 September 2016 and 13 October 2016, respectively.
Justice Banks‑Smith subsequently took over the case management of this matter. In compliance with the springing order, LPH filed and served its expert reports. However, LPH did not meet the orders for further and better discovery or for its lay witness statements. On 27 September 2016, Banks‑Smith J made orders extending time for LPH to do so, to 30 September 2016.
On or about 3 October 2016, LPH filed and served its only lay witness statement, being the statement of Mr Philip Hirschberg, and provided further and better discovery.
On 17 October 2016, Jameson Moore filed and served five witness statements or substances of evidence.
On 24 October 2016, Banks‑Smith J made orders (by consent) extending the time for compliance of the orders made on 25 August 2016. Further orders were made allowing Jameson Moore to file and serve a supplementary expert report by 31 October 2016 and for LPH to provide further and better discovery by 28 October 2016.
By 31 October 2016, Jameson Moore had filed its four expert reports. By the end of October 2016, Jameson Moore was pressing for trial dates in order to have the matter finally determined.
On or about 10 November 2016, LPH filed an amended statement of claim.
On 14 November 2016, Banks‑Smith J made further orders (by consent) programming the matter for trial. Those orders required (among other things):
(a)Jameson Moore to file and serve any amended defence to LPH's amended statement of claim by 28 November 2016;
(b)the parties to provide any further discovery by 23 November 2016;
(c)LPH to file its response of expert evidence by 21 November 2016;
(d)LPH to arrange expert conferral;
(e)the parties to advise of objections to evidence by 10 December 2016;
(f)the parties to give notice of the documents they intended to tender by 7 December 2016;
(g)the parties to give notice of the documents to be tendered by consent by 14 December 2016; and
(h)LPH to advise the listing co‑ordinator in writing of the parties' combined unavailable dates for trial by 15 December 2016.
LPH did not comply with these orders.
On 29 November 2016, Borrello Graham Lawyers made an application to get off the record as LPH's lawyers.
On 17 January 2017, Mr Hirschberg sought leave to appear on behalf of LPH and informed the court that he was dealing with a statutory demand issued by LPH's former solicitors, Borrello Graham Lawyers.
On 2 February 2017, Jameson Moore filed and served a second application for security for costs. A directions hearing was held before Banks‑Smith J on 7 February 2017. LPH was not represented at that hearing and her Honour adjourned the application to 7 March 2017.
On 7 March 2017, Metaxas & Hager attended the hearing on behalf of LPH and sought an adjournment. Metaxas & Hager were not yet then on the record. A further adjournment was ordered and the application for security for costs was programmed to be heard.
On 10 March 2017, Metaxas & Hager became lawyers on the record for LPH.
On 8 May 2017, the security for costs application was argued. On 9 May 2017, Banks‑Smith J found in favour of Jameson Moore and ordered LPH to pay $50,000 by way of security of costs to be paid into court. Her Honour also made an order staying the proceedings pending payment of the security amount.[30]
[30] LPH Developments Pty Ltd v Jameson Moore Pty Ltd [No 2] [2017] WASC 128.
The parties could not agree on the form of orders for the security application or the quantum of costs. After the solicitors for Jameson Moore filed an affidavit detailing the dispute, on 12 May 2017 Banks‑Smith J made orders sought by Jameson Moore, that by no later than 24 May 2017, LPH pay security and pay Jameson Moore's costs in a fixed amount of $3,883.
LPH did not pay the security for costs as ordered. Nor did it pay the costs as ordered.
From about May 2017, LPH started to assert that it was in negotiations for litigation funding. On 29 June 2017, Mr Hirschberg, on behalf of LPH, appointed administrators, Hall Chadwick, to LPH. On 24 July 2017, Mr Hirschberg registered Octani Investments Pty Ltd which later became the litigation funder for LPH (and was referred to in the DOCA).
On 27 July 2017, Jameson Moore gave 30 days' notice of its intention to withdraw its 2016 undertaking.
On 1 August 2017, the administrators of LPH provided Jameson Moore's solicitors with the report to creditors. The report to creditors showed that Mr Hirschberg (or companies under his control) claimed to be creditors of LPH for about $2.9 million. The remaining creditors included the Australian Taxation Office (about $600,000), Ms Ewa Holker (about $400,000), Borrello Graham Lawyers (about $200,000), Brajkovich Demolition & Salvage (WA) Pty Ltd (about $140,000) and Norton Rose Fullbright (about $100,000). Metaxas & Hager was also a creditor, as was Jameson Moore (for the unpaid costs of the security for costs application).
On 3 August 2017, Mr Moore (a director of Jameson Moore) and Jameson Moore's solicitor attended the second meeting of creditors. Parties related to LPH and Mr Hirschberg carried the vote. The DOCA was prepared and executed, following which control of the company passed back to Mr Hirschberg.
On 24 August 2017, LPH filed an urgent application for an injunction/freezing order (freezing order application). At this date, LPH still had not complied with the security of costs order made over three months before and the matter remained stayed.
LPH's freezing order application was listed on 28 August 2017 and counsel for Jameson Moore attended to argue the application. LPH, however, was not ready to argue its own application and sought an extension of time. On the morning of 28 August 2017, LPH paid the outstanding costs order from the second security for costs application and the court made an interim freezing order. On 1 September 2017, LPH paid the security, a consequence of which the action was no longer stayed.

On 2 September 2017, Jameson Moore wrote to LPH to agree orders programming the matter since it was no longer stayed and given almost a year had passed with no progress.
On 5 September 2017, there was a directions hearing and Banks‑Smith J extended time for compliance with the orders her Honour had made almost a year before, in November 2016.
The freezing order application was argued on 20 September 2017. On or about 29 September 2017, Metaxas & Hager informed solicitors for Jameson Moore that Metaxas & Hager would make, or had made, an application to get off the record.
On 3 October 2017, Banks‑Smith J handed down her decision to dismiss the freezing order application and ordered LPH to pay Jameson Moore's costs of the freezing order application without regard to the scale limits and, as to one directions hearing, on an indemnity basis.[31]
[31] LPH Developments Pty Ltd v Jameson Moore Pty Ltd [No 3] [2017] WASC 284.
On 5 October 2017, Mr Metaxas informed Jameson Moore's solicitors that Metaxas & Hager would no longer pursue its application to get off the record but sought an undertaking from Jameson Moore to permit LPH time to commence an appeal. Jameson Moore was put to the cost of considering this issue. No undertaking was provided, and no appeal was commenced.
On 9 October 2017, LPH filed an expert report of Mark Taylor.
On 23 October 2017, LPH (by consent) sought an extension of time to comply with the orders made on 5 September 2017.
On 21 November 2017, at a directions hearing Banks‑Smith J again made orders extending time. Among other things, the orders required LPH to provide further and better discovery by 24 November 2017, advise on objections by 24 November 2017, notify of documents to be tendered by consent by 24 November 2017 and arrange a conference of experts by 20 December 2017.
On application by Jameson Moore, Banks‑Smith J also listed the matter for a five‑day trial commencing on 30 July 2018 and made an order that LPH pay Jameson Moore's costs fixed in the sum of $462 forthwith.
On 27 November 2017, LPH provided the further discovery and its response to objections. LPH did not take steps to progress the conference of experts or comply with the remaining orders.
On 28 November 2017, Jameson Moore made a further application for security for costs.
The application was listed for argument on 15 January 2018.
On 10 January 2018, Metaxas Legal (formerly Metaxas & Hager) filed a minute by which it sought a declaration it had ceased to act for LPH.
On 15 January 2018, Jameson Moore attended the hearing of the application for a further security for costs before Banks‑Smith J to argue the application, but on Mr Hirschberg's application, the matter was adjourned to allow LPH time to obtain new solicitors.
The application for security for costs was then listed before Master Sanderson on 13 February 2018. On that date, Jameson Moore's solicitors attended with counsel. At that hearing, Mr Galic from MGM O'Connor Lawyers appeared on behalf of LPH and sought another adjournment so that he could read the matter as the new solicitor on the record for LPH. The application for further security was adjourned to 20 February 2018, and LPH was ordered to pay Jameson Moore's costs of the adjournment.
On 14 February 2018, MGM O'Connor Lawyers became the lawyers on the record for LPH.
On 19 February 2018, LPH filed a further affidavit and on 20 February 2018, the application for further security for costs was heard by Master Sanderson.
The application for further security for costs was granted on 22 February 2018 by Master Sanderson who delivered oral reasons for his decision. The Master ordered that within 28 days of the date of the order, LPH was to give further security in the sum of $50,000. The Master also ordered that LPH pay Jameson Moore's costs of the application to be taxed and paid forthwith.
On or about 7 March 2018, LPH sought leave to appeal the Master's decision.
LPH failed to meet programming orders in the appeal proceedings. LPH was required to file its appeal case by 21 March 2018 but failed to do so. Appeal Registrar Gilich made orders extending the time for filing of the appellant's case to 23 April 2018 and requiring LPH to pay Jameson Moore's costs in the amount of $385 by 26 April 2018. On 23 April 2018, LPH filed its appellant's case. The cost order of $385 remained unpaid until recently. LPH was late filing its schedule of evidence and appeal books.
Notwithstanding the appeal, Jameson Moore's lawyers tried to progress the matter so that if LPH was successful in its appeal, or the security was paid, the July 2018 trial dates would be met.
LPH did not take any steps to progress the matter.
On 14 June 2018, the Court of Appeal refused leave to appeal and dismissed the appeal. The Court of Appeal made an order that LPH pay Jameson Moore's costs of the appeal fixed in the amount of $10,000.[32] This cost order remains unpaid.
[32] LPH Developments Pty Ltd v Jameson Moore Pty Ltd [2018] WASCA 95.
On 22 June 2018, solicitors for Jameson Moore and for LPH attended a directions hearing. At that hearing counsel for Jameson Moore sought an order extending the time for payment of security for costs to a fixed date to enable the trial to proceed. Counsel for LPH opposed the order and informed the court his instructions were that there was no prospect that the security for costs would be paid and there was no point in making an order that LPH be given an extension of time to pay.[33]
[33] ts 22 June 2018, page 147.
The consequence of the non‑payment of the security for costs order and Master Sanderson's order that the proceedings be stayed pending compliance with that order is that the five days set for trial of the action had to be vacated. An order vacating the trial dates was made together with an order that LPH pay Jameson Moore's costs of the directions hearing fixed at $462.
On 26 September 2018, MGM O'Connor Lawyers ceased to act as lawyers for LPH. On 1 October 2018, Mr Hirschberg filed a notice of representation seeking to act in person with leave of the court or to act as spokesperson on behalf of LPH.
On 3 September 2018, Gregory John Mettam swore an affidavit in support of Application (A). In his affidavit, Mr Mettam deposed that at the time of swearing the affidavit LPH had failed to pay the following costs orders being the:
(a)costs of a directions hearing on 21 November 2017 fixed at $462;
(b)costs of an appeal directions hearing fixed at $385; and
(c)costs of the appeal, fixed at $10,000.
In an affidavit sworn on 24 October 2018, Mr Mettam deposed that subsequent to Application (A) being filed costs amounts of $462, $385 and $374 had been paid but that amounts of $462, $10,000 and the untaxed costs of the freezing order and recent security of costs applications remain unpaid.
In his affidavit sworn on 3 September 2018, Mr Mettam also deposed that Mr Moore had provided instructions that:
(a)he was reluctant to spend additional funds on the taxation of the costs of the August 2017 freezing order application or the February 2018 security for costs application given LPH's continued failure to meet costs orders, and the current amounts already outstanding; and
(b)Jameson Moore was likely to seek to have those costs taxed once this application is determined.

Conduct of the plaintiff in the litigation and the explanation of the delay

Mr Hirschberg accepts that there have been some 'minor delays' caused by the plaintiff in the proceedings but asserts that the delays:
(a)were unintentional; and
(b)were caused by reason of LPH's financial position.
He also claims on behalf of LPH that the failure to pay the costs orders have not in fact caused delays in the proceedings.
Mr Hirschberg claims that by late 2016, LPH was under financial strain because of the path that the litigation had taken. The financial circumstances of LPH at that time were eventually resolved by litigation funding provided through Octani Investments. It is claimed because Jameson Moore had withdrawn its 2016 undertaking, LPH was again faced with a difficult situation with regard to funding because of the ambiguity as to Jameson Moore's financial position. Mr Hirschberg also claims the interlocutory steps taken by Jameson Moore since 2016 should be regarded as steps 'aimed primarily to starve out LPH'.[34]
[34] Plaintiff's submissions, 8 October 2018 [13].
Mr Hirschberg denies that the delays by LPH have been of a tactical nature and claims that all of the delays have occurred for reasons that can be summarised as financial hardship caused by the extenuating litigation punctuated by Jameson Moore's refusal to provide any meaningful disclosure in relation to the proceeds of the sale of the Keegan Street Property.
However, as Jameson Moore points out there is no evidence before the court that LPH's financial strain can be attributed to Jameson Moore. Jameson Moore was successful in its second and third applications for security for costs orders and successfully defended an appeal against the third security for costs order. Further, it successfully defended LPH's freezing order application in respect of the proceeds of sale of the Keegan Street Property.
When determining that LPH should pay $50,000 in security for costs, on 9 May 2017, Banks‑Smith J made the following observations about LPH's pattern of non‑compliance with court orders:[35]
[35] LPH Developments Pty Ltd v Jameson Moore Pty Ltd[No 2] [2017] WASC 128 [23] ‑ [30].
Whilst the plaintiff complains of delay, it is the plaintiff that has repeatedly failed to comply with orders of the court, leading to many extension applications. For example:
(a)as to pleadings, its reply and defence to counterclaim was filed late;
(b)it defaulted with respect to orders to make further and better discovery on three occasions;
(c)as to witness statements, it failed to comply with the original order. It sought an extension and failed to comply with the extension order. One witness statement was subsequently filed;
(d)as to its obligation to file expert reports, on 31 May 2016 it was ordered to do so by 13 July 2016. It did not comply and sought an extension. On 25 August 2016, it was granted an extension until 5 September 2016. That was by way of a self-executing order. It complied with that order;
(e)the plaintiff has failed to comply with orders that it notify the defendant whether it concedes any of the defendant's objections to its lay witness statement;
(f)the plaintiff has failed to comply with an order that it inform the defendant of the documents it intends to rely upon at trial.
Such a pattern of non-compliance results in delay but also increases the costs for all parties in that there is a need for conferral, applications and additional court hearings.
There have been some defaults on the part of the defendant in complying with due dates but they have been minor by comparison.
There are three other matters relevant to the time period that has expired between applications.
First, after several months of conferral, the plaintiff issued proceedings in April 2016 for a freezing order, seeking in effect to secure moneys under the control of the defendant pending judgment in this matter. That application was resolved by consent and the defendant agreed to refrain from disposing of a significant sum. The plaintiff, having initiated that application in order to obtain a level of security, cannot properly complain about the time that has passed as a result.
Second, the defendant deliberately refrained from bringing this application in December 2016 to allow the plaintiff a period to retain new solicitors and then confer. It filed the application in February 2017 because the plaintiff had by then still not retained new solicitors. The bringing of and hearing of this application has been delayed while the plaintiff sought to retain new lawyers. Again, that is not a delay about which the plaintiff can properly complain.
Third, it is not as if the defendant has downed its tools. Since the last application it has prepared witness statements, obtained experts' reports, made discovery, issued subpoenas, dealt with the freezing application and made supplementary discovery.
The defendant has explained the catalyst for considering the further application from December 2016. There has been no relevant delay on the part of the defendant.
Mr Hirschberg claims that LPH is entitled to ascertain whether the proceeds of the sale of the Keegan Street Property have been dissipated by Jameson Moore so as to ascertain the economic benefit (or otherwise) of continuing to prosecute the action and determine whether there are grounds to make a further application for a freezing order. In particular, Mr Hirschberg claims that it is fair for LPH to know if it is wasting its time with the litigation.
For this reason, Mr Hirschberg made the application in CIV 2709 of 2018 for discovery of documents relevant to the disposition of the funds from the proceeds of sale. Among other reasons, the application in CIV 2709 of 2018 was dismissed as an abuse of process on grounds that it was an attempt to re‑litigate the issues determined by Banks‑Smith J in LPH's unsuccessful freezing order application and was an attempt to avoid the effect of the order made by the Master on 22 February 2018 staying the action until compliance with the order to pay additional security for costs in the sum of $50,000.[36]
[36] Hirschberg v Jameson Moore Pty Ltd [2018] WASC 348 [47].

The length of the delay

LPH has not conducted itself with a view to compliance with the court's orders and the just and efficient determination of the litigation without delay. LPH has engaged in delaying conduct since May 2016.
There are two periods of significant delay which are attributable to LPH.
The first is the period of three and a half months from 12 May 2017 until 1 September 2017 when the action was stayed by order of Banks‑Smith J until the first sum for security for costs was paid. The second is the period from 22 February 2018 until the present time wherein the action has been stayed resulting from non‑compliance with the second order for security for costs. LPH has not at any point in time since the order was made on 22 February 2018 sought an extension of time to comply with the order for payment. To the contrary, counsel for LPH on 22 June 2018 informed the court that there was no point in extending time for compliance.
LPH claims that the delay from 22 February 2018 to 22 June 2018 should be excluded because during that time LPH dealt with the appeal against the order for further security. This submission should not be accepted. LPH did not make an application to stay the order for further security or to stay the order staying the proceedings, pending the resolution of the appeal.
Prior to 12 May 2017, from at least 31 May 2016, there has been an ongoing failure by LPH to comply with case management directions. This resulted in a springing order being made by Beech J on 25 August 2016 in respect of the filing of expert reports by LPH. Whilst the springing order was complied with, LPH continued to fail to comply with case management directions which resulted in the court making orders to extend time. This conduct was properly characterised by Banks‑Smith J as a 'pattern of non‑compliance',[37] which continued after her Honour made that finding.
[37] LPH Developments Pty Ltd v Jameson Moore Pty Ltd [No 2] [2017] WASC 128 [24].
It is critical to the timely disposal of the court's business that case management orders are complied with, and there is an important need to ensure that orders of the court are not habitually disregarded. In Magenta Nominees Pty Ltd v Bonini, Wheeler J made this point and said:[38]
There are a number of reasons why this is so, aside from the obvious need to maintain the authority of any orders of the court. The orders are made in order to advance the objectives set out in O 1 r 4A and r 4B of the Rules of the Supreme Court.
Underlying those objectives are a number of factors. Those factors include a recognition of the prejudice to a fair trial which may ultimately be caused by delay, a recognition of the enormous stress and anxiety which is usually caused to litigants (particularly individual litigants, such as the Boninis), and a recognition of the fact that undue delay and inefficient use of the court's resources by some litigants has the potential to impair access to the court by others. Finally, in a case such as the present, it must be remembered that unnecessary expense is incurred whenever it is necessary to write letters or make applications to the court prompting a party to do that which it is already obliged, by the Rules or by an order, to do.
[38] Magenta Nominees Pty Ltd v Bonini [1999] WASC 88 [87] ‑ [88]; applied by Steytler P in Marriotti v Wanneroo North Pty Ltd [2008] WASCA 243 [53] (Buss JA & Beech AJA agreeing).
Of the costs orders made against LPH that have been complied with, LPH has regularly been late with payment and has taken an unreasonable position with respect to the taxation of other costs. LPH was ordered to pay the costs of the freezing order application. The effect of the orders was that Jameson Moore is entitled to an uplift in the scale and indemnity costs orders for certain issues that arose. Subsequent to the order being made by Banks‑Smith J, Jameson Moore made open offers to LPH to accept scale costs (and avoid the costs of the taxation) but LPH insisted on taxation.[39] The costs have not yet been taxed as Jameson Moore is reluctant to expose itself to the additional cost of taxation where a recovery of such costs appears unlikely from LPH's past conduct in paying costs orders and making due payments of security for costs according to the orders of the court.
[39] Affidavit of Gregory John Mettam sworn 3 September 2018 [79].
Delay has also been contributed to by the fact that LPH has now had four sets of solicitors. On each change there has been delay and inconvenience to Jameson Moore. After Borrello Graham Lawyers ceased to act there was a delay while LPH sought and instructed Metaxas & Hager (subsequently Metaxas Legal). After Metaxas Legal ceased to act, LPH took several months to engage MGM O'Connor Lawyers.
Since November 2017, LPH has taken no substantive steps in the proceedings to progress the matter to trial. Jameson Moore accepts that the matter is close to being ready for trial, but for expert conferral. However, these proceedings have been about this stage since November 2016 (or November 2017 at the latest). Jameson Moore says that the matter is at this stage largely because it had pressed to have the matter heard and determined from the outset. It says its efforts should be juxtaposed with the conduct of LPH who has flouted the court's orders continuously and for an extended period.

Detriment and hardship

Mr Hirschberg, on behalf of LPH, properly points out that LPH will likely experience hardship if the matter is dismissed or if a springing order results in the action being dismissed. In particular, the following matters are properly raised on LPH's behalf:
(a)the parties have come so far and invested so much money in the litigation which would be wasted;
(b)LPH will likely be burdened by costs in relation to the dismissed applications;
(c)LPH will not get the opportunity to have Jameson Moore answer its claim at trial; and
(d)LPH will be denied any opportunity to recover damages.
Jameson Moore says it will also suffer detriment. It points out the matters in issue in these proceedings took place in late 2013, almost five years ago. The surrounding circumstances to the transaction are relevant and evidence would need to be given about those matters. Mr and Mrs Moore, on behalf of Jameson Moore, will give such evidence. They have each provided written witness statements but will be required to be cross‑examined at length on those matters. They are in their mid to late sixties. It is claimed that it is a real risk that the passing of time will prejudice their ability to give evidence. It is also claimed that these proceedings are having an effect on the health of Mr and Mrs Moore.

As Mr Hirschberg properly points out on behalf of LPH, the age of Mr and Mrs Moore is not in itself material. Nor am I satisfied that the court has before it any evidence that Mr and Mrs Moore are suffering from ill health.
Jameson Moore points out that two of their witnesses have not provided written statements. I note, however, from the chronology of events provided on behalf of Jameson Moore (in Mr Mettam's affidavit sworn on 3 September 2018) that on 17 October 2016, Jameson Moore filed a substance of evidence for each of those witnesses. Whilst as time passes recollections of witnesses will no doubt be diminished, in circumstances where substances of evidence have been filed, I am not satisfied that the passing of time is material.
However, I am satisfied there will be hardship and prejudice caused to Jameson Moore by the dismissal of the proceedings as the orders proposed by Jameson Moore also involve its counterclaim being dismissed. Consequently, if the proceedings are dismissed Jameson Moore will not obtain judgment by default. Rather, it will not have an opportunity to prosecute its counterclaim for the substantial liquidated amount of $850,000.
Mr Hirschberg also makes the submission that whilst it is not a direct factor, a matter for consideration in the proper administration of justice and public interest is that the dismissal of these proceedings will likely result in Mr Hirschberg personally being declared bankrupt. However, no such contention is made out on the evidence before the court. Further, there is no evidence that the impecuniosity of LPH or of Mr Hirschberg has been brought about by the conduct of Jameson Moore in these proceedings. Nor is there any evidence that Jameson Moore has acted improperly or contributed to any delay in progressing this matter in any material way.
Mr Hirschberg also makes a submission on behalf of LPH that if a springing order is seen to be appropriate, the court should make an order pursuant to O 4A r 22(4) or r 23(1) of the Rules of the Supreme Court to place the matter on the inactive cases list, from which the action can be dismissed automatically after six months pursuant to O 4A r 28(1).

Application for a springing order - Application (A)

Where no action has been taken by LPH to make arrangements for payment of security for costs in accordance with an order of the court, the court, as part of its inherent jurisdiction, is able to grant a springing order.
The factors which may be taken into account in the making of a springing order in circumstances such as these include those referred to by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd as follows:[40]
(a)the period that has elapsed since security was ordered;
(b)the fact that the party against whom the security has been ordered (the plaintiff) has been on notice of an application for dismissal;
(c)the apparent inability of the plaintiff to fund the proceedings;
(d)the prejudice to the defendant; and
(e)the position of the court.
[40] Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWSC 18 [24]; applied in Construction Industries Australia Ltd (in liq) v WFI Insurance Ltd [2017] WASC 187 [4] (Pritchard J); Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 9] [2016] WASC 68 [14] (K Martin J).
Jameson Moore seeks a springing order in the alternative to an order that LPH's action be dismissed for want of prosecution.
Jameson Moore points out that whilst the court was inconvenienced by the loss of the July 2018 trial dates in June 2018, there is no additional inconvenience to the court by the orders sought by Jameson Moore in Application (A).

Application (A) ‑ Interests of justice ‑ what orders should be made?

What does justice, in all the notions or senses of if that are relevant, require in the circumstances of this case?[41]
[41] The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2015) 30 WAR 398 [103].
I am satisfied that on the material before the court there has been a demonstrated repetitive disregard for orders of the court by LPH which has resulted in inordinate delay in the timely progress and disposition of these proceedings.
Plainly, the decision of Mr Hirschberg, as the plaintiff's sole director and sole director of the litigation funder Octani Investments, to suspend that litigation funding is a deliberate tactical decision resulting in the failure to satisfy costs orders totalling $10,462 and non‑compliance with the further security for costs order in the sum of $50,000. It is also a consequence of these actions that this matter has now been stayed (on this occasion) for a period of longer than nine months and has resulted in the vacation of five days of hearing for the trial of this matter in July 2018. Such delay in the circumstances is inordinate and in the circumstances inexcusable.
The question of whether LPH could find funds to pay the outstanding further security for costs, and to fund the proceedings is not entirely clear. On the one hand, LPH is in liquidation and Mr Hirschberg is personally facing bankruptcy proceedings. Yet, Mr Hirschberg claims he is able to secure litigation funding for the action but will not do so unless provided with documentary evidence of the proceeds of sale of the Keegan Street Property. However, neither Mr Hirschberg nor LPH has an entitlement to the documents sought by Mr Hirschberg.[42]
[42] Hirschberg v Jameson Moore Pty Ltd [2018] WASC 348.
The power of the court to strike out an action for want of prosecution will only be exercised with reluctance because of the serious consequences of such an order. However, the orders of the court must be obeyed.
Having regard to the conduct of LPH in these proceedings, I would (but for the absence of any submission from the liquidators of LPH) dismiss LPH's action for want of prosecution.
I am, however, of the opinion that the liquidators of LPH should have a proper opportunity to take steps if they wish to do so to secure and obtain funding to satisfy the security for costs order, pay the Court of Appeal costs order and other costs orders made by this court and to continue the action. The liquidators should also be afforded a proper opportunity to consider the actions of Mr Hirschberg in relation to the replacement of the trustee of the Keegan Street Trust and the issue of additional units in the Keegan Street Trust.
For this reason, I am of the opinion that the liquidators of LPH should be provided with a period of three months to pay the further security of $50,000, on the condition that if the further security is not paid within that period of time a springing order should come into effect to dismiss LPH's action.
I am also of the opinion that if a springing order does come into effect, Jameson Moore's counterclaim should be dismissed after time for an appeal against any orders made in Application (B) have expired.
I will hear the parties further as to the orders, including orders as to costs, that I should make to give effect to these reasons. However, before I make any final orders, the liquidators of LPH should be served with a copy of this judgment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AH
Secretary
19 DECEMBER 2018