Marks v Emmanuel George Doukidis (also known as Eugene George Doukidis)

[2005] WASC 216

MARKS -v- EMMANUEL GEORGE DOUKIDIS (also known as EUGENE GEORGE DOUKIDIS) [2005] WASC 216

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 216
Case No:	CIV:2433/2003	Heard:	21 SEPTEMBER 2005
Coram:	MASTER SANDERSON	Delivered:	4/10/05
No of pages:	7	Judgment Part:	1 of 1
Result:	Master has power to extend time
Category:	A
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Parties:	MITCHELL MARKS EMMANUEL GEORGE DOUKIDIS (also known as EUGENE GEORGE DOUKIDIS)
Catchwords:	Practice and procedure Application for extension of time to comply with springing order Whether application to Master rather than Registrar who made order appropriate
Legislation:	Rules of the Supreme Court 1971 (WA)
Case References:	FAI General Insurance Co Limited v Southern Cross Exploration NL (1988) 165 CLR 268 Skahill v Kestral Holdings Pty Ltd (In Liq) [2000] WASC 32 Skahill v Kestral Holdings Pty Ltd (In Liq) [2000] WASCA 185 Chesson v Green [2002] WASCA 67 Hawthorn Football Club Ltd v Arfmas Pty Ltd, unreported; FCt SCt of WA; Library No 6896; 22 October 1987 Inform Formwork Pty Ltd v McInnes Concrete Service Pty Ltd, unreported; FCt SCt of WA; Library No 950611; 15 November 1995 McNiece Mechanical Services Pty Ltd v Watts Constructions Division Pty Ltd [1988] WAR 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MARKS -v- EMMANUEL GEORGE DOUKIDIS (also known as EUGENE GEORGE DOUKIDIS) [2005] WASC 216 CORAM : MASTER SANDERSON HEARD : 21 SEPTEMBER 2005 DELIVERED : 4 OCTOBER 2005 FILE NO/S : CIV 2433 of 2003 BETWEEN : MITCHELL MARKS

Plaintiff

AND

EMMANUEL GEORGE DOUKIDIS (also known as EUGENE GEORGE DOUKIDIS)
Defendant

Catchwords:

Practice and procedure - Application for extension of time to comply with springing order - Whether application to Master rather than Registrar who made order appropriate

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Master has power to extend time

(Page 2)

Category: A

Representation:

Counsel:

Plaintiff : Mr D M Fairweather
Defendant : Mr A F Mizen

Solicitors:

Plaintiff : Maxim Litigation Consultants
Defendant : Mizen & Mizen

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

FAI General Insurance Co Limited v Southern Cross Exploration NL (1988) 165 CLR 268
Skahill v Kestral Holdings Pty Ltd (In Liq) [2000] WASC 32
Skahill v Kestral Holdings Pty Ltd (In Liq) [2000] WASCA 185

Case(s) also cited:

Chesson v Green [2002] WASCA 67
Hawthorn Football Club Ltd v Arfmas Pty Ltd, unreported; FCt SCt of WA; Library No 6896; 22 October 1987
Inform Formwork Pty Ltd v McInnes Concrete Service Pty Ltd, unreported; FCt SCt of WA; Library No 950611; 15 November 1995
McNiece Mechanical Services Pty Ltd v Watts Constructions Division Pty Ltd [1988] WAR 64


(Page 3)

1 MASTER SANDERSON: This application raises a short but important point of procedure. Both parties agreed I should deal with the procedural point before dealing with the substantive issue raised by the application. Before setting out the point presently at issue it is necessary to say something about the background facts.

2 The writ of summons initiating the action was lodged on 25 November 2003. A memorandum of appearance was filed by the first defendant on 19 February 2004. At that stage the defendant was represented by solicitors. Following the usual course, a summons to attend a status conference was issued on 2 March 2004. At that status conference a timetable for the filing and service of the statement of claim and defence was set and the status conference was adjourned to 23 April 2004.

3 On 5 April 2004 the plaintiff filed an application for summary judgment. This application was adjourned on a number of occasions and was eventually programmed through to a hearing. It came on before Master Newnes on 21 September 2004 and the application was dismissed. The Master made certain programming orders including an order that each party was to provide discovery on or before 16 November 2004.

4 By application to the Case Management Registrar filed 29 November 2004, the defendant's solicitors applied to get off the record. The application was heard by Registrar C Boyle on 17 December 2004 when the learned Registrar made the following orders:

"1. It is ordered and declared that John Gaetano Mario Fiocco has ceased to be the solicitor acting for the defendant.

2. This order takes immediate effect but the applicant is to serve on the defendant within 7 days a copy of this order and within 14 days thereafter file in the Central Office a certificate of service.

3. Service of the order is to be taken to have been validly effected if by email."

5 A "certificate of service" was lodged by Mr Fiocco on 19 January 2005. It is worthy of note that this is not an affidavit of service. It is also worthy of note that Mr Fiocco says in the certificate that he served the defendant by sending a copy of the order by pre-paid post addressed to the defendant and that he also served the order by email. He says that both of these steps were taken on 17 December 2004.
(Page 4)

6 Also on 17 December 2004 Registrar C Boyle made further case management directions. He extended the time for the parties to give discovery to 28 January 2005 and adjourned the status conference to 4 February 2005. On 4 February 2005 the status conference was adjourned to 18 February 2005 without any further case management directions being made. On 15 February 2005 the plaintiff's affidavit of discovery, which had been sworn 7 February 2005, was filed. At the status conference on 18 February 2005 Registrar C Boyle made the following order:

"Unless by 4 March 2005 the defendant complies with the order dated 21 September 2004 and varied on 17 December 2004 to extend the time for compliance to 28 January 2005 to give discovery on oath, judgment be entered for the plaintiff as claimed in the statement of claim."

7 The transcript reveals that at the case management directions hearing held on 18 February 2005, there was no attendance either by the defendant in person or by anyone representing him. At that stage he was not represented by solicitors – his former solicitors had ceased to act and no new solicitors had been appointed. The transcript of the hearing on 18 February 2005 does not reveal whether or not the plaintiff's solicitors had made any attempt to contact the defendant. At the case management directions hearing held on 4 February 2005, counsel advised the Registrar that a copy of "the order that you (the Registrar) made last time" had been served by leaving a copy under the door of what was thought to be the defendant's residence. Although it is not clear from the transcript, presumably the order that was served was the one made 17 December 2004 which adjourned the status conference to 4 February 2005. On the face of the court record then, it is not at all clear that the defendant had any notice of the hearing held on 18 February 2005 or the plaintiff's intention to apply at that time for a springing order. This fact does not appear to have exercised the mind of either the learned Registrar or counsel for the plaintiff.

8 There was a failure to comply with the springing order and judgment was duly entered on 22 March 2005. The amount involved is not inconsiderable. It is US$800,000 together with interest of US$74,827.39. There seems to be no doubt that the defendant did not receive any notice of the status conference held on 18 February 2005. In his affidavit sworn 5 August 2005 the defendant says that he was aware of the status conference on 4 February 2005 (par 6) but was not aware of any other

(Page 5)

status conference. The first he knew of the judgment was when he received a bankruptcy notice on 29 July 2005 (par 7).

9 It is against that background that the defendant now seeks the following orders:

1. The judgment entered in this action be set aside.

2. The Order made by Registrar C Boyle on 18 February 2005 be varied by extending the time by when the Defendant is to give discovery in this action to a date that is seven (7) days after the date of this order.

3. The costs of this application be provided for.

10 The defendant made this application by way of chamber summons dated 8 August 2005 returnable before a Master in chambers. The defendant submitted as a preliminary point that it was not open to a Master to make the orders sought in the summons. It was not contended that there was not power to extend time for compliance with a springing order even after the time for compliance had expired: see FAI General Insurance Co Limited v Southern Cross Exploration NL (1988) 165 CLR 268. Rather, the question was one of jurisdiction.

11 Pursuant to O 60A of the Rules of the Supreme Court 1971 (WA), applications within a Registrar's jurisdiction are to be made to the Registrar. Rule 2A is in the following terms:

"An application in relation to a power of the Court that is exercisable by a Registrar or Case Management Registrar shall be made to a Registrar or Case Management Registrar, as the case requires, unless –

(a) the application or matter has been referred under Rule 3 to a Master or to the Court; or

(b) a Judge or Registrar has granted leave for the application to be made to a Master or to a Judge."

12 It is clear that Registrar C Boyle had the power to make a springing order in the terms that he did. This power arises either under O 26 r 15 (read with O 26A r 2(1)) or under O 29A r 6(6)(c) (read with O 29A r 4(c)). What the defendant is now seeking to do is vary the time for compliance with the order to provide discovery. Counsel for the plaintiff submitted that if such an order was to be made, it would be made under O 26 r 16. That rule gives a specific power to vary an order for discovery.

(Page 6)

Importantly however, a variation of the order falls within the jurisdiction of the Registrar. Pursuant then to O 60A r 2A as it was submitted, it is not open to a Master to vary the order so as to extend the time.

13 Counsel for the defendant relied upon the decision of Skahill v Kestral Holdings Pty Ltd (In Liq) [2000] WASC 32 and that same case on appeal, Skahill v Kestral Holdings Pty Ltd (In Liq) [2000] WASCA 185. The Skahill case involved a fact situation which was remarkably similar to this one. A party who was represented by solicitors failed to attend a case management conference. A springing order was made and when the order was not complied with judgment was entered. An appeal was lodged against the decision of the Registrar. It was contended by the party who had entered judgment that really what was being sought was an extension of time to comply with the springing order. Accordingly, it was submitted that the appeal process was not appropriate. In the course of my judgment, I said (par 6):

"… This is a problem (the manner in which to proceed) which has arisen in the past and it is not entirely clear from the Rules as to which is the proper way to proceed. In my view, where a party seeks an extension of time to comply with a springing order, that application ought ordinarily be made to the Case Management Registrar. Although O 29A r 3(2) does not deal directly with the question, in my view the power to extend time in relation to a case management direction is available under O 29A r 12(c). On the face of it there is no reason why a party seeking an extension of time cannot make an application to a Master or to a Judge. Both Judges and Masters have power to vary directions under O 29A r 13. However it is preferable if the Case Management Registrar who has made the springing order first deals with any application for an extension of time. The familiarity of the Case Management Registrar with the file puts the Registrar at an advantage in dealing with an application at first instance."

14 In my view, there is nothing to be gained by an obsessive enforcement by the Court of what are at times obscure rules of procedure. (In making this observation I am not criticising counsel for the plaintiff either directly or by implication. It was open to the plaintiff to take the point and it is reasonable that he did so.) I would repeat again that, in my view, the preferable course when seeking to extend time under a springing order is for the application to be made to the Case Management Registrar. But in the Skahill decision on appeal, the Full Court did not suggest that a

(Page 7)

Master did not have power to extend the time. If a specific head of power is required then I am satisfied that the general power provided by O 3 r 5(1) is sufficient. The specific inclusion of r 5(2) would suggest that it is intended to cover situations such as where the time has expired under a springing order. To now refer the matter to the Case Management Registrar, as would inevitably be the result if the plaintiff's submissions were accepted, would be to do no more than increase the delay and compound the costs already incurred.

15 I am satisfied that I have jurisdiction to entertain this application and I will hear the parties further in relation to this matter.