Mees v Sherwood Nominees Pty Ltd T/As Wovodich Engineering - [2009] WADC 65

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MEES -v- SHERWOOD NOMINEES PTY LTD T/AS WOVODICH ENGINEERING [2009] WADC 65

CORAM: DAVIS DCJ

HEARD: 14 APRIL 2009

DELIVERED : 8 MAY 2009

FILE NO/S: CIV 2182 of 2000

BETWEEN: ANDREW DAVID MEES
Plaintiff
AND
SHERWOOD NOMINEES PTY LTD T/AS WOVODICH ENGINEERING
Defendant

Catchwords:

Practice and procedure - Springing order - Judgment entered following non-compliance with springing order - Application to extend time and set aside judgment in default of compliance with springing order - Delay in providing further answers to interrogatories - Turns on own facts

Legislation:

Rules of the Supreme Court O 3 r 2

Result:

Application for extension of time and to set aside judgment granted

Representation:

Counsel:

Plaintiff: Mr E J Myers
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Bradley Bayly Legal
Defendant: Jackson McDonald

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

Avsar v Westland Healthcare Ltd [2007] WASCA 28
Bailey v Marinoff (1971) 125 CLR 529
Brocx v Hughes [2008] WASC 34
Chesson v Green [2002] WASCA 67
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Goodwin v Southern Tablelands Finance Co Ltd (1968) 42 ALJR 309
Hancock Family Memorial Foundation v Fieldhouse (2005) 30 WAR 398
Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86
Mees v Sherwood Nominees Pty Ltd t/as Wovodich Engineering [2004] WADC 174
Mees v Sherwood Nominees Pty Ltd t/as Wovodich Engineering [2005] WADC 8
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
Osgood v Wham [2007] WASCA 178
Pollard v Incorporated Nominal Defendant [1972] VR 955
Richardson v Leonard Cohen and Co (A Firm) (No 2) [2008] WASCA 101
Skahill v Kestral Holdings Pty Ltd [2000] WASCA 185

DAVIS DCJ: The plaintiff in this action was injured in an accident at his workplace on 29 November 1994. Not long before the expiration of the six year limitation period, on 21 August 2000, the plaintiff issued a writ against his employer, the defendant, seeking damages for the injuries he sustained in the accident. Although the action was entered for trial in 2002, the pre-trial conference was adjourned and for various reasons the matter then progressed slowly with further interlocutory steps taken, including the issuing of interrogatories by the defendant for answer by the plaintiff. After previous orders made for the filing of answers or objections to those interrogatories, on 6 December 2005, Deputy Registrar Hewitt made a springing order that the plaintiff's action be dismissed unless within 28 days he filed further answers to the interrogatories administered by the defendant.
The date for compliance with that springing order fell on 3 January 2006. The further answers for interrogatories were not filed. On 10 January 2006 an application to extend the time for compliance with the springing order was filed on behalf of the plaintiff. It is this application that I am required to determine.
The plaintiff's application is opposed by the defendant on a number of grounds including the following:
(a)The application is incompetent. A formal judgment dismissing the plaintiff's action was entered and sealed on 12 January 2006 and the defendant contended that formal judgment having been entered, the judgment may not be set aside except on appeal;
(b)Alternatively, if there is power to set aside the judgment it is exceptional and should only be exercised to rectify an injustice; and
(c)There is no, alternatively insufficient, evidence of injustice.
Other grounds raised by the defendant in opposition to the application included that the application was otherwise without merit and the passage of time is likely to affect the availability and quality of evidence so as to prejudice the fair trial of this action. I have treated these contentions by the defendant as part of the general issue of prejudice and justice which I will consider in more detail below.
Before dealing with the principles applicable to an application of this type and the defendant's arguments raised in opposition, it is relevant to look at the background to this application and the chronology of this action, which I have taken from the affidavits filed by the parties in relation to the interrogatories and the court file.

Background to this application

The defendant has admitted negligence on its part in relation to the accident on 29 November 1994. The two main issues in this action are:
1.Whether the plaintiff contributed to his injuries by his own negligence; and
2.Whether the symptoms and disabilities from which the plaintiff has suffered since the accident, and still suffers, are accident caused.
In the accident the plaintiff suffered an injury to his left leg. He did not make the recovery from this injury which was expected and he began to develop extreme sensitivity in his lower limbs. In 1995 he was diagnosed as having reflex sympathetic dystrophy (RSD) which is sometimes known as complex regional pain syndrome. The plaintiff has since developed psychiatric and psychological problems including anxiety and depression. The defendant disputes the diagnosis of RSD and disputes that the plaintiff's medical conditions, including his psychiatric and psychological problems, are related to or developed as a result of the accident.
As I have mentioned, the writ was issued in August 2000. The plaintiff did not file a statement of claim until 14 December 2001, however, by September 2002, pleadings had been finalised, discovery had taken place and the action was entered for trial. A pre-trial conference took place on 19 May 2003 but was adjourned and a number of interlocutory applications was then brought by the defendant.
First, in 2003 an issue arose when the defendant wished to have the plaintiff medically reviewed again (the plaintiff had already undergone review by the defendant's medical experts). The plaintiff lived in the Bunbury area and had difficulties, because of his ill health, in travelling to Perth for those medical appointments. An application by the defendant was filed on 4 November 2003, for a stay of these proceedings until the plaintiff presented himself for examination at appointments with medical practitioners as arranged by the defendant. That application was heard and dismissed on 10 February 2004. The defendant appealed from this decision but that appeal was not pursued.
Also in November 2003 the defendant brought an application for further and better discovery of the plaintiff's tax returns for the financial years ended 1988 to 1993. The plaintiff then filed an affidavit sworn 21 November 2003 revealing that he did not have these documents and he believed that the tax returns, notices of assessment and group certificates for that period had been destroyed by the Australian Tax Office. He later provided to the defendant a letter from the Australian Tax Office revealing that the plaintiff's tax returns and other documents for those years had been destroyed.
Another application by the defendant, filed on 20 May 2004, was for an amendment to the defence to withdraw an admission in relation to the cause of the plaintiff's consequential medical conditions. Deputy Registrar Harman dismissed the application on 20 August 2004: see Mees v Sherwood Nominees Pty Ltd t/as Wovodich Engineering [2004] WADC 174. The defendant appealed from that decision. The appeal was allowed by Fenbury DCJ on 28 January 2005 and proposed amendments to the defence, including withdrawal of the admission, were made: see Mees v Sherwood Nominees Pty Ltd t/as Wovodich Engineering [2005] WADC 8.
The defendant also wished to interrogate the plaintiff as to his pre‑accident working history in order to obtain details of the plaintiff's occupation and the income that he earned from each occupation in the 5 years before the accident. On 30 October 2003 the defendant's solicitors provided the plaintiff's solicitors with a set of interrogatories and inquired if those interrogatories would be answered by the plaintiff. The plaintiff's solicitors initially indicated that these interrogatories would be answered but then advised that the plaintiff would not do so. That prompted the defendant to bring an application for leave to administer the interrogatories. Leave was granted on 3 March 2005, with an order that the plaintiff file and serve sworn answers to or objections to answering the interrogatories within 28 days.
When the plaintiff did not comply with that order, the defendant brought an application for a springing order. A springing order was made on 28 June 2005 that unless within 28 days the plaintiff do make and file the answers to the interrogatories administered by the defendant pursuant to the orders of Registrar Hewitt made on 3 March 2005, the plaintiff's claim be struck out and judgment entered for the defendant with costs.
No answers to the interrogatories were filed. Judgment was entered, pursuant to the springing order, in favour of the defendant on 9 August 2005.
On 29 August 2005 the plaintiff swore a set of answers to the interrogatories which was filed on 30 August 2005, together with an application seeking an extension of the time for compliance with the order made on 28 June 2005. It was this application which was heard by Deputy Registrar Hewitt on 6 December 2005.
Deputy Registrar Hewitt did grant the extension of time sought by the plaintiff, however, he found that some of the plaintiff's answers to interrogatories sworn on 29 August 2005 were lacking in any particularity or sensible detail. He then made a further springing order requiring the plaintiff to file further answers to specified interrogatories, interrogatories numbered 1(c), 1(d), 3(a), 3(b), 3(c), 4, 5, 7 and 8, within 28 days, failing which the plaintiff's action would be dismissed.
As I have mentioned, the time for compliance with the springing order expired on 3 January 2006.
On 10 January 2006 the plaintiff's former solicitors filed the application to set aside the judgment and extend the time for compliance with the springing order made by Deputy Registrar Hewitt on 6 December 2005.
This application was first listed for hearing on 20 January 2006. On that date directions were made, inter alia, that the matter be listed for a special appointment. The next thing to happen on the file was a notice of intention to proceed, filed by the plaintiff's former solicitors, on 19 March 2008.
Shortly after this time, the plaintiff changed solicitors. The plaintiff swore further answers to the specific interrogatories on 29 April 2008 which were filed on 2 May 2008, together with a notice of change of solicitors. In these further answers to the interrogatories the plaintiff deposed to the fact that his overall condition had caused him to go "blank" on many matters, and that due to his psychological state he has some difficulty in recalling facts, processing matters in his mind and communicating matters to his solicitors.
The plaintiff changed solicitors again, with another notice of change of solicitors filed on 24 October 2008. The plaintiff then filed an affidavit, sworn 4 November 2008, which I discuss below in more detail when considering the application.
The application, after further directions, was eventually listed in November 2008 but directed to be heard by a Judge.
With this background in mind I now turn to consider the plaintiff's application and the contentions which have been raised by the defendant in opposition.

Is the application incompetent and should it have been brought by way of an appeal?

The plaintiff brought this application pursuant to the Supreme Court Rules O 3 r 5 and the authority of FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 ("FAI") that it is possible for a court to extend the time for compliance with a springing order, even after the time for compliance has expired.
The defendant contended that FAI may be distinguished on the grounds that judgment in that case had not been perfected and O 3 r 5 of the Supreme Court Rules only permits an extension of time for a springing order before the formal order has been drawn up and perfected. In this case a formal judgment had been drawn up and perfected on 12 January 2006.
The defendant submitted that it is still the case that the Court may not vary a duly entered order which bring proceedings to a conclusion, relying upon the commentary in Seaman, Civil Procedure Western Australia at [43.3.4] that perfected orders must generally be varied by appeal unless there is a specific statutory power to vary. The defendant submits that the only category of exception to the general rule that a perfected order must be appealed from relates to the court's inherent jurisdiction so as to prevent injustice.
For these reasons the defendant claims that the application to set aside the judgment and extend time is incompetent.
In making these submissions, the defendant relied in particular on comments made by Gaudron J in the FAI case at p 289‑290 as follows:
"Although it has been common to speak of a conditional order for dismissal as self-executing or of a proceeding upon which such an order has operated as "dead", that seems to me to obscure the fact that a conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time. Where such an issue remains to be determined it cannot be said that the court is functus officio. That being so, there seems to me no relevant distinction between a proceeding in which a conditional order for dismissal had been entered, and a proceeding in which an order had been made but not entered, notwithstanding the decisions in Goodwin and Bailey. However, it is neither necessary not appropriate to pursue that issue, the respondents having made their case without direct challenge to the actual decisions in those cases.
Where a power or discretion is conferred upon a court it is inappropriate that such power or discretion be treated as subject to limitations not contained in the grant of that power or discretion…
There may be occasions when it is appropriate to approach the question of the proper meaning of the grant of power on the basis that only the clearest express intention can displace fundamental legal principle or basic policy consideration. However, as a conditional order for dismissal such as that presently under consideration neither renders the Court functus officio nor of itself precludes the bringing of fresh proceedings there is no question of fundamental legal principle or policy brought into issue by the grant of power in Pt 2, r.3. That being so, and the language of the rule being such as to comprehend the power, Part 2, r.3 must be construed as authorizing the Court to enlarge the time fixed by a duly entered conditional order for dismissal notwithstanding that the time so fixed has expired, unless such authority is expressly excluded by statute or other rule of court."
The defendant contended that the decisions referred to in that passage of Goodwin (Goodwin v Southern Tablelands Finance Co Ltd (1968) 42 ALJR 309) and Bailey (Bailey v Marinoff (1971) 125 CLR 529) remain good law and FAI may be distinguished on the grounds that judgment had not been perfected in that case, so that the court at first instance was not functus officio.
I consider that this argument of the defendant is not supported by the majority of the High Court in FAI, Wilson, Brennan, Deane and Dawson JJ, nor is it supported by authorities in this State which have applied FAI.
In FAI Wilson J wrote the lead judgment (with which the others in the majority agreed) and distinguished a number of previous decisions which held that a court at first instance had no inherent power to reopen a case after judgment had been entered, including the Goodwin and Bailey cases: see FAI at 281 to 283. Both of those cases dealt with appeals, where the court was dealing with the inherent power to vary or extend the time for compliance, and not a statutory provision like that in FAI which gave the court the statutory power to extend the time for compliance with a springing order. In Bailey, Barwick CJ at 530 stated:
"Once an order disposing of proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court."
[Words in italics are in my emphasis.]
In the FAI case there was a specific and relevant statutory provision in the Supreme Court Rules of NSW, Pt 2, r 3, pursuant to which the extension of time could be granted, which provided as follows:
"(1)The court may, on terms, by order, extend or abridge any time fixed by the rules or by any judgment or order.
(2)The court may extend time under sub rule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires."
Wilson J in FAI at 283 described this statutory provision as follows:
"It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat."
Wilson J also discussed, at 286, a decision of Pollard v Incorporated Nominal Defendant [1972] VR 955. The Victorian Supreme Court held in that case that once proceedings had been concluded by a court order which has fully taken effect so as to create new rights and obligations as between the parties, then those proceedings would be "dead" subject only to appeal, so that the Victorian statutory rule, comparable to the Supreme Court Rules of NSW, Pt 2, r 3 in FAI, would have no application. Wilson J expressly rejected that proposition so far as the statutory rule in Pt 2, r 3 was concerned, stating that he was unable to take the same view.
The statutory rule in FAI is similar to the Rules of the Supreme Court O 3 r 5 which provides:
"(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules, or by any judgment, order, or direction, to do any act in any proceedings.
(2)The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period."
FAI has been applied in the context of O 3 r 5 of the Rules of the Supreme Court in a number of cases in this State: see for example Skahill v Kestral Holdings Pty Ltd [2000] WASCA 185; Chesson v Green [2002] WASCA 67, MTQ Holdings Pty Ltd v Lynch [2007] WASC 49; Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86. FAI was also applied in Richardson v Leonard Cohen and Co (A Firm) (No 2)[2008] WASCA 101 where the power to extend time in O 3 r 5 of the Rules of the Supreme Court was described as "a power to extend time to relieve against injustice, a long acknowledged jurisdiction and power of the court": see EM Heenan AJA (with whom Buss JA agreed) at [4]. In relation to the fact that judgment following the springing order has been entered in this case, in Skahill v Kestral Holdings Pty Ltd judgment following default in the springing order had in fact been drawn up and perfected: see at [4]. The commentary in Seaman, Civil Procedure Western Australia at [43.0.19] also states that although a judgment has been entered upon proof of default, an extension of the time to comply with the original order may be granted under O3 r 5, referring to FAI at 286. In Avsar v Westland HealthcareLtd [2007] WASCA 28 where an issue of an extension of time for a springing order was raised, the Court of Appeal stated that if the springing order had sprung, an application for an extension of time ought to be brought to the court that made the order: see Buss JA at [19].

Having regard to these authorities and the very wide provisions of O 3 r 5, I consider that the application brought by the plaintiff for the extension of time and setting aside of the judgment is competent and that it was neither appropriate nor necessary, as the defendant has submitted, for an appeal to be brought from the decision of Deputy Registrar Hewitt of 6 December 2005.
In any event since this application was directed to be heard by a judge the defendant at the hearing before me conceded that I could treat this as an appeal if I came to the view that its submission was correct. It is not disputed by the defendant that the Court has an inherent jurisdiction to set aside the order to prevent injustice.

Principles applicable to the application to extend time

Master Newnes (as he then was) in MTQ Holdings Pty Ltd v Lynch (supra) at [55] and [56] summarised the principles applicable to the discretion to extend time and set out the factors to which the Court will normally have regard. These are:
1.The circumstances in which the springing order came to be made;
2.The reason for non‑compliance with the springing order;
3.The prejudice to the defaulting party if the time were not extended;
4.The prejudice to the other party if the time were extended; and
5.The merits of the action, there being no point in resuscitating a case that is devoid of merit.
I now turn to consider these factors.

Circumstances in which the springing order came to be made

The circumstances in which the springing order came to be made are set against a background of a dispute about whether or not the plaintiff would answer the interrogatories, which prompted the defendant to apply for leave to issue the interrogatories. The plaintiff then failed to comply with the two orders made 3 March 2005 and 28 June 2005.
The plaintiff referred to affidavits sworn 30 August 2005 and 6 December 2005 by Darnell Gant in support of the plaintiff's application for an extension of time to comply with the springing order made on 28 June 2005. From these affidavits it was apparent that there were some difficulties in answering the interrogatories, including that documentation and tax returns were no longer in existence and had not been able to be obtained from the Australian Taxation Office and the interrogatories required extensive inquiries before they could be answered.
Deputy Registrar Hewitt reviewed the delay in complying with the order made on 28 June 2005 and the reasons given for that delay, and also looked at the question of prejudice flowing to either of the parties by reason of the delay. After considering the issue of prejudice he concluded that the prejudice to the plaintiff should weigh most heavily in his determination, and he should therefore extend the time within which to answer the interrogatories.
This was an unusual situation, however, in that the interrogatories had been answered but the Deputy Registrar then dealt with the answers to interrogatories themselves, which he considered were in many respects unsatisfactory and unhelpful and failed to provide the defendant with information which it ought to have to defend this case.
The Deputy Registrar did not set out in his reasons for decision any detail as to the deficiencies in the answers, but stated that he would allow the defendant's representative to identify the portions of the answers with which the defendant was unhappy and for him to bring in a ruling on that aspect of the matter. I have reviewed the answers. There were 11 interrogatories in total, which were divided into sub-interrogatories. The specified interrogatories as to which the plaintiff was ordered to provide further answers, were about the following issues:
1.In relation to the plaintiff's employment history in the 5 year period before the accident, 1989 to 1993, the specific duties the plaintiff was required to undertake in relation to each employment (interrogatory 1(c)) and the approximate period of employment in each case (interrogatory 1(d)). The plaintiff had prefaced his answer to interrogatory 1 with the statement that he did not have independent recollection of all the particulars and in answering interrogatories 1(c) and (d) he provided no detail of the duties and no specific dates in relation to each employment;
2.For each of the financial years ending between 30 June 1989 and 30 June 1993, the plaintiff's gross income, taxable income and net income (interrogatories 3(a), (b) and (c)). The plaintiff had prefaced his answer to interrogatory 3 with the statement that he did not have independent recollection of all the particulars. In relation to the years between 30 June 1989 and 30 June 1993 he answered that he had no independent recollection of his gross or taxable income. He gave the same answer of no independent recollection in relation to his net income, but this answer applied for all years between 30 June 1989 and 30 June 1997;
3.In the 5 years before the accident whether the plaintiff had conducted a business of any description, been self employed or carried out directors duties or any other work duties (interrogatory 4). The plaintiff answered this by saying that he was unable to answer this interrogatory as, after reasonable enquiry, he did not have an independent recollection;
4.Any periods of unemployment during the 5 years before the accident, (interrogatory 5(a)), the reasons for the unemployment (interrogatory 5(b)) and the efforts the plaintiff had made to obtain employment (interrogatory 5(c)). The plaintiff answered interrogatory 5(a) by saying he had no independent recollection and objected to answering interrogatories 5(b) and (c) on the grounds that they were scandalous, oppressive, unnecessary and not bona fide for the purpose of the action;
5.His education and qualifications (interrogatory 7). The plaintiff objected to answering this interrogatory on the same grounds as interrogatories 5(b) and (c);
6.Any attempt to obtain education and qualifications apart from those mentioned in the preceding interrogatory (interrogatory 8). The plaintiff similarly objected to answering this interrogatory.
It was this failure to provide answers to these interrogatories which led to the Deputy Registrar making a further springing order. He did so while acknowledging, when discussing the prejudice to the defendant, that:
"…by the date that the interrogatories were presented in 2003 the trail was well and truly cold. The prospects of obtaining much information concerning the plaintiff's employment history prior to his accident in 1994 were by that stage reduced. Certainly the delay which followed from that time would not have been helpful but it seems to me unlikely that the position was substantially worsened by adding two years of delay, at that stage, on an exercise which required investigations to be made of events some 15 years or thereabouts ago."

The reason for the non‑compliance with the springing order

I need to consider why the springing order was not complied with within the time allowed i.e. 28 days from 6 December 2005. I consider that it is also relevant to look at the reason for the delay which has occurred between then and 2 May 2008, when the outstanding obligation to provide further answers to interrogatories was fulfilled by the filing of the plaintiff's answers sworn 29 April 2008.
The affidavits in support of this application sworn by Mr Singh of the plaintiff's former solicitors on 10 and 12 January 2006 and the affidavit of the plaintiff sworn 4 November 2008, establish that the employee of the plaintiff's former solicitors who attended the hearing on 6 December 2005, Mr Darnell Gant, failed to communicate, either to Mr Singh or to the plaintiff, the orders which were made. The plaintiff in his affidavit sworn 4 November 2008 has given evidence that the first he knew about the springing order made on 6 December 2005 was when he received, for the first time, a second set of answers to interrogatories attached to correspondence from his former solicitors dated 11 January 2006. The plaintiff did not know what a springing order was and nothing was explained to him.
The 28 day period took into account the Christmas/New Year holiday period. The evidence of Mr Singh was that Mr Gant's employment with the plaintiff's former solicitors was terminated on 23 December 2005, their office was closed on 23 December 2005 for the Christmas and New Year holidays and Mr Singh did not know that a springing order had been made until his return from holidays on 9 January 2006. The next day the plaintiff's former solicitors filed the application to set aside the judgment and extend the time for compliance.
I am satisfied on the evidence that the non‑compliance with the order within the stipulated time of 28 days was not the fault of the plaintiff himself but the fault of the plaintiff's former solicitors. Although a solicitor acting in his professional capacity is the agent of the client and as a consequence, the solicitor's negligence or other fault can be visited upon the client, nonetheless the absence of the fault on the part of the client is always a relevant consideration, particularly when the justice of the case needs to be considered: see Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 199; Skahill v Kestral Holdings Pty Ltd (supra) at [9] and [10]; Lifelong Investments Pty Ltd v Karageorge (supra) at [28] .
I have had regard to the explanation in the affidavit of the plaintiff sworn 4 November 2008 as to why he did not swear the further answers to interrogatories until 29 April 2008. The plaintiff has described his medical condition and that he suffers daily from chronic pain. He has been in a wheelchair for many years and has had a live-in carer for over 10 years. He suffers from sensitivity in many parts of his body, insomnia and fatigue. He has a number of other ailments which he has attributed to his RSD. He takes high levels and different types of medication for his pain. He has stated that his pain levels interrupt his concentration with any and every task he attempts. He has explained that because of his ill health, it took time to process in his mind the historic and specific detailed employment facts in the interrogatories and, even with the assistance of his carer, it was a slow process with many personal health setbacks.
Along with giving some of the details to do with his medical condition and the difficulties he has with pain, the plaintiff has also annexed medical reports including a recent report from Steven G Cohen, clinical psychologist, dated 27 October 2008. Mr Cohen has stated that since the diagnosis of the RSD in 1995 the plaintiff has suffered anxiety, depression, fears, panic attacks and a gradually deteriorating capacity to undertake cognitive tasks. This is accompanied by a decreasing capacity to think matters through from start to finish without being side tracked or distracted to a different topic or multitude of past events related to his illness. Mr Cohen also stated that the plaintiff was now easily overwhelmed by large amounts of information or decision making requirements, especially if a deadline was involved. The more information and the more imperative the deadline, the greater the level of anxiety and fear and the more his psychological functioning deteriorates.
The defendant disputes both that the plaintiff has RSD and that the ill‑health which he suffers is in any way causally related to the accident the subject of this action. The defendant has produced medical reports disputing the cause of the plaintiff's current symptoms and these are annexed to an affidavit of Danielle Alice Winzenried sworn 17 February 2009 in opposition to this application. The ultimate issue of the cause of the plaintiff's current ill health is not a matter which I have to decide in this application. Based on the evidence before me I am satisfied that the medical condition of the plaintiff (however it was caused), is such that it has caused delay, since January 2006, in the settling and filing of the further answers to interrogatories. I accept that, in the absence of relevant documents like taxation returns, the process of providing specific details of employment, dates of employment or unemployment and income earned well over 10 years before would be difficult for anyone with the plaintiff's health problems.
The plaintiff has explained that he has not intentionally intended to flaunt any Court directions. He realised the importance of providing adequate answers to the interrogatories so that his claim could move forward. However it was a slow process with his personal health setbacks. He has also deposed to the fact that documents relating to the answers to interrogatories, including letters from former employers and Centrelink documents, have been provided in the course of discovery to the defendant's solicitors.
I am satisfied the plaintiff's delay in providing the further answers to interrogatories is not because of a deliberate or intentional disregard of the Court's order. The fact that there was no intention to ignore or disregard the order does not, of course, mean that the extension ought to be granted. Whether the extension will be granted depends on all the circumstances of the case: MTQ Holdings Pty Ltd v Lynch at [50] and [51].

Prejudice to the plaintiff if time is not extended

There is little doubt the plaintiff will lose the right to damages if he is not permitted to pursue his current action. Negligence has been admitted by the defendant so the plaintiff has a right to some measure of damages, even if those damages will be substantially less than claimed should the defendant succeed on its defences of contributory negligence and causation. It is not open to the plaintiff to commence fresh proceedings, the limitation period having long since expired. The plaintiff will therefore suffer serious prejudice if he is not allowed to proceed with the action.
It was suggested in argument by the defendant that the plaintiff has a claim against his former solicitors and his remedy therefore is against those solicitors. I must view such a proposition with caution: Brocx v Hughes [2008] WASC 34 at [42]. To pursue an action against his former solicitors the plaintiff would need to issue fresh proceedings, there may be difficulties of proof in relation to the success of the action against the defendant given the issues relating to causation and contributory negligence and, even if successful, the plaintiff's damages against the plaintiff's former solicitors would be assessed on the basis of the loss of chance. In an action against his former solicitors the plaintiff may not recover 100 per cent of the damages to which he may be entitled in this action: Skahill v Kestral Holdings Pty Ltd at [22]. The possibility of a remedy against the plaintiff's former solicitors cannot, in my view, adequately compensate for the prejudice that the plaintiff will suffer if he is not able to pursue this action.

Prejudice to the defendant if time is extended

The defendant in its submissions placed some emphasis on general prejudice arising from the overall delay in the plaintiff's prosecution of this action. Although delay in the action overall is not an irrelevant consideration, I should not put disproportionate emphasis on delay which occurred before the springing order was made on 6 December 2005: Osgood v Wham [2007] WASCA 178 at [62]. In any event, when looking at the history of the action, not all delay can be laid at the feet of the plaintiff or his solicitors. There is no evidence that the plaintiff or his solicitors have delayed contumeliously throughout this action or that the plaintiff has consistently and intentionally flouted the Court's orders: Osgood v Wham (supra) at [77] to [79].
In its written submissions the defendant has also raised the delay in bringing this application on for hearing, a delay of over 2 years. As I have previously noted, directions were made on 20 January 2006, including that the matter be listed for a special appointment. Why this matter was not listed has not been explained. In my view not all of the fault in failing to list this matter for hearing should be counted against the plaintiff. It was open to the defendant to ensure that the matter was listed for hearing: Hancock Family Memorial Foundation v Fieldhouse (2005) 30 WAR 398 at [119]. There is no evidence that the defendant's solicitors prompted the plaintiff's solicitors to ensure that the matter was listed for hearing: cp. MTQ Holdings Pty Ltd v Lynch at [66].
I take into account the fact that the plaintiff has obviously had some difficulties with his former solicitors. Since the appointment of his current solicitors, there has been no delay and this matter has been pursued on the plaintiff's behalf. There is nothing to suggest that the plaintiff will not now, if time were extended, comply with Court orders and proceed to a trial of the action.
There is no affidavit evidence that the defendant has suffered any specific prejudice, for example, through the inability to call witnesses. The affidavit of Danielle Alice Winzenried has annexed the various reports of medical experts obtained by the defendant, which indicates that the defendant could be ready to proceed to trial on the issue of causation. The medical history of the plaintiff is documented and, accepting the evidence of the plaintiff in his affidavit sworn 4 November 2008, he has provided discovery of all relevant documents relating to his pre‑accident earning capacity (so far as that is available) by way of discovery. He has also provided further details in his interrogatories sworn 29 April 2008.
In my view the delay which has occurred since 6 December 2005 is not of itself a serious prejudice to the defendant. As remarked upon by the Deputy Registrar at the time of making the springing order, as I have set out in [46] above, by the time the defendant interrogated the plaintiff, there had already been delay. It is unlikely that the delay in obtaining adequate answers to the interrogatories has substantially worsened the position for the defendant. There is no evidence of prejudice flowing to the defendant other than the continuation of this litigation.

The merits of the plaintiff's case

For the reasons I have already discussed the plaintiff's case has merit. Negligence has been admitted and he will be entitled to some damages from the defendant. It is the extent of the damages to which he is entitled which will need to be determined at trial.

Weighing all factors and the justice of the case

The defendant's principal contention in relation to the justice of the case was the need for parties to have regard to Court processes and rules, relying on the statement of McLure JA in Osgood v Wham at [20]:
"As I have noted elsewhere, there is a widely held view in this jurisdiction, based on the decision of the High Court in the State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, that the justice of the case will always, or practically always, permit a party to litigate an issue that is fairly arguable regardless of non‑compliance with court procedures and orders. It has produced a culture in the legal profession in this State of non‑compliance with court rules, practice directions and court orders, in particular interlocutory orders. The view is misconceived: see Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79. The Court has the duty and power to protect the integrity of its processes once they are set in motion. Case management is not an end in itself but it exists to further the interests of justice which are advanced by the timely and efficient disposition of proceedings."
In the case of Osgood v Wham, however, the Court of Appeal comprising Wheeler JA, McLure JA and EM Heenan AJA, having balanced various factors, came to the view that subject to appropriate costs orders, justice required that the judgment be set aside and time for compliance with the springing order be extended: see McLure JA at [24] and EM Heenan AJA at [81] and [82].

I have had regard to and balanced the factors which I have discussed in these reasons. There is not one factor or set of factors which is prescriptive of a particular result. All relevant matters must be balanced and the weight to be given to each will depend on the circumstances of the case. I consider that I should give weight in the circumstances of this case to the following matters:
1.Although there has been delay in the prosecution of the action overall, not all of that delay can be attributed to fault or inaction on the part of the plaintiff or his solicitors;
2.Although the springing order on 6 December 2005 was made against a background of failure by the plaintiff to comply with two orders made on 3 March and 28 June 2005 to file answers or objections to the interrogatories, apart from this there has not been a consistent failure by the plaintiff in complying with orders of the Court;
3.There is an explanation for the background of non-compliance with the orders made in relation to providing answers to the interrogatories. It is understandable that this plaintiff had difficulties in properly answering the interrogatories relating to his work history dating back to 1989‑1993, given that relevant documents such as his tax returns for the period were not available and his health problems;
4.The non‑compliance with the springing order to provide further answers to the interrogatories within the stipulated time of 28 days was not the fault of the plaintiff but the fault of the plaintiff's former solicitors;
5.The plaintiff was not himself aware of the fact that a springing order had been made. The fact that the plaintiff did nothing himself is explained by this ignorance and is a factor to be taken into account in the interests of justice;
6.There was no substantial delay in making the application to extend time for compliance with the springing order and that delay has been adequately explained;
7.At the time the application for an extension of time was made the plaintiff's former solicitors made some attempts to draft a set of answers to interrogatories which were then forwarded to the plaintiff. The plaintiff has explained why it took him so long to deal with his further answers to interrogatories, due to his health problems;
8.The plaintiff's delay in providing the further answers to interrogatories is not because of a deliberate or intentional disregard of the Court's order;
9.Prejudice to the plaintiff if an extension of time is not granted is far greater than any prejudice which the defendant may suffer if this application is refused;
10.The plaintiff's action does have merit, the defendant having admitted negligence.
Ultimately in considering the exercise of my discretion, I have to ask "what does justice, in all its notions or sense of it that are relevant, require in the circumstances of this case?": Hancock Family Memorial Foundation v Fieldhouse (supra) at [103], [150] and [166]; MTQ Holdings Pty Ltd v Lynch at [50].
After considering all factors and particularly the prejudice to the plaintiff, justice in my view requires that the judgment be set aside and the time for compliance with the springing order made 6 December 2005 be extended to 2 May 2008, the date when the plaintiff's further answers to the interrogatories were filed. This order must be subject, of course, to an appropriate costs order in favour of the defendant.
I will hear the parties on the orders to be made, in particular on the question of costs and case management directions which I consider ought to be made to ensure that this matter is now listed for and proceeds to trial as soon as possible.