Osgood v Wham

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: OSGOOD -v- WHAM [2005] WADC 134

CORAM: REGISTRAR KINGSLEY

HEARD: 9 JUNE 2005

DELIVERED : Delivered Extemporaneously on 9 JUNE 2005 typed from tape and edited by the Registrar

FILE NO/S: CIV 2174 of 2000

BETWEEN: JULIE ANNE OSGOOD
Plaintiff
AND
MALCOLM KEITH WHAM
Defendant

Catchwords:

Practice - O 3 r 5 Rules of the Supreme Court - Application to extend time after entry of judgment in default of orders

Legislation:

Nil

Result:

Application refused

Representation:

Counsel:

Plaintiff: Mr J R Potter
Defendant: Mr D J Bourke

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Clayton Utz

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

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Skahill & Anor v Kestral Holdings Pty Ltd (in Liq) & Ors [2000] WASCA 185

Case(s) also cited:

Nil

REGISTRAR KINGSLEY: the plaintiff brings an application pursuant to O 3 r 5 Rules of the Supreme Court seeking an extension of time to comply with par 1 of the orders made by a Registrar in pre-trial conference on 25 August 2004. The plaintiff seeks an extension of seven days.
Paragraph 1 of the orders made 25 August 2004 provided that unless by 22 October 2004 the plaintiff complied with par 3 of the orders made at the pre-trial conference on 10 June 2004 the plaintiff's statement of claim will be struck out and judgment entered for the defendant. Paragraph three of the orders made on 10 June 2004 were that the plaintiff, by no later than 21 July 2004, serve a copy of the report of any expert witness, the substance of which it intends to rely on at trial, or disclose in writing the substance of any expert evidence it intends to adduce at trial.
The plaintiff had brought an application dated 15 October 2004 seeking an extension of time to comply with the 25 August 2004 springing order. That application was dismissed on 20 October 2004. The defendant entered judgment on 26 October 2004.
The plaintiff's counsel Mr Potter, in his affidavit sworn 24 May 2005, deposes that there were delays in the expert opinion being provided. It was not until the first week of April 2005 that a signed substance of evidence was obtained. Mr Potter deposes that, subsequent to October 2004, the plaintiff's firm continued to enquire of the expert as to when he would be in a position to provide his expert opinion. Those enquiries continued to be made in November and December 2004 and in January and February 2005. Mr Potter then deposes that the expert report was obtained in March 2005. The report was then perused and considered by the plaintiff, by counsel and by the plaintiff's solicitor.
A signed substance of evidence was received from the expert in the first week of April 2005 and the plaintiff served that substance of evidence upon the defendant's solicitor.
It would appear from the chronology that the plaintiff's solicitor, notwithstanding the entry of judgment on 26 October 2004, continued in their efforts to obtain the experts evidence. Once that evidence was obtained the plaintiff's solicitors then sought an extension of time pursuant to O 3 r 5 Rules of the Supreme Court.
A brief history of the action is worthwhile. The proceedings were instituted in August 2000. In November 2001 the plaintiff was the subject of an order requiring her to file and serve a statement of claim within 21 days. In July 2002 the plaintiff was ordered within 14 days to file and serve a response to the defendants request for further and better particulars. The action was entered for trial in September 2002 and there have been nine attendances at pre trial conference.
There is no doubt that a court has power to grant an extension of time for compliance with a springing order, even when the time for compliance has expired and even where judgment has been entered (FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268).
When considering the application for an extension of time – and by necessity, the setting aside of judgment – the factors usually to be considered are the length of delay, the reason for the delay, whether there is an arguable case and the extent of prejudice suffered by the defendant. Since the introduction of case management there is a substantial public interest in the elimination of unnecessary delays in determining proceedings before the court.
In relation to delay the plaintiff was first ordered, by consent, to serve her experts report or substance on or before February 2004. It is not until April 2005 that the substance of expert evidence is provided. The plaintiff has disregarded orders made and has disregarded the entry of judgment.
Mr Potter deposes that the October 2004 application for extension of time was refused because, at that time, the extension sought was speculative. Mr Potter deposes that the presiding Registrar commented the plaintiff should obtain the opinion and then seek an extension of time. That comment could only have been made in the context that the exchange of expert evidence was to occur fairly shortly. To be otherwise results in the defendant, in an action for professional negligence, gaining a judgment and then, at some point in the indefinite future, being faced with an application for an extension of time.
I have undertaken a brief analysis of the merits of the claim by considering the pleadings. All that can be said is that it would appear the plaintiff has an arguable case.
On the question of prejudice this action is one of professional negligence and the cause has been pleaded for five years. Other than the fact the defendant has a judgment and would be entitled to consider the matter is at rest, there is no specific prejudice to the defendant. However, there is the general prejudice flowing from the fact of delay, and the inefficient use of court resources. As for the plaintiff there is always prejudice where judgment has been entered. Whilst plaintiff's counsel stated there would be irreparable prejudice flowing to the plaintiff, I do not accept that to be the case.
Plaintiff's counsel cited Skahill & Anor v Kestral Holdings Pty Ltd (in Liq) & Ors [2000] WASCA 185 to support his submission that judgment ought to be set aside. In my opinion Skarhill's case can be distinguished. The case revolved around the fact that the plaintiff's solicitor did nothing to ascertain the nature of orders made in their absence. Further, there had not been a previous application which had failed.
I am conscious of the fact that if time is not extended this action is brought to an end and the plaintiff has lost a right of action against the defendant. However, I am of the opinion that the length of delay from the entry of judgment without the plaintiff seeking to set aside that judgment militates against time being extended.
Accordingly, the plaintiff's application is dismissed.

[2005] WADC 134

9 June 2005 typed from tape and edited by the Registrar