Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [No 6] - [2009] WASC 217

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD -v- ANDERSON FORMRITE PTY LTD [No 6] [2009] WASC 217

CORAM: HASLUCK J

HEARD: 27 & 28 JULY 2009

DELIVERED : 28 JULY 2009

PUBLISHED : 3 AUGUST 2009

FILE NO/S: CIV 2446 of 2002
Consolidated with CIV 1955 of 2002 by Orders dated 16 December 2002

BETWEEN: RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD (ACN 004 304 447)
Plaintiff
AND
ANDERSON FORMRITE PTY LTD (ACN 097 507 652)
First Defendant
WARREN PERRY ANDERSON
Second Defendant

FILE NO/S :CIV 1955 of 2002

BETWEEN :RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD (ACN 004 304 114)
Plaintiff
AND
WARREN PERRY ANDERSON
Defendant

Catchwords:

Supreme Court practice and procedure - Discovery and interrogatories - Springing order for judgment for failure of defendants to adequately comply with court order - Rules of natural justice and rules and procedures for compliance with case management orders - Prejudice to court and parties when a party does not appear or participate in court proceedings - Requirement of a company to have legal representation - Consequences of failure to comply with court orders - Matters relating to springing orders - Failure by defendants to attend court hearings or participate in the preparation of case for trial - Previous judgment for plaintiff against first defendant - Further judgment for plaintiff against second defendant

Legislation:

Rules of the Supreme Court 1971 (WA), O 4 r 3(2), O 4A, O 4B, O 12 r 1(2), O 71A, O 72 r 5A
Evidence Act 1906 (WA), s 79C

Result:

Judgment entered for plaintiff for failure to comply with order

Category: B

Representation:

CIV 2446 of 2002

Consolidated with CIV 1955 of 2002 by Orders dated 16 December 2002

Counsel:

Plaintiff:     Mr M D Cuerden
First Defendant              :     No appearance
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Dwyer Durack
First Defendant              :     No appearance
Second Defendant         :     No appearance

CIV 1955 of 2002

Counsel:

Plaintiff: Mr M D Cuerden
Defendant: No appearance

Solicitors:

Plaintiff: Dwyer Durack
Defendant: No appearance

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

Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 372
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 3) [2009] WASC 148
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 5) [2009] WASC 194
State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

HASLUCK J:

Introduction

The plaintiff, Rapid Metal Developments (Australia) Pty Ltd ('Rapid Metal'), seeks certain orders and directions concerning the trial in this matter which was listed to commence on Monday, 27 July 2009. The orders and directions are sought owing to various failures by the first defendant, Anderson Formrite Pty Ltd, and the second defendant, Warren Perry Anderson, to comply with previous orders of the Court.
The procedural history of the matter makes it necessary for the court to balance various competing factors in determining what is to be done. On the one hand, it is necessary to give weight to the plaintiff's entitlement to seek relief pursuant to the usual court rules and procedures in the case management era and the obligation of a court to ensure that the integrity of its processes are maintained so that there is substance to that entitlement. On the other hand, the court must ensure that the rules of natural justice, which are reflected in the court rules and procedures, are observed so that the defendants are given sufficient notice of orders or directions that may adversely affect them and be afforded an opportunity to be heard in respect to the matters in issue. It is for this reason that it is necessary to make certain observations before proceeding to a determination.

Procedural history

The history of the matter has been referred to at some length in a number of previous rulings made by the Court, including most recently the decision of Le Miere J on 13 July 2009 reported as Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 5) [2009] WASC 194. It follows that for present purposes I will not traverse the history of the matter in detail but will refer only to certain features of that history in general terms which will serve to explain the situation that has now arisen.
The matters in issue on the pleadings are reflected in the papers for the judge dated 4 June 2008 which were filed when the matter was entered for trial over 12 months ago. It appears from par (a) of the prayer for relief at page 13 that the plaintiff claimed against the first defendant and the second defendant the sum of $3,183,986.60 and at par (e) interest pursuant to a so‑called trade account at a prescribed rate of interest per month. Further, at par (f) the plaintiff also claimed costs on a solicitor/client basis pursuant to certain allegedly agreed terms. I note in passing that in comparatively recent times the plaintiff has quantified its claim in the lesser amount of $3,034,688.57, being the amount the subject of the judgment referred to below. For ease of reference, I will refer to the latter amount as the plaintiff's claim.

The pleadings

It appears from the pleading that the plaintiff's claim arose in this way. The building company, Baulderstone Hornibrook Pty Ltd ('Baulderstone'), was engaged to construct the Woodside building at 240 St Georges Terrace, Perth. The builder then engaged Anderson Formrite to install a formwork system pursuant to a sub‑contract described in the pleadings as the 'formwork contract'. Anderson Formrite engaged Rapid Metal to sell and/or hire products and items of equipment so that the Formrite contract could be performed.
Baulderstone complained of breaches, and this led eventually to legal proceedings in the Federal Court between Baulderstone and Anderson Formrite. In the meantime, a dispute arose between Anderson Formrite and Rapid Metal which led to the present proceedings before me in the Supreme Court of Western Australia.
It appears from the papers for the judge, mentioned earlier, described in summary form, that Rapid Metal alleged in pars 4 to 7 of its claim that the plaintiff agreed to provide Anderson Formrite with a so‑called trade account as to the sale and hire of the plaintiff's equipment. The trade account agreement was allegedly supported by Mr Anderson's written guarantee dated 26 September 2001.
It is said further by Rapid Metal that between October and December 2001 some five agreements were made whereby the plaintiff agreed to sell and hire equipment to Anderson Formrite pursuant to the trade account agreement, being essentially items comprising the table form system so that Anderson Formrite could perform work contracts. It is said that invoices were rendered for the sale and hire of the table form system including transport and other costs. Anderson Formrite paid $615,989.37 in partial satisfaction of the invoices but has failed to pay the balance outstanding, being the amount the subject of the plaintiff's claim. It is said also that Anderson Formrite has failed to return certain hired goods. The plaintiff contends also that Mr Anderson is personally liable pursuant to his written guarantee.
The defendants contested certain particulars concerning the form of the agreements entered into, including, as to Mr Anderson, alleged imperfections in the written guarantee which are said to render the guarantee unenforceable. Additionally, being a matter that lies at the heart of the dispute between the parties, Anderson Formrite allege that it was induced to enter the table form system agreements as a result of reliance upon representations made by Rapid Metal that it could provide a complete and sufficient table form system for the subject premises in conformity with the Baulderstone formwork contract.
By its defence and counterclaim Anderson Formrite pleaded (especially in par 20) that the plaintiff did not supply a complete and sufficient system and, in particular failed to adequately allow for certain loads and failed to provide adequate instructions and employee training. Anderson Formrite said that as a consequence of the plaintiff's alleged breaches the plaintiff was not entitled to the amount the subject of its claim or otherwise and Anderson Formrite was entitled to set off damages arising from the plaintiff's alleged breaches which were sufficient to extinguish the plaintiff's claim. These allegations by Anderson Formrite were relied upon also by Mr Anderson as second defendant and are reflected in the respective pleadings.
By its reply the plaintiff denied the alleged breaches. It said also, in regard to Mr Anderson's plea concerning the guarantee, that Mr Anderson, in returning a signed written agreement to the plaintiff, was estopped by his conduct from relying on the alleged imperfections in or allegedly associated with the execution of the guarantee documents.

General observations

It will be apparent from this summary that both Rapid Metal and Anderson Formrite have an interest in the nature and progress of the Federal Court proceedings, as those proceedings are concerned with an alleged failure to perform the formwork contract. Further, as to the Supreme Court proceedings, it is apparent that Anderson Formrite had to substantiate various positive assertions as to the breaches alleged against Rapid Metal in order to make out its case for a set‑off sufficient to extinguish the plaintiff's claim or otherwise to substantiate its counterclaim.
It was clear from the nature of the matters in issue, being matters principally raised by Anderson Formrite in its statement of defence, that expert evidence would have to be presented and that the trial was likely to be lengthy. Indeed, certain issues concerning expert evidence were dealt with in a lengthy judgment in this matter delivered by Johnson J of this Court on 17 November 2005. Towards the end of 2008 the matter was eventually listed for trial on 27 July to 21 August 2009.
By chamber summons dated 14 January 2009 the defendants applied for orders vacating the trial dates. However, when the matter came before me on 19 January 2009, the application for an adjournment was refused. It was made clear to the parties at that time that in the case management era the parties would be expected to work purposefully towards the trial date and that programming orders of the usual kind, including the provision of witness statements, should be attended to expeditiously with that objective in mind.

Further issues

Issues then arose as to whether Anderson Formrite had answered interrogatories in a satisfactory manner. On 21 May 2009, as appears from my ruling in Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 3) [2009] WASC 148, orders were made whereby Anderson Formrite, by its director, Warren Perry Anderson, was required to serve further and better answers verified by affidavit to 14 contentious interrogatories within 14 days in accordance with the reasons handed down by me at the time of making the orders. The orders included reference to a further directions hearing to be held in chambers on 10 June 2009. At that time the defendants were represented by their solicitors, Solomon Brothers, and in that way it can be assumed that the defendants had clear notice of the forthcoming hearing. I note in passing that some days later, on 29 May 2009, Solomon Brothers obtained an order allowing for them to cease acting for the defendants. The order in question was extracted in due course and since that time the defendants have not been represented by solicitors.
It had been made very clear to the defendants at the hearing on 21 May 2009 and in the associated reasons for decision that severe consequences might follow if there was a failure to comply with the order for further and better answers to interrogatories, including the possibility of a springing order whereby the defence of Anderson Formrite might be struck out and judgment entered for the plaintiff in respect of the plaintiff's claim.
Anderson Formrite failed to comply with the order concerning further and better answers to interrogatories with the result that on 10 June 2009 the solicitors for Rapid Metal applied for and obtained an order to the effect that unless within 14 days of service of the subject orders Anderson Formrite by its director filed and served further and better answers to the interrogatories in question, its defence and counterclaim would be struck out and judgment entered for the plaintiff. Orders and directions were made concerning the manner in which service of the principal order was to be effected upon Anderson Formrite.
On 26 June 2009 a document described as the affidavit of Warren Perry Anderson providing further and better answers to plaintiff's interrogatories was filed at the Supreme Court. Annexed to the affidavit was a document purporting to be Anderson Formrite's further and better answers to interrogatories 1(b), 1(d), 1(e), 4(a), 6 and 7 of the interrogatories in question; that is, answers to seven of the 14 interrogatories the subject of the earlier order. The cover sheet of the affidavit suggested that the document had been prepared by Anderson Formrite's former solicitors, Solomon Brothers, but there is affidavit evidence before me that Solomon Brothers were not in fact acting for the defendants at that time, having previously obtained an order for cessation as mentioned earlier. Certainly, there is no notice on the file suggesting that Solomon Brothers or any other firm of solicitors are solicitors on the record for the defendants.

Compliance

The affidavit of Maree‑Louise van der Kwast sworn 30 June 2009 establishes to my satisfaction that the springing order of 10 June 2009 was served upon Anderson Formrite and Mr Anderson on 12 June 2009. Accordingly, Anderson Formrite was required to comply by Friday, 26 June 2009. The deponent goes on to say this in her affidavit about what is said to be the first defendant's purported compliance with the springing order:
31.On 26 June 2009 an affidavit of Warren Perry Anderson purporting to provide Further and Better Answers to the plaintiff's interrogatories was delivered to our office.
Attached hereto and marked 'MVDK20' is a copy of the affidavit of Warren Perry Anderson sworn 26 June 2009.
32.The affidavit of Mr Anderson was delivered to Dwyer Durack by an outside clerk employed by Solomon Brothers. The cover page of the affidavit also states that the document had been prepared by Solomon Brothers.
33.However, following receipt of the affidavit, we received a facsimile from Solomon Brothers which confirmed that they had ceased acting for the First and Second Defendants and despite the fact that they filed and served the affidavit of Mr Anderson, this did not mean that they were acting for the Defendants or had resumed as the Defendants' solicitors of record. In this facsimile Solomon Brothers also stated that they had not prepared the affidavit of Mr Anderson.
Attached hereto and marked 'MVDK21, is a copy of this facsimile.
The First Defendant remains in default of the springing order made on 10 June 2009.
34.I say that the affidavit of Mr Anderson sworn 26 June 2009 did not comply with the springing order made on 10 June 2009. That order required the First Defendant to provide further and better answers to interrogatories 1(a), (b), (d), (e), (f), (g), 2(c), 3(d), 3(e), 3(f), 4(a), 6, 7(a) and (b) of the plaintiff's interrogatories.
35.The affidavit of Mr Anderson only provided further and better answers to interrogatories 1(b), (d), (e), 4(a), 6 and 7. That is, there was no attempt to answer interrogatories 1(a), (f), (g), 2(c), 3(d), 3(e) or 3(f).
36.Further, I say that the purported answer to interrogatory 1(e) is on its face inadequate and fails to comply with the order.
37.Further, and in any event, as the First Defendant is a corporation and can only defend these proceedings (or prosecute its counterclaim) by solicitors, I say that the purported filing and service of the affidavit by the First Defendant without having solicitors on the record (contrary to the face of the affidavit) means the affidavit is a nullity or otherwise has no effect.

Further observations

I pause to note that there is authority for the proposition set out in par 37 of the van der Kwast affidavit. Order 4 rule 3(2) of the Rules of the Supreme Court 1971 (WA) provides that except as expressly provided by or under any Act, a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor. Order 12 rule 1(2) is to similar effect in providing that a body corporate may not defend an action except by a solicitor. In Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 372 it was held that a judge cannot dispense with the requirements of the rules of court unless the rules give him power to do so. In that case an individual litigant was not permitted to rely upon affidavits he sought to file having regard to the rules of court mentioned earlier. The notion of defending an action refers essentially to taking a step in the proceedings or carrying on the action and the filing of an affidavit could be regarded as a step of that kind. It was said further that in the light of O 12 r 1(2), and notwithstanding the inherent jurisdiction of the Supreme Court to regulate its proceedings, the individual in question was not at liberty to take a step in the action on behalf of the respondent company. To allow him to file and rely upon his proposed affidavits would be to allow him to 'defend' the present proceedings and his application to do so should be refused.
The rationale for the rule is that otherwise litigation involving companies would be conducted by untrained and unqualified advocates and this would subvert the system of administration of justice in the courts which requires that assistance or information be provided by qualified advocates or by those with a degree of personal interest in the outcome.
It was said also that the court can, pursuant to its inherent power to regulate its own proceedings, permit a person other than a duly qualified legal practitioner to address the court or actively participate in proceedings, in rare and exceptional cases, but this can only be done by leave of the Court. Leave to address the Court does not extend to the filing of affidavits.

Subsequent events

It was against this background that Rapid Metal, by its solicitors, applied to enter judgment pursuant to the springing order previously made on 10 June 2009 on the grounds that there had been a failure to comply with the springing order within the prescribed time limit of 14 days in conformity with the Supreme Court Rules. For the reasons set out in the van der Kwast affidavit it was apparent, and so held, that the first defendant had failed to comply with the orders previously made. This led to judgment for the plaintiff being entered on 9 July 2009 upon the basis that:
Default having been made, it is this day adjudged that the first defendant's defence and counterclaim be struck out and judgment be entered for the plaintiff in the sum of $3,034,688.57 together with interest thereon at the rate of 1.5% per month as from 30 May 2002; and costs on a solicitor/client basis.
It emerges from the procedural history of the matter to this point that at every stage orders were made with a view to affording to the defendants an opportunity to be heard in respect of matters likely to affect them adversely in circumstances where a longstanding trial date of 27 July 2009 was steadily approaching. The affidavit of Warren Perry Anderson sworn 26 June 2009, for the reasons referred to earlier, did not represent sufficient compliance with the springing order made by the order, with the result that judgment for the plaintiff was properly entered. However, it is significant that the address of Mr Anderson was given in that affidavit as Fernhill, Mulgoa, in the state of New South Wales being one of the addresses the subject of previous orders for service. The fact that an affidavit in purported compliance with the order was filed and served on the final day is a clear indication that the court documents to be served upon the defendants had reached them at the addresses for service in question. Nonetheless, no other communication was received from the defendants and the defendants were not represented by counsel, or in the case of the second defendant, by counsel or in person on 10 June 2009, or an any of the following dates mentioned below.

This sequence of events bears upon the question of whether the defendants can or cannot be characterised as parties conscientiously attending to the procedural obligations imposed upon them by the rules and rulings of the court in the period before trial in circumstances where the importance of compliance had previously been emphasised. The entire trial system in the case management era would fall into disrepute and become unworkable if one party could simply sit back and do nothing in response to orders made by the court in the unilateral and possibly complacent expectation that its every default was bound to be overlooked or excused, notwithstanding the loss of time and expense caused to the other party, to the court itself, to other litigants and ultimately to the public as a result of the recalcitrant party's failure to comply. For this reason, as I observed in earlier rulings, the court is required to protect the integrity of its processes by the provision of severe sanctions, including the making of a springing order, where, as in this case, such an order appeared to be the only effective means of securing compliance.
I observe in passing that in circumstances where the time to a long‑standing trial date was steadily diminishing, with little prospect in the case of a lengthy trial of an alternative trial date being found in the near future, adjournments or orders for costs against the recalcitrant party cannot be regarded as a sufficiently effective means of enforcement.

Witness statements

In addition to the issue concerning further and better answers to interrogatories, an issue arose as to whether the defendants were in default in regard to the delivery of witness statements and in certain other respects concerning trial documents. This prompted the plaintiff, Rapid Metal, to apply for a springing order that the second defendant's defence be struck out and judgment be entered for the plaintiff if the second defendant did not, within 7 days, serve Rapid Metal with witness statements or a written notice stating that Mr Anderson, as second defendant, did not propose to call any witnesses at the trial.
This application was dealt with by Le Miere J. There is no need for me to address this matter at length in these observations because the reasoning of Le Miere J is reflected fully in the judgment handed down by him on 13 July 2009 mentioned earlier.
His Honour was of the view that having regard to the principles of case management and the interests of justice the Court should make a springing order of the kind sought. His Honour noted that Mr Anderson had not complied with the pretrial directions made on 27 February 2009 in relation to the preparation of a book of documents and had not served any witness statements. Further, the second defendant did not appear at the hearing before Hasluck J on 10 June 2009 nor at either of the hearings before Le Miere J on 3 July and 10 July 2009.
His Honour observed that in the circumstances he inferred 'that the second defendant no longer intends to defend the claim against him and does not intend to defend the plaintiff's claim at the trial of this action'. He went on to say that the failure of the second defendant to attend the court hearings and to participate in the preparation of the case for trial in accordance with the pretrial directions had disadvantaged the plaintiff in its preparation for trial. His Honour therefore made a springing order in the form sought by the plaintiff.

Further hearings

A further directions hearing was held before me on Thursday, 23 July 2009 with a view to obtaining clarification as to whether the trial would proceed on Monday, 27 July 2009 and dealing with any outstanding pretrial issues. Notice of this hearing was given to the parties but again there was no appearance by or on behalf of either of the defendants on that occasion.
I understand from the materials before me and from what was said at the latter hearing, that Rapid Metal, by its solicitors, was unable to effect service of the springing order concerning the witness statements upon the second defendant, Mr Anderson, until 17 July 2009, with the result that it would not be open to the plaintiff to enter judgment against the second defendant pursuant to the springing order made by Le Miere J until after Friday, 24 July 2009 or possibly until after Monday, 27 July 2009. I will return to that aspect of the matter shortly. I pause to note, however, that in that regard and at that stage as to proof of service of the order in question and related matters, I had before me the affidavit of Daniel Ryan Gill sworn 23 July 2009.
The evidentiary materials before me have now been supplemented by the further affidavit of Ms van der Kwast sworn 27 July 2009 to the effect that as at 9.00 am on that date, being a date after the expiry of the 14 day springing order made by Le Miere J, and being the longstanding date on which the trial was listed to commence, the second defendant, Mr Anderson, had failed to serve witness statements or any written notice that he did not propose to call witnesses. There has been no communication with either the first or the second defendant.
It was apparent from the various procedural steps and related events that there had been a failure by the second defendant to comply with the springing order made by Le Miere J. If the springing order took effect, the matters in issue on the pleadings would be finally resolved. As to each defendant, the defence would be struck out and judgment entered for the plaintiff.
I have at all times kept steadily in mind what was said by the High Court in State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 that case management principles should not be used to prevent a party from litigating an issue which was fairly arguable. However, it is apparent from the reasoning that each case must be determined having regard to its own circumstances. In this case, I was provisionally of the view that the plaintiff, as the party not in default and not having been paid for many years, could not be sufficiently compensated by an order for costs or other orders if some indulgence was allowed.
It follows from my earlier observations that the defendants, notwithstanding that they are no longer represented by solicitors on the record, have been afforded an opportunity to be heard in respect of matters likely to affect them adversely but have failed to take advantage of that opportunity. In these circumstances, it might have been thought that it only remained for an order to be made vacating the trial date as the plaintiff had arguably obtained or was arguably in a position to obtain judgment against each of the defendants with the result that there would be no longer any live issues between the parties.
However, having regard to the balancing of competing considerations I mentioned at the outset, and matters mentioned in the course of these reasons for judgment and that I will come to, I formed the view that the matter should be called on for hearing on the listed trial date; namely, Monday, 27 July 2009, so that a last opportunity could be afforded to the defendants to be heard in respect of any matters thought to be still in contention or bearing upon the regularity of the steps taken by the plaintiff to obtain judgment.
I pause to note that against the background I have described, it was obvious, that even if the defendants did appear, the plaintiff could not be expected to proceed with the trial and call the witnesses required to prove its case, unless it was willing to do so because as matters stood, the plaintiff had complied with all its obligations, but had been left in a state of uncertainty as to what the defendant intended to say or do at trial, or as to whether any of the issues on the pleadings were still contested.
In other words, if the defendants appeared by counsel (or possibly in person) and raised a persuasive plea that there was some lack of regularity underlying the judgments obtained by the plaintiff, the trial would inevitably have to be adjourned because the plaintiff had not been provided with the witness statements prescribed by the programming orders and did not know the case it had to meet.

Orders at trial

The case was called on for trial on Monday, 27 July 2009, being the listed trial date, but there was no appearance for either of the defendants and no communication from the defendants. This failure to appear was in respect of a longstanding trial date of which the defendants had been afforded ample notice, and must be taken to have known about because six months ago, in mid January of this year they applied to adjourn the trial that was scheduled to commence on 27 July 2009, albeit that their application for an adjournment was unsuccessful.
I note in passing that on Monday, 27 July 2009, out of an abundance of caution, counsel for the plaintiff did not seek to enter judgment against the second defendant pursuant to Le Miere J's springing order. Counsel applied for and obtained a short adjournment until 2.15 pm the following day, 28 July 2009, with a view to filing further affidavits of service and foreshadowing an application for judgment on Tuesday, 28 July 2009. This was done with a view to removing any doubt as to the sufficiency of service and expiry of the period prescribed by the springing order.
Counsel for the plaintiff, at the resumed hearing on Tuesday, 28 July 2009, presented to the court the following affidavits in support of his submissions: the further affidavit of Maree‑Louise van der Kwast sworn 28 July 2009; the further affidavit of Daniel Ryan Gill sworn 28 July 2009; the affidavit of Rebecca Susan Morley sworn 28 July 2009; the affidavit of Carol Norma Irene McDonald sworn 28 July 2009 and the affidavit of Peter James Francisco sworn 27 July 2009.
Counsel for the plaintiff also submitted to the court and relied upon a supplementary outline of submissions dated 28 July 2009.
The thrust and effect of these submissions can be summarised in this way. It is said that the submissions deal with service of the springing order made by Le Miere J on 13 July 2009 on the second defendant, Warren Perry Anderson. It is said that the plaintiff relies upon the affidavits I described a moment ago.
Reference is made in the written submissions to Order 4 of the orders made by Hasluck J on 10 June 2009 which provided in effect, that unless and until the second defendant filed and served a notice of contact details pursuant to the rules of court the plaintiff was at liberty to serve a document on the second defendant by delivering it or posting it by prepaid post to the second defendant at (a) Fernhill, Mulgoa, in the state of New South Wales and (b) 53 Johnston Street, Peppermint Grove, in the State of Western Australia.
Counsel submitted that the second defendant, Mr Anderson, had neither filed nor served a notice of contact details as contemplated by Order 4 of the orders of 10 June 2009, with reference being made in that respect to par 3 of the van der Kwast affidavit of 28 July 2009.
Reference was made also to O 72 r 5A of the Rules of the Supreme Court concerning the manner in which documents are to be served by post. Counsel submitted that the orders in question were delivered to the Peppermint Grove address at 10.51 am on 14 July 2009. The evidence in that regard is summarised in the written submissions by reference to the various affidavits I mentioned earlier. It is said further that to the extent necessary the plaintiff relies on the business record provisions in s 79C of the Evidence Act 1906 (WA).
It follows from the narrative I provided that there was evidence before me on earlier affidavits of delivery comprising service at the Fernhill address on 17 July 2009 by courier, which arguably gave rise to compliance with the orders concerning service. However, essentially, it was made clear in the submissions that the plaintiff relied on service by having posted the springing order made on 13 July 2009 and covering letter to the address at Fernhill, Mulgoa, by prepaid post. The evidence in that regard is summarised in the submissions with reference being made to the Gill affidavit of 23 July 2009. Again, to the extent necessary, the plaintiff relied on the business record provisions in s 79C of the Evidence Act 1906.
It was said that in the ordinary course of post a letter posted by Express Post in Perth would be delivered to Mulgoa, New South Wales, on the second business day after the posting. The order having been posted on 16 July 2009, which was a Thursday, in the ordinary course of post would have been delivered on Monday, 20 July 2009. It was then said that the orders are accordingly taken to have been served on the second defendant at that address on Monday, 20 July 2009. I have already noted that on the plaintiff's submissions there had earlier been a service effected at the alternative Peppermint Grove address.
It was then said by counsel for the plaintiff in his submissions that the order required the second defendant to serve the documents the subject of the order within 7 days of service of the orders. Service was effected on 20 July 2009. The documents were therefore required to be served by no later than 4.00 pm on Monday, 27 July 2009. It was said, having regard to the affidavit evidentiary materials, that there was evidence before the court that the second defendant had not served the required documents prior to that time and accordingly the order in question had sprung.
I am persuaded that the position is as described in the submissions made by counsel for the plaintiff. For these reasons, I will accept the springing order in question, being that made by Le Miere J on 13 July 2009 concerning the second defendant, has now taken effect so as to permit the plaintiff to enter judgment as proposed.
I note additionally, for the sake of completeness, that there has been no compliance by the second defendant prior to the adjourned hearing date, Tuesday, 28 July 2009. Moreover, the defendants have not at any stage in recent months explained or attempted to explain their various failures to comply with the orders previously made or sought any extensions of time.
In these circumstances, having regard to the history of the matter and the observations I have made, I am obliged to conclude as at Tuesday, 28 July 2009 that there has been a failure to comply with the springing order made by Le Miere J and that the plaintiff, having previously entered judgment against the first defendant, is now entitled to enter judgment against the second defendant in the manner and in the terms allowed for by the order in question. I rule accordingly. It follows from my earlier observations that as there are no live issues remaining between the parties, I need only order and direct that for these reasons, the trial will now not proceed and the trial dates are to be vacated.
Judgment is to be entered for the plaintiff pursuant to and in the terms allowed for by the orders made by Le Miere J in chambers on 13 July 2009 on the grounds that the second defendant has failed to comply with the requirements of the orders. I will hear from counsel as to whether any further orders are to be required.