Richardson v Leonard Cohen & Co
[2007] WADC 128
•12 January 2007 typed from tape and edited by Trial Judge
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RICHARDSON -v- LEONARD COHEN & CO [2007] WADC 128
CORAM: SWEENEY DCJ
HEARD: 12 JANUARY 2007
DELIVERED : Delivered Extemporaneously on 12 JANUARY 2007 typed from tape and edited by Trial Judge
FILE NO/S: CIV 970 of 2000
BETWEEN: PHILLIP RICHARDSON
Appellant (Third Defendant)
AND
LEONARD COHEN & CO
Respondent (Plaintiff)
Catchwords:
Application to extend time for compliance with springing order after judgment entered
Legislation:
Rules of the Supreme Court 1971, O 3 r 5, O 26 r 15, O 26 r 16
Result:
Appeal dismissed
Representation:
Counsel:
Appellant (Third Defendant) : Mr C S Williams
Respondent (Plaintiff) : Mr S V Forbes
Solicitors:
Appellant (Third Defendant) : Solomon Brothers
Respondent (Plaintiff) : Stewart Forbes
Case(s) referred to in judgment(s):
FAI General Insurance Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Leonard Cohen & Co v Richardson & Anor [2005] WADC 172
Magenta Nominees Pty Ltd v Bonini [1999] WASC 88
Richardson & Anor v Leonard Cohen & Co (A Firm) [2006] WASCA 64
SWEENEY DCJ: This is an appeal from the decision of Deputy Registrar Hewitt on 3 October 2005 dismissing an application by the second and third defendants to extend the time for compliance with a springing order for discovery and to set aside orders made by Sleight J on 16 September 2005 entering judgment against them. It is necessary to set out the history of the matter.
History of action
The appellant is the third defendant to an action in this Court in which the plaintiff law firm seeks recovery of some $156,000 unpaid legal fees for representing the defendants in a previous Supreme Court action. The plaintiff law firm did not see the Supreme Court action to its conclusion but ceased to act prior to that matter settling between the parties. The writ for unpaid legal fees dates back to April 2000. The first defendant is now defunct and the claim against it is discontinued.
The matter was listed for trial on 16 January 2003, but adjourned by HH Jackson J. It is unnecessary for me to go into the reasons for the adjournment. His Honour made programming orders, including orders for further discovery on the part of the remaining defendants. The course of that further discovery and the plaintiff's attempts to compel the defendants to give discovery of, in particular, documents generated in the Supreme Court action after the plaintiff law firm had ceased to act, has been set out in the decision of Sleight J in Leonard Cohen & Co v Richardson & Anor [2005] WADC 172.
On 2 February 2005 the plaintiff's application for specific discovery was heard by Deputy Registrar Harman, who gave the defendants 14 days within service of the order to provide further discovery.
An affidavit of discovery was filed claiming privilege over a composite bundle of documents described as, "All court documents and correspondence relating to the Supreme Court action," listing and enumerating none of them.
On 21 March 2005 Deputy Registrar Harman declared that the affidavit failed to comply with O 26 r 4 of the Rules of the Supreme Court 1971 ("Supreme Court Rules") and made a springing order, by which I mean a self‑executing order, that unless within 14 days the defendants provided further discovery the defence would be struck out and judgment entered for the plaintiff.
Again an affidavit of discovery was filed, again claiming privilege over all Court documents and correspondence relating to the Supreme Court action, enumerating none of those documents individually. This affidavit introduced the claim that the defendants did not know where the documents were, naming the solicitor in whose possession they were last. This too was plainly inadequate.
By chamber summons filed 21 April 2005, the plaintiff sought judgment, on the basis that the affidavit of discovery failed to comply with the order of 21 March 2005. This application was heard on 5 May 2005 before Deputy Registrar Hewitt who instead made a further springing order. As I have discussed with counsel this morning, I take the view that the second springing order had the effect by necessary implication of extending the time given in the first springing order. Deputy Registrar Hewitt ordered that, unless the defendants provided further discovery within 10 days of service of the order, specifically particularising those documents relating to the finalisation of the Supreme Court action, the defence would be struck out and judgment entered for the plaintiff.
On 27 May 2005 the defendants appealed that decision. The appeal was heard on 11 August 2005 before His Honour Judge Sleight and judgment delivered on 7 September 2005: Leonard Cohen & Co v Richardson & Anor (supra). It is uncontroversial that that was a hearing de novo, being an appeal from a Registrar of this Court exercising the delegated jurisdiction of this Court. His Honour therefore had all options available to the Deputy Registrar. His Honour commented at par 46:
"The consequences of this appeal are that if I dismiss the appeal then the order of the Deputy Registrar will remain in place and the plaintiff will be entitled to extract a judgment pursuant to the springing order immediately. The appellants seek to have the order of Deputy Registrar Hewitt set aside."
His Honour concluded at par 59 that it was "possibly arguable" that the first springing order of 21 March 2005 "was not self‑executing", given that the defendants did file an affidavit of discovery. His Honour referred to the judgment of Wheeler J in Magenta Nominees Pty Ltd v Bonini [1999] WASC 88 in which Her Honour concluded that the filing of a wholly inadequate affidavit of general discovery would prevent a springing order from self‑executing but may nevertheless enliven a discretion to give judgment under O 26 r 15 of the Supreme Court Rules on the basis that an inadequate affidavit of discovery represents a failure to give discovery.
His Honour, on the basis of what he regarded as the wholly inadequate affidavit filed in response to the first springing order of 21 March 2005, considered the decision of Deputy Registrar Hewitt to resist entering judgment at that point and instead make a further springing order to have been a generous one. It was that generous order of 5 May 2005 which was the subject of the appeal before his Honour.
His Honour did not in fact pronounce judgment expressly on that order. It was, as I said, an appeal de novo pursuant to O 6 r 11 of the District Court Rules 1996. His Honour was in the position as if the matter were before the Court for the first time and admitted further evidence from the defendants on affidavit. His Honour was entitled to admit evidence and consider the matter on the basis of any additional materials and any developments which had occurred in the interim.
Since the making of the springing order under appeal the defendants had filed further affidavits which still failed to comply, his Honour found, with their obligations to provide discovery of those documents in their immediate physical possession and to make inquiries of those who held documents on their behalf, such as, for example, their former solicitors in the Supreme Court action.
His Honour made certain findings of fact at par 61:
"1.It was made very clear by her Honour Judge Kennedy (as she then was) on 6 June 2003 that the obligation under the existing order for discovery related to documents concerning Supreme Court Action Matter CIV 1090 of 1991. This was also confirmed in correspondence from the plaintiff's solicitors.
2.I consider the defendants' solicitors Dennis and Company falsely alleged that the documents sought were the subject of a Supreme Court confidentiality order, and that to disclose them might be in contempt of court. I conclude this was a deliberate attempt to avoid the defendants fulfilling their obligations of giving proper discovery.
3.The defendants have filed a number of affidavits in purported compliance with the orders of the court, but such affidavits do not comply with O 26 r 4 by listing all relevant documents relating to Supreme Court matter CIV 1090 of 1991.
4.The defendants have provided affidavits stating that the documents sought were in their possession, power and control, but then in an affidavit filed on 7 April 2005 stated 'we do not know of the whereabouts of the documents' and claimed that they were last in the possession of the plaintiff and/or Melvyn Levitan."
His Honour said at par 62:
"Again, I believe the affidavits filed on 7 April 2005 were an attempt to further delay giving proper discovery."
His Honour concluded at par 65:
"In my opinion, the continuing disregard by the defendants of their obligation to give proper discovery justifies a judgment being entered against them under O 26 r 15. In my opinion, the history of this matter demonstrates that the defendants have deliberately attempted to frustrate the plaintiff's attempts to obtain proper discovery, and in doing so they have sought to avoid putting the plaintiffs in the position which they will be able to prepare adequately for trial."
The expressions used by His Honour in par 65 find their source in the judgment of Wheeler J in Magenta Nominees Pty Ltd v Bonini (supra). Order 26 r 15(1) of the Supreme Court Rules provides:
"If any party who is required by any of the Rules of this Order or by any order made thereunder, to give discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provisions of that Rule or with that order, as the case may be, then without prejudice, in the case of a failure to comply with any such provision, to Rules 7 and 9(1) the Court may make such order as it thinks just including in particular, an order that the action be dismissed or as the case may be, an order that the defence be struck out and judgment entered accordingly."
His Honour, hearing the matter afresh, had the power to and did enter judgment for the plaintiff as sought by its application dated 21 April 2005. The result of the published decision is recorded as "judgment for the plaintiff". The Court's own record indicates that subsequently on 16 September 2005 (and this is also to be found in the extracted judgment reproduced at p 15 of the affidavit of Phillip Noel Richardson sworn 20 September 2006) His Honour made orders including an order that the defendants pay the plaintiff the sum of $156,661.91 together with interest.
From that judgment the defendants appealed to the Court of Appeal. Their failure to comply with various requirements of that court led to the matter being listed before a single Judge, Wheeler JA on 9 March 2006. Her Honour's decision, delivered that day, is recorded in Richardson & Anor v Leonard Cohen & Co (A Firm) [2006] WASCA 64. Her Honour concluded at par 8:
"So far as one can tell from the reasons in the District Court, simply looking at the history there disclosed, there is very slender merit, so far as one can discern, in the appeal. It seems to me that the appropriate course is to dismiss the appeal of both appellants, on the basis that the appellants have not obeyed the Rules or any order made under them; that is, they have not obeyed the Rules requiring the filing of the appellants' case, nor have they obeyed the order of the Registrar requiring them to file that case. For those reasons, I dismiss the appeal in respect of both appellants."
As I understand the matter, no application for a review of that decision has been made pursuant to r 8 of the Supreme Court (Court of Appeal) Rules 2005.
Six months later, by chamber summons dated 21 September 2006 filed in this Court, the appellant sought an order that the time for compliance with the order of Deputy Registrar Hewitt made on 5 May 2005 (the same springing order which was the subject of the appeal before Sleight J) be extended to a date 7 days after the making of orders disposing of the application and that the whole of the orders made by Sleight J on 16 September 2005 be set aside.
On 3 October 2005 Deputy Registrar Hewitt dismissed that application on the basis that this Court has no power now to make the orders sought, Sleight J's judgment having been the subject of an appeal which has been dismissed. From Deputy Registrar Hewitt's decision the appellants now appeal.
Reasons for dismissing this appeal
This being an appeal from a Registrar exercising the delegated jurisdiction of this Court, it is again an appeal de novo. I am in the position as if the appellant's application were before this Court for the first time.
The appellant's argument may be summarised briefly. Order 3 r 5 of the Supreme Court Rules 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 authorised 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."
The appellant argues that these powers are very broad and that, although the time for compliance with the springing order of 5 May 2005 has expired, this Court can, to do justice in the case, extend the time to provide adequate discovery to 7 days from, in effect, today, and hence remove the entire factual basis, he says – or the entire basis of power, I should say - for the judgment entered by Sleight J, therefore leading to the consequential order setting aside his Honour's orders.
It was said in the appellant's written submissions, confirmed in his oral submissions, that judgment was not entered pursuant to any application or motion for judgment put to His Honour Judge Sleight. The plaintiff was able to extract judgment due to the failure of the defendants to comply with the springing orders made by Deputy Registrar Hewitt because His Honour Judge Sleight dismissed the defendants' appeal against the making of those orders.
In his submissions today Mr Williams argues that the judgment entered by his Honour was only made consequent upon failure to comply with orders, that there still exists in this Court power to extend time for compliance with those orders and that, if the time to comply with the orders is extended, the power on which His Honour Judge Sleight relied set out in O 26 r 15 falls away and therefore the decision itself should be set aside.
With respect to Mr Williams, who has argued the matter I think as best it can be put, the application is in my view misconceived. The action has been concluded in this Court by the entry of judgment by Sleight J. His Honour's judgment in favour of the plaintiff was not a springing order, nor any order by which a person was ordered to do something within a particular time.
The springing order made by Deputy Registrar Hewitt, the subject of the appeal before Sleight J was overtaken by His Honour's ordering judgment in favour of the plaintiffs. Extending time within which to comply with the springing order made by Deputy Registrar Hewitt on 5 May 2005 will have no effect. If the appellants now file an affidavit for discovery which is adequate, that will not revive an action in which judgment has been regularly entered against them following a judgment of this Court.
In my view, this is really an appeal against the judgment of Sleight J dressed as an application for an extension of time. It is His Honour's orders of 7 December 2005 in which judgment was given that lie at the heart of the application. His Honour's orders of 16 September 2005 disposed of the matter in this Court and I am being asked to recall the matter after it has been brought to an end.
This is not a case where a self‑executing order has, without further judicial pronouncement or consideration, brought about an end to proceedings. Whether His Honour had entered judgment in his own right or not interfered with the springing order which self‑executed, it is clear that the Court's intention was to enter judgment pursuant to O 26 r 15 of the Supreme Court Rules and that the basis for the Court's discretion being enlivened was not merely the failure to comply with the springing order, in which case the order would self‑execute, but His Honour's finding of the continuing disregard by the defendants of their obligation to give proper discovery. That accords with the record of the result both in the judgment itself and the Court's file and also accords with Her Honour Wheeler JA's understanding of the outcome.
The appellant relies considerably on the decision of the High Court in FAI General Insurance Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, but in my view that does not assist the appellants. It establishes that O 3 r 5 of the Supreme Court Rules empowered Sleight J, had his Honour so wished, to enlarge the time limit contained within the springing order made by Deputy Registrar Hewitt notwithstanding that that time may have expired for compliance and notwithstanding that it may have self‑executed. There is nothing in the judgment which indicates that His Honour understood otherwise than that he had that power.
An application might also have been made to this Court simply seeking an order to extend time in relation to the springing order made by Deputy Registrar Hewitt. Instead, the choice was made to appeal against that springing order, but in my view the decision of the High Court also provides authority for such an application to extend time.
The same cannot be said however, in relation to the decision of Sleight J to enter judgment. Whether His Honour entered judgment, as he did, or refused to extend time, in my view I have no power to set aside His Honour's decision. I am not sitting as a Judge at first instance in relation to Deputy Registrar Hewitt's order of 5 May 2005. That order has been the subject of an appeal and that appeal determined.
On this appeal I am being asked again to reconsider that order of 2 May 2005. There is no right of second appeal before this Court and no right of appeal at all from a brother Judge. An application to extend time is not an appeal in fact and such an application could, as I said, have been made, in respect of the springing order made by Registrar Hewitt on 5 May 2005, but instead the defendants appealed that order. No application to extend time from Judge Sleight's order can be made, his order having no time limit component contained within it.
I have considered and I have asked the parties to consider in argument O 26 r 16 which is headed Revocation and Variation of Orders, and states:
"Any order which has been made under this order, including an order made on appeal, may on sufficient cause being shown be revoked or varied by a subsequent order or direction of the court made or given at or before the trial of the cause or matter in relation to which the original order was made."
In "Civil Procedure Western Australia" (Lexis Nexis Butterworths Australia 1990 Vol 1) at p 6468 and p 6469 at par 26.16.3 the learned authors state:
"Pursuant to the rule one judge or master may vary the order of another judge or master, and in the case of an order which affects the position of a third party, it is sufficient ground for variation that the facts were not placed before the court on the earlier application as they should have been: Biala Pty Ltd v Mallina Holdings Pty Ltd (No 2) (1992) 13 WAR 11; 11 ACSR 785; 11 ACLC 1082. An order made by consent is within the rule, and the fact that the consent was given by mistake may be good cause to vary the order: Greenpark Pty Ltd v Odin Inns Pty Ltd (1989) WAR 322 at 324, 325."
At par 26.16.4 the authors comment in relation to the words "at or before the trial":
"The view has been expressed that after judgment has been given in an action and all that remains to be done is to conclude an inquiry as to damages, this rule does not give the court jurisdiction to restore a defence which was struck out for failure to obey an order for discovery: Midland Bank Trust Co Ltd v Green (No 2) (1979) 1 All ER 726 at 735; [1979] 1 WLR 460."
In my view, O 26 r 16 both confirms the powers of the Court described in the decision of FAI General Insurance Ltd v Southern Cross Exploration NL (supra) to extend time, but also to compel or refuse an order for specific discovery and to vary rulings on privilege and the like before or during the trial.
In other words, on sufficient cause being shown either before or during the trial, the Court is not necessarily bound by a previous order if sufficient cause shows that it should be revoked, and that, of course, could have obvious impact on issues such as admissibility of evidence during the trial. It is, however, implicit in O 26 r 16, and this is confirmed by the commentary cited, that the matter must still exist in the Court for such an order to be made at or before trial. Once judgment has been entered regularly there will be no trial at or before which the Court can revoke or vary its order.
Judgment having been regularly entered by His Honour Judge Sleight on the basis of the continuing disregard by the defendants for their obligations of discovery and not merely by virtue of non‑compliance with the springing order, the matter has been determined and the matter in this Court is at an end. The defendants' remedy was to appeal that decision to the Court of Appeal. That, of course, has been done and the appeal was dismissed. There is a further remedy; that is, to apply to the Court of Appeal to review the decision of Her Honour Wheeler JA. Of course, such an application is well out of time. In all of the circumstances I conclude that I have no power to entertain this application and I dismiss the appeal.
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