Robinson v Moshy Traders Pty Ltd - [2001] WADC 82

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ROBINSON -v- MOSHY TRADERS PTY LTD [2001] WADC 82

CORAM: YEATS DCJ

HEARD: 16 MARCH 2001

DELIVERED : Delivered Extemporaneously on 16 MARCH 2001 typed from tape and edited by Trial Judge

FILE NO/S: CIV 4231 of 1999

BETWEEN: PETER GEORGE GORDON ROBINSON
Plaintiff
AND
MOSHY TRADERS PTY LTD
Defendant

Catchwords:

Practice and procedure - Springing order - Defendant's solicitor forgot to bring his pen to Court - Struck down with shingles - Defence struck out - Whether defendant's failure to comply with order was intentional or contumelious

Legislation:

Nil

Result:

Appeal allowed
Time extended

Representation:

Counsel:

Plaintiff: Mr B S Spinks
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Marks & Sands
Defendant: McAuliffe Williams & Partners

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

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Servcom Australia Pty Ltd v Shenton [2000] WASC 187
Skahill & Anor v Kestral Holdings Pty Ltd (in liq) & Ors [2000] WASCA 185

Case(s) also cited:

"Aura" Herbert D Stolle GMBH & Ors v Turbo Chairs International Pty Ltd [1999] WASC 260
FAI General Insurance Company Limited and Others and Southern Cross Exploration NL and Others [1987-1988] 165 CLR 268
Freeman v Rabinov [1981] VR 539
Hawter v Stevens, unreported; SCt of WA; Library No 970645; 25 November 1997
Janov v Morris [1981] 3 All ER 780
Magenta Nominees Pty Ltd v Bonini & Ors [1999] WASC 88
Palmer v Prince [1980] WAR 61
Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196
Rollond & Anor v Bank of Western Australia Ltd; unreported; SCt of WA; Library No 980498; 3 September 1998
Vipond and Masters, unreported; SCt of WA; Library No 6596; 28 January 1987

YEATS DCJ: This is the defendant (appellant's) application to extend time to 8 March 2001 for the provision of further and better answers to interrogatories and for an order that judgment entered against the defendant on 27 February 2000 be set aside.
The background to this matter is set out in affidavits that have been tendered before me. On behalf of the defendant there are two affidavits, the affidavit of Jonathan Jacobson sworn 9 March 2001 and the affidavit of Halyna Sobotnik, also sworn 9 March 2001. I have at the commencement of the proceedings struck out various sentences and portions of these affidavits on the application of counsel appearing on behalf of the plaintiff (respondent).
The plaintiff brought this action against the defendant by writ filed and served on 10 November 1999. The defendant went into liquidation in August of 2000. That created difficulties and it was necessary for the plaintiff to seek leave to proceed in the Supreme Court. Leave was granted on 13 December 2000. On 16 August 2000, before those events dealing with liquidation, there had been an order made that the defendant provide further and better answers to interrogatories. Those answers were not provided between 13 December 2000 when the plaintiff had leave to proceed and 30 January 2001 when the matter came on before the Registrar. On that day the Registrar made a springing order to the effect that if those further answers to interrogatories were not filed and served within 21 days, the defence would be struck out.
I have received an affidavit from Mr Jacobson, solicitor for the defendant, in which he indicates the problems that he experienced at the time of the 30 January 2001 hearing. Mr Jacobson in his affidavit indicates that first of all he went to the hearing on 30 January without his pen. This is an unusual thing for a solicitor to do, but he did that. For that reason he did not write down the order, although he was aware there was a springing order; it was not noted on the file. He then proceeded to draft the further and better answers to the interrogatories on 5 February.
The following day, Mr Jacobson became quite ill with shingles and was forced to be away from his office for two weeks and the matter was placed in the hands of Ms Sobotnik. That is when the difficulty with his pen came into play. The matter not being noted on the file, Ms Sobotnik was not immediately aware of the order, although clearly, the defendant by being present at the hearing of the Court before the Registrar, was given notice of the order. There were two other events besides shingles. The defendant's solicitor also had a death in the family early in February and was himself married on 18 February 2001. One assumes the final matter was a matter in his favour and not a misfortune as the earlier matters have been.
The result of all this is apparent from the affidavit of Ms Sobotnik in which she says that she had the handling of the file, was not aware of the springing order and did not become aware until 20 February that the further and better answers had been drafted. She did at that time immediately arrange for them to be sworn, but that required that they be posted to Port Hedland. She was not aware that the following day the springing order would expire because she did not know there was a springing order.
I find it remarkable that on 21 February there was a pre-trial conference held in this matter at which the counsel for the plaintiff attended, as did Ms Sobotnik. At that pre-trial conference no mention was made by Mr Spinks on behalf of the plaintiff that that day was the day that the springing order expired. It was not drawn to Ms Sobotnik's attention. Two days later on 23 February, without any notice to the defendant, Mr Spinks moved to strike out the defence and that order was made on 27 February.
The law in this area is clear. Both counsel agree that when I am looking at the question of extension of time, I should rely on the decision in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196. In that case the Full Court determined the usual four major factors to be considered in exercising the Court's discretion to extend time, these being the length of delay, the reason for the delay and whether there is an arguable case. I also should consider the extent of any prejudice suffered by the respondent.
In Esther Investments, Seaman J said that it is impossible to lay down any fixed and binding rules with regard to cases in which courts will exercise the discretion to enlarge time for appealing and each case must be decided on the particular circumstances and the Court ought not to lightly interfere with the rules, but where it sees that no harm will be done to the other side and a bona fide mistake has been made, then those are circumstances which might be taken into consideration.
In the case of Skahill & Anor v Kestral Holdings Pty Ltd (in liq) & Ors [2000] WASCA 185, Owen and Heenan JJ dealt with the question of whether a springing order should be relied on in circumstances where through an error on the part of a solicitor, judgment is to be entered against a party. The Court set our rules in regard to notice that applied in that particular case but at par 17 the Court said this:
"Devising and applying appropriate sanctions for non-compliance is one of the major problems which case managers face. An innocent party is entitled to expect that the Court will act to support the integrity of its processes where another party is in default. On the other hand, case management is a means to an end and not an end in itself. All processes and sanctions must be carried out and imposed in a way that will facilitate the achievement of justice."
The Court also noted in Skahill's case the prejudice a defendant suffers where judgment is entered and he is left only with an action against his solicitor. The Court noted at par 22:
"It is true that the applicants may have some recourse against the solicitor. However, the applicants' damages in such a case would be based on the loss of the chance of succeeding in their claim against the respondents: Instant Nominees Pty Ltd v Redman [1987] WAR 218 at 226. This will not necessarily equate to the damages that they could obtain, were they successful, against the respondents. On the other hand, there is no evidence of prejudice flowing to the respondents other than for the continuation of the litigation."
In this case the position is reversed. It is the defendant against whom judgment is entered and not the loss of a claim by a plaintiff. But I accept that if I were not to extend time and were to allow this judgment to stand, the defendant would suffer prejudice. It would be left with an action against its solicitor. I do not believe such an action would equate with the damages that could be awarded against the defendant.
There is another factor in this case that does make it different from other cases before the Court and that is that the defendant has a counterclaim on foot and that has not been struck out. That will mean that the matter will go on, irrespective of whether the defence is struck out or not.
The plaintiff relies on that as evidence that there is really no prejudice to the defendant. It will have its action by way of counterclaim and if it is successful, there could be no prejudice. I do not think it is appropriate that I look into that matter in any great detail. I am satisfied just on the pleadings themselves, which I have examined, that the defendant intends to defend and counterclaim in this case. There is no question that there is a defence to be raised and litigated and to strike out its defence would prejudice the defendant.
The question that I must consider is whether the failure on the part of the defendant to comply with this springing order was intentional and contumelious. (Servcom Australia Pty Ltd v Shenton [2000] WASC 187).
From the facts that I stated earlier, it does not seem to me that the solicitor's behaviour could in any way be said to be intentional or contumelious. It is, in my view, simply a matter where illness has intervened to compound the solicitor's unfortunate failure to bring a pen to Court. It seems to me the law is clear:
"If a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights he would otherwise have enjoyed." (Servcom, par 7, quoting Sir Nicolas Browne-Wilkinson VC in Re Jokai Tea Holdings Ltd [1993] 1 All ER 630).
The plaintiff asked me to look at the overall handling of the case and I accept his submission that there is no explanation for the failure of the defendant to comply with an order made in August once leave was granted for the plaintiff to proceed against the defendant on 13 December. It does not seem to me I should look at time passing from 16 August 2000. The real issue is what went on in the 21 days after the springing order was made, and was there on the part of the defendant's solicitor any contumelious or intentional failure to comply with the order of the Court.
I find there is none and in those circumstances it seems to me that the interests of justice require that I make the orders sought by the defendant.
For these reasons the appeal is allowed, judgment entered against the defendant is set aside and time is extended to allow compliance with the order of the Registrar made on 30 January 2001.