Skahill v Kestral Holdings Pty Ltd (in Liq) - [2000] WASC 32

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SKAHILL & ANOR -v- KESTRAL HOLDINGS PTY LTD (IN LIQ) & ORS [2000] WASC 32

CORAM: MASTER SANDERSON

HEARD: 9 & 11 FEBRUARY 2000

DELIVERED : 18 FEBRUARY 2000

FILE NO/S: CIV 1606 of 1997

BETWEEN: ANDREA JOYCE SKAHILL
REX RICHARD THOMS
Plaintiffs
AND
KESTRAL HOLDINGS PTY LTD (IN LIQ) (ACN 009 068 795)
First Defendant
GEORGE FREDERICK RAWSON
Second Defendant
FRANK HILL
Third Defendant
CITY OF WANNEROO
Fourth Defendant

Catchwords:

Practice and procedure - Failure to comply with springing order made by Case Management Registrar - Solicitor's oversight in not attending conference - Matter to be taken into account

Legislation:

Supreme Court Rules, O 29A, O 63A

Result:

Extension of time refused

Representation:

Counsel:

Plaintiffs:     Mr T R Stephenson
First Defendant             :     No appearance
Second Defendant         :     Mr M J Sicard
Third Defendant           :     In person
Fourth Defendant          :     Ms F C E Davis

Solicitors:

Plaintiffs:     Peter J Whyte
First Defendant             :     No appearance
Second Defendant         :     Fordhams
Third Defendant           :     In person
Fourth Defendant          :     Phillips Fox

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

Nil

Case(s) also cited:

"Aura" Herbert D Stolle GMBH v Turbo Chairs International Pty Ltd [1999] WASC 260
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Samuels v Linzi Dresses Ltd [1981] QB 115

MASTER SANDERSON: This is the return of the plaintiffs' appeal against an order of Registrar Johnston made 4 November 1999. For reasons which will become apparent, there was a dispute between the parties whether it was proper for the plaintiffs to proceed under O 63A or whether the plaintiffs were seeking an extension of time to comply with orders pursuant to O 3 r 5(2). The dispute as to the proper procedure did not in any way affect the conduct of the application. I will have more to say about the proper procedure in a case such as this later in these reasons.
The facts of this case, so far as they are relevant to this application, can be shortly stated. In or about February 1994 the plaintiffs engaged the first defendant to erect a two storey dwelling on the plaintiffs' land in the suburb of Quinns Rock. The plaintiffs have a number of complaints about the construction of the dwelling. In essence, it is said that it is structurally unsound largely because the specifications issued for construction of the dwelling were for a single storey residence, rather than a double storey residence. The statement of claim is a rather complex document but essentially this is the nature of the plaintiffs' complaint. Subsequent to the issue of proceedings, the first defendant went into liquidation. Although it is still shown as a party to the proceedings the plaintiffs have discontinued their action as against the first defendant. The second and third defendants were directors of the first defendant at all relevant times. The claim against the first defendant was brought, inter alia, under the Trade Practices Act. The action against the second and third defendants, on one reading of the pleading, seeks to render them liable as being knowingly concerned in misleading and deceptive conduct and therefore liable to the plaintiff under s 75B of the Trade Practices Act. Alternatively, they are sued under the Trade Practices Act in their own right. The fourth defendant is the local authority which is responsible for building approval in the suburb of Quinns Rock. As against them, it is said that they negligently approved the plans for construction of the dwelling.
The action was commenced on 30 May 1997 and a statement of claim was filed on 13 October 1997. The action then meandered along with none of the parties demonstrating any urgency. On 13 May 1999 Registrar Johnston made orders relating to expert evidence at a case evaluation conference. The plaintiffs were to provide a copy of their expert report by 28 May 1999 and the defendants were to provide the plaintiffs with their expert reports by 11 June 1999. The parties were directed that if there was a conflict between the evidence of the expert witnesses then the experts were to meet to attempt to resolve these differences by 30 June 1999. The learned Registrar further directed that if points of difference remained after the conference of experts a mediation conference was to take place at a date and time to be fixed. However, the plaintiffs were to make arrangements for such a conference no later than 7 July 1999.
On 1 June 1999 the fourth defendant gave notice of the plaintiffs' failure to comply with the requirement to provide expert evidence by 28 May 1999. A case management conference was re‑convened on 15 June 1999 and a springing order was made requiring the plaintiffs to comply with the order for provision of expert evidence by 12 July 1999. The plaintiffs complied with that order. The case evaluation conference was re‑convened on 22 July 1999 when a timetable for provision of expert evidence by the defendants and for the holding of the conference between the experts was revised. The conference was to take place no later than 6 September 1999. The meeting of experts was held on 31 August 1999. Mr Affleck attended as the plaintiffs' expert. During the course of this conference it was agreed that Mr Affleck would provide to the second defendant's expert certain further information. A further case evaluation conference was held on 23 September 1999. As at the date of that conference Mr Affleck had not provided to the second defendant's expert the information as he was required to do pursuant to the agreement reached at the conference of experts. Registrar Johnston ordered that this information be provided by 30 September 1999. The information was not provided. On 4 November 1999 a further case evaluation conference was held. Registrar Johnston made the following order:
"Unless by 18 November 1999 the plaintiffs provide to the defendants the further information and calculations agreed to be exchanged at the meeting of experts on 31 August 1999 the Statement of Claim be struck out and judgment entered for the defendants with costs."
The information was not provided. Judgment was entered for the defendants on 23 November 1999. The plaintiff now appeals against the orders of Registrar Johnston made 4 November 1999. The information, the subject of the orders, was provided to the defendants on 7 December 1999. Effectively, then, the plaintiffs are seeking an order that the time for compliance with par 1 of the orders made on 4 November 1999 be extended to 7 December 1999.
As I indicated above, the plaintiffs styled this application as an appeal from an order of a Registrar under the provisions of O 63A. The defendants contended that, properly characterised, the plaintiffs were seeking an extension of time to comply with an order and that they should proceed under O 3 r 5(2). This is a problem which has arisen in the past and it is not entirely clear from the Rules as to which is the proper way to proceed. In my view, where a party seeks an extension of time to comply with a springing order, that application ought ordinarily be made to the Case Management Registrar. Although O 29A r 3(2) does not deal directly with the question, in my view the power to extend time in relation to a case management direction is available under O 29A r 12(c). On the face of it there is no reason why a party seeking an extension of time cannot make an application to a Master or to a Judge. Both Judges and Masters have power to vary directions under O 29A r 13. However it is preferable if the Case Management Registrar who has made the springing order first deals with any application for an extension of time. The familiarity of the Case Management Registrar with the file puts the Registrar at an advantage in dealing with an application at first instance.
Returning to this case, the plaintiffs' solicitor did not attend the case evaluation conference held on 4 November. The reasons for the non‑attendance are set out in the affidavit of Peter John Whyte sworn 28 January 2000 and filed in support of this application. Mr Whyte is the plaintiffs' solicitor. He says that on 19 October 1999 he received notice of the relisted case evaluation conference. The notice specified that the conference was listed at 4.06 pm. Mr Whyte says that he noted the time in his diary and advised Mr T J Stephenson of counsel, who was briefed to appear on behalf of the plaintiffs, of the date and time of the conference. On 20 or 21 October 1999 Mr Whyte received an amended notice of relisting of the case evaluation conference. The time of the listing was changed from 4.06 pm to 10.00 am. The day of the listing remained the same. It would appear that by an administrative oversight, Mr Stephenson was not advised of the amended time of the conference. Accordingly, counsel attended at 4.06 pm to be informed that the matter had been disposed of at 10.00 am. Counsel immediately advised Mr Whyte of what had happened. Counsel also sent a rather terse letter to the Court seeking advice as to what orders had been made at the conference. This was, with respect, inappropriate. It was for counsel, or his solicitor, to ascertain what orders had been made at the conference. Counsel had no basis for demanding an explanation from the Court.
It is worth pausing at this point to note that a prudent solicitor would have been concerned about orders made at the case evaluation conference. The plaintiffs were in default of orders made on 23 September 1999 and no explanation for that default had been provided. It was almost six months since orders had first been made with respect to expert evidence and the position was still unresolved. Springing orders had been made in the past and there was every reason to believe that, without an explanation for the plaintiffs' failure to provide the required information, one could have been made at the case evaluation conference. Everything pointed to the plaintiffs' solicitor ascertaining, as a matter of urgency, what occurred at the case management conference.
In effect, the plaintiffs' solicitor did nothing. He anticipated that, in due course, a copy of the orders would be forwarded to him. He says he attended the court on 11, 12, 17 and 22 November 1999 but on none of these occasions did he request to see the file, as he was entitled to do, so as to ascertain what orders had been made. Furthermore, on 16 November 1999 the second defendant's solicitor wrote to the plaintiffs' solicitor referring to the orders made at the case evaluation conference and asking for the information from the expert to be provided. On 18 November the second defendant's solicitor telephoned the plaintiffs' solicitors office and attempted to speak to Mr Whyte. Mr Whyte was unavailable and a message was left asking for a call back urgently. No response was received to this telephone call.
In the circumstances of this case I can see no basis whatever upon which time should be extended. In the circumstances, the inaction of the plaintiffs' solicitor was inexcusable. The springing order made by the Registrar was, in my respectful view, entirely appropriate. During the course of his submissions counsel for the plaintiffs suggested that this was not a case where there had been contumelious disregard of a court order. Rather, he suggested, it was a case of inadvertence. In my view that submission misses the point. The parties must comply with the orders of a Case Management Registrar. If they do not do so they act at their peril. This is not blind adherence to case management as an end in itself. The system of case management is designed to ensure that orders are made which fit the needs of each particular case. But once those orders are made the case moves forward to trial or ultimate resolution. The parties are not to dictate the pace which the case moves at their whim.
The case evaluation conference held on 4 November 1999 was the fifteenth case management conference held on this file. It is the case that, from time to time, a party may not be able to comply with case management directions or may be in default. Steps should be taken to remedy the non‑compliance or the default and to re‑programme the case. It is not the function of Case Management Registrars to nursemaid a case from its inception to its resolution battling the indifference of solicitors all the while. Case management will work effectively if these principles are borne in mind. It will break down entirely if the burden for progressing the action is borne by the Case Management Registrars and not, as it should be, by the solicitors for the parties.
In reaching the conclusion not to extend time I am aware of the profound consequences for the plaintiffs. The actions against the second and third defendants are brought under the Trade Practices Act and the time limit for bringing proceedings under the Act is three years. That time limit has long since expired and the plaintiffs will now be effectively prevented from proceeding against the second and third defendants. So far as the fourth defendant is concerned, if the plaintiffs wish to commence fresh proceedings they will need to obtain leave under the provisions of s 47A of the Limitation Act. I appreciate that in circumstances such as this a grant of leave may not be forthcoming. Furthermore, there is no evidence that the plaintiffs themselves, as opposed to their solicitor, were in any way complicit in the delay which led to the springing order. No evidence was led in this regard. Even viewed against that background, I am satisfied that there is no basis in this case upon which the time for compliance with the springing order could be extended. It would not be just and proper to make such an order.
The plaintiffs' application will be dismissed. The plaintiffs should pay the defendants' costs of the application.