Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd - [2023] WASCA 45

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SOMMERVILLE KALGOORLIE PTY LTD -v- GULLAN PTY LTD [2023] WASCA 45
CORAM:   MURPHY JA
MITCHELL JA
BEECH JA

HEARD:   21 FEBRUARY 2023
DELIVERED          :   21 FEBRUARY 2023
PUBLISHED           :   24 MARCH 2023
FILE NO/S:   CACV 34 of 2022
BETWEEN:   SOMMERVILLE KALGOORLIE PTY LTD
Appellant
AND
GULLAN PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   HALL J
Citation: SOMMERVILLE KALGOORLIE PTY LTD - ACN 154878869 -v- GULLAN PTY LTD - ACN 054024332 [2022] WASC 115
File Number            :   CIV 1087 of 2021

Catchwords:

Practice and procedure - Appeals - Appeal against primary judge's decision on appeal against a registrar's orders - Where registrar's orders provided for judgment to be entered against respondent for non‑compliance with springing orders - Where primary judge granted extension of time to comply with springing orders - Nature of appeal from a registrar's decision - Appeal by way of new hearing

Practice and procedure - Interlocutory appeal - Leave to appeal to Court of Appeal required - Where effect of primary orders was to allow trial on merits - No demonstration of substantial injustice

Legislation:

Rules of the Supreme Court 1971 (WA), O 60A r 6

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	H R Robinson
Respondent	:	N van Hattem

Solicitors:

Appellant	:	Haydn Robinson
Respondent	:	HopgoodGanim Lawyers

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

A v C [No 2] [2015] WASCA 199
Allmark v Mossensons (a firm) [2006] WASCA 127
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
CVW Group Holdings Pty Ltd v Addison [2011] WASC 267
Dodds v Kennedy [2011] WASCA 32
Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79
Priority Networking Pty Ltd v Peterson [2018] WASC 36
Re Luck [2003] HCA 70; (2003) 78 ALJR 177
Sommerville Kalgoorlie Pty Ltd - ACN 154878869 v Gullan Pty Ltd - ACN 054024332 [2022] WASC 115
Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2021] WASC 14
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Waller v Waller [2009] WASCA 61

REASONS OF THE COURT:

On 21 February 2023, this matter was listed for hearing of an appeal against procedural orders made by Hall J on 8 April 2022 pursuant to reasons for judgment published in Sommerville Kalgoorlie Pty Ltd - ACN 154878869 v Gullan Pty Ltd - ACN 054024332 (primary decision).[1] The learned primary judge ordered an extension of time for compliance with certain springing orders that had been made by a registrar against the respondent which had 'sprung'. The effect of the registrar's orders was that the plaintiff in the action (the appellant, Sommerville) obtained final relief against the defendant (the respondent, Gullan) without a trial.
[1] Sommerville Kalgoorlie Pty Ltd - ACN 154878869 v Gullan Pty Ltd - ACN 054024332 [2022] WASC 115.
The judge's orders were interlocutory, but the appeal notice did not contain an application for leave to appeal. The appellant made an oral application on the day of the hearing for leave to appeal. We refused leave to appeal and dismissed the appeal. We said we would provide written reasons, and these are our reasons.
In summary, whilst it is vital that ordinarily springing orders are complied with, once a judge has extended time for non‑compliance - a quintessentially discretionary and procedural decision - there is typically no injustice occasioned by allowing the matter to proceed to trial on the merits. That is the position in this case, which is emblematic of the delays and disruption to litigation caused by interlocutory appeals where the order appealed from results in the loss of some procedural advantage to the appellant, but, on any reasonable view of it, causes no substantial injustice to the appellant. We refused leave to appeal on the basis that no substantial injustice would be occasioned by leaving the primary judge's orders undisturbed and the correctness of those orders is not attended by sufficient doubt to justify the grant of leave to appeal.

Background - overview

It appeared to be common ground that by an agreement made in 2018, Gullan agreed to lease to Sommerville proposed commercial premises in the City of Kalgoorlie‑Boulder pursuant to a redevelopment of land owned by Gullan (Lease Agreement). The proposed development was for a mixed use facility involving pharmacy, medical centre and retail premises. In general terms, it was agreed that Gullan would lease a portion of the proposed redevelopment to Sommerville for use as a pharmacy. The Lease Agreement provided for termination on non‑performance of certain conditions subsequent which included conditions relating to Gullan obtaining finance to complete the development.
Sommerville lodged a caveat on 20 September 2018 to protect its interest.
In early 2020, disputes emerged in relation to the performance of the Lease Agreement.
In mid-2020, Sommerville commenced proceedings to extend the caveat. Master Sanderson granted the extension of the caveat on 19 January 2021. The learned master found that the matter should proceed to trial as fast as possible and made programming orders.[2] The principal issue in the litigation was whether the Lease Agreement had been terminated. Gullan contended that the conditions subsequent were not fulfilled, and the Lease Agreement had accordingly terminated. Sommerville disputed that, and contended that Gullan's failure to obtain finance was due to its failing to use best endeavours to do so.
[2] Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2021] WASC 14.
Pursuant to the master's orders, Sommerville filed a writ indorsed with a statement of claim, seeking, among other things, declaratory relief and specific performance of the Lease Agreement.
Various interlocutory orders were made over the period late January 2021 to 1 November 2021.
On 1 November 2021, by consent, Registrar Griffin made springing orders against Gullan in relation to discovery, inspection and the provision of unavailable dates for mediation, with compliance required by 9 November 2021 (November 2021 Springing Orders). The registrar relevantly ordered:
[Gullan] having failed to comply with:
(a)Order 2 made on 18 April 2021 for discovery on affidavit by 20 April 2021, extended to 24 May 2021 by Order 1 made on 5 May 2021, further extended to 17 August 2021 by Order 2 made on 9 August 2021;
(b)Order 3 made on 8 April 2021 for inspection of documents by 4 May 2021, extended to 7 June 2021 by Order 4 made on 5 May 2021, further extended to 17 August 2021 by Order 2 made on 9 August 2021; and
(c)Order 3 made on 5 May 2021 for unavailable dates for mediation to be provided by 24 May 2021, extended to 17 August 2021 by Order 2 made on 9 August 2021.
1.Unless [Gullan] complies with Orders (a), (b) and (c) above by 9 November 2021, IT IS ORDERED THAT [there be judgment in effect as sought in Sommerville's prayer for relief][.]
On 10 November 2021, one day late, Gullan served supplementary discovery on Sommerville's solicitors and provided a Dropbox for the supplementary discovered documents.[3]
[3] Primary decision [23].
On 9 November 2021, Gullan's solicitors did not provide unavailable dates for mediation. This information was not provided until 23 December 2021.[4]
[4] Primary decision [25].
On 23 December 2021, the associate to Registrar Griffin wrote to the solicitors for the parties by email. The associate noted that Gullan's affidavit of discovery was filed on 10 November 2021 (not by 9 November 2021), and enquired whether the other orders regarding inspection and the provision of unavailable date for mediation had been complied with by 9 November 2021. The email stated that the November 2021 Springing Orders were self‑executing, and advised that 'on the face of it' there had not been compliance and that 'the orders should spring'.
Sommerville's solicitors responded by email dated 23 December 2021, advising that:
1.Gullan provided supplementary discovery on 10 November 2021, but the discovery 'continue[d] to be incomplete'.
2.Sommerville had provided discovery and, at the request of Gullan, provided a copy of its documents on 23 August 2021, but Sommerville had not been informed whether Gullan had inspected Sommerville's documents.
3.Gullan had not provided unavailable dates for mediation.
The email from Sommerville's solicitors concluded by contending that the November 2021 Springing Orders 'sprang' on 10 November 2021, alternatively, Sommerville requested that the orders 'now spring'.
Gullan's solicitors responded by providing information about Gullan's unavailable dates for mediation.[5]
[5] Primary decision [27].
On 24 December 2021, Registrar Griffin made orders giving effect to Sommerville's prayer for relief (Default Orders):
[Gullan] having failed to comply by 9 November 2021 with:
(a)Order 2 made on 18 April 2021 for discovery on affidavit by 20 April 2021, extended to 24 May 2021 by Order 1 made on 5 May 2021, further extended to 17 August 2021 by Order 2 made on 9 August 2021;
(b)Order 3 made on 8 April 2021 for inspection of documents by 4 May 2021, extended to 7 June 2021 by Order 4 made on 5 May 2021, further extended to 17 August 2021 by Order 2 made on 9 August 2021; and
(c)Order 3 made on 5 May 2021 for unavailable dates for mediation to be provided by 24 May 2021, extended to 17 August 2021 by Order 2 made on 9 August 2021.
IT IS ORDERED THAT:
1,[Gullan] perform its obligation under the [Lease Agreement] relating to the development … by completing the Development specified in the [Lease Agreement].
2.Upon practical completion of the Development, the Lease to [Sommerville] of part of the Development commence.
3.[Gullan] pay compensation to [Sommerville] for breaches of the [Lease Agreement], to be assessed.
4.[Gullan] pay compensation to [Sommerville] for breaches of the Australian Consumer Law, to be assessed.
5.[Gullan] pay interest to [Sommerville] on compensation upon such terms as the Court deems fit.
6.[Gullan] pay all costs of this action incurred by [Sommerville] except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions [Sommerville] is completely indemnified by [Gullan] for its costs.
7.[Sommerville] have liberty to apply about enforcement of Orders 1 ‑ 6.
Gullan appealed against those orders. Hall J set aside the Default Orders and granted Gullan an extension of time to comply with the November 2021 Springing Orders. This appeal was against Hall J's orders.
Under the learned trial judge's orders, the next step in the primary proceedings was for the action to be listed for mediation by 22 April 2022. The order for mediation was stayed, at the request of and by consent of the parties, until after the disposition of this appeal.[6] It appears that nothing further has been done in the primary proceedings since that date.
[6] Orders of Buss P, 19 April 2022.

The appeal to Hall J

On 20 January 2022, Gullan filed a notice of appeal, appealing against the Default Orders. The notice of appeal disclosed a single ground of appeal, in the following terms:
The [Default Orders] should be set aside, because [Gullan's] failure to fully comply with the [Default Orders] was not contumacious. It was the fault of [Gullan's] legal representative. The prejudice to [Gullan] outweighs the factors against extending [Gullan's] time to comply with the [Default Orders].
The orders sought were:
1.The [Default Orders] be set aside.
2.The [November 2021 Springing Orders] be amended by extending the time set out in Order 1 to 24 hours after the making of final orders in this appeal.
3.The action be listed for mediation within 14 days of the making of final orders in this appeal.
4.Such other order as the court sees fit.
Gullan's solicitor filed an affidavit on 15 March 2022 in support of Gullan's appeal, explaining, and taking full responsibility for, Gullan's failure to comply with the November 2021 Springing Orders. The judge summarised his evidence, including as follows:[7]
[30][Gullan's solicitor] has filed an affidavit in which he accepts that the blame for the non-compliance is entirely his. [Gullan's solicitor] specifically accepts that he was to blame for failing to produce the affidavit and documents for supplementary discovery by 9 November 2021. He attended at [Gullan's] office and obtained the relevant documents prior to 1 November 2021. He prepared a list of the documents and an affidavit for swearing by [the sole director and secretary of Gullan (Mr Johnson)]. However he became aware on 9 November 2021 that Mr Johnson was unable to sign the affidavit as he was travelling from Kalgoorlie to Perth. [Gullan's solicitor] accepts that he failed to check Mr Johnson's availability prior to that time. He sent an email to [Sommerville's] solicitor on 9 November 2021 offering to provide the list and documents, with the affidavit to be filed on the following day. He received no reply to that email. The affidavit was sworn, filed and served on 10 November 2021.
[31][Gullan's solicitor] also states that he received an email from Mr Johnson's personal assistant on 8 November 2021 stating that Mr Johnson had no unavailable dates for mediation (as at that time travel was restricted due to the COVID pandemic). He states that in the days immediately preceding 10 November 2021 his attention was principally focussed on completing and filing the affidavit of discovery and he overlooked the need to provide the information regarding unavailable dates. After the affidavit was filed, he mistakenly thought that everything that needed to be done pursuant to the 1 November 2021 orders had been done. He heard nothing more until 23 December 2021, when he saw the email of [Sommerville's] solicitor responding to the associate to Registrar Griffin. At that time his office was closed for the Christmas break and in looking at the email he failed to scroll down and see the content of the email from the associate. It was for this reason that his response was only to provide the relevant unavailable dates.
[7] Primary decision [30] - [31].
Prior to the hearing before Hall J, Gullan also filed a defence dated '9 August 2021', but the document was filed on 16 March 2022.
Sommerville's solicitor filed an affidavit on 18 March 2022 in opposition to Gullan's appeal. The affidavit canvassed the procedural history of the matter and annexed various correspondence and court orders. Sommerville's solicitor also said that Gullan's supplementary discovery of 10 November 2021 was incomplete in that it did not include documents relating to (1) Gullan's endeavours to satisfy a condition of the Lease Agreement and (2) negotiations between Gullan and another pharmacy, Chemist Warehouse.[8]
[8] Affidavit of Mr Robinson filed 18 March 2022, pars 29, 32; GB 79 - 80.

Primary decision

The judge said:[9]
Order 60A r 6 of the [Rules of the Supreme Court 1971 (WA)] provides that an appeal shall be by way of a rehearing. In an appeal by way of rehearing the powers of the appellate court are exercisable only where the appellant can demonstrate, having regard to all of the evidence before the appellate court, that the order that is the subject of the appeal is the result of some legal, factual or discretionary error. This is to be contrasted with appeal by way of a hearing de novo where the powers of the appellate court may be exercised regardless of error. However, this distinction is always subject to construction of the statutory provision which creates the appellate power: see Allesch v Maunz (2000) 203 CLR 172 (per Gaudron, McHugh, Gummow and Hayne JJ at [23]).
[9] Primary decision [36].
The primary judge also referred to the observations of Le Miere J in CVW Group Holdings Pty Ltd v Addison,[10] a case decided in the context of O 60A r 6, as it stood then.
[10] CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 [17].
The primary judge, having referred to CVW, then said:[11]
The ability of a judge to exercise the power to set aside an order of a Registrar on an appeal regardless of error is pertinent to the circumstances of this case. It would be hard for an appellant to establish error where the final order is the result of a springing order made by consent. A Registrar could hardly be faulted for making an order that both parties seek. However, if the powers on appeal are not limited to circumstances in which error is identified it is then open to consider whether the appeal should be allowed to ensure that the outcome is a just one. That exercise can take into account any further evidence that may explain why the order was not complied with.
[11] Primary decision [38].
The judge also referred to authorities in relation to the discretion to extend time for compliance with springing orders, including CVW and MTQ Holdings Pty Ltd v Lynch,[12] as well as to case management principles with reference to Aon Risk Services Australia Ltd v Australian National University.[13]
[12] MTQ Holdings Pty Ltd v Lynch [2007] WASC 49.
[13] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
By way of overview, the judge said:[14]
I have concluded that the failure to comply was not due to failings on the part of [Gullan]. In fact, [Gullan] did all that it could reasonably be expected to do to ensure that the orders were complied with. It provided its solicitor the relevant information with sufficient time for the orders to be complied with. This was not a problem - or, to continue with the analogy, a petard - of the [Gullan's] own making. The prejudice to [Sommerville] if the appeal is allowed is outweighed by the prejudice to the [Gullan] of losing the ability to defend a case in which [Sommerville] seeks, amongst other things, the construction and leasing of a substantial commercial building.
[14] Primary decision [5].
The judge made a number of specific findings of fact to the effect that:
1.The circumstances in which the November 2021 Springing Orders came to be made were that Gullan had failed to comply with a number of previous orders, including extensions of time for the provision of discovery.[15]
[15] Primary decision [43].
2.The failure to provide discovery was not entirely attributable to dilatoriness on the part of Gullan or its solicitors, in that, at least for the period around April/May 2021, Mr Johnson was in hospital and confined to bed following back surgery.[16]
[16] Primary decision [43].
3.Nevertheless, that incapacity did not explain all of the delay, and by agreeing to the November 2021 Springing Orders, there was a tacit acceptance by Gullan that the delay was unacceptable.[17]
[17] Primary decision [43].
4.Discovery was provided only one day late (10 November 2021), and the unavailable dates for mediation were provided in December 2021.[18]
[18] Primary decision [44].
5.The reason for non‑compliance with the November 2021 Springing Orders was the fault of Gullan's solicitors. Gullan had provided the relevant information required for discovery and the unavailable dates for mediation to its solicitors with sufficient time for the November 2021 Springing Orders to be complied with.[19]
6.Gullan was not complicit in the failings of its lawyer. The evidence indicated that Gullan took its obligations under the November 2021 Springing Orders seriously, and had made its best endeavours to comply with them.[20]
7.As regards the prejudice to Gullan, the judge found that:[21]
(a)Gullan would lose its right to defend the proceedings if an extension of time was not given;
(b)the remedies sought by Sommerville, particularly specific performance requiring the building of a substantial commercial development and unquantified obligations to pay compensation, were 'likely to have very significant financial implications' for Gullan;
(c)it was 'not apparent' that any claim by Gullan against its solicitors would 'substantially ameliorate' the prejudice to Gullan.
8.As regards the question of prejudice to Sommerville, whilst Sommerville said that it was prejudiced because it relied on the Lease Agreement and lost the opportunity to find alternative pharmacy premises, the loss of that opportunity was not quantified and it was not clear whether Sommerville had been unable to continue operating its business at its existing premises.[22]
9.Whilst further delay would prejudice Sommerville, the prejudice was not incapable of being compensated in the event that Sommerville succeeded in the proceedings, and Sommerville's prejudice did not outweigh the prejudice to Gullan if the appeal were dismissed.[23]
[19] Primary decision [44].
[20] Primary decision [45].
[21] Primary decision [45].
[22] Primary decision [46].
[23] Primary decision [46].

The judge then concluded:[24]
[47]Springing orders should not be too readily made given their significant consequences. In this case, the springing order was made appropriately. That is not simply because it was made by consent but because there had been a history of delay. There was no error by Registrar Griffin. That, however, does not necessarily mean that justice is best served by dismissing this appeal and allowing the judgment to stand.
[48]The effect of a springing order, particularly one made by consent, should not be set aside lightly. If a party in breach of a springing order can too easily have it set aside the effectiveness of such orders will be rendered nugatory. The power of springing orders to act as an incentive to compliance lies in the fact that usually they will be self-executing and final. It will be a rare case in which an appellant can establish that judgment resulting from a springing order made by consent should be set aside.
[49]Taking into account the reasons for non-compliance with the [November 2021 Springing Orders] and the very significant prejudice to [Gullan] as opposed to the less significant, though not inconsequential, prejudice to [Sommerville], the just outcome is that the appeal be allowed and an extension to comply with the [November 2021 Springing Orders] be granted.
[24] Primary decision [47] - [49].
His Honour also noted that Gullan's solicitor accepted that a costs order against him was appropriate, and that '[t]he failure to comply with the springing order was a negligent act on the part of [the solicitor] and it is that failure which has necessitated these proceedings'.[25]

Orders

[25] Primary decision [52].

On 8 April 2022, Hall J ordered:
1.The [Default Orders are] set aside.
2.The [November 2021 Springing Orders] are amended by extending the time set out in Order 1 to 24 hours after the making of final orders in this appeal.
3.The action be listed for mediation within 14 days of the making of final orders in this appeal.
4.[Gullan's former solicitor] not claim any costs or fees of this appeal from [Gullan], refund any costs or fees of this appeal already paid by [Gullan] and pay [Sommerville's] costs of this appeal on an indemnity basis, subject to those costs being reasonably incurred.
As noted earlier, the parties obtained a consent order staying the mediation until after the determination of this appeal.

Grounds of appeal and application for leave

Grounds

There were seven grounds of appeal. None referred to the paragraph number of the primary decision in which the alleged error was made, contrary to pt 5 r 32(4)(d) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
Ground 1 alleged that the judge erred in law by determining the appeal from the registrar's orders as a 'hearing de novo', whereas, pursuant to O 60A r 6 of the Rules of the Supreme Court, the appeal should have been way of 'rehearing'.
Ground 2 alleged that the judge erred in law in 'allowing' the appeal, 'in conflict with the determination there was no error' by the registrar. Rather, the judge should have dismissed the appeal because there was no error by the registrar.
Ground 3 alleged that the judge erred 'in fact and in law' in finding Gullan 'had provided the relevant information required for discovery'.
Ground 4 alleged that the judge erred 'in fact and in law' in finding that Gullan's failures to comply with the master's orders dated 29 January 2021, Registrar Griffin's orders dated 12 April, 5 May, 9 August 2021 and the November 2021 Springing Orders were not due to failings on the part of Gullan; that Gullan was not complicit in its solicitor's defaults; and that Gullan took its obligations under the consent orders seriously and made best endeavours to comply with them. Rather, the judge should have found that Gullan's failures were due to failings on their part; it was complicit in its solicitor's defaults; it did not take it obligations under the consent orders seriously or make best endeavours to comply with them.
Ground 5 alleged that the judge erred 'in fact and in law' in finding that Gullan would be prejudiced if the appeal was not allowed. Rather, the judge should have found 'there was no evidence from [Gullan] about any prejudice that would result from' its appeal being refused.
Ground 6 alleged that the judge erred in 'rolling together' the issues of the reason for non-compliance with the November 2021 Springing Orders and the prejudice to Gullan if time to comply with the order was not extended. The judge should have not coalesced the issues and 'accordingly' should have dismissed the appeal.
Ground 7 alleged that the judge erred in law in 'not applying case management principles', alternatively, 'wrongly applying' those principles. Ground 7 alleged the judge 'should have dismissed' the appeal.

Application for leave

As noted earlier, Sommerville made an oral application at the hearing for leave to appeal. In substance, Sommerville submitted that leave should be granted because:[26]
1.the appeal had merit, in that the judge made the errors alleged in the grounds of appeal;
2.Gullan had been guilty of delay, going back to 2014, in relation to the development of the project;
3.Gullan should be held accountable for the delay of its solicitor;
4.there was no prejudice to Gullan; and
5.Sommerville was prejudiced as to costs.
[26] Appeal ts 4 - 6, 11 - 14, 20.

Leave to appeal - principles

The judge's orders did not 'finally determine the rights of the parties in [the] principal cause pending between them'.[27] The judge's orders were interlocutory within the meaning of s 60(1)(f) of the Supreme Court Act 1935 (WA), and leave to appeal was accordingly required. Without leave, the appeal was incompetent.[28]
[27] Re Luck [2003] HCA 70; (2003) 78 ALJR 177 [4], [6] ‑ [9]; Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79 [116] ‑ [117].
[28] Allmark v Mossensons (a firm) [2006] WASCA 127 [24].
In Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd,[29] Mitchell J (as his Honour then was) (Martin CJ & Buss JA relevantly agreeing) said:[30]
[80]… Generally, leave should not be granted unless the decision below is plainly wrong or is attended by sufficient doubt to justify the grant of leave and a substantial injustice would be done if it remains undisturbed[.]
[81]As Martin CJ noted in Waller,[31] the requirement for leave to appeal against an interlocutory decision is no mere technicality or procedural nicety. Rather it is a substantive restriction which advances the administration of justice by preventing procedural disputes distracting the court and the parties from the determination of contested substantive rights. I agree with the following observations made in Waller:
'The grant of leave to appeal from an interlocutory determination is therefore restricted to those exceptional cases in which the decision in question is not only plainly wrong or attended with sufficient doubt to justify the grant of leave, but also in which a substantial injustice would be done if the decision remains in place. It would defeat the purpose of the restriction upon interlocutory appeals if there were to be any departure from the strict satisfaction of these requirements.
In particular, the injustice that must be demonstrated must be properly characterised as 'substantial'. If every infraction of a party's procedural rights were to be regarded as a 'substantial injustice', this aspect of the requirements for the grant of leave would become meaningless, as virtually every erroneous interlocutory decision will involve an infraction of a party's procedural rights. Accordingly, the notion of 'substantial injustice' looks to the substantive rights of the party adversely affected by the order under review, and requires that party to demonstrate that the effect of the order will go beyond mere inconvenience and procedural disadvantage.'
(footnote omitted)
[29] Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374.
[30] Kelbush [80] - [81].
[31] Waller v Waller [2009] WASCA 61 [9] ‑ [10].
Special restraint must be exercised when the interlocutory order under appeal, as here, is one concerning practice and procedure.[32]
[32] Dodds v Kennedy [2011] WASCA 32 [5].

Leave to appeal - no substantial injustice

In our view, even if the grounds of appeal had merit, there has been no substantial injustice demonstrated if the primary decision were left undisturbed. That is so for essentially two reasons.
First, Sommerville, as plaintiff, was always required to establish its case. The effect of the judge's orders is that the litigation should be determined on the merits, rather than being disposed of summarily on procedural grounds in favour of Sommerville. The prejudice thereby caused to Sommerville is entirely procedural in character - there is no diminution of, or impingement on, Sommerville's substantive rights. Generally speaking, the loss of the procedural advantage obtained through the springing of a springing order would not ordinarily amount to a substantial injustice, and it does not do so in the circumstances of this case.
Secondly, Sommerville's submissions as to delay, which are the focus of its argument, do not provide a cogent basis for concluding that there will be any substantive injustice in allowing the case to proceed to trial.
In this case, the period between the making of the Default Orders on 24 December 2021, and the orders being set aside on 8 April 2022 is relatively small. There is no suggestion that in this limited period, witnesses' recollections have materially diminished or evidence has been lost.
Sommerville's submissions in relation to delay are not, with respect, to the point.
Insofar as Sommerville contends that Gullan delayed in getting the development undertaken, the complaint in substance goes to the merits of the underlying dispute, on which it will bear the onus at trial.
Insofar as Sommerville contends that there was delay procedurally between 29 January 2021 and 1 November 2021, that delay was factored into and contributed to the making of the November 2021 Springing Orders. The principal focus for present purposes is whether the order extending time for compliance itself would result in any substantial injustice.
In the period 9 November 2021 to 24 December 2021, Gullan provided, on 10 November 2021, one day late, discovery. Whilst Sommerville contests the adequacy of the discovery, that issue remains unresolved (not the least because the proceedings have gone nowhere since the primary judge's orders by the consent of the parties). As noted above, the period of 24 December 2021 to 8 April 2022 was relatively limited and has not prejudiced a fair trial.
The delay in the prosecution of the primary proceedings after the learned primary judge's orders, up to the disposition of the appeal, has been entirely the product of Sommerville seeking, and obtaining, a consent order putting, in effect, the litigation on hold. Thus, there has been no mediation even though Gullan provided its unavailable dates on 23 December 2021, and the judge's orders provided for a mediation to be listed by 22 April 2022.
Sommerville has not demonstrated any substantive injustice, as opposed to procedural inconvenience and increased cost, in its claims being determined on their merits at trial. No substantial injustice would be occasioned in leaving the primary orders undisturbed.

Leave to appeal - primary orders not attended by sufficient doubt

Further, Sommerville has not demonstrated that the correctness of the primary orders is attended by sufficient doubt to justify the grant of leave to appeal. That is because, even if there were error by the primary judge we would not, in the re‑exercise of this court's discretion, interfere with the primary judge's orders, for the reasons given in [58] ‑ [67] below.

Nature of the appeal to the primary judge

The appeal to the primary judge was made under O 60A r 6 of the Rules of the Supreme Court. Sommerville contended that under O 60A r 6, on an appeal from a registrar the appeal was to be 'by way of a rehearing'. Sommerville contended that whilst the judge correctly stated that the matter was to be dealt with by way of rehearing, his Honour nevertheless, in substance, treated the application as if it were a hearing de novo.
The premise of Sommerville's submission is incorrect. Prior to 27 November 2015, O 60A r 6(1) provided that an appeal from a registrar shall be by way of rehearing. Since then, O 60A r 6(1) has provided:
6.Appeal is by way of new hearing
An appeal from a registrar is to be by way of a new hearing of the matter that was before the registrar. (emphasis added)
In Priority Networking Pty Ltd v Peterson, Le Miere J outlined the effect of the amendments to O 60A,[33] and concluded:[34]
[27]What then is the precise scope of an appeal under O 60A? In CVW, I construed the right of appeal from a decision of a registrar as follows, and I adopt those comments in the present case:
'The appeal from a registrar to a judge is not a hearing anew as if there had been no hearing before, and decision by, the registrar. That is apparent from O 60A r 5 which requires an appeal to be commenced by filing a notice of appeal and for the notice of appeal to state, amongst other things, the grounds of the appeal. … The appeal may be on the evidence before the registrar or as supplemented by any further evidence the judge admits. The appeal from a registrar to a judge is a hearing de novo in the sense that the powers of the court on appeal are exercisable not only where the appellant can demonstrate that, having regard to all the evidence now before the court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. On an appeal from a registrar the court may exercise its powers regardless of error [17].'
[28]The Court may exercise its powers regardless of error. Nevertheless, the appealing party must identify the grounds of the appeal. That is expressly required by O 60 r [5(3)(b)]. (emphasis added) (footnote omitted)
[33] Priority Networking Pty Ltd v Peterson [2018] WASC 36 [18] - [28].
[34] Priority Networking [27] - [28].
We agree with those conclusions. Whilst, with respect, the judge misstated the terms of O 60A r 6, no material error occurred. His Honour, correctly, proceeded on the basis that the appeal was by way of a new hearing in accordance with the above principles.

General principles as to extending time to comply with springing order

The principles concerning an application to extend time to comply with a springing order were summarised in A v C [No 2]:[35]
[35] A v C [No 2] [2015] WASCA 199 [2] - [4].
[2]It has often been pointed out that the failure by a party to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity afforded to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity. See, for instance, [MTQ Holdings] [38] ‑ [57] and the cases there cited; TP Engineering Pty Ltd v JM [2015] WASCA 181 [53].
[3]There is, however, a discretion to extend the time for compliance with a springing order and while no hard and fast rules can be laid down as to the matters to which the Court should have regard in the exercise of that discretion, the Court will normally have regard to at least the following matters:
(1)the circumstances in which the springing order came to be made;
(2)the reason for non-compliance with the springing order;
(3)the prejudice to the defaulting party if the time were not extended; and
(4)the prejudice to the other party if the time were extended.
[4]It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits, there being no point in resuscitating a case that is devoid of merit. However, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a peremptory order of the Court[.]

Exercise of the discretion in this case

In this case, the appropriate order was to extend time for compliance. In summary, that is because:
1.Discovery was only a day late.
2.Whilst the provision of unavailable dates for mediation on 23 December 2021 was some five to six weeks late, Gullan had supplied the relevant information to its solicitor in time for compliance.
3.Gullan's failure to comply with the November 2021 Springing Orders was not contumelious, but, rather, stemmed from the inattention of its solicitor.
4.The defence filed by Gullan does not appear to be untenable, and the denial of an opportunity to have the case dealt with on its merits constitutes prejudice to Gullan.
5.There was no substantive prejudice to Sommerville in having the matter proceed to trial.
In relation to the third of those matters, Sommerville contended, in effect, that Gullan must be held accountable for the conduct of its solicitor, and referred to Swansdale Pty Ltd v Whitcrest Pty Ltd.[36] That was a case where indemnity costs were ordered on the basis that the appellants had pursued unmeritorious interlocutory appeals having acted unreasonably in the course of the primary proceedings from which the appeals were brought. The court found that the conduct of the appellants in pursuit of the interlocutory appeals was 'unreasonable, if not improper', and that their contention that they had relied on the advice of senior counsel provided no excuse. The court concluded that the appellants' conduct warranted the court marking its disapproval by an award of indemnity costs.[37]
[36] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [15]; appeal ts 5.
[37] Swansdale [15] - [17].
Swansdale provides no analogy. It involved the application of different principles in which it was unnecessary to consider the consequences of shutting out a trial on the merits. Whilst, ordinarily, the client is bound by the conduct of its lawyers in litigation, under the second of the guidelines referred to in A v C [No 2] (see [62] above), it may be relevant to consider whether non‑compliance arose without the personal fault of the client in assessing where the interests of justice lie overall.
Nor do we accept that Sommerville would suffer any prejudice as to costs if the primary decision were left unreversed. Sommerville obtained an indemnity costs order from the learned primary judge against Gullan's (former) solicitor.
In these circumstances, even if error were to be established, we would make the same orders in re-exercising the primary judge's discretion. On that basis, the correctness of the primary orders is not attended by sufficient doubt to justify the grant of leave to appeal.

Disposition of the appeal

For the above reasons, we would not grant leave to appeal. As a result, the appeal is incompetent.
It is unnecessary, then, to address the merits of the grounds of appeal, save to note that it follows from our view as to the nature and scope of an appeal from a registrar that grounds 1 and 2 of the appeal to this court are not established.

Conclusion

For these reasons, leave to appeal was refused and the appeal was dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JL
Associate to the Honourable Justice Murphy
24 MARCH 2023