Southern Cross Oil v Fire and All Risks Insurance Co Ltd
[2005] QDC 66
•24 March 2005
DISTRICT COURT OF QUEENSLAND
CITATION:
Russo v Labdan Pty Ltd [2005] QDC 066
PARTIES:
JOHN RUSSO
First Appellant
v
LABDAN PTY LTD (ACN 010 137 407)
And
MICHAEL VINCENT BAKER AND STEVEN JAMES JOHNSON TRADING AS BAKER JOHNSON LAWYERS
RespondentFILE NO/S:
BD3483/04
DIVISION:
PROCEEDING:
Appeal from Magistrates Court
ORIGINATING COURT:
Brisbane
DELIVERED ON:
24 March 2005
DELIVERED AT:
HEARING DATE:
24 March 2005
JUDGE:
Robin QC DCJ
ORDER:
Self executing order that appeal be struck out if outline of argument not filed set aside. Appellants to pay the respondents’ costs of the application filed on 22 March 2005 to be assessed on the standard basis if not agreed.
CATCHWORDS:
Application by Appellants to restore appeal “struck out” by a self executing order for failure by them to file and serve their outline of argument by a date agreed (in the sense of suggested by them).
Uniform Civil Procedure Rules 1999 r 668
Cases cited:
Bailey v Marinoff (1971) 125 CLR 529
Re Coldham (1985) 159 CLR 522,530
DJL v The Central Authority (2000) 201 CLR 226, 245
Drabsch v AMP Fire & General Insurance Co Limited (1991) 2 Qd R 614
FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 628
KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd (1985) 2 Qd R 13
Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573
Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 7 NSWLR 319
Worrell v Holland (District Court Southport 628 of 1995, Newton DCJ 7 August 1996) (at Goondiwindi))
Whistler v Hancock (1)COUNSEL:
Mr Di Carlo for the Appellants
Mr Hackett for the RespondentSOLICITORS:
Stephens & Tozer for the Appellants
Baker Johnson for the Respondent
REASONS FOR JUDGMENT
On 22 November 2004 I dealt with a Registrar’s reference attributable to the appellants’ failure to file in their appeal an Outline of Argument as required by the relevant Practice Direction. The delay was attributed to health problems of their Counsel. The “order” as prepared by the State Reporting Bureau was:
“HIS HONOUR: I order that the appeal be struck out for want of prosecution under Rule 775 (which applies to the appeal by virtue of Rule 785) unless the appellants have filed and served their outline of argument in compliance with the practice direction by 13 December 2004.
MR DI CARLO: Would your Honour consider giving liberty to apply? I’m continuing to have some medical tests.
HIS HONOUR: Liberty to apply.
I will say something to protect you.
MR DI CARLO: If something happens that I need to get it to somebody else.
HIS HONOUR : This is a “Registrar’s reference” [in an] appeal against a Magistrate’s refusal to set aside a default judgment for costs obtained by a firm of solicitors. Mr Di Carlo, appearing for the appellants, indicates that the circumstances were somewhat curious. The Magistrate declined to set aside the default judgment on the appellants’ application on the first occasion, indicating that he wanted additional material or some material on the merits when the matter came back. With such material provided, the Magistrate, I am told, refused the application on the basis of unexplained delay. There has been failure by the appellants to comply with the practice direction in respect of filing their outline of argument in time. The delay in this appeal (instituted on the 28th of September 2004) is not of such dimensions that the appeal ought to be struck out immediately.
Mr Di Carlo has explained that professional pressures and some personal problems have stood in the way of his getting the drafting of the outline completed and he asked for a further three weeks. It is fair enough for the Court to grant that. Mr Di Carlo has asked for liberty to apply to be inserted in the order in case the difficulties that have applied over the past few weeks should re-emerge and cause problems.”
Two days later the Acting Deputy Registrar sealed and had placed on the appeal file an order in the following terms:
“Initiating document: Reference by Registrar filed on 17 November 2004
THE ORDER OF THE COURT IS THAT:
1.Unless the Appellants have filed and served their Outline of Argument in compliace with Practice Direction 5/01 by 13 December 2004 the appeal be struck out for want of prosecution under Rule 775.
2.There be liberty to apply.
3.That costs be reserved.”
The Outline of Argument is the next document in the appeal file; it is stamped (presumably to indicate receipt) with the date 15 December 2004, that is, two days late. The Registry returned the Magistrates Court file under cover of a letter of 17 January 2005 enclosing a copy of the order and advising “this appeal has now been struck out.”
The appellants had some difficulty (because of my circuit commitments) in arranging a re-listing of the matter before me, and in persuading another judge to become involved, which explains the delay until 22 March 2005 in the filing of an application for the following orders:
“1.That the order made by His Honour Judge Robin on 21 November 2004, directing the Apellant to file an Outline of Argument by 13 December 2004, be extended, nuc pro tunc, to allow the Appellant to file the Outline of Argument on or before 16 December 2004.
2.Or in the alternative, that the order made by His Honour Judge Robin dismissing the appeal, for the Appellant’s failure to file an Outline of Argument by 13 December 2004, be set aside pursuant to r 367 Uniform Civil Procedure Rules 1999 (“the Rules”), or alternatively pursuant to r 374 of the Rules.”
Presumably 2 refers to r 367(6) and r 374(9). Mr Di Carlo identified r 7 as the basis of the proposed Order 1. In directing the Registrar to set the application down for hearing I had in mind r 668, as expounded by the Full Court in KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd (1985) 2 Qd R 13, at 19ff, by reference to its predecessor, RSC Order 45. I understood that the Registrar would refer the parties to that decision. It establishes a jurisdiction in the court to make orders the interests of justice may require to relieve litigants of the consequences of a self-executing order, notwithstanding the expiration of the time allowed for the taking of some step which would prevent the self-executing order’s coming into effect. Subsequent instances of courts sitting at first instance exercising the jurisdiction are Drabsch v AMP Fire & General Insurance Co Limited (1991) 2 Qd R 614 and Worrell v Holland (District Court Southport 628 of 1995, Newton DCJ 7 August 1996 (at Goondiwindi)).
The “explanation” for the appellants’ failure to comply in time with the order of 22 November 2004 was not anything health-related, but rather Mr Di Carlo’s somehow coming and acting under the belief that he had a few more days to settle the Outline than my order allowed. Mr Hackett, for the respondents, was highly critical of inconsistency between accounts given by Mr Di Carlo from the Bar table and his instructing solicitor in an affidavit, particularly in relation to dates; he noted that the Outline filed bears date 13 December 2004, the implications of which were not explored: it may have represented some attempt to present a picture of compliance with the deadline in the order, but that would be somewhat pointless, as the filing date would speak for itself. Mr Hackett was not able to point to any prejudice suffered by his clients. My strong view is that the interests of justice require that the appellants be given an opportunity through this appeal to pursue their desire to contest the respondent-plaintiffs’ claim on the merits. If it matters, and it may not, I think it is particularly important to avoid appearances of lay clients being shut out of defending a claim (like the present one) by those who are officers of the court for professional costs. In Drabsch Master White (as her Honour then was) noted at 623:
“the approach that courts take in dismissal for want of prosecution cases and bearing in mind that it seems to be a fault which lies solely within the office of the solicitor for the plaintiff and can in no way be directed to the plaintiff himself that there would be a want of justice towards the plaintiff were I not to exercise my discretion in favour of him”.
Drabsch offers no support for the application so far as it is based on r 7. The Master proceeded under Order 45. It is significant that the dimensions of the appellants’ delay are slight in terms of days, and that there was no background of inordinate prior delays, as in Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573, where there occurred a few days’ delay attributable in part to difficulties in a cheque being cleared in the provision of $645, to cover the printing of appeal books. An order had been made (by consent of the parties) that sufficient monies to procure the printing of appeal books be paid to the Registrar within seven days of 7 September 1987 “in default the appeal be dismissed for want of prosecution”. The Court of Appeal granted relief to the appellant. The headnote includes the following:
“ (4) The discretionary powers of the court extend to granting relief (by an order under the Supreme Court Rules 1970, Pt 2, r 3, for an extension of time for compliance) in respect of a self-executing order of the court pursuant to which, in default of compliance with a direction contained therein, an order for the dismissal of an appeal has been entered. (578D, F, 580D).
Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 7 NSWLR 319, applied.(5) In exercising its powers to grant relief from self-executing orders the court prefers, if the balance of discretionary considerations otherwise permits, to allow proceedings to be heard on their merits. (58 D-E).”
I find Morgan, which concerns a “struck out” appeal, a particularly useful decision.
The difficulty I have felt in his application (which has troubled courts in the decisions cited in these Reasons) comes from Bailey v Marinoff (1971) 125 CLR 529, in which the High Court allowed an appeal by a respondent to whom the New South Wales Court of Appeal had granted a similar indulgence where appeal books were served six days out of time. The majority in the High Court considered they were faced with an instance “of hard cases making bad law” (per Menzies J at 532). They considered the appeal was at an end and beyond reviving because of the operation of a self-executing order. Walsh J said at 534:
“I have come to the conclusion that this appeal should be allowed. I do not think that the decision of the Court of Appeal, if allowed to stand, would result in any such widespread disorder and uncertainty as were suggested in argument to be likely to occur if judgments and orders were to be deprived of finality. The Court was fully conscious of the policy considerations requiring that in general an order should not be set aside or varied by the Court which made it. I would not apprehend any danger that the discretionary power which the Court of Appeal declared itself to have would be used too readily or unwisely. But the question is not whether the Court of Appeal ought to have a reserve power which would enable it (to repeat a phrase used by that Court) “to intervene in order that justice may be done”. It is whether, as a matter of law, the Court has an inherent power to deal further with an appeal which by its formal order, not being at variance with its intended order, has already been dismissed.”
Among the difficulties associated with a self-executing order is that, if it is entered before the time limited for compliance with the condition that might defeat or forestall it, the order is productive of uncertainty which can only be resolved by enquiry as to whether or not the step has been taken. The judgments in Bailey v Marinoff and other cases appear to attach great significance to whether or not an order has been entered up, so as to require it to be accorded a high degree of finality. In the New South Wales cases, the uncertainty alluded to existed at the time when the self-executing orders were entered up. Proof of events thereafter was not difficult. It was something of a surprise to me to discover that my order on the original Registrar’s reference had been embodied in a formal filed order so quickly. I think that any prospect of distinguishing Bailey v Marinoff on the basis of there being no perfected order has gone.
In that case, there was a strong dissent by Gibbs J, whose approach, if one may say it with respect, appears to accord with current thinking. At 544-45, Gibbs J said:
“The limits of the power remain undefined, although the remarks of Lord Evershed already cited suggest that it is a power that a court may exercise “if, in its view, the purposes of justice require that it should do so”. Why should the limits of the power be drawn so narrowly as to preclude an appellate court from varying a conditional order to dismiss an appeal after the time for compliance with the condition has expired? I can think of only two reasons that may be suggested for holding that the inherent power of an appellate court does not extend to permit such a variation to be effected, but in my opinion neither of those reasons is satisfactory. First, it may be said that the authority of Whistler v Hancock (1), and similar cases requires this conclusion. But in those cases the interests of justice did not render it imperative that the judge should have power to vary his own order, since there was power in an appellate court notwithstanding the lapse of time to remedy any injustice. Where, however, the order has been made by the appellate court itself the position is different, since if the appellate court cannot grant relief, none is available.
…
Secondly, it may be said that there is some principle that once an appeal has been dismissed it is finally at an end and that the court which dismissed it has no power to vary its order so as to bring it into existence again. Although cases such as Whistler v Hancock (1) and Script Phonography Co Ltd v Gregg (2) may appear to support such a principle, it is nevertheless firmly established that an action which has come to an end by reason of a judge’s order conditionally dismissing it can be set on foot again by the order of an appellate court. If, to adopt the metaphor not infrequently used in these cases, the action becomes dead when the order dismissing it takes effect, it is not beyond revival. Indeed, to say that the appeal is dead, or at an end, seems to me, with all respect, to be beside the point, which is whether the inherent jurisdiction of the court permits it to vary the condition of an order dismissing an appeal after the condition has taken effect, and to say without more that because an appeal is at an end therefore no further order can be made is to beg the question. Clearly such an order might have been varied on the day before the condition took effect and it would seem strange if the power of the court were so limited as to make the order incapable of variation even one day after the condition had taken effect, no matter what unexpected misfortune might have prevented the party affected from complying with the condition. However I can see no reason in principle, and certainly none in justice or convenience, why an appellate court cannot vary the condition of an order dismissing an appeal, notwithstanding that the appeal has been dismissed before the variation is effected; the appeal may be at an end, but the power of the court remains, and an exercise of the power can reinstate the appeal.
In the present case the Court of Appeal made an order varying its own former order in a matter of procedure for the purpose of giving effect to what it saw as the justice of the case. The order which it made was not contrary to any statute or rule of court. In my opinion neither authority nor principle constrains us to hold that the order so made was beyond the inherent jurisdiction of the Court.”
The authority of Bailey v Marinoff remains (see for example DJL v The Central Authority (2000) 201 CLR 226, 245) notwithstanding intimations in the High Court itself that some review might be warranted. See Re Coldham (1985) 159 CLR 522, 530 per Gibbs CJ, Wilson J and Dawson J and FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 628 (an unsuccessful appeal from the decision relied on in Morgan); there, the New South Wales rule relied on was held to have “empowered the Court to extend the time for compliance with a self-executing order even though the time for compliance had passed, whether or not the proceedings were pending”. See the comments of Wilson J (Brennan, Deane and Dawson JJ agreeing) at 285 and the comments of Gaudron J (who appeared for the unsuccessful respondent in Bailey v Marinoff), in which Brennan J found “much force”, at 289-90:
“Although it has been common to speak of a conditional order for dismissal as self-executing or of a proceeding upon which such an order has operated as “dead”, that seems to me to obscure the fact that a conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time. Where such an issue remains to be determined in relation to a proceeding it cannot be said that the court is functus officio. That being so, there seems to me no relevant distinction between a proceeding in which a conditional order for dismissal has been entered and a proceeding in which an order has been made but not entered, notwithstanding the decisions in Goodwin and Bailey. However, it is neither necessary nor appropriate to pursue that issue, the respondents having made their case without direct challenge to the actual decisions in those cases.”
All of this is really by the way. Uniformly, the cases establish that Bailey v Marinoff is not controlling where a rule of court has some part to play as, in my view, r 668 does here. Mr Hackett submitted that the conditions of it are not satisfied in that nothing has happened since the making of the self-executing order. There is some ambiguity as to whether the reference is to the date of its making or the date of its effecting the striking out of the appeal. I do not agree with Mr Hackett’s submission. It seems to me that something new did happen, in the overlooking of the deadline. The liberty to apply included in the order underlines the fluidity of the situation. It is part and parcel of the order, deliberately included, as happens on many occasions, such as the granting of equitable relief like injunctions or specific performance orders, which the court may want to keep under review. Such was my intention on 22 November 2004. (It may also be important that the orders on that date were made at the instance of the Registrar in an exercise of managing the appeal list, rather than at the request of the respondent.)
Given that the Outline of Argument has now been filed, I think the most appropriate order is one simply setting aside the orders I made on 22 November 2004. The intention is to have the court acknowledge there has been sufficient compliance with the Practice Direction’s requirement to file and serve the appellants’ Outline.
I agree with Mr Hackett that the ordinary rule whereby a litigant requiring an indulgence ought to pay the costs of the opposite party on the relevant application should apply here. I do not suggest its application is automatic. There may well be occasions when it is adjudged so obvious that an indulgence should be granted in the interests of justice or otherwise that a litigant presenting opposition may be denied costs, even ordered to pay them. Today, however, the order will be that the appellants’ pay the respondents’ costs of the application filed on 22 March 2005 to be assessed on the standard basis if not agreed.
I reserved my decision in this matter in order to obtain a transcript of the “argument” on 22 November 2005, which is now available. It bears out Mr di Carlo’s recollections of what transpired following his arrival about 10.35 am.
On reflection, it was probably over-enthusiastic on my part to make a self-executing order that the appeal be struck out (as had happened earlier that day in other registrars’ references). The Outline was not due until 26 October 2004. The Registrar had sent out only a single warning, on 9 November 2004. The order made might almost be seen as “by consent”, in that Mr di Carlo was given the time he sought, on the assumption there would be a self-executing order.
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