Spencer, R.B. v Hugall & Hoile Ltd Hugal & Hoile Ltd v Steriline Irrigation Pty Ltd

[1989] FCA 458

NOT FOR DISTRIBUTION

JUDGMENT No. ... k.5&1...8%,..,....

C A T C H W O R D S

PRACTICE AND PROCEDURE - extension of time fixed by directions - desirability of moving for extension prior to expiry of time - unless for default judgment - prejudice to other party - contumelious disregard of order - what is evidence of such disregard - legal aid - relevance of time involved in legal aid application.

Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees's Association of Western Australia L19871 Australian High Court and Federal Court Practice 65-328.

Baker v Bowkettrs Cakes Ltd [l9661 1 WLR 861

ROGER BOYD SPENCER V HUGALL AND HOILE LIMITED
HUGALL AND HOILE LIMITED V STERILINE IRRIGATION PTY LIMITED

NO. WAG 24 of 1988

9 MAY 1989

FRENCH J.
PERTH

IN THE FEDERAL COURT	)
OF AUSTRALIA	1
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	1
GENERAL DIVISION	1 No. WAG 24 of 1988
B E T W E E N :	ROGER BOYD SPENCER

Applicant

and

HUGALL AND HOILE LIMITED

Respondent

and

HUGALL AND HOILE LIMITED

Cross-Claimant

and

STERILINE IRRIGATION PTY LIPlITED

Cross-Respondent

- CORAM : FRENCH J.
9 May 1989

EX TEMPORE REASONS FOR JUDGMENT

It is with some reluctance that I come to the conclusion that there is little choice but to grant an extension of time. First, I would note that the time limited for compliance with these orders has long expired. I repeat now what I have frequently said before, that if parties are going to seek extensions they should do so prior to the expiry of the time limited by the directions which it is sought to vary.

In this case, if the extensions sought in relation to the provision of the particulars of damages are not granted, the respondents will apply for summary judgment and the Court would then have to consider the exercise of its drscretion to award judgment in default under the Rules.

The respondent has not, at this stage, demonstrated any prejudice that may have been suffered by reason of the applicant's non-compliance with the orders that have been given. In the case of such non-compliance, generally a motion for judgment in default will be seriously considered where there is elther irremediable prejudice to the respondents, or evidence of some contumelious disregard of the court's orders - Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia [l9871 Australian High Court and Federal Court Practice

65-328. And, of course, repeated non-compliance would be taken as

evidence of that fact. A failure to seek extensions before the expiry of time limited would also be treated as evidence of that fact. At this stage, however, it would be simply a waste of time to move to the position of refusing the extension with the

am prepared to infer at the moment contempt of the court's orders	consequences that that would bring, absent evidence from which I
or prejudice to the respondent which cannot be repaired by an order for costs.
On the point made by Mr Snell concerning the grant of legal aid and the extent to which the administrative processes associated with the grant of legal aid can be considered in the exercise of discretion, I note, as he has pointed out, that the position in England and in the case to whlch he referred me, Baker v Bowkett's Cakes Ltd [l9661 1 WLR 861, is governed by the specific provisions of the statute which excludes from consideration in the exercise of discretion the fact that there has been a legal aid grant. Absent such a statutory instruction, I am not prepared to adopt the position that the processing of the legal aid grant is not a relevant factor, any more than I would be prepared to adopt the position that a temporary financial or funding difficulty affecting any party, whether legally aided or not, and affecting the party's ability to take certain steps within a particular time in an action, would be an irrelevant factor.
Obviously there are limits on the extent to which such matters may be taken into account, and those limits are defined in part by what is fair to the other party and what inflicts unfair prejudice. But I am not prepared to adopt as a position of principle the proposition that these things can never be taken into account. I would simply say to Mr Levit, and therefore to the applicant, that if these orders are not complied with his client's entire action is in serious jeopardy. The orders I
propose to make then are as follows:

1.    That the applicant do, on or before 11 May 1989, file and deliver its answers to question 21 of the respondent's request for further and better particulars of his re-amended statement of claim.

2.        he cross-claimant do on or before 18 May 1989,

file and deliver a reply to question 7 of the cross-respondent's request for further and better particulars of its cross-claim dated 28 November 1988.

3.    The applicant do on or before 6 June 1989 file and deliver answers to question 25 of the respondent's request for further and better particulars of its re-amended statement of claim.

4.   The cross-claimant do on or before 13 June 1989 file and deliver answers to question 8 of the cross-respondent's request for further and better particulars of the cross-claim dated 28 November 1988.

5.'	The applicant do file and deliver any amended reply to defence and defence to cross-claim on or before
16 May 1989.
6. The applicant is to pay today's costs of the respondent and the cross-respondent.

7.    This directions hearing is adjourned to 20 June at 9.30 am.

I certify that the preceding four pages
are a true copy of the Ex tempore
Reasons for Judgment of His Honour

Justice French.

Associate: C-

Date:

Counsel for the Applicant: Mr M. Levit

Solicitors for the Applicant: Mossensons

Counsel for the Respondent and Cross-Claimant: Mr M. Snell
Solicitors for the Respondent and Cross-Claimant: Blake Dawson

Waldron

Counsel for the Cross-Respondent: Its. J. Gillon

Solicitors for the Cross-Respondent: Robinson Cox

Date of Hearing:  9 May 1989

Date of Judgment: 9 May 1989