Steicke v Pederick - [2018] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
STEICKE v PEDERICK & ANOR
[2018] SASC 146
Judgment of Judge Dart a Master of the Supreme Court
24 September 2018
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS
Application to reinstate proceedings - proceedings dismissed by operation of self-executing order - the self-executing order was a consent order - Rule 117 provides appropriate discretion - whether discretion should be exercised where order made by consent - how discretion should be applied in respect of a self-executing order - discretion should not be exercised in favour of the applicant.
Held: Application FDN54 dismissed.
Legal Practitioners Act 1981 ; Supreme Court Civil Rules 2006 r 117(3), referred to.
Spencer v Nominal Defendant [2007] QCA 254, applied.
Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185; Skinner v Commonwealth of Australia [2012] FCA 1194; FAI General Insurance Company Limited and Others v Southern Cross Exploration NL and Others (1988) 165 CLR 268, considered.

STEICKE v PEDERICK & ANOR
[2018] SASC 146
JUDGE DART:

These reasons deal with application FDN54[1] by which the applicant seeks orders to refer this matter to mediation or, in the alternative, for an extension of time to comply with particular orders made on 28 February 2018. By operation of a self-executing order, the action was dismissed in April. For the reasons that follow, the application should be dismissed. There is no proper basis on which to make any of the orders sought in the application.
Background
These proceedings have a lengthy and particularly unsatisfactory history. The respondents acted for the applicant in Family Court proceedings between 2008 and 2011. This particular proceeding is an application made pursuant to the Legal Practitioners Act 1981 to tax the respondents’ costs. There is a District Court proceeding, currently stayed, in which the respondents seek to recover unpaid costs. That matter cannot progress until this proceeding, which was commenced on 3 March 2014, is resolved. At the time it was commenced the Family Court was conducting a hearing in respect of the respondents’ claim to be entitled to a lien over its files. Once this proceeding commenced, the Family Court adjourned the hearing before it.
By application FDN54, the applicant seeks:
1.   That these proceeding be referred to mediation pursuant to Rule 220 of the Supreme Court Civil Rules 2006.
2.   That pending any mediation ordered under Order 1 of these Orders that the Orders made on 28 February 2018 be stayed.
3.   That in the alternative to Orders 1 and 2 herein the applicant’s time for compliance with paragraphs 3 and 6 of the Orders dated 28 February 2018 be extended.
To properly consider what is sought in application FDN54 there is a need to understand the circumstances in which it is made. The orders made on 28 February 2018 were made with the consent of all parties. All parties were legally represented…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Steicke v Pederick

Details

AGLC: Steicke v Pederick [2018] SASC 146
Case: [2018] SASC 146
Decision Date: 24 September 2018

CaseChat Overview and Summary

Steicke v Pederick is a case that concerns an application by the applicant to reinstate proceedings that had been dismissed by a self-executing order. The self-executing order was a consent order. The applicant sought orders to refer the matter to mediation or, alternatively, for an extension of time to comply with particular orders made on 28 February 2018. The legal issues that the court was required to decide were whether the Court had the discretion to vary a consent order and, if so, how that discretion should be applied in respect of a self-executing order. The court held that the discretion should not be exercised in favour of the applicant. The court found that the orders which the applicant sought to vary were made by consent and that a consent order operates both as a contract and an order of the court. The court found that there was no ground for setting aside the consent order and that to accede to the application would be to deprive the respondent of the benefit of the contract which underlay the consent order. The court held that the discretion should not be exercised in favour of the applicant because to do so would be to interfere with the real contract between the parties. Therefore, the application was dismissed.

The final orders of the court were that the application be dismissed and that the applicant pay the respondents’ costs of the application. The court held that the applicant had acted unreasonably in continuing to prosecute the proceedings despite numerous orders and directions from the court. The court found that the applicant had wasted the court's time and that the respondents were entitled to costs on an indemnity basis. The court held that the costs should be paid by the applicant and not by the respondents because the applicant had acted unreasonably in continuing to prosecute the proceedings despite numerous orders and directions from the court. The court held that the applicant had wasted the court's time and that the respondents were entitled to costs on an indemnity basis. The court held that the costs should be paid by the applicant and not by the respondents because the applicant had acted unreasonably in continuing to prosecute the proceedings despite numerous orders and directions from the court.

Orders

Orders of the court

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Background

Background to the litigation

These reasons deal with application FDN54[1] by which the applicant seeks orders to refer this matter to mediation or, in the alternative, for an extension of time to comply with particular orders made on 28 February 2018. By operation of a self-executing order, the action was dismissed in April. For the reasons that follow, the application should be dismissed. There is no proper basis on which to make any of the orders sought in the application.Background These proceedings have a lengthy and particularly unsatisfactory history. The respondents acted for the applicant in Family Court proceedings between 2008 and 2011. This particular proceeding is an application made pursuant to the Legal Practitioners Act 1981 to tax the respondents’ costs. There is a District Court proceeding, currently stayed, in which the respondents seek to recover unpaid costs. That matter cannot progress until this proceeding, which was commenced on 3 March 2014, is resolved. At the time it was commenced the Family Court was conducting a hearing in respect of the respondents’ claim to be entitled to a lien over its files. Once this proceeding commenced, the Family Court adjourned the hearing before it. By application FDN54, the applicant seeks:1. That these proceeding be referred to mediation pursuant to Rule 220 of the Supreme Court Civil Rules 2006.2. That pending any mediation ordered under Order 1 of these Orders that the Orders made on 28 February 2018 be stayed.3. That in the alternative to Orders 1 and 2 herein the applicant’s time for compliance with paragraphs 3 and 6 of the Orders dated 28 February 2018 be extended. To properly consider what is sought in application FDN54 there is a need to understand the circumstances in which it is made. The orders made on 28 February 2018 were made with the consent of all parties. All parties were legally represented at that time. On the previous day the respondents’ application to dismiss this action as an abuse of process, and/or for want of prosecution, had been listed for argument. The respondents relied on a number of facts to support the making of orders dismissing the action. Those matters have been repeated in their written submissions filed in opposition to application FDN54. I accept the accuracy of the submissions and set out the relevant paragraphs as follows:3.Three and a half years later, by application filed in October 2017, the respondents' applied to dismiss the proceedings on the grounds of abuse of process and/or want of prosecution (the "Immediate Dismissal Application") given the conduct of the proceedings by the applicant following the filing of the Originating Application. Among other matters, the respondents relied on the following facts:3.1.1.there had been over 35 interlocutory hearings, including cancelled hearings, since the Originating Application had been filed;3.1.2.the applicant had had at least 10 different firms of solicitors who had represented her since the filing of the Originating Application;3.1.3.the ongoing failure of the applicant to particularise any complaints or support them with any detailed explanation:3.1.3.1.during the 3-6 year period between (a) her initial receipt of respondents' monthly itemised tax invoices in 2008 to 2011 and (b) the filing of the Originating Application; 3.1.3.2.at any time when the respondents (from time to time) provided copies of those monthly itemised tax invoices to various of the applicant’s many legal representatives upon their request;3.1.3.3.in any Notice Disputing Itemised Costs Account pursuant to the requirements of the Family Law Rules; or3.1.3.4.despite the directions and orders of this Court, during the 4 years since the filing of the Originating Application despite the obvious fact that the Originating Application is a "bare" application which is crying out for particularisation;3.1.4.the repeated failures of the applicant to comply with the directions, guidance and orders of the Court; 3.1.5.the repeated, abrupt and unexplained changes of solicitors on the part of the applicant;3.1.6.the repeated failures on the part of the applicant or her legal representatives to attend various hearings; 3.1.7.the attendance of the applicant's counsel at various hearings without any or any proper instructions;3.1.8.the numerous attempts of the applicant to seek last-minute adjournments of scheduled interlocutory hearings;3.1.9.the dismissal on 23 November 2016 of the applicant's application against the respondents in Supreme Court SCCIV-14-266 on the grounds of abuse of process;3.1.10.the dismissal on 14 March 2017 of the applicant's application for adjudication of costs in Supreme Court SCCIV-13-190 against another firm of solicitors, Connolly & Co, on the grounds of want of prosecution and abuse of process;3.1.11.the fact that the failure of the applicant to prosecute her application in these proceedings was delaying the proper prosecution of the respondents' remaining claims in District Court Action No. 1390 of 2016 arising from invoices issued in 2011 which remained unpaid 7 years later, which claims had been stayed by the District Court pending the resolution of these proceedings.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In any event, the primary relief sought on the application is a referral of this matter to mediation. The application for an extension of time within which to comply with the 28 February 2018 orders is sought only in the event that the Court does not refer the matter to mediation. It is noteworthy that the retainer of the solicitor engaged as a costs consultant to assist the applicant to comply with the orders has been terminated. Counsel for the applicant was not aware that the retainer had been terminated. There is no affidavit from the applicant in support of application FDN54. There is no evidence of the time required to comply with order 3 were the action reinstated.Issues that fall for consideration There is no dispute about the Court’s power to make the orders sought by the applicant. The provisions of Rule 117[3] provide the Court with a wide discretion to be exercised in the interests of justice. That includes a power to extend a time limit, even where it has expired.[4] Thus an order could be made nunc pro tunc extending time for compliance with order 3. The question is whether, on the facts of this matter, the discretion should be exercised in favour of the applicant. Apart from the usual discretionary factors that the Court would ordinarily consider in extending a time limit, there are two specific issues that arise. The first is that the orders which the applicant seeks to vary were made by consent. The second issue is the fact that, by reason of the operation of order 5 made on 28 February 2018, the action has been dismissed. Order 5 was a springing, or self-executing order. It is well understood that a consent order operates differently from an order imposed by the Court without the consent of all of the parties. In Spencer v Nominal Defendant[5] Keane JA, with whom de Jersey CJ and Mullins J agreed, said:A consent order operates both as a contract and an order of the court.[6] Whether the contract embodied in a consent order can be set aside depends on "the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it".[7] No such ground is said to exist in this case. To accede to the application under s 57(2)(b) of the Act would be to deprive the respondent of the benefit of the contract which underlay the consent order of 14 July 2006 where there is no other basis for setting aside that bargain. Not all consent orders are born equal, however. In Siebe Gorman & Co Ltd v Pneupac Ltd Lord Denning said as follows: [8]It should be clearly understood by the profession that, when an order is expressed to be made “by consent,” it is ambiguous. There are two meanings to the words “by consent.” That was observed by Lord Greene M.R. in Chandless-Chandless v. Nicholson [1942] 2 K.B. 321, 324. One meaning is this: the words “by consent” may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words “by consent” may mean “the parties hereto not objecting.” In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties. In every case it is necessary to discover which meaning is used. Does the order evidence a real contract between the parties? Or does it only evidence an order made without objection?