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 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; or
3.1.3.4.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.
The compromise arrived at on 27 February 2018 was agreed against the background of the circumstances set out in the paragraph above. It was apparent at the time that the consent of the respondents was somewhat reluctant, but they were prevailed upon to provide the applicant with a final opportunity to progress the matter. The following day consent minutes were provided to chambers and the orders duly made.
The relevant orders were:
THE COURT NOTING:
A.That the originating application in these proceedings for the adjudication of costs (FDN 1) was filed on 3 March 2014;
B.That there have been over 35 interlocutory hearings including cancelled hearings since the originating application was filed;
C.That the Applicant has had at least 10 different firms of solicitors who have represented her since the filing of her application;
D.The Applicant has not particularised any complaints or supported them with any detailed explanation:
i.during the 3-6 year period between (a) her receipt of respondents' tax invoices in 2008 to 2011 and (b) the filing of the originating application in 2014;
ii.in any Notice Disputing Itemised Costs Account pursuant to the requirements of the Family Law Rules; or
iii.despite the directions and orders of this Court, during the 4 years since the filing of her application;
E.The repeated failures of the Applicant to comply with the directions and orders of the Court;
F.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;
G.The dismissal on 14 March 2017 of the Applicant's application for adjudication of costs in Supreme Court SCCIV-13-1390 against another firm of solicitors on the grounds of want of prosecution and abuse of process;
H.That these proceedings are delaying the proper prosecution of the Respondents' remaining claims in District Court Action No. 1390 of 2016 arising from invoices issued in 2011 which remain unpaid 7 years later, which claims have been stayed by the District Court pending the resolution of these proceedings;
I.That the applicant claims to have reasons for the failures described in paragraphs D and E above;
AND UPON:
J.The undertaking of the Applicant to prosecute her application from today with all expedition and diligence;
THE COURT ORDERS that by consent:
…
3.On or before 24 April 2018 the Applicant shall file with the Court and serve on the respondents the same itemised schedule in the same tabular format but with additional columns completed providing full particulars in respect of each item of work of the following:
3.1.whether the amount charged for that item of work is disputed in part or whole;
3.2.the grounds upon which the amount charged for that item of work is disputed, including the identification of all documents, if any, and the terms of any retainer relevant to those grounds of dispute; and
3.3.the amount which the applicant offers to pay for that item of work.
4.In the event that the Applicant does not provide full particulars of dispute for any item of work as required by sub-paragraphs 3.1 to 3.3 above, the Applicant will be taken to have admitted the amount charged for that item of work in full.
5.In the absence of compliance with the requirements of paragraph 3 above, the application for adjudication of costs filed 3 March 2014 be dismissed.
6.On or before 24 April 2018 the Applicant shall file and serve on the Respondents any affidavits upon which the Applicant intends to rely at any final hearing in support of her application.
In the result, the applicant did not comply with order 3. By operation of order 5 the action was dismissed. A costs consultant engaged by the applicant filed an affidavit setting out the difficulties she encountered in complying.[2] The respondents point out that nothing deposed in her affidavit is a fact or circumstance that was not known to the applicant’s solicitors on 28 February 2018.
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?
In my opinion the consent order made here is of the first category referred to by Lord Denning. The very detailed orders were agreed between the parties following lengthy negotiations between counsel on 27 February 2018. In a real sense, a contract was agreed between the parties. The respondents were only prepared to forego the hearing of their application for dismissal of the proceedings on terms. Those terms were reflected in the orders made on 28 February 2018. There was an underlying contract between the parties.
The nature of the orders limits the ability of the Court to set them aside. The usual basis for setting aside a simple contract, fraud, mistake or misrepresentation does not arise. No doubt circumstances could arise where the interests of justice requires the setting aside of a consent order of the contractual type, but those circumstances might be expected to be quite rare. Here the respondents gave up prosecution of their application to dismiss the proceedings on the detailed terms agreed between the parties. I am not satisfied that the interests of justice requires the Court to intervene to vary the consent orders. To vary the orders would be to change the underlying contract agreed by the parties.
Nonetheless, it is necessary to consider the second issue. It relates to order number 5, which is a self-executing or springing order. As a result of the non-compliance with the orders made in February, the action stands dismissed.
In Skinner v Commonwealth of Australia[9] Flick J was considering an application by a party to be relieved from the consequences of not complying with a self-executing order. The issue in that case was that an applicant had been ordered to file a Third Statement of Claim by a particular date, failing which the proceedings would be dismissed. The order was not complied with. The applicant purportedly complied with the order shortly thereafter. The Third Statement of Claim still had significant deficiencies. His Honour declined to exercise the power to relieve against the consequences of the self-executing order. His Honour determined that:[10]
46.In such circumstances it is concluded that the extension of time requested should be refused. The proceeding stands dismissed.
47.This conclusion is founded upon:
the history of the proceeding to date and the repeated non-compliance with the orders of the Court;
the absence of any adequate explanation for the failure to comply with the orders made on 8 August 2012;
the fact that the proposed Further Amended Statement of Claim remains confusing and still fails to adequately plead a number of the causes of action upon which the Applicant seeks to rely; and
an evaluation of the competing interests of both the Applicant and the Respondent and the overall interests in the administration of justice.
The High Court had occasion to consider the power of a court to extend time for compliance after non-compliance with a self-executing order in FAI General Insurance Company Limited and Others v Southern Cross Exploration NL and Others.[11] The circumstances of that matter were that, during the course of a lengthy commercial trial in the Supreme Court of New South Wales an order was made for the provision of security for costs by the plaintiff by a particular date. Failure to provide the security meant the action would be dismissed. The security was not provided. At first instance the Supreme Court of New South Wales held that its rules did not provide it with the power to reinstate a dismissed action.
The matter ultimately proceeded to the High Court for an interpretation of the Rules of Court. The principal judgment was written by Wilson J, with whom Brennan, Deane and Dawson JJ agreed. The Court held that the Rules of the Supreme Court permitted the grant of an extension of time. The rule in question was similar in its terms to Rule 117(3). Wilson J said:[12]
It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance.
What I take from the Skinner case is that, in determining whether the interests of justice require an extension of time, the history of the proceeding is relevant, as is the extent to which the order has subsequently been complied with and an evaluation of the competing interests of the parties. From the FAI decision I note in particular the reference to the public policy centred on the finality of litigation being a relevant consideration, but not of itself a reason not to make an order extending time. The Court has the power to extend time nunc pro tunc, which would mean that the operation of the self-executing order did not come into effect. The action would then be treated as never having been dismissed.
In my opinion, the fact that the order was made by consent, and there are no facts or circumstances that would justify the Court varying the underlying contract between the parties, is the end of the matter. However, even if that were not the case, the interests of justice do not require that an extension of time be granted for the purpose of reinstating the proceeding and allowing further time for compliance with the orders.

This matter was instituted more than four years ago. The applicant has still not articulated any basis on which she contests or disputes the respondent’s claim for costs. The matter has not been progressed in a proper and diligent manner. The applicant now wishes to mediate the dispute. The matter was listed for a mediation last year, but that did not proceed because the applicant was unwell and produced a medical certificate saying she could not participate in a mediation for several months. It is difficult to mediate a dispute where the issues in dispute are not reasonably defined.
The Court has indulged the applicant consistently in this matter. There have been constant changes of solicitors which required adjournments to allow the new solicitors to acquaint themselves with the matter. The subject orders were intended to be a final opportunity for the applicant to advise the Court and the respondent of the grounds of her complaints in respect of the claim for costs.
The applicant did not avail herself of the opportunity to do so. Having engaged a costs consultant, it is apparent that the applicant now understands that a formal taxation of the costs will be a long and expensive process. It has taken four years for the applicant to come to that position. The respondents still do not know whether, or to what extent, there is a dispute about the quantum of the claim for costs. In April of this year the costs owing to the respondent had been owed for seven years. There is a need for finality in this proceeding. There comes a time when to allow a proceeding to continue will bring the legal system in to disrepute. That time has been reached. I dismiss application FDN54. I will hear the parties in respect of any consequential orders.

[1] Filed 24 April 2018.

[2] Second Affidavit of Jillian Eriksen filed 24 April 2018, FDN55.

[3] Supreme Court Civil Rules 2006.

[4] Supreme Court Civil Rules 2006 r 117(3).

[5] [2007] QCA 254.

[6] Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235.

[7] Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243 – 244; Rockett & Anor v The Proprietors of "The Sands" BUP 82 [2001] QCA 99 at [18]. See also General Credits Limited v Ebsworth [1986] 2 Qd R 162 at 165.

[8] [1982] 1 WLR 185 at 189.

[9] [2012] FCA 1194.

[10] Skinner v Commonwealth of Australia [2012] FCA 1194.

[11] (1988) 165 CLR 268.

[12] FAI General Insurance Company Limited and Others v Southern Cross Exploration NL and Others (1988) 165 CLR 268 at 283.