JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WARD -v- KEET [No 4] [2010] WASC 268
CORAM: ALLANSON J
HEARD: 3 SEPTEMBER 2010
DELIVERED : 6 OCTOBER 2010
FILE NO/S: CIV 1566 of 2006
BETWEEN: SUSAN ANNE WARD as executrix of the estate of DOROTHY MURIEL LUKIN
First-named First Plaintiff
JULIA MURIEL LAURISSON as executrix of the estate of DOROTHY MURIEL LUKIN
Second-named First PlaintiffSUSAN ANNE WARD as administratrix of the incapable estate of LOUISE LUKIN
First-named Second PlaintiffJULIA MURIEL LAURISSON as administratrix of the incapable estate of LOUISE LUKIN
Second-named Second PlaintiffLAKE WAY STATION PTY LTD (ACN 008 667 169)
Third PlaintiffAND
JOHN FRANCIS DESMOND KEET
First DefendantNATIONAL AUSTRALIA BANK LTD (ACN 004 044 937)
Second DefendantCLIVE STEWART BAIN
Third Party
Catchwords:
Practice and procedure - Springing order - Non-compliance with springing order by first defendant - Application to extend time for compliance refused - Plaintiffs' action against second defendant dismissed by consent - Subsequent application to extend time for compliance - Whether an extension of time would be in the interests of justice - Turns on own facts
Legislation:
Law Reform (Contributory Negligence and Tortfeasers Contribution) Act 1947 (WA)
Result:
Application for extension of time dismissed
Category: B
Representation:
Counsel:
First-named First Plaintiff : Mr P G McGowan
Second-named First Plaintiff : Mr P G McGowan
First-named Second Plaintiff : Mr P G McGowan
Second-named Second Plaintiff : Mr P G McGowan
Third Plaintiff : Mr P G McGowan
First Defendant : Mr G M G McIntyre SC
Second Defendant : Mr B Dharmananda
Third Party : Mr R F F Edwards
Solicitors:
First-named First Plaintiff : Metaxas & Hager
Second-named First Plaintiff : Metaxas & Hager
First-named Second Plaintiff : Metaxas & Hager
Second-named Second Plaintiff : Metaxas & Hager
Third Plaintiff : Metaxas & Hager
First Defendant : Corser & Corser
Second Defendant : Jackson McDonald
Third Party : DLA Phillips Fox
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Attorney‑General of Botswana v Aussie Diamond Products [No 2] [2009] WASC 301
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Homestyle Pty Ltd v City of Belmont [1999] WASCA 59
James Hardie & Co Pty Ltd v Seltsan Pty Ltd [1998] HCA 78; (1998) 196 CLR 53
J‑Corp Pty Ltd v Pannell Kerr Foster (A Firm) [2007] WASC 122
Rafferty v Time 2000 West Pty Ltd (No 3) [2009] FCA 727; (2009) 257 ALR 503
Ward v Keet [No 3] [2010] WASC 71
ALLANSON J: The applicant is the first defendant to a claim for damages brought by the plaintiffs. Judgment has been entered against him on the plaintiffs' claim, and also on his claim for contribution against the second defendant. Each judgment was entered following the first defendant's failure to comply with a springing order. The first defendant now seeks…
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- AGLC
- Ward v Keet [No 4] [2010] WASC 268
- Case
- [2010] WASC 268
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to address included the court's power to extend time under a springing order that had already been activated, and whether such an extension should be granted in the circumstances of this case. The court needed to weigh various factors such as the delay in compliance, the reasons for the delay, the prejudice to each party, and the overall principles of case flow management.
The court found that the principles of case flow management required it to consider all relevant factors before deciding whether to extend the time for compliance with the springing order. The court noted that the first defendant's delay in complying with the order and his subsequent failure to provide a satisfactory explanation for the delay were significant factors. The court also considered the potential prejudice to the first defendant if the judgment were enforced, given his profession as an accountant. Despite these considerations, the court was not satisfied that the first defendant's conduct was attributable to any cognitive or medical issues, as the evidence provided was weak and inconclusive. Ultimately, the court dismissed the application for an extension of time.
The final orders of the court were to dismiss the application by the first defendant for an extension of time to comply with the springing order. The court also dismissed the plaintiffs' action against the second defendant by consent.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
First, it is common ground that the court has power to extend time under a springing order which has 'sprung': FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268. No party submitted that the power to extend time is affected by the earlier decision of Murphy J. Second, I should have regard to the principles of case flow management. The rules of the court are to be applied and its processes and procedures conducted so as to best ensure the attainment of the objects referred to in O 1, r 4B(1); and see Aon Risk Services Australia Ltd v Australian National University[2009] HCA 27; (2009) 239 CLR 175. The first of those objects is promoting the just determination of litigation. All factors relevant to the exercise of the discretion to permit an extension of time must be weighed, including the fact of substantial delay by the first defendant which led to the making of the springing orders in the first place; the further delay since judgment was entered; the wasted costs which the extension might produce (including the costs incurred by the plaintiffs in seeking to enforce their judgment). Consideration must also be given to the explanation given by the first defendant for his non‑compliance, and for the subsequent delay in applying for judgment to be set aside and time extended. I must have regard to the prejudice to each party. I am not in a position, on the material put before me, to make any assessment of the strength of the first defendant's case. I am particularly concerned about the possible effect of major depression on the ability of the first defendant to properly conduct the action. But the medical evidence presented is weak and inconclusive, and I can make no positive finding. On the evidence before me, I am not satisfied that the first defendant's conduct in failing to comply with the orders of Murphy J is attributable to any cognitive or other medical problem. I have allowed for difficulties caused by the retention of documents by the first defendant's former solicitors. I take into account the obvious prejudice to the first defendant should judgment be enforced against him, either by property sale or by bankruptcy. Bankruptcy would have a particular effect on the first defendant due to his profession as an accountant. There is, however, force in the submissions made on behalf of both respondent parties regarding whether the first defendant has sufficiently explained the delay leading to the execution of the springing orders, and the further delay after judgment was entered. The application required the first defendant to give proper and candid explanation for the delay: Attorney‑General of Botswana v Aussie Diamond Products [No 2] [2009] WASC 301 [70]; Aon Risk Services Australia Ltd v Australian National University [103], [107] ‑ [109]. The first defendant's evidence, both financial and medical, is still presented at a high level of generality. I am also concerned that the first defendant's solicitors only requested a report from Dr Fox as late as 4 August 2010.