Agen Biomedical Ltd v Rankin [1998] QCA 282

4 In the reasons of Byrne J., from whose order the appeal is brought, it is explained that it was not suggested before his Honour that the appellant had sustained any loss or other form of prejudice by the delay - "at least none which cannot be completely remedied by an appropriate order for costs on an indemnity basis". His Honour said that the application was resisted principally on the ground that O. 45 r. 1 did not confer a power to grant the relief. It is necessary to deal with the same submission here; however, we note that the respondent accepted before Byrne J. that "time cannot be enlarged for the delivery of the list of documents". That concession appears to be difficult to reconcile with the reasons of the majority of the High Court in FAI General Insurance Company Limited v. Southern Cross Exploration NL [1988] HCA 13; (1988) 165 C.L.R. 268. There, construing a New South Wales rule in terms not distinguishable, in any relevant way, from our O. 90 r. 6, the court held that:

1. The discretion conferred by the relevant rule was "not readily to be limited by judicial fiat" and the rule should not be so read "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". (283, 284)

2. The rule empowered the Supreme Court to extend the time for compliance with a self-executing order even though the time for compliance had passed.

5 It is true that there is a decision, Drabsch v. AMP Fire and General Insurance Company Limited [1991] 2 Qd.R. 614, which appears to hold that there is an absolute limitation on the operation of the rule, in that it can never apply to such a case as the present, where fresh proceedings could not be brought due to the expiration of a limitation period. This was said (621) "to fall within those exceptions to which their Honours [in the High Court] made reference". If that refers to the reasons of Wilson J. in FAI it is not, with respect, readily apparent that any part of those reasons justifies reading such an exception into the rule; as we have pointed out, Wilson J., whose reasons were agreed to by three of the other judges, expressed himself in terms which gave no support to a process of judges' devising exceptions, not explicit in it, to the operation of the rule. Further, the obtaining of an order extending time, in such a case as this, is not for any purpose equivalent to the issue of a new writ; the Limitation of Actions Act 1974 does not operate so as to prevent such an order.

6 We have made these observations lest it be thought that the respondent's concession concerning O. 90 r. 6 has been implicitly approved, because this matter is being treated under O. 45 r. 1. The point taken by Mr Douglas with respect to O. 45 r. 1 is a short one. We do not think it necessary to set out the full terms of the rule which, subject to Mr Douglas' point, empowers the making of the order of which the appellant complains. But Mr Douglas says that when the rule refers to facts arising after the giving of a judgment or making of an order "which entitle the person against whom the judgment or order is given or made to be relieved from it" and goes on to give another description depending upon the notion of entitlement, it does not contemplate the exercise of a discretionary judgment. The argument, which is not without substance, is that the word "entitle" ordinarily connotes an absolute right, not merely a possibility of applying for relief. In the present case, it is said, the primary judge was wrong in holding that the revelation that the solicitors had overlooked delivering a list of documents constituted facts arising after the making of the order of Dowsett J. which entitled the respondent to be relieved from it.

7 The views expressed by the Full Court in K.G.K. Constructions Pty Ltd v. East Coast Earthmoving Pty Ltd [1985] 2 Qd.R. 13, are, Mr Douglas concedes, opposed to his contention. There, as here, O. 45 r. 1 was used to relieve a party from the consequences of a self-executing order on the basis that events subsequent to the making of the order justified resort to O. 45 r. 1. The order, made by the Full Court itself, was founded on facts coming to light which were not of such a character as to create an absolute entitlement; as here, they were only such as would create an entitlement to favourable consideration. But Mr Douglas says in effect that the Full Court in K.G.K. attributed a meaning to the notion of entitlement which is unorthodox, that it did so without discussion on the point, and that we should therefore hold the decision to have been wrong.

8 It is true that in K.G.K., McPherson J. (as his Honour then was) with whom the other judges agreed, adopted an expansive construction of the rule and in particular of the notion of entitlement used in it. It seems unlikely, however, that when this was done the fact that the construction accorded to the rule was of that character went unnoticed. Immediately before reaching the conclusion (at 20) that O. 45 was applicable, there were quoted remarks of Griffith C.J. in Woods v. Sheriff of Queensland (1895) 6 Q.L.J. 163 at 165, which McPherson J. thought might well have been the inspiration for O. 45, and which were said "to confirm the power to make the appropriate order in the present case". Griffith C.J.'s dictum referred, not to discovery of facts which made an earlier order simply erroneous, but to discovery of facts "which render its enforcement unjust".

9 This Court would not readily accede to a submission that it overrule a Full Court decision on the interpretation of the Supreme Court Rules made years ago, and ever since accepted as representing the law. If the K.G.K. interpretation of the rule was thought to be unsatisfactory, the position could have been corrected by an amendment; but although the rules have been subject to extensive amendment since 1984 when K.G.K. was decided, O. 45 has been left untouched. The words "entitle" and "entitled" in O.45 r. 1 are capable of referring to instances in which the person seeking relief has to depend on a favourable exercise of discretion and claims no absolute right to relief; the appellant's principal submission must be rejected.

10 As to the suggestion that the discretion was not properly exercised, the facts seem amply to justify the primary judge's conclusion. Although the action had been moved along rather slowly on the respondent's side, it was not a stale one, having been begun 15 months before, and the defence delivered 3 months before, the order was made striking the action out. Further, the case had on only one occasion prior to the striking out order been the subject of an order of the court; that was in May 1997, when a self-executing order was made with respect to delivery of the statement of claim. We note that in K.G.K., after the self-executing order was made, two further orders had been made extending the time for compliance; here, there were no extensions of time. What made the self-executing order operate was a delay of a few days in delivery of a list of documents, the more important document (the statement of loss and damage) having been duly delivered.

11 It was suggested in the course of argument that if strong effect is not given to self-executing orders, inconvenient consequences will ensue. That does not seem likely. In this case, the self-executing order was made by consent, but had it not been consented to, one would not have expected the court to make such an order. If self-executing orders are reserved for extreme circumstances, where it appears that no other order would move the party in default into action, they will be effective enough; the circumstances may then well be such that an application to remedy the defaulting party's position, under O. 90 r. 6 or O. 45 r. 1, would fail.