Practice and procedure - Application for extension of time to comply with springing order - Failure of applicant to comply with case management directions - Factors to be considered in granting an extension of time

C M Can Stillevoldt v El Carriers Inc [1983] 1 All ER 699

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Hawter v Stevens, unreported; SCt of WA (Sanderson M); Library No 970645; 25 November 1997

Lewandowski v Lovell, unreported; SCt of WA; Library No 960286; 22 May 1996

Magenta Nominees Pty Ltd v Bonini [1999] WASC 88

Mantegna v Seafest Sales Pty Ltd, unreported; FCt SCt of WA; Library No 950497; 24 August 1995

Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 141 ALR 353

Samuels v Linzi Dressers Ltd [1981] QB 115

1 MASTER SANDERSON: This is the plaintiff's application for an extension of time to comply with a springing order made by Registrar Powell on 21 July 1999. Paragraph 3 of the orders made by the learned Registrar was in the following terms:

"Unless by 3 August 1999 the Plaintiffs comply with paragraph 3 of the order dated 27 April 1999 to file and serve answers or objections to the Defendant's request for further and better particulars the statement of claim be struck out and the action be dismissed and judgment be entered for the Defendant with costs including reserved costs."

2 In fact the plaintiffs did not file and serve their answers or objections to the request for further and better particulars by 3 August 1999 but attempted to file the answers on 4 August 1999. By that stage it was too late. Judgment was accordingly entered on 10 August 1999. This application for an extension of time was filed 8 October 1999.

3 It was accepted by both parties that the court may extend time for doing of any act in any proceedings, notwithstanding the application for extension of time is brought after the time has expired: see O 3 r 5. The parties also accepted that this rule applied even after judgment had been entered by virtue of the springing order: see FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268. Given these concessions, properly made by the defendant, and allowing for the fact that the plaintiffs were only one day out of time in filing their answers to requests for particulars it might be thought that there could be no argument but that time should be extended and judgment set aside. However, counsel for the defendant raised a number of matters which, he submitted, in the context of this case, weighed against time being extended.

4 First, counsel submitted that there was no reasonable explanation as to why the answers were not filed on time. In support of the application the plaintiffs filed an affidavit of Christopher Placid Stokes sworn 8 October 1999. Mr Stokes is the solicitor instructed by the plaintiffs and he appeared as counsel on this application. In his affidavit Mr Stokes says that he attended the case evaluation conference held on 21 July 1999 at which the springing order was made. He then says (par 4):

"On my return to my office on that date, I incorrectly noted that the last day for filing and serving answers to the request to further and better particulars was 14 days from the date of the Case Evaluation Conference, being 4 August 1999 and not 3 August 1999."

5 It is the practice in this Court that orders made at case evaluation conferences are generated during the course of the conference and supplied to the parties before they leave court. That is what was done in this case. It is to be noted that par 3 of the order made on 21 July 1999 (which I have quoted above) actually refers to the date of 3 August 1999 as the date for compliance with the order and makes no mention of the date for compliance being 14 days from the date on which the order was made. On that basis it is difficult to understand how Mr Stokes made the mistake he did. It must be said that the explanation proffered is not entirely satisfactory.

6 Secondly, the defendant pointed to the considerable delay between the failure to comply with the springing order and the application for the extension of time. It is axiomatic that if an extension of time is sought it should be sought promptly. In this case the application was not made until just over two months after judgment was entered. Mr Stokes attempts to explain the delay in his affidavit (par 7, par 8 and par 9). In summary, he says that his firm had difficulty obtaining instructions from the first plaintiff. It seems that the first plaintiff was undecided as to whether or not it wished to be a party to the proceedings. However, by letter of 17 September 1999 European Patented Attorneys acting for the second plaintiff confirmed that the first plaintiff wished to remain a party to the action and instructions were provided to make this application. Two things emerge from the explanation proffered by Mr Stokes. First, whatever may have been the difficulties with respect to the first plaintiff, there is no explanation as to why an application was not made on behalf of the second and third plaintiffs immediately after judgment was entered. Secondly, it is not clear why, when instructions were received from the first plaintiff on 17 September 1999, this application was not initiated until 8 October 1999. Once again, the explanation for the delay is not entirely satisfactory.

7 Thirdly, the defendant points to the history of this matter. In particular, counsel referred to the persistent failure of the plaintiffs to comply with orders made at various case evaluation conferences. On 22 July 1998 the plaintiffs were ordered to give discovery by 26 August 1998. They did not do so. On 5 January 1999 the plaintiffs were ordered to give discovery by 2 February 1999. They did not do so. The plaintiffs were ordered on 17 March 1999 to give discovery by 5 May 1999. They complied with that order. On 27 April 1999 the plaintiffs were ordered to file and serve answers to the request for further and better particulars. They failed to comply with that order and on 21 July 1999 the springing order was made.

8 The failure to comply with various orders and to progress the action generally is addressed by Mr Stokes in his affidavit. He says that between June and October 1998 the solicitors for the parties conducted settlement negotiations. It appears that these negotiations came to nothing. However, the parties then negotiated between themselves. By January 1999 it appeared that a settlement had been agreed and by 24 February 1999 a draft deed of settlement had been prepared. Once again, the settlement proposals came to nothing. It is apparent from the chronology that settlement negotiations do provide an explanation for some of the delay that has taken place but they do not explain why orders made by the Registrar have not been complied with. On each occasion the matter came before the learned Registrar counsel advised that settlement negotiations were in train. Nonetheless, orders were made. That being so, the plaintiffs ought to have complied with such orders.

9 Finally, the defendant submitted that the plaintiffs' case was weak and of such little merit that this was a factor in refusing an extension of time. It is very difficult in any interlocutory application to assess the merits of the claim. What can be said is that in March 1998 the plaintiffs obtained a series of orders which amounted to injunctions. Although these injunctions were subsequently discharged in June 1998 there is a basis for concluding that a Judge of this Court was satisfied that there was a serious question to be tried. In the face of such a conclusion, even one made at a preliminary stage of the action, and in the absence of any summary judgment application by the defendant, I could not conclude that the plaintiffs' action is hopeless. In my view the merits of the claim weigh neither one way nor the other in this application.

10 Of prime concern in considering an application such as the present is the plaintiffs' conduct in the context of the case management regime as established by O 29A. What is contemplated by that order is a status conference followed by a case evaluation conference. Under O 29A r 6(7) a Case Management Registrar may adjourn a status conference from time to time. But that does not mean to say that parties to an action can simply assume that they need not comply with orders made at a status conference and that their contumelious disregard of those orders will be overlooked. The integrity of the case management system as a whole is dependent upon compliance with the orders of Case Management Registrars and springing orders are one way of ensuring compliance. A party who fails to comply with orders made at a status conference should be under no illusions as to the consequences of their failure to comply.

11 In the circumstances of this case I am not satisfied that I ought to extend the time for compliance with the springing order. I am not satisfied that there is an adequate explanation for failure to comply with the order which was made. Furthermore, I am not satisfied that the application to set aside the judgment was made as promptly as it should have been. Added to both of these factors is the plaintiffs' repeated failure to comply with case management directions of the Registrar. Such contumelious disregard of orders made at a case management conference cannot be tolerated and in the context of an application such as this mitigates against any extension of time to comply with a springing order.

12 There are at least two factors in the plaintiff's favour which I have taken into account in reaching this conclusion. First, they were only one day out of time. If the application had been made promptly and if the delay had been adequately explained I would have been inclined to grant the extension of time. But that was not the case. Secondly, it is open to the plaintiff to recommence proceedings against the defendant. There is no question of any limitation period having expired. That being the case, the effect of this order may be to do no more than delay this action reaching trial and increase the costs of the action overall. In FAI General Insurance Co Ltd v Southern Cross Exploration NL (supra) Gaudron J highlighted this possibility and suggested it was a factor in favour of an extension of time being granted (at 288). But the facts in the FAI Insurance case were significantly different to the facts here. By the time the springing order took effect 70 days of court time had been spent dealing with the issues between the parties. The result of the springing order was that all that court time was wasted. That is not the case here. Although there have been a number of preliminary skirmishes, this matter has not progressed past the pleading stage. While the cost and delay of duplicating proceedings is a factor in favour of granting the plaintiff the extension that it seeks, in my view it is not outweighed by the other considerations I have referred to above.

13 In all the circumstances, I would dismiss this application. The plaintiffs should pay the defendant's costs of the application, including the reserved costs.