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[2007] WASC 49
Supreme Court of WA
2007-03-19
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : MTQ HOLDINGS PTY LTD -v- LYNCH & ORS [2007] WASC 49
BETWEEN : MTQ HOLDINGS PTY LTD (ACN 104 520 934)
Practice and procedure - Springing order - Judgment entered following noncompliance with springing order - Subsequent application to extend time for compliance - Relevant principles
Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd [1991] FCA 536; (1991) 32 FCR 379
Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd [1994] 2 Lloyds Rep 32
Chesson v Green [2002] WASCA 67
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Hytec Information Systems Ltd v Coventry City Council [1996] EWCA Civ 1099; [1997] 1 WLR 1666
Link Blocks (1981) Pty Ltd v Fullin [1986] WAR 187
Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196
Samuels v Linzi Dresses Ltd [1981] QB 115
State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
1 MASTER NEWNES: This is an application by the plaintiff to extend the time for compliance with springing orders for the service of its reply and defence to counterclaim, the plaintiff having failed to comply with orders made in August 2006. As a result of its non-compliance, the plaintiff's action has been dismissed and judgment has been entered against it on the defendants' counterclaim.
2 It is necessary, in order to put the circumstances leading to this application in context, to trace the history of the action to some extent.
3 The plaintiff's claim is for damages for defamation in respect of a letter, dated 25 November 2004, addressed to the shareholders of the second defendant and published by the defendants to those shareholders and on the second defendant's website. The plaintiff alleges that the letter conveyed imputations defamatory of it.
4 The action was commenced by a generally indorsed writ of summons filed on 1 December 2004. An appearance was entered on behalf of the defendants on 6 December 2004. At a status conference on 23 December 2004, the plaintiff was directed to file and serve a statement of claim by 7 January 2005 and the defendants to file a defence, or any application to strike out the statement of claim, by 21 January 2005.
5 The statement of claim was filed on 5 January 2005. On 21 January 2005, the defendants made an application to strike it out on the grounds that it disclosed no reasonable cause of action or was embarrassing. That application came on for hearing on 6 May 2005 and the decision was reserved. On 25 July 2005 an order was made that pars 9 and 7 of the statement of claim be struck out. The plaintiff was ordered to make any application to file and serve an amended statement of claim on or before 15 August 2005.
6 An amended statement of claim was filed on 11 August 2005 and, on 22 August 2005, the defendants applied to strike out the amended statement of claim, again on the grounds that it failed to disclose a reasonable cause of action or was embarrassing. For reasons that are not entirely clear, that application took some time to be listed for hearing but it was finally argued on 21 February 2006 and, in a reserved decision delivered on 31 March 2006, the application was dismissed. On 31 March 2006, the defendants were ordered to file and serve their respective defences by 14 April 2006 and the plaintiff was ordered to file and serve any reply on or before 28 April 2006. It was further ordered that any request for particulars of a pleading be filed and served within 10 days of service of the relevant pleading. Discovery was required to be given on oath on or before 12 May 2006.
7 The defendants filed a defence and counterclaim on 20 April 2006. In their defence to the defamation claim, the defendants denied that the words complained of were capable of bearing, or bore, any of the defamatory meanings alleged or any meaning defamatory of the plaintiff. They further pleaded that, if the words complained of did bear the alleged defamatory meanings, they were true in substance and in fact. Particulars of justification were then set out.
8 The defendants also pleaded, by way of counterclaim, that a letter published by the plaintiff to shareholders of the second defendant on the day before the letter complained of made representations that were misleading or deceptive or were likely to mislead or deceive, contrary to s 52 of the Trade Practices Act 1974 (Cth) or, alternatively, s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth). The defendants sought, by way of counterclaim, a declaration that in publishing the letter to the shareholders of the second defendant the plaintiff engaged in conduct in contravention of those provisions.
9 Under the Rules of the Supreme Court, the defence to counterclaim was required to be filed by the plaintiff by 4 May 2006. On 30 April 2006, the plaintiff's solicitors requested an extension until 31 May 2006 to file the defence to counterclaim. On 2 May 2006, the defendants' solicitors agreed to that extension.
10 The plaintiff failed to file its defence to counterclaim within the extended time and, on 22 June 2006, orders were made by consent, among other things, that the plaintiff file and serve its reply and defence to counterclaim on or before 6 July 2006 and provide answers or objections to the defendants' request for particulars of the amended statement of claim by the same date. Discovery was required to be given by the parties on or before 20 July 2006 and inspection was to be completed on or before 3 August 2006.
11 The plaintiff did not file its reply and defence to counterclaim by 6 July 2006 or respond to the defendants' request for particulars of the amended statement of the claim.
12 On 10 July 2006, the defendants' solicitors sent a facsimile to the plaintiff's solicitors informing them that if the reply and defence to counterclaim and the particulars of the amended statement of claim were not filed and served within seven days the defendants would apply for a springing order.
13 The defendants' solicitors wrote again, by facsimile, on 18 July 2006 noting that they had not received any response to their previous correspondence and saying that an application for a springing order would be made on 19 July 2006.
14 On 19 July 2006, the defendants applied to the Court for, among other things, orders, first, that unless the plaintiff filed and served answers or objections to the defendants' request for further and better particulars of the statement of claim within seven days of the date of hearing of the application, the plaintiff's claim be struck out and judgment entered for the defendants; secondly, that unless the plaintiff filed and served its reply within the same time, its claim be struck out and judgment entered for the defendants; and thirdly, unless the plaintiff filed and served its defence to counterclaim within the same time, the plaintiffs by counterclaim be at liberty to enter judgment in terms of the declaration sought in the counterclaim. The defendants also sought orders extending the time for discovery and inspection.
15 On the same day, the defendants' solicitors wrote to the plaintiff's solicitors informing them that the application for springing orders was being made and that the defendants would like it disposed of before the next directions hearing in the action on 10 August 2006. The defendants' solicitors wrote again on 25 July 2006 to say that the application for springing orders was listed for 3 August 2006.
16 At the hearing on 3 August 2006, the plaintiff's solicitor did not object to springing orders being made but requested further time for compliance. In the event, springing orders were made but the plaintiff was given 21 days from the date of the hearing within which to provide the further and better particulars, its reply, and its defence to counterclaim.
17 On 15 August 2006, the solicitors for the defendants served a copy of the extracted order on the solicitors for the plaintiff.
18 The plaintiff's solicitors filed and served the further and better particulars of the amended statement of claim on the last day for compliance with the orders of 3 August 2006, that is, on 24 August, but neither the reply nor the defence to counterclaim was filed or served.
19 The defendants' solicitors wrote by facsimile to the plaintiff's solicitors on 25 August 2006, noting that the reply and the defence to counterclaim had not been filed and that the relevant springing orders had come into effect. They said that the defendants would enter judgment. The plaintiff's solicitors did not respond to that facsimile.
20 On 28 August 2006, the defendants' solicitors lodged with the Court, for extraction, orders dismissing the claim and entering judgment on the counterclaim.
21 On 14 September 2006, some three weeks after the orders had "sprung", the plaintiff's solicitors made an oral application for an extension of time within which to comply with the springing orders for service of the reply and the defence to counterclaim. That application was adjourned and, on 28 September 2006, directions were made for the filing of affidavits by the parties in relation to it.
22 The plaintiff's application for an extension of time first came on for argument on 9 November 2006. In the course of the hearing, counsel for the plaintiff sought an adjournment to adduce further evidence as to the reasons for the plaintiff's failure to comply with the springing orders. The adjournment was granted and a further affidavit was filed on behalf of the plaintiff on 13 November 2006. The argument on the application was completed on 9 February 2007.
23 The solicitor having the conduct of the matter on behalf of the plaintiff says in an affidavit filed in this application that throughout August he was involved as counsel in a lengthy trial in the Federal Court that, although originally listed for 15 days, occupied 25 days. It was followed immediately by another trial in which he was also counsel and, through oversight, he neglected to arrange for a member of his staff to draft the necessary documents and have them settled, filed and served within the time stipulated.
24 In a further affidavit, sworn on 13 November 2006, the solicitor says that he had diarised the time for the filing of the further and better particulars, but realised on 24 August 2006 that he had failed to delegate the task. As he was then engaged as counsel in a trial in another court, he drafted the answers to the further and better particulars during the lunch hour. He says he omitted to go back to the terms of the order of 3 August 2006 and overlooked the necessity to file and serve the reply and the defence to counterclaim.
25 There is attached to the affidavit of 13 November 2006 a copy of the plaintiff's proposed reply and defence to counterclaim.
26 The plaintiff seeks an extension of time within which to comply with the orders for the filing and service of its reply and defence to counterclaim.
27 It was submitted on behalf of the plaintiff that the discretion to extend time will normally be exercised unless the non-compliance was intentional and contumacious or the lapse is such that the other party has suffered irremediable prejudice.
28 It was submitted that the Court should consider whether the failure was intentional and contumacious and, while not being astute to find excuses for failure, if a party could clearly demonstrate there was no intention to ignore or flout the order concerned, and the failure to obey was due to extraneous circumstances, such a failure was not to be treated as contumacious and therefore as not disentitling the litigant to the extension sought. Counsel relied on Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196 at 1203.
29 Counsel submitted that in this case the failure to comply was due to an admitted oversight on the part of the solicitor for the plaintiff. If the time for compliance is not extended, the plaintiff will be prejudiced in that it is now faced with the dismissal of its claim and judgment against it on the counterclaim. It would suffer such prejudice through no fault of its own.
30 On the other hand, it is not suggested that there is any specific prejudice which would be suffered by the defendants should the extension of time be granted. Any general prejudice could adequately be remedied by an order for costs.
31 It was submitted on behalf of the defendants that there had been substantial default on the part of the plaintiff. On 30 April 2006, the plaintiff had been given an extension of time by the defendants to 31 May 2006. When that time limit was not adhered to the plaintiff obtained a further extension, by a consent order on 22 June 2006, until 6 July 2006. That time limit, too, was not adhered to. The application for a springing order was not made until 19 July 2006 and was not heard until 3 August 2006. The plaintiff was then given until 24 August 2006 to file and serve the reply and defence to counterclaim. And even after the orders had "sprung", no draft reply and defence to counterclaim was provided until it was annexed to the affidavit on behalf of the plaintiff of 13 November 2006.
32 It was further submitted that the defendants will suffer prejudice both of a general sort and of a specific nature. In relation to the latter, an important witness for the defendants would not now be available to give evidence at a trial because of illness. It was not to the point that the illness was suffered shortly before the springing order was made. It is not necessary that the prejudice to the defendants has a causal connection to the delay which caused the self-executing order to be made or for it to spring. Counsel referred to Link Blocks (1981) Pty Ltd v Fullin [1986] WAR 187 and Chesson v Green [2002] WASCA 67 per Murray J at [30] (McLure J concurring) and argued it is sufficient that it is now not possible to have a fair trial of the issues.
33 In any event, there is general prejudice suffered by a party against whom proceedings have not been pursued diligently.
34 Counsel argued that it was not necessary to show that the failure to comply was intentional or contumelious; parties are required to comply with court orders and they cannot expect to be indulged if they fail to do so. The delays were not the result of extraneous causes and it is not sufficient to warrant extending time that the default lies with the solicitor rather than the client. It was submitted that the only occasion for extending time after a springing order has sprung is when supervening events have caused the order to operate in a way which is unjust to the party in default.
35 It was submitted that, on the plaintiff's side, if the extension were not granted the plaintiff would lose the benefit of a tenuous defamation action which, at best, would result in an insubstantial award of damages, and where, as so much time has passed, the principal objective of vindicating the plaintiff's reputation would be of little value. The plaintiff has shown no enthusiasm to vindicate its reputation by bringing the case to trial, two years having now elapsed since the writ was first issued.
36 On the defendants' side, there cannot now be a fair trial of the action given that an important witness is no longer able to give evidence. In view of the prolonged delay and the failure to comply with court orders on the part of the plaintiff, the defendants should not be put to the costs, and to face the anxiety, of continued and possibly protracted litigation.
37 Counsel for the defendants said that if the time for compliance was not extended and the plaintiff's claim stood dismissed, the defendants would consent to an order that the judgment on the counterclaim be set aside and the counterclaim be dismissed.
38 It is clear, and it was not in dispute, that a court at first instance has the power to extend time under a self-executing order which has "sprung": FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268.
39 It is axiomatic, however, that peremptory orders are made to be obeyed and they are generally only made where (as in this case) the party in default has already failed to comply with the requirements of the rules of court and with an order of the Court. As Auld LJ noted in Hytec Information Systems Ltd v Coventry City Council [1996] EWCA Civ 1099; [1997] 1 WLR 1666 at 1676, an "unless order" is by its nature intended to mark the end of the line for a party who has failed to comply with it and any previous orders of the Court.
40 It is, moreover, plainly important to the administration of justice that orders of the Court are complied with. Browne-Wilkinson VC observed in Re Jokai Tea Holdings Ltd (supra), that obedience to orders of the Court is the foundation on which its authority is founded. It follows that any approach which tends to encourage the development of a culture of non-compliance, where orders, even peremptory orders, of the Court are not given the attention and priority they require, must inevitably tend to undermine that foundation.
41 Accordingly, the power to extend time when a springing order has not been complied with is a power to be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored: Samuels v Linzi Dresses Ltd [1981] QB 115, per Roskill LJ at 126 - 127.
42 As the plaintiff's counsel relied, in particular, on Re Jokai Tea Holdings Ltd (supra) in support of its application for an extension of time, it is appropriate to turn to that case in a little more detail. It is, I think, unnecessary for present purposes to canvass the facts of that case, beyond observing that it involved, among other things, a failure by the defendant to comply with an order that unless further and better particulars of its defence were delivered by a designated date the defence be struck out and the plaintiff be at liberty to enter judgment.
43 In considering the circumstances in which a party will be relieved from the consequences of non-compliance with a peremptory order, Browne-Wilkinson VC referred (at 636) to the principle of law that a litigant who fails to comply with a peremptory order of the Court will not normally be permitted to litigate that or any other case based on the same cause of action or defence. The Vice-Chancellor said (at 636 - 637) that the basis of the principle of law was:
"... that orders of the Court must be obeyed and that a litigant who deliberately and without proper excuse disobeys such an order is not allowed to proceed. The rationale of such penalty being that it is contumelious to flout the orders of the Court, if a party can explain convincingly that outside circumstances account for the failure to obey the peremptory order and there was no deliberate flouting of the Court's order, his conduct is not contumelious and therefore the consequences of contumely do not flow".
44 Browne-Wilkinson VC continued (at 637), in a passage upon which the plaintiff's counsel placed particular reliance:
"In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an unless order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed."
45 Sir John Megaw agreed with the judgment of Browne-Wilkinson VC but thought that "contumacious" was more appropriate than "contumelious".
46 I do not, however, understand Re Jokai Tea Holdings Ltd (supra) to be laying down a principle that a party who fails to comply with a peremptory order is entitled to an extension of time unless the failure was intentional and contumelious. The Vice-Chancellor's judgment makes it clear that he considered a party seeking to avoid a springing order must establish both that there was no intention to ignore or flout the order and that the failure to comply with it was due to circumstances outside the party's control. As Leggatt LJ said in Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd [1994] 2 Lloyds Rep 32 at 37, having set out the passage I have quoted above:
"It is to be noted that the Vice-Chancellor was specifically expecting that a defaulter would only escape the consequences of judgment given against him if he could demonstrate both that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances."
47 In that case Leggatt LJ (with whom Neill LJ agreed), having canvassed a number of authorities, continued (at 39):
"... it is important that breach of [unless] orders should not be incautiously condoned or overlooked. Otherwise the notion that the Court will readily allow further time will encourage those who have not troubled to comply with its peremptory orders to apply to set aside judgments in default. Peremptory orders are made to be obeyed."
48 Leggatt LJ then referred to the authorities he had earlier canvassed and said:
"Those approaches indicate the need for a defaulter, if he is to escape the consequences of failure to comply with a peremptory order, to show that in the circumstances the relevant breach was excusable if not unavoidable."
49 In Hytec Information Systems Ltd v Coventry City Council (supra), having considered a number of authorities, including Re Jokai Tea Holdings Ltd (supra) and Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd (supra), Ward LJ (with whom Auld LJ and Lord Woolf MR agreed) concluded (at 1675) that where there has been non-compliance with a peremptory order "a sufficient exoneration will almost inevitably require that [the defaulting party] satisfies the court that something beyond his control has caused his failure to comply with the order."
50 Of course, on an application of this nature the exercise of the discretion must in the end depend upon all the circumstances of the case, without being limited by conditions or guidelines articulated in other cases, and there must always remain sufficient flexibility to make reasonable allowance for human error. And whilst it is important that "legal business be conducted efficiently": Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd [1991] FCA 536; (1991) 32 FCR 379 at 387, that is not an end in itself. The ultimate objective must be to do justice: State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 155.
51 But given the nature of a springing order, the starting point must be that it is for the defaulting party to establish why it should be permitted to continue with the litigation despite its non-compliance. In my view, it will generally not be sufficient simply to show that the non-compliance was not intentional and contumelious. The authority of the Court will equally be undermined, and the quality of justice for the innocent party eroded, if the ultimate sanction effected by the operation of a springing order can be avoided by showing that non-compliance with the springing order came about by the same sort of inattention or laxity that caused the order to be made in the first place.
52 Whether the consequences of non-compliance should be visited upon the litigant when the fault lies wholly with its solicitor will depend upon the particular circumstances. But I do not consider that the fact the litigant did not contribute to the default, or even that it was unaware of the springing order, is necessarily sufficient to enable it to avoid the consequences of non-compliance.
53 Much that occurs in the course of the interlocutory process in litigation is done, and necessarily done, by the solicitors alone, without the active, or any direct, involvement of the litigants. The litigant reasonably leaves such matters wholly in the hands of its solicitors. But that does not mean that the litigant is necessarily excused from the consequences of its solicitor's failure to comply with the requirements imposed by the rules and the orders of the Court in respect of such matters.
54 The failure to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity offered to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity. That will generally mean that the litigant must bear the consequences of a failure to comply with a springing order, whether the failure was due to the litigant or its solicitor.
55 The matters to which I have referred above provide the backdrop, in my view, against which the specific matters to which, in any particular case, the Court is to have regard in the exercise of its discretion are to be considered. And while no hard and fast rules can be laid down as to the matters to which the Court should have regard, in my view in the exercise of its discretion the Court will normally have regard to at least the following matters:
(1) the circumstances in which the springing order came to be made;
(2) the reason for non-compliance with the springing order;
(3) the prejudice to the defaulting party if the time were not extended; and
(4) the prejudice to the other party if the time were extended.
56 It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits - there being no point in resuscitating a case that is devoid of merit - but, on the other hand, the fact that a party has an apparently meritorious case cannot be permitted effectively to act to insulate it from the consequences of a failure to comply with a peremptory order of the Court.
57 But as I have said, in the end the matters that are to be weighed in the balance, and the weight to be given to each, cannot be stated definitively but must depend upon the circumstances of the particular case.
58 I am satisfied that the failure of the plaintiff to comply with the springing order was not due to any intention to flout or ignore the order, but rather was due to an oversight, or a series of oversights, on the part of the plaintiff's solicitor. It was not suggested that the plaintiff itself was at fault in any respect. The fault lay entirely with its solicitor.
59 In that connection, I should say that the picture which seems to emerge from the evidence is that of a solicitor who has taken on more work than he can properly cope with and that did not augur well for his ability to ensure compliance with any future timetable. It was not suggested that steps have been taken to overcome the problems which apparently led to non-compliance in this instance.
60 I consider that the circumstances which led to the springing order being made in the first place are an important factor in this case. By the time that order was made on 3 August 2006, not only had the plaintiff failed to comply with the consent order of 22 June 2006, but the latter order was itself made against a background of the failure by the plaintiff to meet the time limit prescribed by the Rules and an extension of some four weeks agreed to by the defendants' solicitors. Accordingly, by the time the springing order was made, three earlier time limits had not been met and the reply and defence to counterclaim were three months overdue, with the result that the action had effectively been at a standstill for that time. No explanation has been proffered for those earlier failures, nor for the lack of any response to the correspondence from the defendants' solicitors before the springing order was made or to the facsimile of 25 August 2006 after it had "sprung" saying that judgment would be entered.
61 The application to extend time for compliance with the springing order was first made orally on 14 September 2006, some three weeks after the order had "sprung", despite the plaintiff's solicitors having been notified by the facsimile from the defendants' solicitors of 25 August 2006 that judgment would be entered. Once again, the reason for that delay has not been explained.
62 At the time that the application for an extension of time was made the plaintiff had still not put forward any proposed reply and defence to counterclaim. The defendants were not provided with a proposed reply and defence to counterclaim until the second affidavit of the plaintiff's solicitor was filed on 13 November 2006, after the initial argument on this application in the course of which the defendants' counsel had commented on its absence. It is, I think, reasonably to be inferred that the reply and defence to counterclaim had been prepared shortly before the affidavit of 13 November 2006 was filed.
63 The delay in delivering a reply and defence to counterclaim, in the context of obvious agitation by the defendants' solicitors for it, was therefore substantial. In considering the delay by the plaintiff it is also relevant that the action involves a claim in defamation, where it is reasonably to be expected that the action will be pursued with diligence, if not expedition, by the plaintiff.
64 The prejudice to the plaintiff if the time is not extended is self-evident. Its action will be lost. In that context I should say that, while the alleged defamation may not be of the most serious kind, I do not accept the defendants' submission that the action is in truth of little value, that not being a conclusion I consider I could properly reach on the material before me.
65 But in the light of the history of the matter, it was perhaps not surprising that the defendants' counsel argued that the plaintiff has seemed to exhibit little enthusiasm for the claim.
66 On the other side of the coin, I accept that there is general prejudice to the defendants inherent in conduct and delay of this nature on behalf of the plaintiff. The action has effectively been at a standstill since the beginning of May 2006. The approach of the plaintiff's solicitor was unquestionably dilatory, in the face of various reminders and promptings by the defendants' solicitors.
67 On the question of specific prejudice to the defendants, I do not consider that the unavailability of the witness due to illness is a factor which falls to be weighed in the balance.
68 I accept that the evidence of the witness is important to the defendants' case and I am satisfied that, as matters stand, the witness would not now be able to give evidence at a trial of the action. But the delay caused by the plaintiff's failure to file and serve its reply and defence to counterclaim on time has had no part to play in that outcome. As it has turned out, that would have been the case even if the plaintiff had filed and served its reply and defence to counterclaim by 4 May 2006, there being no prospect even at that point that the trial would have taken place before the onset of the witness's sudden illness. Nor is there any reason to believe that, had the plaintiff complied with the first time limit, the defendants' solicitors would have taken a witness statement before the onset of the witness's illness so as to be in a position to tender the statement under the Evidence Act 1906 (WA), a course the defendants' counsel complained was not now available.
69 The question of prejudice is, of course, only one of the factors to be considered. In this instance the failure by the plaintiff's solicitor to comply with the springing order was the culmination of a series of failures to comply with time limits in relation to the reply and defence to counterclaim. As I have mentioned, no explanation has been offered for any of the preceding failures. In light of those failures, and the explanation for the failure to comply with the springing order, the inference is, I think, inescapable that the reply and defence to counterclaim have not, from the outset, received the attention they required. Apart from the impression that the plaintiff's solicitor has been pre-occupied with other matters, the reason for that lack of attention has not clearly emerged. And although the resulting delay in the progress of the matter has led to agitation on the defendants' part, it does not seem to have troubled the plaintiff.
70 While the system of justice must be flexible enough to allow for errors by parties and their solicitors, it must also draw the line somewhere if the orders of the Court are not to become discredited and a culture of non-compliance develop which will undermine the authority of the Court and the administration of justice. A springing order is intended to mark the end of the line and a party is not, therefore, lightly to be relieved of the consequences of it.
71 Having regard to all of the circumstances, including the circumstances in which the springing order came to be made and in which it "sprang" respectively, the relative tardiness in making this application, and the delay caused by the failure of the plaintiff to attend to the filing and service of its reply and defence to counterclaim, I do not consider that the interests of justice require the grant of the extension of time which the plaintiff seeks. I would refuse the plaintiff's application.
72 In light of the defendants' concession as to the dismissal of the counterclaim, I will hear the parties on the orders which should now be made in the action.
Bomanite Pty Ltd
Slatex Corporation Australia Pty Ltd
(1991) 32 FCR 379
(1988) 165 CLR 268
(1997) 189 CLR 146