1 JOHNSON J: The plaintiff brings this application to set aside judgment and to extend time for compliance with orders made by Master Newnes on 13 December 2006.

2 The plaintiff's cause of action is a claim as a beneficiary under a constructive trust over land known as the Rest Point Caravan Park near Walpole (the property). The owner of the property is deceased and the property forms part of the estate which has been only partly distributed. As I understand the position, the beneficiaries are awaiting the outcome of these proceedings before receiving the balance of their entitlements from the estate.

3 Because of the defendant's reliance on the conduct of the action in the years prior to judgment being entered, it is necessary to outline the background to the application. This information is taken from the court file and from the affidavits filed on behalf of the plaintiff and the defendant.

4 The writ of summons having been filed on 7 November 2003, a memorandum of appearance of defendant was filed on 8 December 2003. A defence and a request for further and better particulars of claim were filed on 15 March 2004. On 29 April 2004 a notice of change of solicitor was filed. The answer to the request for particulars was not provided until 10 September 2004 and an affidavit of discovery was also filed on that date.

5 On 19 November 2004, the plaintiff's solicitor filed an affidavit in support of an application for leave to cease to act. The basis of the application was the refusal on the part of the plaintiff to pay solicitor costs and counsel's fees. The application was granted by a Registrar on 16 December 2004.

6 On 13 December 2005, the defendant filed an affidavit of discovery. On 27 January 2005 a notice of change of solicitor was filed. As I understand the position this was the notice advising that Peter Marks, a sole practitioner, was now acting for the plaintiff. On 17 February 2005 a status conference was held before a Registrar and orders for mediation were made. On 19 May 2005, the Registrar was advised by Mr Marks that mediation had been unsuccessful and the matter must now proceed to trial.

7 On 31 May 2005 the parties were summoned to attend a case evaluation conference to take place on 16 June 2005. On that occasion the matter was adjourned sine die to be reviewed in four weeks. A written request from the Registrar to Mr Marks made on 19 July 2005 to be updated on the progress of the action was responded to by Mr Marks on 6 September 2005 on the basis that ongoing settlement discussions were taking place. A follow up request made by the Registrar on 6 September 2005 did not receive a response, despite a further request, until 16 November 2005. Mr Marks advised that he had asked Mr Shanahan of counsel to review the file and determine whether it was ready to be set down for trial.

8 On 21 November 2005 the defendant's solicitors wrote to Mr Marks suggesting that 'some form of settlement procedure' be attempted. Written correspondence between Mr Marks and the defendant's solicitors ensued, with an agreement being reached that a mediation take place in March 2006; but subject to the advice then being sought by the plaintiff from Mr Shanahan.

9 On 1 December 2005 Mr Marks advised the Registrar by telephone that the parties would like further mediation because the matter was close to settling.

10 On 11 January 2006, and again on 1 February 2006 the Registrar wrote to Mr Marks noting that the parties had requested a re-listing of the mediation conference and requesting to be advised if the parties still wished to reconvene the mediation. In the alternative a request was made to advise how the plaintiff intended to progress the matter.

11 On 3 February 2006 Mr Marks replied stating that Mr Shanahan had been reviewing the defence and had advised that it was deficient and 'is susceptible to being struck out on the plaintiff's application'. Mr Marks further advised that he had given the solicitors for the defendant 28 days to apply to the court to amend the defence. On 9 March 2006 Mr Marks wrote to the Registrar advising that the defendant declined to amend its defence and that Mr Marks would now proceed 'as quickly as possible' to have the defence struck out.

12 On 4 May 2006 the Registrar again wrote to Mr Marks requesting a further report on the current status of the action. Not having received a response and there having been no action on behalf of the plaintiff to progress the application to strike out the defence, the Registrar listed the matter for a Case Evaluation Conference on 14 September 2006. On that day orders were made that the plaintiff file and serve any application to strike out the defence no later than 6 October 2006. The status conference was again adjourned sine die. At the time of the conference Mr Marks provided the then solicitor for the defendant with copies of an affidavit of Mr Marks in support of the plaintiff's chamber summons to strike out the defence as well as submissions in support of the application to extend time and strike out the defence. However, no chamber summons was provided.

13 The defendant's solicitor, Mr Craig Gough of Minter Ellison, wrote to Mr Marks concerning the progress of the matter on: 26 September 2006; 28 September 2006; 3 October 2006; 23 October 2006; 27 October 2006 and 31 October 2006. In the correspondence of 27 October 2006 Mr Gough advised that if he did not hear from Mr Marks he would bring the matter to the attention of the court. The earlier correspondence was annexed to each subsequent piece of correspondence. No reply was received from Mr Marks. In addition, the defendant's solicitor made numerous attempts to contact Mr Marks by telephone. No reply was received to the attempts to contact Mr Marks by telephone.

14 On 15 November 2006 the defendant filed a summons for admission to the Commercial and Managed Cases List (CMC List) and on 13 December 2006 the Master ordered that the action be entered into the CMC List. Further orders were made in terms of a minute of proposed orders filed on behalf of the defendant. The first order on the minute was in the following terms:

Unless within 14 days of the date of this order the plaintiff files and serves a notice of intention to proceed, then judgment be entered for the defendant with the plaintiff to pay the defendant's costs of the action to be taxed.

15 The order being made on 13 December 2006, compliance was required by 22 December 2006. Mr Marks was in attendance on 13 December 2006 and consented to the making of the order.

16 The remaining orders were standard programming orders relating to: amendment of pleadings, interlocutory disputes, schedule of special damages, the preparation of the trial bundle and other matters. The schedule of special damages was required to be filed and served by 31 January 2007 and by 12 January 2007 the plaintiff was required to serve on the defendant a signed written statement of the proposed evidence in chief of any witness to be called. It was also ordered that the matter be adjourned to 1 February 2007.

17 At the time these orders were made there had been more than one year's delay, the requirement for the filing of a notice of intention to proceed. According to counsel for the defendants, one purpose of entering the matter into the CMC list was to move the action forward in a timely manner.

18 On 22 December 2006 the plaintiff's solicitors filed a notice of intention to proceed but failed to serve a copy of the notice on the solicitors for the defendant. That was not done until 10 January 2007. Following receipt of the notice, on 19 January 2007 Mr Gough advised Mr Marks by email that, as the notice had not been served by 22 December 2006 as required, the matter was at an end and on 1 February 2007 the defendants would move for judgment. No response was received from Mr Marks although an email from Mr Marks' personal assistant indicated that the email message had been printed and 'given to Mr Marks for action'. On 30 January 2007 Mr Gough advised the Court and Mr Marks of the orders he intended to seek at the hearing on 1 February 2007.

19 On 1 February 2007 there was no appearance by or on behalf of the plaintiff and the matter was adjourned to 8 February 2007. Following the hearing on 1 February 2007, Mr Gough sent an email message to Mr Marks advising of the adjourned date and the fact that the Master had indicated that, in the event there is no appearance for the plaintiff, judgment would be entered against the plaintiff. The email contained a request for an electronic return receipt indicating confirmation of delivery of the email. The confirmation was received later that day. On 6 February 2007 Mr Gough contacted Mr Marks by telephone, referring to the earlier email and asking his intentions. Mr Marks advised that he was meeting with another lawyer on the morning of 7 February 2007 to discuss the future conduct of the matter and that he would call Mr Gough following that meeting. Mr Marks did not call.

20 On 7 February 2007 the solicitor for the defendants filed an affidavit in support of the application for judgment foreshadowed in correspondence. On 8 February 2007, there being no appearance by or on behalf of the plaintiff, judgment was entered against the plaintiff. Clearly there was a sound basis for making the order which the plaintiff now seeks to set aside.

21 On 20 February 2007 and 21 February 2007 Mr Gough was unsuccessful in his attempts to contact Mr Marks to discuss the entry of judgment. On or about 22 February 2007, Mr Marks telephoned the solicitor from Minter Ellison who had previously handled the action and advised her that the matter had been referred to Law Mutual.

22 It is apparent from this summary of the history of the action that there had been little progress in the claim in the three years since the writ was issued. It would appear that a portion of the early delay in the action can be attributed to the dispute between the plaintiff and her second set of solicitors with respect to costs. The remaining, and most significant, period of delay occurred during the time when Mr Marks was acting for the plaintiff.

23 The only explanation provided for the failure to progress the matter appears in the plaintiff's affidavit. The plaintiff states that on or about mid February 2007 she went to Mr Marks' office and spoke with him. He told her that the case had gone 'pear shaped' and that, as a result of advice from his professional indemnity insurers, he could not tell her any detail about the current position or recent developments. Mr Marks advised the plaintiff to seek independent legal advice and the plaintiff then asked for the return of her files. Mr Marks stated that he would arrange for them to be copied and sent to her.

24 In her affidavit the plaintiff also outlines her knowledge of events preceding the conversation in mid February 2007. There is no reference to any events of 2005 but there is a statement that during 2006 the plaintiff received reports from Mr Marks to the effect that steps were being taken by him and counsel to prepare and prosecute an application to strike out the defence. That Mr Marks was contemplating that action is confirmed by his advice to the Registrar and also by counsel for the defendant whom Mr Marks also advised.

25 According to the plaintiff, Mr Marks also told her that he was awaiting a hearing date for that application and would contact the court to find out the reason for the delay in setting the date. No detail is provided as to when this conversation took place and, with one exception, it is the only evidence of communication between the plaintiff and her solicitor in 2006.

26 In late 2006, the plaintiff was told that there had been an application by the defendants to enter the matter into the CMC List. Mr Marks also sent her a copy of the orders made by the Master on 13 December 2006 to that effect. The plaintiff was also requested to make an appointment so that preparations for trial could be discussed. It is of particular significance that the plaintiff was given a copy of the orders of 13 December 2006 because those orders clearly state that judgment would be entered for the defendant if the notice of intention to proceed was not filed within 14 days. In my view, the form of words used would be easily understood by a non-legal person and the plaintiff must have been particularly concerned about the obligation being met because of the extreme consequence.

27 It appears from the plaintiff's affidavit that she met with Mr Marks on 15 January 2007, at which time they discussed the preparation for trial in April 2007 and she was told that there was much to do. The plaintiff was also told that a conference with senior counsel was to be arranged for later that month. There is no reference in the plaintiff's affidavit to an appearance being required on her behalf on 1 February 2007 or on 8 February 2007, or that her solicitor had failed to reply to correspondence from the defendant's solicitors. Neither does the plaintiff depose to raising with Mr Marks the issue of the 13 December 2006 orders.

28 According to the plaintiff, she did not hear from Mr Marks after the meeting of 15 January 2007 although she was concerned that the proposed meeting with counsel had not been arranged. She made repeated phone enquiries to his office but was unable to speak to Mr Marks. Ultimately, in late February 2007 she went to his office without an appointment and simply waited until he could see her. That conduct is consistent with a client who has failed to make contact with her solicitor and become concerned about the progress of her claim.

29 The plaintiff asserts that she did not learn that judgment had been entered in favour of the defendant until she consulted another solicitor in late February 2007. Despite Mr Marks' assurance that he would provide the plaintiff with a copy of her file, it was not until on or about 22 March 2007 that she received copies of correspondence from her file and court papers in the action. On 29 March 2007 the plaintiff consulted her present solicitors, Stables Scott about her position. Although there is no direct evidence of the fact, both counsel agreed that Mr Marks died in August 2007, although the cause of death was unknown. Counsel for the plaintiff advised the court that Mr Marks remained in practice up until his death.

30 The application to set aside judgment was filed on 5 October 2007. No explanation was provided to the court for the delay in filing this application. Allowing the plaintiff the time to obtain her file, there is still a six month delay in bringing this application which remains unexplained.

31 That the Court has the power to extend the time set under a self-executing order which has not been complied with is clear from the decision in FAI Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 [286]; see also Rules of the Supreme Court 1971 (WA) O 3 r 5. However, I accept the view in Samuels v Linzi Dresses Ltd [1981] QB 115 (126 - 127) (Roskill LJ) that the power to extend time in the circumstances that here apply is a power to be exercised cautiously lest it undermine the principle that orders are to be complied with rather than ignored. Indeed, as Auld LJ noted in Hytec Information Systems Ltd v Coventry City Council [1996] EWCA Civ 1099; [1997] 1 WLR 1666 [1676], a springing order is by 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.

32 The general factors to be taken into account when exercising the discretion to set aside judgment entered as a result of non-compliance with a springing order are set out in the judgment of Master Newnes in MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 [55] as follows:

(1) the circumstances in which the springing order came to be made;

(2) the reason for the non-compliance with the springing order;

(3) the prejudice to the defaulting party if time is not extended;

(4) the prejudice to the other party if the time were extended.

33 However, two specific issues also require consideration in this case. The first is whether it is sufficient for the applicant for the extension of time simply to show that the non-compliance was not intentional and contumelious. The second issue is the approach to be taken where the non-compliance was the conduct of the legal practitioner and not the party to the action.

34 With respect to the first issue, in MTQ Holdings Pty Ltd v Lynch Master Newnes considered the decision of the Court of Appeal in Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196 where Brown-Wilkinson VC observed [1203] that the relevant question for the court in this context was whether the failure to comply was intentional and contumelious. Particular consideration was given by Master Newnes to the proposition, put on behalf of the plaintiff that, if a party could clearly demonstrate there was no intention to ignore or flout the order concerned, the extension ought to be granted.

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.

36 In Caribbean General Insurances Ltd v Frizzell Insurance Brokers Ltd [1994] 2 Lloyds Rep 32 Leggatt J [37] added to the criteria identified in Re Jokai Tea Holdings Ltd the requirement that the failure to obey the order was due to extraneous circumstances. On that basis, consistent with the view taken by Master Newnes in MTQ Holdings v Lynch, the absence of an intention to ignore or flout the order is an insufficient basis for an extension of time for compliance.

37 In accordance with those views, I do not accept the plaintiff's oral submission that an absence of flagrant disregard or deliberate and contumelious conduct should, without more, result in an order extending time.

38 Resolution of the second issue involves a consideration of the principles of case management which have particular relevance to an application arising from non-compliance with a springing order. The effect of the principles of case management is that the court is entitled to take its own positive steps to require parties to conduct litigation with proper expedition. If a party fails to comply with case flow management orders, that party runs grave risks: Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 [94]. As Steytler P and Owen JA observed in Hancock v Fieldhouse [97]:

These principles of case management reflect the public aspect of the notion of justice as much as they do the private interests of the litigants. The longer a case is in the system the greater the chance that it will use more than its fair share of the scarce public resource.

39 However, in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 [154], the High Court observed that case flow management is not an end in itself but an important and useful aid for ensuring the prompt and efficient disposal of litigation and it ought always to be borne in mind that the ultimate aim of the Court is the attainment of justice. It was said that no principle of case management can be allowed to supplant that aim.

40 It can be seen that, if case management principles were the only consideration, there would be little, if any, significance to the fact that the failure to comply with the relevant order was that of the solicitor rather than the client. However, in ensuring that a just result ensues, consideration of factors such as the absence of fault by the client will necessarily be a relevant, although not necessarily a decisive, factor.

41 In Skahill v Kestral Holdings Pty Ltd (In Liq) [2000] WASCA 185 [10] the appropriate approach was described in the following terms:

Of course, a solicitor acting in his professional capacity is the agent of the client and, as a consequence, the solicitor's neglect or other fault will often be visited upon the client. Nevertheless, the absence of fault on the part of the client always will be relevant, and might be a significant factor, when the justice of the case is an important consideration: see Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 199.

42 Further, the Court has to view with caution the proposition that the client has a right of action against the solicitor, as the damages in such a case would be based on the loss of the chance of succeeding in their claim against the opposing party. Such an award of damages would not necessarily equate to the damages that could be obtained if the action brought to an end by the conduct of the solicitor were to continue and succeed: Skahill v Kestral Holdings Pty Ltd [22].

43 This issue was also addressed by Master Newnes in MTQ Holdings Pty Ltd v Lynch where he concluded [52] that the fact the litigant did not contribute to the default, or even that it was unaware of the springing order, was not necessarily sufficient to enable it to avoid the consequences of non-compliance. Master Newnes added that, despite the fact that much that is done in the course of interlocutory process in litigation is done by the solicitors alone, 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 [53].

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.

45 That conclusion is consistent with the decision in Osgood v Wham [2007] WASCA 178 [20] where McLure JA described as 'misconceived' the widely held view that the justice of the case will always, or practically always, permit a party to litigate an issue that is fairly arguable, regardless of non-compliance with court orders and procedures: see also Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 [29]. Her Honour further observed that this view had produced a culture in the legal profession of non-compliance with court rules, practice directions and court orders, particularly interlocutory orders.

46 It can be seen from the above analysis that, in this context, case management principles are a relevant consideration but must not supplant the attainment of justice as the overriding aim. Nevertheless, the attainment of justice in cases of this type will not necessarily require a defaulting party to be allowed to litigate his claim. Further, the fact that the default is that of the solicitor rather than the party is only a relevant rather than a decisive factor in determining whether the party should be allowed to proceed with his claim. The defaulting party must establish why it should be entitled to continue with the claim despite default and it will not be sufficient to show that the default was not intentional or contumelious.

47 Another issue was raised by the defendant. It was submitted that, having consented to the making of the springing order and being informed of not one, but two hearings of the defendant's application to enter judgment and not attending, the plaintiff consented to judgment being entered in the defendant's favour. On that basis, it is said the principles in relation to the setting aside of consent judgments apply. One such principle is that a consent judgment may only be set aside on grounds which would justify setting aside the contractual agreement upon which the settlement or compromise was based: Rayner v Beneficial Finance Corporation Ltd (1992) 8 SR (WA) 344. On that basis, the only question is whether the agreement on which the consent order was based can be invalidated - if that agreement cannot be invalidated, the consent order is good: Huddersfield Banking Co Ltd v Henry Lister & Son [1895] 2 Ch 273 [280].

48 In the literal sense, if a party consents to the making of a springing order then it is consenting to judgment in the event of non-compliance with the condition attached to the order for judgment. However, I consider those circumstances to differ from the situation where parties reach an agreement, and the orders obtained pursuant to that agreement are made by consent. As counsel for the plaintiff submitted, many procedural orders which are made by consent do not conclude binding contracts. In Cliffs Robe River Iron Associates v Dravo Pty Ltd [1988] WAR 322 the Full Court held that orders made by consent could be varied by the Court because consent by a party to an application made by the opposing party did not constitute a binding agreement between the parties. The situation was more accurately described as two solicitors conferring for the purpose of formulating an order which could be made without argument: [324] (Wallace J). Kennedy J [328] referred to and adopted the following distinction drawn by Lord Denning in Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185 [189] - [190]:

There are two meanings to the words 'by consent'.... One meaning is this: the word 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 consent of the parties.

49 There was some dispute between the parties as to whether Mr Marks did in fact consent to the orders made on 13 December 2006. The submission made was that the orders were unopposed after a number of amendments were made to the minute of proposed orders during the hearing. The orders themselves are not identified as consent orders. On behalf of the respondent, a distinction was drawn between an order made by consent and an order made unopposed. However, in light of Lord Denning's analysis, it follows that, in this context, there is no real distinction between the two.

50 In the circumstances of this case I am not persuaded that consent by the plaintiff's solicitor to the orders made on 13 December 2006 evidenced a real contract between the parties, and on that basis the order may be varied in accordance with the usual principles. However, the fact that the plaintiff's solicitor was aware of the order and was prepared, without objection, to adopt the obligation and the consequences of a failure to meet that obligation, is part of the material which may properly be taken into account when determining whether it is appropriate to exercise the court's discretion in favour of extending time to comply.

51 There is one final legal issue to consider. As I have noted above, it is the case that the notice was filed in accordance with the order and was served some 19 days later. During the course of the hearing of the application I queried with counsel whether the obligation to serve was as significant as the obligation to file and whether the fact that it was only the requirement to serve which had not been complied with had any impact on the outcome of the application. As this issue had not been foreshadowed, neither counsel were in a position to refer to authority on the point.

52 As both counsel acknowledged it is often the case that no issue is taken with late serving of documents. However, in many cases that results from prior communication between the solicitors for the parties. Further, the fact that a party may not wish to take issue with late service would not preclude a party from doing so in appropriate circumstances. It is also the case that the decision whether to raise the issue with the court may depend on the prior conduct of the opposing party and the stage of the litigation.

53 A review of the authorities and a further consideration of the nature and purpose of a notice of intention to proceed has led me to the conclusion that there is no basis to the proposition that a failure to serve is of a lesser significance than the obligation to file. Indeed, in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 [521] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) the court observed that the authority of a court to decide the substantive rights and duties of the parties comes from the fact of service of the process as opposed to the filing of the process.

54 Rules of the Supreme Court 1971 (WA) O 3 r 7 states that, where a year or more has elapsed since the last proceeding in an action, the party who desires to proceed must give to every other party not less than one month's notice of his intention to proceed.

55 It is apparent from the wording of r 7 that its purpose is to notify the defendant that the plaintiff intends to go ahead with the action it initiated but has not progressed for a year or more, and also to allow the defendant to prepare himself for the continuation of the action: Deighton v Cockle [1912] 1 KB 206 [209] (Vaughan Williams LJ) and [213] (Kennedy LJ).

56 Therefore, irrespective of whether the failure to serve a document may be viewed as seriously as failing to file a document, in the case of a notice to proceed, it is the service of the document which provides the notice which is the purpose of the rule.

57 In any event, a party does not comply with an order by complying with only part of the order. A party which files but does not serve a document when ordered to do both is still in breach of the order which then brings into effect the order that judgment be entered for the plaintiff. The fact that many solicitors are prepared to waive a breach of the obligation to serve within time, does not undermine the significance of that aspect of the order. In this case service took place well after filing of the notice and without any prior agreement. Neither could there be any expectation of waiver in light of the history of the action.

Whether an extension of time should be granted

58 Before considering the merits of the application in the context of the above principles, and in order to assist in the application's resolution, I propose to further consider the approach taken by Master Newnes in MTQ Holdings Pty Ltd v Lynch as it is a decision of this court with respect to an application to extend time for compliance with springing orders.

59 In MTQ Holdings Pty Ltd v Lynch Master Newnes dismissed an application which related to the plaintiff's failure to serve a reply and defence to counterclaim. The plaintiff did not object to the springing orders being made but nevertheless failed to comply with them. The defendant then wrote to the plaintiff's solicitors advising that the defendants proposed to enter judgment. Three weeks later the plaintiff made an application for an extension of time to comply with the springing order. The explanation provided by affidavit of the plaintiff's counsel was that he was involved as counsel in a lengthy trial, followed immediately by another trial and through oversight neglected to arrange for a member of his staff to prepare the necessary documents then file and serve them within the time stipulated. Annexed to the affidavit was a copy of the plaintiff's proposed reply and defence to counterclaim.

60 Counsel for the plaintiff submitted that, if the time for compliance was not extended, the plaintiff would be prejudiced, through no fault of its own, in that it was now faced with the dismissal of its claim and judgment against it on the counterclaim. On the other hand there was no specific prejudice which would be suffered by the defendants should the extension of time be granted and any general prejudice could adequately be remedied by an order for costs.

61 In MTQ Holdings Pty Ltd v Lynch [56] Master Newnes also observed that it would normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits. However, Master Newnes added that 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. I agree with that view.

62 In determining whether the extension of time should be granted Master Newnes accepted that the plaintiff was not at fault in any respect. He considered that the fault lay entirely with the solicitor who had taken on more work than he could properly cope with [58] - [59].

63 In concluding that the extension of time should not be granted, Master Newnes identified the following determining factors:

1. The springing order was made against a background of failure by the plaintiff to meet the times limits prescribed by the Rules [60], [69].
2. Three earlier 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 [60].
3. The failure to offer any explanation for the background of non-compliance [69].
4. The application to extend time for compliance with the springing order was made some three weeks after the order had 'sprung' despite the plaintiff's solicitors being advised by the defendants' solicitors that judgment would be entered [61].
5. The reason for the delay in bringing the application had not been explained [61].
6. At the time the application for an extension of time was made the plaintiff had still not put forward the documents the subject of the springing order [62].
7. The nature of the action, being a claim in defamation, was one where it was reasonably to be expected that it would be pursued with diligence, if not expedition, by the plaintiff [63].
8. The general prejudice to the defendants inherent in conduct and delay of this nature: the action having effectively been at a standstill for 9 months due to the unquestionably dilatory approach of the plaintiff's solicitor and despite the promptings and reminders by the defendants' solicitors [66].

64 In support of the application to extend time, counsel for the plaintiff submitted that it was the plaintiff's solicitor who disregarded the Court's order and not the plaintiff, who had not contributed to the breach in any way. It was also emphasized that the plaintiff would suffer a substantial injustice if the judgment is not set aside as her right to pursue her claim will come to an end.

65 It was further submitted that the only consequence to the defendant of an extension of time was the continuance of the litigation, subject of course to the defendant being compensated in costs. I do not accept that continuation of the litigation is the only prejudice. The delay itself can have an adverse impact on the litigation and hence on the defendant's interests.

66 In relation to the defendant's assertion that prejudice arises from the fact that the age and health of witnesses may lead to an unfair trial, the plaintiff submitted that there was nothing inherently unusual or difficult about a person over 70 years old (the age of the relevant witness or witnesses) giving evidence. It was further submitted that there was no evidence of life threatening illness or health conditions.

67 In MTQ Holdings Pty Ltd v Lynch Master Newnes considered that the unavailability of witnesses due to illness was not a factor which falls to be weighed in the balance. With respect, I do not share that view. If the delay has caused a witness's condition to deteriorate so as to prevent him from giving evidence, or to substantially reduce the effect of that evidence, then that is a prejudice to the defendant arising from the order to extend time and the continuation of the litigation. Similarly, if the delay which has led to the springing order means that a significant witness is now unavailable, that too, in my view, is a prejudice to the defendant to be considered when extending time.

68 In this case, however, there is no direct evidence of any health conditions of a relevant witness which might, as a result of the delay, be exacerbated or deteriorate to the point of impacting adversely on the giving of evidence. Neither is there any evidence to suggest that, due to the delay in progressing the litigation, a witness is no longer available.

69 In my view the real prejudice, and the real injustice, arises from the fact that, as a result of this action, the defendant's estate has not been fully distributed to the beneficiaries who have now already been deprived of that benefit for approximately three years.

70 In an application of this type it is for the applicant to satisfy the court that the order to extend time should be made. That burden includes providing the court with the necessary evidence to make the findings which would support such an order. Counsel for the defendant submitted that the plaintiff has failed to meet this evidentiary burden in all relevant respects.

71 It is said that the plaintiff has not provided an explanation for the failure to comply with the springing order. When considering the circumstances which led up to the making of the springing order, it is important to recognize that when Mr Marks commenced acting for the plaintiff on 27 January 2005, the action had already been on foot for more than one year. This factor should have been taken into account when determining how best to progress the action. Yet little activity took place with respect to the claim during 2005. Orders for mediation were made on 17 February 2005 but by 19 May 2005 the court had been advised that mediation had been unsuccessful and the matter should now proceed to trial. Despite being summoned to attend a case evaluation conference and receiving a written request from the Registrar for an update on the action, no action was taken by Mr Marks.

72 On 6 September 2005 Mr Marks advised the court that ongoing settlement discussions were taking place, advice which appears inconsistent with the letter from the plaintiff's solicitors on 21 November 2005 suggesting the parties negotiate settlement. Thereafter, Mr Marks did not respond to the Registrar's requests until 16 November 2005 when Mr Marks advised that he had asked Mr Shanahan to review the file.

73 On 3 February 2006, Mr Marks first advised the defendant's solicitors that unless an application was made by the defendant within 28 days to amend the defence, the plaintiff would apply to strike it out. On 9 March 2006 Mr Marks advised the Registrar that the plaintiff would proceed as quickly as possible to strike out the defence. However, by 14 September 2006, some six months later, the application to strike out had still not been filed and an order was made by the Registrar that the application be filed by no later than 6 October 2006. Despite six separate written communications from the defendant's solicitors and numerous attempted telephone contacts, the application was not filed.

74 Ultimately the defendant brought the matter back before the court with its application for inclusion in the CMC list, which was heard on 13 December 2006 when the springing order was made. Despite the assurance to progress the matter as quickly as possible, nine months had elapsed and still no action had been taken on behalf of the plaintiff.

75 There followed thereafter the failure to comply with the orders and the failure to attend for the application to enter judgment or on the date to which the application was adjourned, despite a number of reminders from the defendant's counsel.

76 It is apparent from this summary that no extraneous circumstance could explain this level of dilatory conduct and blatant disregard of general obligations and specific court orders.

77 The only explanation to be found in the plaintiff's supporting affidavit is Mr Marks' advice during 2006 that he was waiting on a hearing date for the strike-out application and his comment in February 2007 that the action had gone 'pear-shaped'.

78 There is a complete absence of any explanation for Mr Marks' failure to comply with the springing order and to immediately bring an application for extension of time following the entry of judgment. This omission is attributed to Mr Marks' assertion made in February 2007 that, as a result of advice from his professional indemnity insurers, he could not tell the plaintiff any detail about the current position or recent developments. It is also attributed to the fact that Mr Marks is now deceased.

79 However, as counsel for the defendant noted, the plaintiff consulted another solicitor in February 2007 and then on 29 March 2007 engaged her present solicitors. Further, Mr Marks did not die until August 2007 and continued in practice until his death. Therefore, her solicitors were in a position to engage in discussion with Mr Marks and Law Mutual and explain the need for information to support the application to extend time. The plaintiff was also in possession of the correspondence and court papers from her file from March 2007 onwards and yet she does not depose to whether, or to what extent, those papers explain Mr Marks' failure to meet his obligations.

80 In particular, there is no reference in the plaintiff's affidavit, or no affidavit from the plaintiff's solicitor, addressing the issue of the advice from Mr Shanahan. The file should indicate when the advice was received and whether the advice and any subsequent correspondence explains the delay in bringing the strike-out application or the failure to bring the application at all. If the advice were not on file, that too could be expected to be part of the information available to the court. If the file does not provide an explanation it could be expected that the court would be advised of that fact.

81 On that basis there is before the court insufficient information to determine that the defaulting conduct was anything other than a deliberate disregard of the orders. There is certainly no basis to be found in the solicitor's conduct for the making of an order extending time.

82 Of course, in circumstances where the consequences of a solicitor's conduct may be visited on the client, it is of particular importance to identify the state of knowledge and the conduct of the plaintiff.

83 In this regard, all that is known is that the plaintiff received reports from Mr Marks that steps were being taken to prosecute an application to strike out the defence and that she spoke to Mr Marks some time in 2006 when he said that he was awaiting a hearing date. There is no affidavit evidence with respect to why no further enquiries were made about the progress of the claim over almost a 12 month period. The plaintiff was aware that the defendants were applying to have the matter entered in the CMC list and was also provided with a copy of the orders made. The court is then left to conjecture as to whether the plaintiff understood the effect of the orders. The plaintiff does not depose to the fact that, notwithstanding being provided with a copy of the orders, she did not turn her mind to them or that she relied on Mr Marks to deal with the orders. The springing order is in fairly straightforward terms. No particularly specialized language is used. On the basis that the plaintiff admits to having received a copy of the 13 September 2006 orders, in the absence of evidence to the contrary, the court must presume that she read and understood them.

84 Neither does the plaintiff provide any real detail about the meeting on 15 January 2007. In particular she does not depose to whether, having received a copy of the 13 December 2007 orders, she inquired about the filing of the notice or the entry of judgment.

85 It is also the case that the action, having already languished for 12 months, had not moved further forward in a further two years after Mr Marks was appointed. The plaintiff does not depose to whether this issue was raised at any stage with Mr Marks except that she refers to one conversation when she is told that a hearing date is awaited.

86 These are but a few of the many questions to which the court could expect answers if the plaintiff is to suggest that she was in no way responsible for the tardy way in which the action had been progressed or for the failure to comply with the springing order.

87 As counsel for the defendant submitted, if a plaintiff fails to depose to the background circumstances, including the plaintiff's level of knowledge of the relevant proceedings and her dealings with her solicitor, then the defendant is effectively prevented from identifying the plaintiff's degree of responsibility for the failure to comply with the court's orders. The plaintiff in this case is represented and should have deposed to the complete extent of her knowledge and to those areas where she did not have any relevant knowledge. Only in this way can the plaintiff's responsibility be properly assessed. I accept the submission of the defendant's counsel that the extraordinary brevity of the affidavit material weighs heavily against the plaintiff. I also accept the further submission that, in the absence of the information, the court cannot assume that the actual position favours the plaintiff.

88 In circumstances where the court is being asked to grant an indulgence and allow the action to proceed, it could also be expected that the plaintiff would have indicated her readiness to proceed without further delay by presenting to the court the documents identified in the balance of the orders of 13 December 2007. In this case, the plaintiff merely makes the assertion that she is ready to proceed. A witness statement from the plaintiff would also have assisted on the very relevant issue of whether there is merit in her claim. Consequently, I must resolve this application without any indication of whether there would be any likelihood of success should time be extended.

89 Another factor of particular significance in this application is the delay in bringing it. Judgment was entered on 8 February 2007 and the application to set aside judgment was filed on 5 October 2007, some eight months later. I note that in MTQ Holdings v Lynch a delay of three weeks was considered unacceptable. I have already referred to the fact that there is no explanation provided for Mr Marks' failure to bring the application. However, even taking into account Mr Marks' view that he had been advised by Law Mutual that he could not tell the plaintiff any detail about the current position or recent developments, as well as the fact that certain contents of the plaintiff's file were not provided until late March 2007, there remains a seven month delay which has not been explained.

90 When pressed on the absence of the supporting evidence that one would normally expect in an application of this type, counsel for the plaintiff submitted that the information provided, including the information contained in the annexures to the affidavit, was sufficient. It was suggested that the information that the plaintiff had been advised that a court date was awaited explains a large part of the delay. In my view, that information goes no way to explaining a delay of the length that occurred in this case. Neither, as I have explained above, does the fact the mediation and settlement discussions were taking place. Counsel for the plaintiff also submitted that the plaintiff may not have fully appreciated what had been going on.

91 With respect to the period following the 13 December 2007 orders, counsel's response was that the plaintiff may not have realized the effect of the springing order. When it was suggested that the obligation to pay costs could be expected to have attracted the plaintiff 's attention, counsel indicated that she may not have been concerned about that. Finally, counsel proffered the statement that 'maybe the most information she can put is what she has put'.

92 In my view, all these responses support the defendant's submissions that the information provided is deficient. The court should not be required to conjecture about the correct position in order to determine the plaintiff's level of knowledge and understanding, what action she did or did not take and whether she was in any way responsible for, or contributed to, the delay in the action or the delay in bringing the application.

93 In State of Queensland v JL Holdings [170] Kirby J observed that the failure of a party to offer anything by way of explanation for a late application was a consideration relevant to whether an indulgence should be extended to a party applying for it. In my opinion, in the absence of any explanation for the delay in bringing the application, a delay of seven to eight months would, of itself, result in dismissal of the application. Further, the sparsity of the information provided means that I am unable to say that the plaintiff had no responsibility for the relevant omission or the past delay or that there is any basis upon which the omission or the delay can be excused.

94 This is not a case where the defendant has the benefit of its assets until judgment, albeit an order for interest on judgment would be made. In this case, the residuary beneficiaries of the defendant's estate have already waited more than four years to receive their full entitlements under the defendant's will. This factor underlines the importance of a party proceeding with the action in a timely fashion. In my view, this factor is so significant that, together with the unexplained delay in progressing the action and in bringing the application, they outweigh the prejudice to the plaintiff.

95 As Master Newnes observed in MTQ Holdings v Lynch [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.