Rules of Supreme Court, O 3 r 5, O 7 r 4, O 29A r 3, O 29A r 4(c), O 29A r 13, O 60A r 4, O 60A r 6

Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

1 MURRAY J: The writ that was filed in this case contained an indorsement of claim alleging against the respondents and two other defendants, conspiracy to murder on various dates. During the course of the proceedings below there are occasions upon which there is some reference to potential concern in relation to limitation problems, but they need not trouble us. The writ was issued on 1 September 1999. Nothing was then done about service of the writ and on 16 March 2000 there was a hearing before Registrar Johnson of an application generated by the court for the appellant to show cause why the writ should not be struck out having regard to the fact that it had not been served.

2 This was a process provided for in the Rules of the Supreme Court, O 7 r 4(1), which provides that:

"If at any time after 6 months after a writ is issued it appears to the Court that -

(a) no affidavit of service of the writ has been filed by the plaintiff; and

(b) no appearance has been entered to the writ,

the Court may issue a summons (to a hearing at least 7 days after it is issued) to the plaintiff to show cause why the writ should not be struck out."

So it is under that rule a process which may result in the writ itself being struck out. That was a rule introduced in 1996. I note that in Seaman, Civil Procedure, Western Australia, at par [7.4.1] the learned author refers to the general rule conveniently expressed in Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561 at 577 that a plaintiff is entitled to delay service of a writ until the last moment of the 12 months provided for by O 7 r 1.

"It is suggested that the rule is not concerned with the duration and renewal of writs but is a positive caseflow management provision engrafted on to O 7 and is principally concerned with the conduct of the plaintiff and the reason which he or she can show for a delay of six months or more in service."

I mention that because of the reference to case flow management.

4 The order that was first made by the learned Registrar, as I understand it, was that the writ should be served and affidavits filed by 16 April 2000. It appears that nothing was done and on 9 May 2000 the papers reveal that the matter was again before the court and the learned Registrar made an order in these terms:

"Unless by 9 June 2000 the plaintiff serves the writ on all defendants and files an affidavit or affidavits of service, the writ be struck out."

The summons was otherwise adjourned sine die. I note the way in which the order was worded. It seems clear enough, "Unless by 9 June 2000 the plaintiff serves the writ on all defendants..."

5 The next development appears to be that on 23 May 2000 the applicant wrote a letter to the associate to the Registrar saying that the action he had taken was to seek the advice of senior counsel as to whether the writ could be struck out for not having been served within six months when a writ is live for 12 months. So his reaction was not to pursue service but to seek advice as to what might be done if service was not effected.

6 He concluded that letter by saying it was his intention to proceed with service of the writ and sought to have the matter relisted prior to 9 June 2000 "so that I can explain the situation to the Registrar." Those arrangements were made by the Court and the matter came on again on 6 June. The learned Master refers to an exchange between the Registrar and the applicant at that time which does not appear to me to reveal any misunderstanding of the position on the part of the applicant, and indeed there was a specific exchange between them as to whether, an extension of time having been sought by the applicant and refused by the learned Registrar, the applicant thought that he could nonetheless effect service upon all defendants by the time allowed, 9 June 2000. He expressed some confidence that he would be able to do so.

7 It seems that process servers were then promptly instructed and, as I understand the position, the first respondent was served on 9 June and the second and third respondents were served on 8 June, so as to those three defendants, they were served within the time that had been allowed by the orders made by the court, but the other four respondents were not served.

8 On 9 June, the applicant wrote to the Registrar indicating that service had not been able to be effected upon all the defendants and effectively advising that he was proceeding as urgently as he could to do so. He had urged the process server to continue with urgency in his efforts to serve those who had not yet been served. It seems clear to me that that was a letter written in the full realisation that time had indeed finally run out.

9 Nonetheless, attempts were made to continue with service and the sixth and seventh respondents, in respect of whose situation these proceedings are now not concerned, were served on 26 June 2000. But as the learned Master's reasons reveal, the fourth respondent, a Mrs Arndt, was not served until 24 August and it is instructive, it seems to me, to refer to the learned Master's reasons in respect of that process, because he notes that urgent instructions had been given by the applicant on 22 August to the process server, to locate her address and serve her.

10 Her address was located. It was the address of her husband shown in the telephone book. The process server visited the residence on 23 August. No one was home. He revisited and served Mrs Arndt on 24 August. Again, the circumstances reveal, in my view, further dilatoriness on the part of the applicant. The fifth respondent, a Ms Green, was not served until 29 August.

11 Then it seems other things occurred, the parties being generally ignorant that the springing order had executed itself on 9 June 2000 and the writ was struck out. Ultimately when the true position became known an application was made on 11 October 2000 by the applicant to extend the time until the date upon which the last defendant was served. That would have been, as I say, 29 August 2000. The learned Master heard that application on 27 October and 13 December and he gave reasons on 24 January 2001. In those reasons the learned Master notes, firstly, that it seems unarguable that he had jurisdiction to grant an extension of time under O 3 r 5 of the Rules of the Supreme Court, the Master relying upon the decision of the High Court in FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268.

12 The learned Master then instructed himself as to the test to be applied by relying upon a judgment of the Vice-Chancellor, Sir Nicolas Browne-Wilkinson, in Re Jokai Tea Holdings Ltd (1992) 1 WLR 1196 at 1203 with which judgment, in shortly expressed reasons of their own, the other members of the Court of Appeal, Parker LJ and Sir John McGaw agreed. I refer to that because the test was there said to be that, paraphrasing the decision, the court should consider the question whether the failure was intentional and contumelious, while not being astute to find excuses for failure, because obedience to orders of the court is the foundation upon which its authority is founded. The Court of Appeal expressed the view that if a party could clearly demonstrate that there was no intention to ignore or flout the order and the failure to obey was due to extraneous circumstances, such failure to obey was not to be treated as contumelious and therefore as disentitling the litigant to the extension sought.

13 Even setting the bar for the grant of relief at that point, the learned Master declined to grant the extension sought. I note in relation to that decision that, again in Seaman, Civil Procedure, Western Australia, at par [43.0.19] the learned author firstly expresses the view that the former practice of the court was to exercise the jurisdiction cautiously, refers then to Jokai Tea Holdings and observes that the English cases must be approached with caution:

"... because the discretion to extend the time must now be exercised in the light of the principles and objects of positive case flow management which are contained in O 1 Rr 4A and 4B. Under those principles the length of the delay and the interests of justice are two important factors in an application for an extension of time. Delay causes general prejudice to the opponent even if no specific prejudice is demonstrated. As to the interests of justice, it cannot be proper for a plaintiff pursing an action which has merit simply to disregard orders of the court and expect to be indulged. It is fundamental in the interests of justice that parties comply with orders and if plaintiffs wish to pursue actions which have merit, they must do so expeditiously and must comply with orders of the court when they are made."

14 Those remarks appear to me, with respect, to be apposite to the circumstances of this case and I would adopt them as expressing the general approach to be taken, having noted that the view has been expressed that O 7 r 4, in the proceedings which it generates, is itself to be seen as a case flow management tool.

15 The Master, as I say, considered that although there had been no deliberate attempt to flout the order of the court, there were a number of mistakes made, a long delay was caused and that they were entirely the fault of the applicant and ultimately his solicitor. Those mistakes, the learned Master said, could not be blamed on extraneous circumstances. The plaintiff's conduct in not serving the fourth and fifth respondents by 9 June in accordance with the springing order was in circumstances which did not provide a reasonable excuse for non-service.

16 The learned Master referred to an affidavit in which the applicant said that as a layman he did not understand the procedure well enough to appreciate what was occurring. His understanding, he said, of what happened so far as the order made by Registrar Johnston was concerned was that the proceedings would be adjourned sine die and the Registrar was effectively saying, "We will see how you, the applicant, get on with this process of service." The learned Master said he was not willing to accept that explanation as credible. It seems to me that that was a view of the facts well and truly open, indeed compelling, and so at the end of the day the learned Master declined to exercise the discretion so as to extend the time up to the date which would have been required, 29 August 2000, to validate the effort of service in relation to these two respondents.

17 The position with respect to the sixth and seventh respondents and the views of the learned Master in respect of those persons and their service need not be mentioned here but the learned Master summed up his views by saying that a reasonable explanation had not been offered by the applicant why he did not serve the fourth and fifth defendants within time. "He did too little too late", the Master said.

18 I need to mention a portion of the Master's reasons which was generated by the different view he took in relation to the sixth and seventh respondents, because the Master considered whether he might have power effectively to reinstate the writ by providing the extension of time in respect of those defendants served out of time, where the learned Master thought that there was some argument to be presented in favour of an extension of time, but not in relation to the fourth and fifth respondents. He thought that might be done by amending the order made originally by Registrar Johnston so that it read:

"Unless by 26 June 2000 the plaintiff serves the writ on each defendant and files an affidavit or affidavits of service, the writ will be struck out against each defendant not served by that date."

19 The learned Master said he had no power to take that course because the application before him was self-evidently not an appeal, nor did the learned Master consider he had any inherent power to do so. So in the end, as the Master said:

"Although I would be willing to extend the time for service of the writ on all defendants to 26 June 2000, that order would not save the plaintiff because there has been a failure to comply totally with the order of Registrar Johnston. The action stands dismissed."

20 This is an application for leave to appeal from that judgment. It is sufficient for present purposes to refer to the test by which such an application will be determined as laid down in a number of cases, but perhaps conveniently summarised in the judgment of Malcolm CJ in State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 54 - 57, and particularly at 56 - 57, where, although they were said not to be rigid or exhaustive criteria, his Honour repeats the accepted view that leave will not be granted and an appeal will not be allowed unless the decision below was wrong or attended with sufficient doubt to justify taking that course, and that in addition substantial injustice would be done by leaving the decision unreversed.

21 So that is the test that we must apply to consider the application, which now proceeds upon amended grounds. The order sought is of course simply that the extension of time should have been granted to effect service by 29 August 2000, and otherwise leaving the order in the terms made by Registrar Johnston intact.

22 The first ground of appeal, however, addresses this issue raised by the Master in his reasons as to whether the order might have been amended, whether there was power to do so. The applicant still relies upon that ground, although it does not, as it seems to me, effectively relate to the form of order sought or which it is now said ought to have been made by the learned Master, but in any event it seems to me that the Master's views about the issue of amendment of the order made by the registrar are clearly correct.

23 In contending that there was a power to amend, the applicant relies upon the provisions of O 29A r 13, which says:

"A Judge or Master at any interlocutory proceeding .... who is satisfied there are exceptional reasons for doing so, may amend or cancel a case management direction made by a Case Management Registrar."

24 Registrar Johnston was certainly a case management registrar but the question would be whether the order he made, the self-executing order, was a case management direction. That term is defined by O 29A r 3 as generally encompassing a procedural direction for the purpose of leading to the efficient and timely disposal of the proceedings and then under subrule (2) as providing for various matters. Counsel argues that the matters dealt with in subrule (2) should not be taken to be exhaustive. I cannot accept that submission. It seems to me that the purpose of r 3 is to define the term "case management direction." It does so, firstly, by the general description but, secondly and importantly, by the particular descriptions contained in subrule (2).

25 Distinguished from that is the concept of an enforcement order, which is defined in O 29A r 4, and that undoubtedly would include the order in the form made by Registrar Johnston because it includes among other things, "(c) a self-executing order for judgment, striking out pleadings, or otherwise," and clearly this order fell within that description. So the short answer to the point raised by ground 1 is that this was not a case management direction within the meaning of O 29A r 3 and r 13 but an enforcement order within the meaning of r 4(c).

26 So if the matter was to be amended it had to be on an appeal to the Master brought under O 60A r 4. Reference may be made particularly to subrule (1) and subrule (2). The power to amend in that circumstance is contained in O 60A r 6 which provides that the appeal from the Registrar is to be by way of rehearing and the Judge or Master hearing the appeal has the powers of the Full Court on an appeal and may cancel or amend any interlocutory order or case management direction made by the Registrar. As I have said, this was not a case management direction but it was certainly an interlocutory order. Hence the way in which the Master has expressed his reasons upon this point seems to me, with respect, to be right.

27 I turn then to ground 2 and there is little that need be said about it. In the first place it is a ground which attacks the exercise of the discretion not to extend time and it does so upon the ground, firstly, that the Master took into account an irrelevant or extraneous consideration when he referred to the nature and the strength of the allegations made as derived from the state of the pleadings, including the indorsement of claim, as they were then available to the court. It seems to me that if one is considering the question of an extension of time particularly to keep proceedings on foot, then the adequacy of the allegations can hardly be said to be an irrelevant consideration to the exercise of the discretion. Indeed, on the contrary, it seems to me that it would be an important consideration and the Master was right to have regard to it and his views about that were well open to him, although I have not taken the time in these short reasons to deal with that portion of his reasons in any detail.

28 Then it is said that the learned Master failed to give sufficient weight to the fact that mistakes were made by the applicant, that the non-service was not intentional and in any event arose from a misunderstanding or an honest mistake as to the effect of Registrar Johnson's order rather than a deliberate attempt to flout the order of the court. The Master agreed with the applicant to the extent that he did not find that there was a deliberate attempt to flout the order of the court but the rest of the explanation given for non-service was not accepted. I have referred to that portion of the Master's reasons in which he deals with that and I have expressed the view that it seems to me that the learned Master's views about that were well open to him and indeed, although it is of no moment that I should say so, in my opinion correct.

29 Secondly, there is a suggestion that the Master erred by failing to give sufficient weight to the plaintiff's right to delay service. The Master referred to that but rightly, I think, took the view that that was not the way in which the matter before him was to be dealt with. It was to be dealt with in the context of the test to which I have referred laid down in Seaman's work and by having a proper appreciation of where O 7 r 4 fitted into that scheme of things. I can detect nothing to demonstrate error in the Master's approach in this regard. The fact that the writ was served on all defendants within 12 months was true and was noted by the learned Master. The fact that the parties had conducted themselves on the basis that the action was on foot and other interlocutory processes had been engaged in, was noted by the Master, but of course, as he also noted, the parties did so in ignorance that the writ had been struck out, disposing of the litigation.

30 The question of prejudice to the fourth and fifth respondents in particular, and indeed all of the respondents, was considered by the learned Master. It seems to me that in the circumstances of this case, the prejudice which would be attendant upon an extension of time was obvious. Further costs would be incurred, they would have to meet the case, it would not have been disposed of, despite the serious nature of the allegations made, and there was a very real interest, it seems to me, by way of a reliance upon the prejudicial nature of their situation, in the respondents for resisting the grant of the extension of time sought.

31 Further, there had, as I have endeavoured to indicate by reference to the chronology of the case, been very considerable delay and much dilatoriness on the part of the applicant. The decision of the learned Master was not, in my opinion, arguably wrong. The springing order was clear. Too little was done too late, as the Master said. In my opinion, the application for leave should be dismissed.

32 McLURE J: I agree with the order proposed by Murray J and generally for the reasons he stated. I wish to just make one observation. The applicant in oral submissions relied solely on the power in O 29A r 13, to amend a case management direction. I agree with Murray J's reasons in concluding that that was not available. It is not suggested and in any event the evidence does not satisfy me, that the decision of the registrar can be amended or varied on any other ground, of which there are a number, in the inherent jurisdiction of the Court. They are collected in Seaman, Civil Procedure, Western Australia par [63.0.6]. Such matters are not relied on in oral argument, in my view for good reason.