Cox v Mann [2006] WASC 125

Rules of the Supreme Court 1971 (WA), O 3 r 5, O 4 r 2, O 13 r 10, O 21 r 10, O 22 r 10, O 29A r 13, O 34 r 3, O 41 r 1, O 54 r 3, O 58 r 22(3), O 58 r 23, O 59 r 3(1), O 59 r 7

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529

Chesson v Green & Ors [2002] WASCA 67

DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226

FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268

Lashansky v Legal Practitioners Complaints Committee [2005] WACSA 217

Skahill & Anor v Kestral Holdings Pty Ltd (In Liq) & Ors [2000] WASCA 185

Wentworth v Attorney-General (NSW) [1984] HCA 70; (1984) 154 CLR 518

1 MASTER NEWNES: On 22 February 2006, the defendant filed applications in each of these actions to extend the time for compliance with an order by the then Acting Principal Registrar on 29 November 2005. The two applications were heard together and the facts and issues are common to them both. On 7 June 2006 I dismissed both applications for reasons which I gave briefly then, on the basis that I would provide more detailed reasons if requested to do so. The defendant has asked for detailed reasons and these are those reasons.

2 On 18 February 2005, the plaintiffs each commenced proceedings for defamation against the defendant. The proceedings have taken a common course. In each case, a memorandum of appearance was entered on behalf of the defendant on 22 February 2005. A statement of claim was filed on 9 March 2005 and served on the defendant. A defence was filed on 18 March 2005. A first status conference was held on 29 March 2005 at which no substantive directions were given. At a further status conference on 24 May 2005, among other things, the respective plaintiffs and the defendant were required to confer in relation to the pleadings and any application by the plaintiffs for summary judgment was required to be filed prior to 31 July 2005.

3 Applications for summary judgment were made in each action on 22 June 2005 and dismissed on 15 September 2005. The defendant was in each case given unconditional leave to defend and required to file and serve an amended defence on or before 29 September 2005. The defendant failed to do so. On 25 November 2005 the defendant's solicitors filed a notice that they had ceased to act for the defendant and that he now acted in person.

4 At a status conference on 29 November 2005, the Case Management Registrar made an order, so far as relevant for present purposes, in the following terms in each action:

"The defence be struck out and the plaintiff have leave to move for such judgment and costs to which he is entitled unless the defendant do file and serve an amended defence by 13 December 2005."

5 The defendant attended the status conference in person.

6 On 20 December 2005, the plaintiffs each applied by notice of motion, returnable before a Master for judgment, in essence, for damages to be assessed and costs. The application was expressed to be made pursuant to O 41 r 1 and the order of the Case Management Registrar of 29 November 2005 and the inherent jurisdiction of the Court. A copy of the notice of motion, endorsed with the hearing date, was in each case sent to the defendant by registered post.

7 I should note in passing that O 41 r 1 contemplates that judgment shall be obtained by motion in open court and a notice of motion is the appropriate form of application for that purpose where the application is inter partes: O 4 r 2. An inter partes application in chambers should be by way of chamber summons: O 59 r 3(1).

8 In any event, the applications for judgment came before the Acting Master in chambers on 11 January 2006 and interlocutory judgment for damages to be assessed was given in terms of the motion in each case. The orders were drawn up and extracted by the plaintiffs' solicitors on 24 January 2006.

9 On 21 February 2006, a notice of appointment of solicitors was filed in each action on behalf of the defendant and the following day the present applications were made. The applications each seek an order that the time for compliance with the order of the Case Management Registrar of 29 November 2005 be extended to seven days after the determination of the application.

10 In support of the applications there is an affidavit of the defendant. In that affidavit the defendant says that he was confused by the order of 29 November 2005 to file an amended defence, particularly in circumstances where, on the applications for summary judgment, it had been found that he had an arguable defence. He says that nevertheless he prepared a document which was entitled "revised defense [sic]" and sent it to the plaintiffs' solicitors and attempted to file it at the Court. It was rejected for filing at Central Office. I should say that it is clear from the copy of the proposed defence annexed to the defendant's affidavit that it was not in a form which could be filed as an amended defence. It was in the form of a handwritten letter.

11 The defendant acknowledges that he received copies of the notices of motion for judgment but says that on 11 January 2006, on the way to Court, his vehicle broke down. He says he rang the Court at 8.30 am and "advised the lady of my situation". He said he was told to get to the Court as soon as he could, but if he could not they would have to adjourn the hearing and the Court would advise him of the new hearing date.

12 The defendant does not say what happened thereafter to his endeavours to get to Court but simply says that he subsequently received a letter from the plaintiffs' solicitors dated 1 February 2006 "advising that on 24 January 2006 the Court extracted judgment against me". The defendant says he did not understand what that meant and subsequently spoke to his former solicitors. He says he was able to borrow some money to instruct the solicitors to act for him again and it was following their reappointment that the present applications were brought.

13 The applications to set aside the judgments were opposed by the plaintiffs who contended that the Court had no power to make the orders sought and, in any event, should not do so. It was submitted that the judgments could only be set aside on appeal. They had not been entered pursuant to the order of the Case Management Registrar, but rather in each case judgment had been obtained on a motion for judgment pursuant to the order of the Acting Master. As the order had been perfected the Court had no jurisdiction to vary it or set it aside, except on appeal. Counsel referred to Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529; DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 244 - 245; and Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 at [124].

14 The plaintiffs also argued that, in any event, if the order of the Case Management Registrar is regarded as a springing order, it cannot be amended pursuant to O 29A r 13. Counsel referred to Chesson v Green & Ors [2002] WASCA 67 per Murray J (at [25]) and McLure J (at [32]).

15 Counsel for the defendant argued that the order of the Case Management Registrar could be amended under O 3 r 5 and referred to Skahill & Anor v Kestral Holdings Pty Ltd (In Liq) & Ors [2000] WASCA 185 per Owen J (at [4]).

16 On 7 June 2006, I dismissed the applications. I considered that, while the judgments stood, the Court had no power to extend the time for compliance with the order of the Case Management Registrar of 29 November 2005 and, in any event, no useful purpose would be served by doing so.

17 It was not in dispute that in each case the interlocutory judgment was regularly obtained on the plaintiff's motion and that the judgment has been drawn up, or "extracted". It has not been set aside and there was currently no application to set it aside. As I understood the defendant's counsel, the current application was seen as a precursor to an application to set it aside. In my view, that is to approach the matter the wrong way round.

18 Where an order has been extracted, the Court that made the order may set it aside or vary it only in very limited circumstances. In Bailey v Marinoff (supra), Barwick CJ said (at 530):

"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and in its substance, in my opinion beyond recall by that court."

"It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it."

20 Gibbs J went on to point out that the rule is subject to certain exceptions under the general law and to the provisions of the relevant rules of court. In that case, his Honour dissented from the majority view, concluding that there was an inherent power to vary a conditional order to dismiss an appeal after the time for compliance with the condition had expired.

21 Although Bailey v Marinoff (supra) was concerned with an order that finally determined the proceeding, the principle applies more generally to settled orders of a court.

22 As the Courts have observed on many occasions, the principle that, as a general rule, a perfected order cannot be set aside by the Court which made it, rests upon the public interest in the finality of court judgments and orders.

23 There are a limited number of circumstances in which a perfected order may be set aside or varied by the Court other than in its appellate jurisdiction.

24 In its inherent jurisdiction the Court may, for example, modify or vary parts of an order other than the substantive or operative parts, and it may vary or set aside an order or judgment where all the parties consent, although in the latter case the jurisdiction is to be exercised having regard to the interests of third parties. The Court may also vary or set aside an order or judgment which was obtained by fraud, although the authorities suggest that the better course is to institute separate proceedings. It may also do so in a limited class of cases where the judgment was obtained in circumstances where there was some inherent defect in the proceedings, such as a party having been denied procedural fairness by not having been served with notice of the hearing. The Court also has a limited jurisdiction to set aside or vary an order regulating the procedure to be followed in the future conduct of proceedings where, due to changed circumstances, it would be futile to carry out the order: Wentworth v Attorney-General (NSW) [1984] HCA 70; (1984) 154 CLR 518 at 526.

25 There are, in addition, certain specific provisions in the rules by which the Court is entitled to vary or set aside an order. Thus, for example, the Court may set aside an order made on motion without notice: O 54 r 3; or an order made ex parte: O 58 r 23; or a judgment entered in default of appearance or defence: O 13 r 10, O 22 r 10. The so called "slip rule", enables the Court to amend or vary an order to correct any accidental slip or omission: O 21 r 10.

26 There is power in the Court to set aside a judgment or order obtained at the trial of an action where one party did not appear: O 34 r 3. There is also power in the Court to set aside an order made in chambers where one party did not appear, but only so long as the order has not been extracted: O 58 r 22(3), O 59 r 7.

27 In FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, the High Court held that a rule of the New South Wales Supreme Court, comparable to O 3 r 5 of the rules of this Court, empowered the Court which made a self-executing order to extend time for complying with the order after the time specified for compliance had expired and whether or not the proceeding in which it was made was still on foot. The case was concerned with an order which provided that proceedings be dismissed "unless on or prior to 30 May 1986 the plaintiffs" did certain things, which things the plaintiffs had failed to do. Wilson J (with whom Brennan, Deane and Dawson JJ agreed) described the rule (at 283) as "a remedial provision which confers on a court a broad power to relieve against injustice" and said (at 284) that "[i]t would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance."

28 The orders of 29 November 2005 were not, of course, self-executing orders and judgment was not entered pursuant to those orders. The orders opened the way for the plaintiffs to move for judgment but it was not inevitable that judgment would be given on such an application. That was a separate matter for determination by the Court on the application, if it were made. The difficulties experienced by the defendant in understanding what was required of him by the orders of the Case Management Registrar, and his inability to file an amended defence, were matters that were open to him to advance in opposition to the applications for judgment and also in support of an application to extend the time in each case for the filing of an amended defence. That, of course, did not occur as the defendant did not appear on the hearing of the motion.

29 In the present circumstances, where the defendant was properly served with notice of the hearing of the motions for judgment, there is, in my view, no basis upon which it is open to the Court to set aside the judgments, except on appeal.

30 Unless and until the judgments are set aside on appeal, the Court cannot, in my view, vary the orders of the Case Management Registrar of 29 November 2005. In any event, no useful purpose would be served by doing so. The judgments would remain unaffected. The defendant's present difficulty lies, not in the orders which opened the way for the applications for judgment to be made, but in the subsequent orders on the notices of motion by which judgment was given against him.

31 As I indicated to counsel during the course of the hearing of the applications, in my view if the defendant seeks to set aside the judgments, he must proceed by way of appeal to the Court of Appeal against the order of the Acting Master of 11 January 2006.

32 In view of the conclusion I reached it was unnecessary to consider whether the order of the Case Management Registrar of 29 November 2005 is a case management direction within the meaning of O 29A r 13.

33 It was for those reasons that I dismissed the applications.