BETWEEN : FIRST TRADE CONSULTING PTY LTD (ACN 009 372 169)

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : GRD KIRFIELD LTD -v- FIRST TRADE CONSULTING PTY LTD [2004] WASC 158

Practice and procedure - Want of prosecution - Relevance of settlement negotiations - Provision of draft appeal book index - Warning letters prior to application to strike out for want of prosecution

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Murcia Holdings Pty Ltd v City of Nedlands [2000] WASCA 275

Alginates (Australia) Pty Ltd v Thomson & Carroll Pty Ltd [1970] VicRp 74; [1970] VR 570

1 JUDGMENT OF THE COURT: At the hearing of this motion for dismissal of appeal for want of prosecution, we refused the motion. We indicated that we would deliver reasons and also reserved the question of costs. These are our reasons for refusing the motion.

2 A notice of appeal was filed by the appellant on 3 August 2004; but nothing was done thereafter until 28 October 2004 when the Associate to Registrar Eldred directed the appellant that a draft appeal book index was to be filed by 12 November 2004 and that the parties should attend on 22 November 2004 to settle the draft appeal book index. These directions were complied with, but it will be observed that nearly three months had expired before the Associate to Registrar Eldred took the initiative of directing the filing of the appeal book index.

3 We were advised at the hearing that it is not uncommon for solicitors to refrain from filing a draft index until directed to do so. We are unable to understand why this should be so; it is up to the appellant to progress an appeal, and it is wholly unacceptable for a party to do nothing until prompted by the Registry.

4 At the appointment on 22 November 2004, directions were given for the extraction of certain orders which the solicitors for the respondent undertook to do. It took over three months for the respondent's solicitors to complete that task and serve copies of the extracted orders upon the solicitors for the appellant.

5 There were substantial delays in settling the appeal book index. However, by 13 December 2004, an amended draft appeal book index was filed and served by the solicitors for the appellant.

6 Between January and late April 2005, there were attempts to settle the matters in dispute, and late in April 2005 there was an action in the District Court in which the same parties litigated a related matter which arose out of the factual background of the proceedings under appeal. It was not until approximately 9 May 2005 that it became clear to both parties that settlement of the appeal was unlikely.

7 Meanwhile, on 6 May 2005, the motion to dismiss the appeal for want of prosecution was filed. For some reason, it was not served upon the solicitors for the respondent until 24 June 2005. There had been no prior warning of the fact that steps would be taken to dismiss the appeal for want of prosecution. During the month of June 2005, steps were taken to finalise the appeal book index and the Registrar finally settled that index on 30 June 2005. The matter was then entered for hearing, although without an application for extension of time within which to enter it for hearing, so the entry is invalid.

8 It is important to appreciate that the lengthy delay in the prosecution of this appeal by the appellant was against the background of settlement negotiations between the months of January and May 2005, with relatively prompt steps being taken thereafter to have the appeal book index settled. Unfortunately, the solicitors for the appellant do not seem to have appreciated that an application for an extension of time within which to enter the appeal for hearing would have been appropriate.

9 It is not the case that settlement negotiations have the effect of suspending or varying the time limits imposed by the Rules, either in relation to an action or in relation to an appeal. It is to be expected that parties will negotiate, but it is reasonable to expect that they will, unless there is express agreement or an order to the contrary, continue to take all necessary procedural steps. That is particularly so in relation to relatively simple and inexpensive steps such as the extraction of orders or the settlement of an appeal book index, which are the steps in issue here.

10 However, it should be noted in the present case that, on 1 February 2005, the solicitors for the respondent wrote to the solicitors for the appellant, about a variety of issues, concluding with the sentences:

"Obviously if First Trade proceed with its appeal against the determination of Commissioner Odes it will be necessary for GRD to make application to the Court for Security for Costs.

We suggest that before either party incur further substantial legal costs that it would be prudent to arrange a further meeting for the purpose of attempting to achieve a full and final settlement of all of the issues between our respective clients."

11 Mr Campbell, a solicitor for the appellant, deposes that it was not until early in May 2005 that it appeared to him that no settlement was possible. To an extent, then, it appears that the respondent's solicitors had encouraged the view that settlement should be pursued instead of (rather than in addition to) taking further steps in the appeal.

12 At the hearing of the motion, counsel for the respondent made no apology for the fact that the motion to dismiss the appeal was filed without any prior warning to the solicitors for the appellant. Counsel relied upon the principles expressed in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 and in Murcia Holdings Pty Ltd v City of Nedlands [2000] WASCA 275 as establishing that principles of case management are such that the right that an appellant has to appeal a judgment necessarily brings with it a requirement to do so within time and to pursue the appeal according to the Rules of the Court, or according to such orders as may be made varying or dispensing with compliance with those Rules.

13 As was pointed out in Jackamarra v Krakouer by Gummow and Hayne JJ at [29], delays in the courts are a major cause of disquiet not only amongst those who resort to the courts, but also amongst Judges and all others associated with the courts. However, we would respectfully adopt what Gummow and Hayne JJ said at [30] to the following effect:

"It is with these considerations in mind that the rules of court prescribe times for the taking of certain steps in a proceeding. They are not prescribed for the purpose of implementing what Roscoe Pound referred to more than ninety years ago as the 'sporting theory of justice'. They are prescribed as aids to the attainment of justice. Just as case management is not an end in itself, but an aid to the prompt and efficient disposal of litigation, so, too, the rules of court and the time limits which are prescribed there are not to be seen as ends in themselves. But they are aids to the attainment of justice and the times that they fix are prescribed as sufficient to take the step or steps identified while maintaining the general momentum of the litigation."

"It [the 'sporting theory of justice'] creates vested rights in errors of procedure, of the benefit whereof parties are not to be deprived ... The inquiry is not, What do substantive law and justice require? Instead, the inquiry is, Have the rules of the game been carried out strictly? If any material infraction is discovered, just as the football rules put back the offending team five or ten or fifteen yards, as the case may be, our sporting theory of justice awards new trials, or reverse judgments, or sustains demurrers in the interest of regular play": Roscoe Pound, "The Causes of Popular Dissatisfaction with the Administration of Justice", reproduced in Glenn R Winters (ed), Handbook for Judges (1975), 280 at 288.

15 As Gummow and Hayne JJ made clear in Jackamarra v Krakouer, the provisions of the Rules of Court are aids to the attainment of justice, but not ends in themselves.

16 In the present case, the appellant failed to comply with the time constraints for the entry of the appeal for hearing. Approximately 10 months had expired from the date on which the notice of appeal was filed until an attempt was made to enter the appeal for hearing. However, that delay has to be seen against the factual background to which reference has been made. It is also of relevance that there is no evidence of specific prejudice to the respondent as a result of the delay.

17 At least in this case, there seems to be no reason why the solicitors for the respondent should not have written to the solicitors for the appellant indicating that, in their view, settlement negotiations had broken down, and stating that, unless steps were taken to finally settle the appeal book index and apply for an extension of time within which to enter the matter for hearing, there would be a motion to dismiss for want of prosecution. It would not be necessary in all cases for solicitors to warn of such a step; for example, where there had been an earlier default of which a complaint had been made, or any other indication that a party considered time to be of particular importance.

18 Undoubtedly, there is today a revival of the insistence upon a stricter adherence to rules and practices (see Jackamarra v Krakouer per Kirby J at [66]) and courts themselves have come to appreciate that they have their own interest in ensuring compliance with time limits. But, as Kirby J, at [66], observed, the ultimate obligation of a court is the attainment of justice as the law requires. It is consistent with that end that the costs of an application should not be unnecessarily incurred. Often, a letter or telephone call drawing attention to the requirements of the Rules will avoid such costs.

19 In the present case, we are of the view that there is a reasonable explanation for the delay that has occurred in relation to the entry of this appeal for hearing. The entry has yet to be perfected, but there is no good reason why an extension of time should not be granted for entry for hearing.

20 Although strictly entitled to file the motion, the solicitors for the respondent inexplicably decided not to serve a copy of that motion for well over a month and pursued it in the full knowledge that the appeal book index had been finally settled and an attempt made to enter the matter for hearing. That being so, it is our view that the respondent has no entitlement to costs. Because the appellant has been in substantial delay and made no application for an extension of time within which to enter the matter for hearing, we would not award any costs to the appellant. We would therefore make no order for costs.