Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Other matters arising before trial - Directions hearings - Non-compliance with orders by defendant - Judgment for plaintiff - Application to set judgment aside.

Ridge Lane Pty Ltd v Gadzhis [2007] VSC 212; Jorgensen v Slater & Gordon Pty Ltd [2008] VSCA 110; Brocx v Hughes [2008] WASC 34, followed.

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, referred to.

Judgment Number: [2009] TASSC 78

1 This case concerns a defendant that failed to comply with some interlocutory orders, and ceased to participate in the case management processes of the Court. On 28 May 2009 Holt AsJ ordered that the defendant's defence and counterclaim be struck out, and made an order that permitted the plaintiff to enter judgment as if the defendant had defaulted in filing a defence: Pumptech Tasmania Pty Ltd v CB&M Design Solutions Pty Ltd [2009] TASSC 41. The plaintiff entered judgment accordingly, for $166,599.88 plus interest and costs, on 1 June 2009. The defendant has appealed from the order of 28 May 2009, and has applied to set the judgment aside under the Supreme Court Rules 2000, r374. Its notice of appeal was filed out of time, and it has therefore applied for an extension of time. I have conducted a hearing in relation to the three pending proceedings - the appeal, the application for an extension of time, and the application to set the judgment aside.

2 Although the reasons of Holt AsJ for the orders of 28 May 2009 focussed on events that occurred in the few months leading up to that day, much of the earlier history of this litigation is relevant, and I will therefore go into some detail in relation to it.

3 The plaintiff brought this action in respect of twelve claims against the defendant, for equipment and materials supplied and/or work and labour done. According to the statement of claim, its causes of action arose during the period from September 2003 to May 2004. Its claims varied greatly in size. The largest, for the price of 16 pumps, was for $152,326.94. The smallest, for analysing some water samples from Nubeena, was for $34.10. The writ was filed in the Launceston District Registry on 22 September 2004. Every allegation in the statement of claim was either denied or not admitted. The defendant pleaded various defences, set-offs and counterclaims. It pleaded the making of joint venture agreements with the plaintiff and breaches thereof, defences that the plaintiff was only ever the agent of another company and therefore not itself entitled to the money claimed, a contractual right not to pay without having been given an order number, misleading and deceptive conduct, negligence in pre-contractual negotiations, and much more. Its counterclaim was for over $200,000.

4 From the beginning of this litigation, the case management provisions of the Supreme Court Rules, Pt14, Div1 (rr414 - 417) applied to it, initially by virtue of Practice Direction 8/2000, and subsequently by virtue of Practice Direction 11/2005. In accordance with r415, a directions hearing was held on 17 November 2004. Both parties were ordered to file and serve lists of documents, verified by affidavits, within 14 days. The plaintiff filed a sworn list of documents within that time, but the defendant was slow to make discovery. There was a further directions hearing on 2 December 2004, at which discovery was discussed. A week later, at another directions hearing on 9 December 2004, consent orders were made extending the time for the defendant to file and serve its sworn list of documents to 21 January 2005, and adjourning the directions hearing to 17 February 2005. On 2 February 2005 the plaintiff applied for judgment on the basis that the defendant had failed to comply with the orders as to discovery. On 17 February 2005 that application was adjourned to 2 March 2005. On 28 February 2005 the defendant's solicitors filed its sworn list of documents. The defendant consented to an order that it pay the plaintiff's costs of the application for judgment.

5 From 24 March 2005 to 7 July 2005 there were six more directions hearings, apparently all in relation to proposed amendments and particulars, culminating in a consent order on 14 July 2005 for the amendment of the defence and counterclaim. Although the amendments had been formulated and agreed to, it was not until about nine months later, on 13 April 2006, that the amended defence and counterclaim was filed. The plaintiff filed a reply on 21 April 2006. There were no subsequent pleadings. The pleadings have not been amended since. The rest of 2006 seems to have been spent by the parties attending to further discovery and to interrogatories.

6 In March 2007 the defendant changed its solicitors. Since 27 March 2007, its solicitors on the record have been Pilley McKellar Pty Ltd of Burwood, Victoria, and their Mr Alex McKellar has had carriage of this matter.

7 The plaintiff had administered some interrogatories dated 29 January 2007. On 22 March 2007 the defendant's new solicitors filed an affidavit by which the proper officer of the defendant company objected to answering nearly all of those interrogatories. On 2 April 2007 the solicitors for the plaintiff sought a directions hearing so that they could seek orders for answers to the unanswered interrogatories. Their application was heard by Master Holt (as he then was) on 15 June 2007, and was partly successful. The defendant was ordered to answer some of the interrogatories on oath within 21 days. The defendant appealed from that order. The appeal was heard on 6 September 2007. Judgment was given on 13 December 2007: CB&M Design Solutions Pty Ltd v Pumptech Tasmania Pty Ltd [2007] TASSC 103. The defendant was partly successful. The Master's order was varied so that only four interrogatories had to be answered. Sworn answers to those interrogatories were filed on 21 December 2007.

8 Meanwhile, another skirmish about discovery had commenced. The plaintiff's solicitors wrote to the District Registrar on 13 August 2007 seeking a directions hearing so that orders for discovery could be sought in relation to certain matters referred to in the amended defence and counterclaim. As a result, there was a directions hearing on 23 August 2007, but the matter was adjourned, and the defendant was ordered to pay the costs thrown away as a result of the adjournment. There was a further directions hearing on 20 September 2007, at which an order was made by consent for the defendant to make, file and serve a further list of documents within seven days. By 31 October 2007 that order had still not been complied with. On that day the plaintiff's solicitors filed an interlocutory application seeking dismissal of the counterclaim and judgment for the plaintiff in the action. The plaintiff was entitled to make that application under r372 because the order for discovery had not been complied with. That application came before Master Holt for mention on 8 November 2007, 22 November 2007, and 6 December 2007. Eventually it was listed for mention on 22 May 2008, and for hearing on 30 May 2008. On 22 May 2008 the required list of documents was filed - more than nine months after the plaintiff's solicitors had written to the District Registrar to apply for it, and about eight months after the consent order that required it to be filed and served within seven days. On 28 May 2008 Holt AsJ (as he had become) made a consent order adjourning the application for judgment sine die, and ordering the defendant to pay costs.

9 The next development evident from the Court file did not occur for some ten months. On 20 March 2009 the plaintiff's solicitors requested a directions hearing so that they could seek orders for the referral of the action for mediation, and for further steps to be taken to enable the action to proceed to trial. A directions hearing was listed for 16 April. On that day the plaintiff's solicitor appeared, but there was no appearance on behalf of the defendant. Holt AsJ made the following orders:

"1 The action is referred for mediation pursuant to the Alternative Dispute Resolution Act 2001.

2 Within 14 days the parties through their legal practitioners are to hold a compulsory conference and sign a certificate of readiness.

3 I grant to the defendant liberty to apply for a vacation or variation of these orders any such application to be filed and served within 7 days and made returnable at 9.15 am on Thursday, 7 May 2009.

4 Unless in the meantime a certificate of readiness is filed the directions hearing is to resume at 9.15 am on Thursday, 7 May 2009."

10 When the case management provisions in rr414 - 417 do not apply to an action, r541 requires the parties to confer as to certain matters, and r544 requires the parties to file a certificate of readiness in accordance with a prescribed form. In practice, compulsory conferences pursuant to r541 are routinely held between solicitors, usually in the absence of their clients. Under r541(2), such a conference may be by telephone. By his orders of 16 April, Holt AsJ invoked the procedures provided for in the Supreme Court Rules for the holding of a conference by the parties' solicitors and the joint preparation of a certificate of readiness listing matters that had been agreed between solicitors, documents to be tendered at the trial, and so forth.

11 On 28 April the plaintiff's solicitors faxed a draft certificate of readiness to the defendant's solicitors with a covering letter appointing a compulsory conference at 2.30pm the following day at their offices. Annexure G1 to the draft certificate listed six documents that the plaintiff proposed to produce at the trial. Annexure F listed a further 381 documents that the plaintiff wished to tender as business records. The defendant's solicitors needed to decide whether to dispute the authenticity or admissibility of any of those documents, since any such dispute needs to be indicated in a certificate of readiness. Obviously they did not have enough time to do that before the appointed compulsory conference. Ideally, they should have telephoned the plaintiff's solicitors at the appointed time and conferred for the purpose of reaching or confirming agreement as to as many other matters as possible. Instead, on 30 April the defendant's solicitors faxed a letter to the plaintiff's solicitors, saying the following:

"We note by that facsimile that you have sought to convene a compulsory conference at your offices within 28 hours of the notice knowing full well that it would be virtually impossible for a practitioner located in Victoria to attend the conference within the specified timeframe.

Furthermore, the certificate of readiness lists in excess of 350 documents upon which admissions are sought. It is clearly unreasonable to expect that those documents could be reviewed and instructions sought within the time specified.

We have been seeking our client's instructions in relation to the matters contained in your facsimile and in relation to the mediation to be held on 22 or 23 July 2009.

We also note that representatives of our client's professional indemnity insurer wish to appear at the mediation.

Finally, we are instructed that our client has been in the process of recapitalising the business and the recapitalisation program is likely to result in a new management team being appointed. It may well be that our services will no longer be required and alternative solicitors will be appointed to our client.

Given that the mediation is to be conducted in late July any trial of this action clearly cannot proceed before that date.

In all of the above circumstances we cannot see the urgency of convening a compulsory conference or the filing of a certificate of readiness.

However, we are able to attend a compulsory conference prior to the mediation or upon the giving of proper notice."

12 I make the following observations about that letter:

•

It was not sent until the day after the appointed compulsory conference.

•

The defendant's solicitor, Mr McKellar, had obviously not looked up the applicable rules in relation to compulsory conferences and certificates of readiness. Otherwise he would have realised that r541(2) permitted a conference by telephone.

•

The fifth of the paragraphs that I have quoted was the first indication that the defendant, rather than its solicitors, might be responsible for any delay in the advancement of the action towards trial.

•

Mr McKellar was obviously completely indifferent to the fact that Holt AsJ had made orders fixing a time limit for the holding of a compulsory conference and the signing of a certificate of readiness, and very generously making provision for the defendant, which had not been represented when the orders were made, to apply for more time.

13 On 30 April, having consulted the solicitors for both parties, the District Registrar wrote to them advising that the mediation would be conducted on 22 July.

14 On 1 May the plaintiff's solicitors faxed a letter to the defendant's solicitors appointing a second compulsory conference on Tuesday 5 May at 3pm. They pointed out that the defendant's solicitors could confer by telephone instead of attending in person. However the defendant's solicitors did not attend the second compulsory conference, personally or by telephone. The plaintiff's solicitors heard nothing further from them until 20 May.

15 On 7 May there was another directions hearing before Holt AsJ. The plaintiff's solicitor appeared but, for the second time, the defendant was not represented. Holt AsJ made the following order:

"Unless in the meantime the certificate of readiness is filed the directions hearing is to resume at 9.15 am on Thursday, 21 May 2009 at the Supreme Court, Cameron Street Launceston and Mr Alex McKellar is to personally attend that resumed directions hearing unless in the meantime he is relieved by order of the Court."

16 Mr McKellar decided to defy that order. On 20 May 2009 he faxed a letter to the Court, and faxed a copy to the plaintiff's solicitors. That letter read as follows:

"We refer to your order made by video link made on 7 May 2009.

We note that the Court has ordered the personal attendance of the writer at the hearing tomorrow.

The writer has received no instructions from our client in relation to the certificate of readiness or the directions hearing. We anticipate this may be a result of significant management changes which we understand are currently being implemented at CB&M Design Solutions.

At this time we do not know when or if we are likely to receive instructions in relation to the certificate of readiness. If we are unable to obtain instructions in the very near future we may be forced to withdraw our appearance in this proceeding.

The writer will not be in a position to attend tomorrow's hearing. We sincerely apologise for any inconvenience this may cause to the Court or to Mr Moore.

A copy of this letter has been sent to Mr Moore on behalf of the Plaintiff."

17 On 21 May the directions hearing resumed before Holt AsJ. The plaintiff's solicitor appeared but, for the third time, the defendant was not represented. Mr McKellar had not just decided to defy the order for his personal attendance. He had also failed to arrange any representation for his client.

18 At that directions hearing, the plaintiff's solicitor referred to the application for judgment under r372 that had been filed on 31 October 2007, and adjourned sine die on 28 May 2008. Holt AsJ made the following order:

"The plaintiff's interlocutory application for judgment filed 31 October 2007 is to be heard at the Supreme Court Building, Cameron Street, Launceston at 11.30 am on Thursday, 28 May 2009."

His Honour went on to direct that notice of that listing, and a copy of the record of proceedings sheet for 21 May, be sent to the practitioners for the parties. Those documents were emailed to both solicitors the next morning.

19 On 25 May Mr McKellar sent an email to two people associated with the defendant company, John Dingemanse and Kristie L Misdom. It read as follows:

"As briefly discussed this morning, we are of the view that the most effective way of tackling the summary judgment application by Pumptech is to complete the certificate of readiness which they have sought to file with the Court.

One of the key issues in the certificate is the identification of documents upon which each party intends to rely. In order to complete the certificate it is necessary to identify any document from Pumptech to CB&M which refers to Testech and its capacity to perform in any way.

If you can:

(a) identify these documents; and

(b) scan and send me a copy,

we can file the certificate and hopefully avoid, by consent, the need to deal with Pumptech's application on Friday [sic]."

20 On 27 May Ms Misdom responded by sending Mr McKellar an email with a number of scanned documents attached.

21 On 28 May at 11.11am, only 19 minutes before the listed hearing time of the application for judgment, a letter from Mr McKellar was faxed to the plaintiff's solicitors. It read as follows:

"We have now received instructions from our client in relation to the certificate of readiness and are in the process of listing those documents which will be relied upon by our client. This will be completed and returned to you within the next 7 days.

In the circumstances we suggest that your client's application be adjourned for 10 to 14 days.

If your client insists upon continuing with its application our client will rely upon:

(a) the extensive delay in this proceeding to date much of which is not the responsibility of our client;

(b) the fact that the Court has scheduled a mediation in this matter on 22 June [sic] to which our client readily agreed; and

We have suggested an adjournment only so that your client can immediately re-instate the application in the event that there is a further failure to comply with the requirements for the certificate of readiness."

22 The hearing of the application for judgment commenced before Holt AsJ at 11.30am and concluded at 2.09pm. The plaintiff's counsel appeared but, for the fourth time, the defendant was not represented. I infer that the letter of 11.11am did not come to the attention of the plaintiff's solicitor until after the conclusion of the proceedings. After taking some time to consider his decision, Holt AsJ ordered as follows:

"The defence and counterclaim are struck out and the defendant is taken to be a defaulting defendant for the purpose of Division 2 of Part 11 of the Rules."

23 That was a reference to the Supreme Court Rules, rr342 - 355. Those rules make provision for default judgment to be entered against a defendant who has not entered an appearance or not filed a defence. In practical terms, the order permitted the plaintiff to enter a default judgment against the defendant as if the defendant, after filing its appearance, had not filed a defence within the time limited by the rules. Holt AsJ gave oral reasons for making that order, and directed that the reasons be transcribed and sent to the parties, reserving the right to edit the transcription. He also ordered that the defendant was to pay the plaintiff's taxed costs of the action including the counterclaim.

24 Mr McKellar has sworn four affidavits that were relied upon in the proceedings before me. Each of them was witnessed by a solicitor who works for his firm, despite r513 providing that such affidavits are not "sufficient", but no objection was taken on that basis. He was not cross-examined before me. Subject to what I say below, I accept his unchallenged and uncontradicted affidavit evidence.

25 It appears from his affidavits that Mr McKellar made a note in relation to the hearing of the interlocutory application in his diary but that, by mistake, he noted it as being listed on Friday 29 May, not Thursday 28 May. There is no evidence in his affidavits that he arranged for himself or anyone else to represent the defendant in Launceston on 29 May. He said in one of his affidavits that the first time he became aware of the orders made on 28 May and the reasons for decision was on 4 June. He received that information in an email from the Court on that day. If he had sent a barrister or solicitor to the Court on 29 May, he would no doubt have learned very quickly of the orders that were made on the previous day. I therefore infer that he did not arrange for anyone to represent his client on 29 May, and that he still believed throughout 29 May that the application for judgment had been listed for a hearing on that day.

26 In an affidavit sworn on 23 July, Mr McKellar said the following in relation to the hearing on 28 May:

"The primary reason for the non-attendance of any person on behalf of CB&M Design was the incorrect recording of the date of the hearing in my diary and the fact that I was interstate in the days leading up to the hearing."

I accept that Mr McKellar made an incorrect diary entry, and was interstate in the days leading up to 28 May, but, as to the significance of those facts, I do not believe him. A correct diary entry would not have made any difference. There is no reason why being away from Victoria would have made any difference either. Launceston counsel could have been briefed by means of a phone call from anywhere in Australia.

27 In an affidavit sworn on 12 August 2009, Mr McKellar said the following:

"I had not retained Mr Stanton by 27 May as I had hoped that the certificate of readiness could be completed and provided to the Plaintiff's solicitors so that a hearing date could be obtained. Even if the certificate of readiness had not been completed I would have sought instruction for Mr Stanton to appear at the hearing on 29 May seeking a limited extension of time for the filing of the certificate of readiness with instructions to consent to a self executing order in the event that the document was not filed within the specified time."

28 The second sentence of that paragraph is misleading. For one thing, it implies that the certificate of readiness had been completed, but it had not. More significantly, it suggests that Mr McKellar proposed to brief Mr Stanton to appear on 29 May, but that some development caused him not to do so. If Mr McKellar had become aware prior to 11.30am on 29 May that the hearing was in fact listed for 11.30am on 28 May, I think he would have said so in one of his affidavits. I do not accept that he proposed to brief Mr Stanton to appear on 29 May, but for some unstated reason changed his mind.

29 On 1 June, as I have said, judgment was entered for the plaintiff.

30 On 4 June, as I have said, Mr McKellar was notified by email of the orders of 28 May, and sent a copy of the edited reasons of Holt AsJ.

31 A right of appeal from an order of the associate judge is conferred by the Supreme Court Civil Procedure Act 1932, s191B(2). Time limits for the institution of such appeals are fixed by r680A(3). There are different time limits in respect of final judgments and other judgments. The order of 28 May 2009 was clearly an interlocutory order: Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246. In such a case, r680A(3)(b) requires an appeal to be instituted within 10 days after the judgment was pronounced. In this case, the tenth day after the judgment was pronounced was Sunday, 7 June, and the Monday was a statutory holiday: Statutory Holidays Act 2000, s4(h). The last day for instituting an appeal was therefore Tuesday, 9 June: Acts Interpretation Act 1931, s29(3)(a).

32 Mr McKellar apparently did not concern himself with the practicalities of getting an appeal instituted within time. He prepared a draft notice of appeal, and, on 11 June, briefed a barrister to settle it. Counsel subsequently emailed the settled notice back to him on 22 June. He spoke to the District Registrar that day, and learned that the appeal was out of time. The notice of appeal and the interlocutory application seeking an extension of time were filed the following day. Such an application needs to be supported by affidavit evidence, but no affidavit was filed at that stage. The application was listed for 20 July. Mr McKellar briefed a Launceston barrister, Mr Stanton, to appear.

33 On 20 July the appeal and the application for extension of time were mentioned before Crawford CJ. On this occasion, both parties were represented. There was still no affidavit evidence to support the application for an extension of time. Mr Stanton applied for an adjournment. He apparently did not know why an affidavit had not been filed. According to the record of proceedings, the matter was stood down so that Mr Stanton could get instructions from Mr McKellar as to why no affidavit had been filed. Crawford CJ made orders fixing a timetable for the filing of affidavits, adjourned the matters, and ordered the defendant to pay the plaintiff's costs of the day's hearing and those occasioned by the adjournment. The first of Mr McKellar's affidavits was subsequently filed on 24 July, only one day late.

34 On 27 July the solicitors for the defendant filed another interlocutory application, seeking to have the application for judgment reconsidered by Holt AsJ under r537(2). That rule provides that, when a party to an interlocutory application fails to attend its hearing and a judge proceeds in the absence of that party, the party who was absent may have the application reconsidered "on satisfying the judge that the absence was not the result of the wilful delay or neglect of that party". That application came before Holt AsJ on 6 August 2009. The defendant did not seek to proceed under r537(2), but instead obtained an order for the amendment of the application so as to seek the setting aside of the judgment under r374. That amendment avoided any difficulties as to whether Holt AsJ was functus officio, and enabled the application to be heard together with the appeal and the application for an extension of time.

35 I will deal with the appeal, and the related application for an extension of time, before addressing the application under r374. If I decide that the appeal should be allowed because of error on the part of Holt AsJ, there will be no need to consider matters that are relevant only to the exercise of the discretion conferred by r374. Since the strength of the grounds of appeal is relevant to the discretion to extend the time for the institution of the appeal, I will address the grounds first.

36 In arguing the appeal, counsel for the defendant did not rely on any of the affidavit evidence that was not before Holt AsJ. He relied on that evidence only in relation to the interlocutory applications that are before me.

"The learned Associate Justice [sic] erred in fact and / or in law in holding or finding that the Defendant intentionally and contumeliously failed to comply with Court orders, and the exercise of the discretion or power to strike out the defence and counterclaim miscarried accordingly."

38 In his reasons of 28 May, Holt AsJ reviewed the history of the litigation from 20 March 2009 onwards. He referred to an ASIC extract which showed that, as at 28 May, the defendant was not in liquidation, administration or receivership; that its principal place of business was in Launceston; and that its sole director lived in Launceston. In par11 of his reasons, his Honour said:

"I infer that the non-compliance is intentional and contumelious. In this circumstance the Court has the power within its inherent jurisdiction to impose the sanction sought."

39 The instances of non-compliance that he had referred to were the following:

•

The defendant's legal practitioner had not attended a compulsory conference, as ordered on 16 April.

•

The defendant's legal practitioner had not signed a certificate of readiness, as ordered on 16 April. (By 28 May, Mr McKellar had had the draft certificate of readiness for a month, but the final edition had not been filed.)

•

Mr McKellar deliberately did not attend on 21 May, as ordered on 7 May.

40 According to the Macquarie Dictionary "contumelious" means "having or showing an insulting, scornful, or contemptuous attitude". On the material before Holt AsJ concerning the events of the previous two months, it was appropriate for him to infer that Mr McKellar, and in some respects the management of the defendant company, were deliberately and rudely ignoring his orders as to a compulsory conference, a certificate of readiness, and personal attendance. Counsel for the defendant submitted to me that the action had been on foot for 4½ years, that the defendant had prosecuted its counterclaim for all but a small period during that time, and that the mediation was still listed for 22 July, but those matters make no difference. It is the response of the defendant's representatives to the orders of 2009 that is significant. On the material before him, it was right for the learned associate judge to infer that the non-compliance with those orders was intentional and contumelious. Ground 1 therefore has no merit.

"The learned Associate Justice [sic] erred in fact and / or in law in holding that the circumstances of the case were exceptional, and the exercise of the discretion or power to strike out the defence and counterclaim miscarried accordingly."

42 This ground of appeal relates to par18 of the reasons of Holt AsJ, in which he said the following:

"The jurisdiction to strike out a defence for failure to comply with a court order should be sparingly exercised and saved for exceptional circumstances. I am persuaded, however, that these are such circumstances and that a sanction should be given."

43 There is no suggestion that this passage contained any error as to the power to strike out a defence, nor as to the principles governing the exercise of that power. Counsel for the defendant made submissions to me in relation to this ground to the effect that Holt AsJ focussed on a discrete period in the history of the litigation; that, looking at the matter as a whole, the circumstances were not exceptional; that the defendant had never been the subject of a self-executing order, whereby the counterclaim was to stand dismissed and judgment be entered for the plaintiff unless an order was complied with within a certain period; and that consideration ought to have been given to the making of such an order.

44 I disagree. It is not unknown for defendants to be very slow in doing those things that need to be done to get an action ready for trial, and it is not unknown for previously active defendants, often because of insolvency, to cease giving instructions to their solicitors altogether. In cases of the latter kind, the defendants' solicitors usually either have their names taken off the record, or politely appear and seek leave to withdraw. This case was different. The defendant's solicitors remained on the record. On four consecutive pre-trial hearings, no one appeared to represent the defendant. An order for the personal attendance of Mr McKellar produced only a letter saying that he would not be attending. An application for judgment went to hearing unopposed. I think those circumstances were truly exceptional. It was right for the learned associate judge to conclude that they were exceptional.

45 When interlocutory orders or procedural rules are not complied with, self-executing orders are certainly more common, and more readily granted, than the sorts of unconditional orders that were made in this case. However, after the defendant was unrepresented at the directions hearings on 16 April, 7 May and 21 May, I think it was appropriate to relist the application for judgment and give the defendant notice of that application. A self-executing order allowing seven more days would have had the same practical effect. Ground 2 has no merit.

"The learned Associate Justice [sic] erred in fact and / or in law in failing to have regard to the Defendant's willingness to attend mediation, the substantial and extensive delays caused or contributed to by the Plaintiff and the affidavit material filed on behalf of the Defendant, and the exercise of the discretion or power to strike out the defence and counterclaim miscarried accordingly."

47 At the hearing before me, counsel for the defendant pursued the first part of this ground, relating to mediation, but abandoned the second part, relating to delays said to have been caused or contributed to by the plaintiff, and the third part, relating to affidavit material filed on behalf of the defendant.

48 The affidavit material and Court records before the learned associate judge revealed the following as to mediation:

•

On 6 March 2009 the plaintiff's solicitors wrote to the defendant's solicitors asking them to sign a joint memorandum requesting that the matter be referred for mediation.

•

The defendant's solicitors did not reply to that letter.

•

There was nothing to suggest that either party had done anything about referring this matter for mediation prior to 6 March.

•

The plaintiff's solicitors wrote to the District Registrar on 20 March seeking a directions hearing so that they could seek an order referring the action for mediation.

•

Since the defendant was not represented at the directions hearing on 16 April, the order referring the action for mediation was made ex parte.

•

The appointment for a mediation conference on 22 July was fixed after the District Registrar had consulted both the plaintiff's solicitors and Mr McKellar.

•

Mr McKellar's letter of 30 April advised that the defendant's professional indemnity insurer wished to be represented at the mediation, and showed neither unwillingness nor enthusiasm on the part of the defendant's management for the company to be represented at the mediation in late July.

49 The fact that Mr McKellar co-operated to the extent of agreeing to a particular date for a mediation is not compelling evidence that the management of the defendant was willing to take part in a mediation. The reference to the insurer in the letter of 30 April indicates that the insurer did not have carriage of the defence. Mr McKellar's instructions, to the extent that he was getting any, were coming from the management of the defendant company.

50 Since there was no evidence of any sign of willingness to participate in mediation on the part of the management of the defendant company, ground 3 has no merit.

"In deciding to strike out the defence and counterclaim, the learned Associate Justice [sic] gave undue weight to the advantage to the Plaintiff in not having to attend a trial on the merits, and failed to give adequate weight to the disadvantage to the defendant of being deprived of a trial on the merits, and the exercise of the discretion or power to strike out the defence and counterclaim miscarried accordingly."

52 In his reasons, the learned associate judge took into account the inconvenience and expense of the work that would need to be done for the plaintiff to take the action to trial. He clearly did not lose sight of the fact that his orders would substantially disadvantage the defendant. The impact of a judgment for the plaintiff and the dismissal of the counterclaim was so obvious that it went without saying.

53 This ground of appeal relates solely to questions of the adequacy or inadequacy of the weight given to relevant considerations. On the hearing of an appeal from an order of the associate judge, the judge hearing the appeal has the same jurisdiction and powers as the Full Court in hearing an appeal against an order of a single judge: Supreme Court Civil Procedure Act, s191B(4). The order appealed from in this case was made in the exercise of a discretionary power. My power to reverse or vary that order is therefore limited by the Supreme Court Civil Procedure Act, s45(1). That subsection reads as follows:

"(1) A Full Court, on the hearing of any appeal from any judgment, order, or other determination (whether final or otherwise) of a judge, shall not reverse or vary any adjudication of the judge which is, or purports to be, only the exercise of a discretion which the judge was entitled by law to exercise, unless it appears to the Full Court that -

(a) the judge has, in fact, declined or failed to exercise the discretion;

(b) the judge has proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or has misapprehended the facts or has failed to consider any material fact;

(c) the adjudication is founded wholly or in part on an erroneous finding of fact or an erroneous determination in point of law; or

(d) by reason of further evidence received by the Full Court in exercise of the powers conferred by section 48, or some special circumstance, the adjudication should be reversed or varied."

54 For ground 4 to succeed, one of pars(a), (b), (c) or (d) of this subsection must be satisfied. It can be seen at once that ground 4 can only succeed if it raises a contention that the learned associate judge proceeded on a wrong principle or otherwise contrary to law, or raises some special circumstance.

55 The learned associate judge attached significant weight to the inconvenience and cost that would result from the plaintiff taking the action to trial. He regarded the disadvantage to the defendant of a judgment as being outweighed by the factors favourable to the plaintiff. It cannot be demonstrated that he proceeded on any wrong principle, that he proceeded contrary to law, or that there is some special circumstance warranting the reversing or variation of his order. In any event, I do not think it can be demonstrated that the learned associate judge attached too much weight or too little weight to any particular factor. It follows that ground 4 has no merit.

56 The appeal has no merit. The notice of appeal was filed two weeks out of time. There is no reasonable explanation for that delay, but the consequent prejudice was insignificant. There was an unreasonable delay in the filing of affidavit evidence to support the application for extension of time, but again the consequent prejudice was insignificant. Because the appeal has no merit, the only appropriate course is to refuse the extension of time and dismiss the appeal.

57 The power to set aside the judgment is conferred by r374, which reads as follows:

(b) any judgment or order entered, given or made on the failure of a party to -

(i) do any act or take any step required to be done or taken by these rules; or

(ii) comply with an order to do any act or take any step."

59 No such rule existed in Tasmania before the commencement of the present rules on 1 June 2000. Before then, the Court had no jurisdiction to set aside a judgment entered as a result of non-compliance with an order, either under any rule or under the inherent jurisdiction of the Court: Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529; Reid v Keogh [1980] Tas R 44 at 47; Wilson v Musgrave B32/1993. The appropriate procedure was for a defendant to appeal. Often such judgments were entered pursuant to self-executing orders that had been made by consent. In such cases, defendants were (and still are) unable to appeal because the Supreme Court Civil Procedure Act, s43(a), provides that no appeal lies to the Full Court from any judgment or order given or made by the consent of the parties. The new r374 enables a defendant to apply to a single judge instead of having to appeal to the Full Court, and makes it possible for a judgment to be set aside even when it is the result of a defendant's consent. As far as I know this is the first time that a judge of this Court has had to determine an application under r374.

60 Our r374 was copied from a Victorian rule: General Rules of Procedure in Civil Proceedings 1986 (Vic), r24.06, since replaced by the Supreme Court (General Civil Procedure) Rules 2005 (Vic), r24.06. Before the introduction of the power to set aside a judgment entered as the result of non-compliance with an order, a body of case law developed in Victoria as to the principles to be applied when there was an appeal from a self-executing interlocutory order. In Composite Buyers Ltd v J C Taylor Constructions Pty Ltd [1983] VicRp 91; [1983] 2 VR 311, the Full Court of the Supreme Court of Victoria considered an appeal by a third party which had had its defence struck out. Orders had been made that it deliver defences and make discovery within fixed times and that, in default of compliance, its defence in relation to each opposite party was to be struck out, and it was to be placed in the same position as if it had not defended the third party proceedings issued by that opposite party. The orders relating to defences and discovery were not complied with. The third party appealed from the self-executing order. At 314, Lush J, with whose reasons Murphy and Fullagar JJ agreed, said the following:

"... in circumstances like the present an appeal against an order may succeed if it is shown that the order in the result had operated to deprive a party unjustly of his right to a trial of the issues in the action even though no fault was to be found in the making of the order at the time when it was made.

To succeed in an appeal upon this ground the would-be appellant must show that supervening events have caused the order to which he was subject to operate in a manner which has turned out to be unjust. It will in most cases be a matter of degree to determine whether the existence of the suggested supervening injustice is such as to justify the interference of an appellate court."

61 The same principles have subsequently been applied in relation to applications under Victoria's r24.06. In Ridge Lane Pty Ltd v Gadzhis [2007] VSC 212 at pars34 - 35, Hargrave J said the following:

"Rule 24.06 gives the Court, without the necessity of an appeal, the same power to set aside or vary a self-executing order as that which was previously only exercisable on appeal. Accordingly, the principles upon which appeal courts acted provide a useful guide to the exercise of the discretion under Rule 24.06. In particular, the Court in exercising its discretion under Rule 24.06 must balance the prejudice to the party adversely affected by the operation of the self-executing order against any prejudice to be suffered by the opposite party if the self-executing order is set aside or varied.

Ordinarily, a party who is in default under a self-executing order cannot expect to have the discretion under Rule 24.06 exercised in the party's favour unless, at the time of the application to set aside or vary the self-executing order, the party has complied with the terms of the order."

62 In Jorgensen v Slater & Gordon Pty Ltd [2008] VSCA 110, a self-executing order had been made against the appellant, and not complied with. He applied under Victoria's r24.06 for the order to be set aside. Maxwell ACJ and Forrest AJA said the following as to the relevant principles at pars11 - 12 (omitting footnotes):

"The court should have regard at least to the following matters:

(a) the circumstances in which the self-executing order was made;

(c) the prejudice to the defaulting party if relief were not granted; and

(d) the prejudice to the innocent party if relief were granted.

As to the reasons for non-compliance, it is of the first importance to ascertain whether the failure to comply was wilful, that is, was reflective of deliberate disregard of, or indifference to, the court's order. As Browne-Wilkinson VC said in Re Jokai Tea Holdings Limited:

'The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed'."

63 Somewhat similar principles apply when a party seeks an extension of time for compliance with a self-executing order. In Brocx v Hughes [2008] WASC 34, the plaintiff had failed to comply with a self-executing order, and subsequently applied to set aside the judgment and extend time. Johnson J analysed a number of the relevant cases and concluded, at par46:

"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."

64 I have concluded that no fault is to be found in the making of the order of 28 May, at the time when it was made. However there is evidence before me that was not before Holt AsJ on that day. The following matters are significant:

•

As I have said, Mr McKellar sent an email to the management of the defendant company on 25 May asking for the documents on which it intended to rely at trial to be identified, scanned and sent to him. That was done on 27 May.

•

Holt AsJ made findings on 28 May that the defendant had no intention of contesting the plaintiff's claim, and no intention of pursuing its own counterclaim. Those findings were reasonably open on the material before him, but they were incorrect. However shocking the conduct of the defendant company and Mr McKellar might have been, its management had certainly not entirely lost interest in the case.

•

Some of the plaintiff's claims, and parts of the counterclaim, related to a waste water treatment plant at Sheffield. An arbitration has been conducted between the Kentish Council and the defendant in relation to that project. The defendant was unsuccessful. The award was finalised, save for costs, on 18 December 2008. The quantification of the counterclaim in this case could not be finalised until then.

65 Mr McKellar has revised the certificate of readiness since 28 May, but has not gone to the trouble of finalising it. The latest draft is annexed to one of his affidavits sworn on 27 July. He said in that affidavit that further instructions were required in relation to the certificate of readiness According to par5 of the latest draft, neither party proposed to call any expert witnesses at the trial. I find that hard to believe, given that this was an engineering case with an estimated hearing time of eight days, involving questions as to the quality of the work done by the plaintiff company in connection with a waste water treatment plant, amongst other things. The draft certificate contains a list of 19 documents that the defendant wished to tender at the trial as business records. It does not list any other documents that the defendant proposed to tender at the trial. The exchange of emails between Mr McKellar and the management of the defendant company in late May suggests that these documents might have been selected by the client, without any input from any lawyer. If the trial were to proceed, the complexity of the pleadings suggests that counsel for the defendant would probably want to tender many more documents. Mr McKellar said in his affidavit of 27 July that further instructions were required in relation to the certificate of readiness, but he did not disclose what aspects of the certificate were considered by him to need further attention.

66 In my view the latest draft of the certificate of readiness is very much a half-baked one. I expect a lot more work might be needed to create a final edition of the document. The defendant might have been in a stronger position in relation to this application if that work had been done.

67 The defendant has not established that any supervening events or extraneous circumstances prevented or hindered compliance with the order for the holding of a compulsory conference. I have no evidence that anything prevented Mr McKellar from conferring with the plaintiff's solicitor by telephone at 2.30pm on 28 April, or at 3pm on 5 May. If the compulsory conference had proceeded, I expect that some questions as to the contents of the certificate of readiness would not immediately have been resolved. But progress could and should have been made. The only explanation for a compulsory conference not having taken place, either at one of the times appointed by the plaintiff's solicitor or at some later time appointed by Mr McKellar, was that Mr McKellar was unwilling to do what had been ordered. The evidence does not suggest any good reason for such unwillingness.

68 There is no evidence that any supervening event or extraneous circumstance prevented Mr McKellar from participating in a compulsory conference, settling the final form of the certificate of readiness with the plaintiff's solicitor, or attending before Holt AsJ when he was ordered to do so.

69 The defendant has adduced very little evidence as to its reasons for not complying with the orders of Holt AsJ, and for not being represented before him on four consecutive occasions. The outcome of its arbitration with the Kentish Council was known, except in relation to the question of costs, on 18 December 2008. Apart from the arbitration, I know of nothing else that stood in the way of the defendant preparing its counterclaim for a trial.

70 In his letter of 30 April 2009, Mr McKellar referred to a recapitalisation, and the possibility of a new management team being appointed. I have no evidence as to whether a new management team was appointed. I have no evidence that the recapitalisation program hindered the defendant in preparing for a trial.

71 I have a lot of evidence that, in acting for the defendant in the proceedings, Mr McKellar ignored and flouted the Court's orders and rules. However the defendant has not adduced any evidence that its management was not equally delinquent in relation to the defence of the action and the prosecution of the counterclaim. Mr McKellar's letter of 20 May contained assertions suggesting that he was having difficulty getting instructions from the defendant's management. However I have evidence that Ms Misdom gave him instructions by email on 27 May as to the documents to be relied upon at the trial. Otherwise I have no evidence at all to suggest that, to any degree, the defendant was interested in proceeding to trial, or willing to proceed to trial. On an application like this, one would normally expect such evidence to be adduced if it were available.

72 I acknowledge that, as a general rule, delay on the part of a solicitor will be regarded less seriously than delay on the part of the solicitor's client: Soper v Matsukawa [1982] VicRp 96; [1982] VR 948; Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229; Ulowski v Miller [1968] SASR 277 at 282 - 283; Williams v Smith [1984] Tas R 176 at 186; Aylett v Attorney-General [2003] TASSC 68 at par12.

73 In Cull v Stewart (1991) 15 MVR 149, an appeal from a refusal of an application under Victoria's r24.06, Young CJ, Murphy and Nathan JJ said at 152:

"The self-executing order ... was allowed to take effect largely through the negligence or inactivity of the plaintiff's then solicitor. But the court is always reluctant to see a plaintiff shut out from the opportunity of having his claim tried in the court owing to the negligence of his solicitor in procedural matters. The fact that he may have a claim against his solicitor is a relevant consideration to take into account in considering how the discretion should be exercised but it is not generally entitled to very much weight: see Soper v Matsukawa at 953 - 4."

74 However there is no evidence before me to establish that the defendant was an innocent litigant that has suffered the entry of judgment against it as a result of being let down by its solicitor. For all I know, the conduct and attitude of the defendant company in relation to this litigation might have been entirely in harmony with that of Mr McKellar.

75 When a defendant applies to set aside a judgment that has been entered in default of appearance, or in default of defence, one of the things that the defendant has to show is that it has an arguable defence. However there is no suggestion in any of the authorities relating to other jurisdictions' equivalents of our r374 that an applicant under such a rule needs to demonstrate that it has an arguable defence or a prima facie case. Yet it stands to reason that the strengths and weaknesses of the parties' cases can be relevant to the discretion to be exercised upon an application of this nature.

76 A somewhat similar situation exists when a plaintiff applies for the renewal of a writ. In National Mutual Life Association of Australia v Huddlestone 72/1997 Zeeman J, with whom Wright and Crawford JJ agreed, said the following in relation to such an application, at 7:

"... I consider that the merits of a plaintiff's claim may also be relevant. It is not incumbent upon an applicant for renewal to establish a prima facie cause of action or a cause of action which has reasonable prospects of success. However, matters concerning the merits of a plaintiff's claim ought not to be put aside as having no possible relevance. By way of example, where an application relates to a writ which attempts to raise a cause of action which, on the face of the writ, is bound to fail, the absence of merit may provide a sufficient reason to refuse renewal. Conversely, the existence of a strong case against a defendant may provide a positive reason for granting renewal and outweigh other factors militating against a favourable exercise of the discretion."

77 In the present proceedings, the plaintiff has adduced no evidence as to the merits of the parties' cases, but the defendant has adduced a little. Mr McKellar has exhibited to one of his affidavits an extract from the award of the arbitrator in relation to the dispute with the Kentish Council. That extract comprises pages 31 - 39 inclusive. The absence of the earlier and later pages has not been explained. The extract suggests that there was evidence before the arbitrator that testing at the Sheffield plant yielded results that were unsatisfactory; that the Kentish Council blamed the defendant; that the defendant blamed a company named Testech Australia Pty Ltd and the plaintiff; that the design of the plant was unsuitable; that the plant was constructed in accordance with its design and was therefore not fit for its intended purpose; and that the defendant did not have the technical capacity to identify what was wrong, or to remedy anything that was wrong. I have no other evidence as to the merits of the defendant's case. On the available evidence, I am not able to make any assessment as to the strengths or weaknesses of either party's case.

78 Some aspects of the prejudice to the defendant that results from the judgment are extremely obvious. A judgment has been entered against it for $166,599.88 plus interest and costs. Its counterclaim has been struck out. It will have to pay its own legal costs of the proceedings.

79 However the defendant retains the right to bring a new action in respect of the claims that were included in its counterclaim. The applicable limitation periods are six years: Limitation Act 1974, s4(1); Trade Practices Act 1974 (Cth), s82(2). The counterclaim relates to events alleged to have occurred between April 2002 and April 2005. I have no evidence that any of the defendant's claims against the plaintiff have become statute barred. Since the counterclaim was struck out, and there has been no determination on the merits, the defendant is not estopped from bringing a new action against the plaintiff: Samuels v Linzi Dresses Ltd [1981] QB 115 at 126; Baines v State Bank of New South Wales (1985) 2 NSWLR 729 at 738. However that is not necessarily a matter that weighs in favour of the plaintiff. When a defendant applies for an action to be dismissed for want of prosecution before the limitation period has expired, the fact that a new action can be brought weighs against the dismissal of the action because starting again can only aggravate the prejudice to the defendant from delay and add to the costs: Birkett v James [1978] AC 297 at 321, 328, 334. It follows that the possibility of the defendant bringing a new action in respect of the same subject-matter as its counterclaim is a factor favourable to the defendant, not the plaintiff. To make matters more complicated, the defendant would be precluded, in a new action, from prosecuting any claim that was inconsistent with the judgment entered on 1 June.

80 If this application is allowed, the action will be re-opened and the counterclaim reinstated. The plaintiff would then have to go to the trouble and expense of preparing for a mediation and a trial. I expect the plaintiff, like any reasonable litigant, would want to undertake much of its preparation for a possible trial prior to a mediation, so that the strengths and weakness of the parties' cases could be well understood at the time of the mediation. If this application is successful, the plaintiff will find itself in much the same position as it was immediately before the hearing on 28 May. Months will have been wasted. If the plaintiff's claims have merit, it will have been out of pocket for months longer than it should have been. The plaintiff's claims for interest are all disputed. If any of the defences pleaded in relation to the interest claims have any merit, the plaintiff could suffer prejudice in recovering money that is payable to it, without any interest in respect of the period of delay.

81 The strain of litigation on the plaintiff and its management is also a relevant factor. In Ketteman v Hansel Properties Ltd [1987] AC 189 at 220, Lord Griffiths said:

"But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other."

82 In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at par101, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

"But it should not be thought that corporations are not subject to pressures imposed by litigation. A corporation in the position of a defendant may be required to carry a contingent liability in its books of account for some years, with consequent effects upon its ability to plan financially, depending upon the magnitude of the claim. Its resources may be diverted to deal with the litigation. And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end."

83 I have no evidence as to the size of the plaintiff company. The writ shows its address to be a shop in Hobart Road, Young Town. That suggests that it is not an enormous corporation. I have already referred to the size of its claims, the size of the counterclaim, and the number of years that this litigation has been pending. In those circumstances, I see the strain of litigation on the plaintiff and its management as quite a significant factor.

84 A great deal of guidance as to the weight to be attached to case management considerations can be gained from the High Court's recent decision in Aon Risk Services Australia Limited v Australian National University (supra). That case concerned a very late amendment to a statement of claim that was permitted by a judge. The High Court unanimously held that the amendment should not have been permitted, making it clear that, in the circumstances of that case, case management considerations should have resulted in the plaintiff not being permitted to litigate a claim not previously raised, even though that claim might have been a just one.

85 The applicable rules in that case contained a rule modelled upon the Civil Procedure Rules 1998 (UK), s1.1. Tasmania is one of the remaining Australian jurisdictions that does not have such a rule. However it is significant that the case management provisions in our rr414 - 417 were applicable to this action and that many directions hearings were held in accordance with those rules. The purpose of such directions hearings appears from r415(2), which reads as follows:

"(2) The purpose of a directions hearing is to eliminate any lapse of time from the commencement of a proceeding to its final determination beyond that reasonably required for pleadings, affidavits, discovery and other interlocutory matters essential to the fair and just determination of the issues in contention between the parties and the preparation of the case for trial."

86 In past times, the management of litigation was left to the parties, but times and practices have changed. French CJ said the following as to such changes in Aon v ANU at pars23 - 24:

"In this respect, however, the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources. ...

The discretion [to allow an amendment] is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation."

87 When one looks at the long history of this litigation, it is clear that the existence of rr414 - 417 and the holding of a great many directions hearings over 4½ years from November 2004 to May 2009 achieved remarkably little in relation to the avoidance of delays and costs. The defendant was compelled to make, file and serve first one sworn list of documents, and then another, in each case only after multiple directions hearings and eventually an application for judgment. More than once, for no reason that is apparent from the evidence or the records of the Court, the action was allowed to go to sleep for periods of months when, in my view, aggressive case management was necessary if there was to be any hope of completing interlocutory procedures without undue delay. Cases like this are an embarrassment to the Court. They cause individuals to lose respect for the authority of the Court and, in the words of French CJ, "confidence in the rule of law".

88 With the litigation in its fifth year, Holt AsJ encountered conduct that was not just dilatory, but also contumelious. The proceedings before me were conducted with efficiency and professionalism, but otherwise the way in which this litigation has been conducted on behalf of the defendant since 28 May suggests that there is very little reason to expect any significant improvement in the application of the defendant company and its lawyers to the task of properly preparing the proceedings for a trial. If the proceedings were reinstated, I think the risk of further unnecessary delays and wasted costs would be high.

89 The defendant company, over a period of years, was very slow to take routine steps in this litigation, and took them only after repeated efforts on the part of the plaintiff's solicitors and the Court to force them to be taken. Whilst not entirely unwilling to advance towards a trial, the defendant was unacceptably dilatory, and the conduct of its solicitor became contumelious. Orders were ignored and flouted. No evidence has been adduced that any extraneous circumstances ever prevented the defendant from preparing for trial in a timely fashion, nor that the defendant was an innocent litigant let down by a negligent solicitor, nor that it had a strong case, nor that the plaintiff had a weak one. The defendant could have put itself in a stronger position by doing all it could to settle the final edition of the certificate of readiness, but it has not done so. If the judgment is not set aside, the defendant will remain deprived of the right it had to defend claims for a large sum of money, and its right to prosecute its claims against the plaintiff in a new action may be impeded in some respects. But, having regard to the likely impact on the plaintiff of the order now sought, and to the other factors I have mentioned, I think it would not be in the interests of justice to set aside the plaintiff's judgment. Ignoring and flouting orders can reach a point where the only just course is to deprive a litigant of the right to litigate. In my view that point has been reached in this case.

90 For these reasons, I dismiss the application for an extension of time, the appeal, and the application to set aside the judgment.