BETWEEN : SERVCOM AUSTRALIA PTY LTD (ACN 082 189 688)

Practice and procedure - Application for extension of time to comply with a springing order - Turns on own facts

Hawter v Stevens, unreported; SCt of WA (Master Sanderson); Library No 970645; 25 November 1997

1 MASTER SANDERSON: On 17 November 1999 Registrar Dixon ordered that unless by 22 November 1999 the defendant complied with an order for discovery made 3 November 1999 the defendant's defence in these actions be struck out and judgment be entered for the plaintiffs with damages to be assessed and costs. The defendant did not comply with that order. Accordingly, on 23 November 1999 judgment was entered for the plaintiffs. The defendant appeared in person before the Registrar and has appeared in person throughout all subsequent proceedings.

2 On 3 December 1999 the defendant lodged a document which was entitled "Notice of Appeal". By this notice the defendant sought to set aside "the whole of the judgment of Registrar Dixon". The notice was said to be brought pursuant to O 60A. The matter came on for hearing before Master Bredmeyer on 25 February 2000. On 29 February 2000 the learned Master published reasons and dismissed the appeal: see Servcom Australia Pty Ltd & Ors v Shenton [2000] WASC 49. Without referring to the Master's decision in detail, it is apparent that he concluded that the appeal was incompetent. Registrar Dixon did not enter judgment against the defendant. The learned Registrar made an order which was self-executing and judgment was entered pursuant to that order.

3 By this application the defendant sought to "set aside judgment of 23 November 1999". In fact, what the defendant was seeking was an extension of time to comply with the Registrar's order pursuant to O 3 r 5. During the course of his submissions, counsel for the plaintiffs pointed out that the application was incompetent. However, he acknowledged that it was apparent what orders the defendant was seeking and the matter was argued on the basis that the application was for an extension of time.

4 The history of this matter can be summarised in the following way. On 3 November 1999 the parties appeared before Registrar Dixon on a case management conference. The plaintiffs complained that the affidavit of discovery filed by the defendant was inadequate. That was clearly the case. Counsel for the plaintiffs pointed out the deficiencies in the affidavit and the Registrar, by reference to O 26 r 6, indicated to the defendant what was necessary to comply with the requirement to provide discovery. After making the point, the following exchange took place between the Registrar, counsel for the plaintiffs and the defendant:

"THE REGISTRAR: Do you say anything about that, Mr Shenton? Do you have any difficulty with that?

SHENTON, MR: I have got no problem with that. It's just a matter of putting a stat dec together - approximately on such-and-such - - -

SHENTON, MR: An affidavit - sorry. It's just a matter of putting it down. Can we make it by way of a springing order, because let's get on with this because it's only a stalling tactic. I know it's unusual to ask.

THE REGISTRAR: If you think it provides you with a bit of incentive to get it done, I will make a springing order.

SHENTON, MR: Let's make a springing order and let's do it. Let's get on it, do you know what I mean, because it's only stalling. You know it and I know it.

SHENTON,MR: Let's spring it and let's do it. 7 days is good. 3 days is great. It can be done today.

SHENTON, MR: No. Sir, I'm asking you to do it - 3 days. I'm not silly. I know what a springing order is.

THE REGISTRAR: The 3 days, where does that make it? Does that make it - - -

SHENTON, MR: Okay. 2 days; good. It can be done today.

THE REGISTRAR: But listen, Mr Shenton, I know I appear to be making life difficult for you but are you going to be able to do this in 2 days?

SHENTON,MR: Sir, I'm going to be able to do it. This is just a stalling tactic. I have had enough so if that's the latest game, then this is what I will do. 2 days is great. I want you to give me a springing order for 2 days; let's get on with it so there's no more stalling. I want this thing heard.

THE REGISTRAR: All right; so what is the order you seek? I just need to phrase it because - - -

MacLAURIN, MR: It would need to be prefaced by the normal self-executing order if not by - - -

THE REGISTRAR: I may as well make a start in this. Unless by - - -

THE REGISTRAR: I'm sorry. I'm looking at a 2000 calendar. Unless by 5 November 1999 the defendant file and serve an affidavit deposing to all documents relevant to the matter that are or have at any time been in his possession, custody or power, and if not now in his possession, custody or power, when he parted with them and what has become of them - are you content with that?

MacLAURIN, MR: No, that's - it's only if it's made clear to Mr Shenton that it should be an itemised list, not just a compendious description of documents - itemised and dated because that's one of the problems with his initial attempt and the gravamen of why they didn't comply with order 26 was because they weren't itemised or separately described.

THE REGISTRAR: What if I say deposing to each and every document relevant to the matter?

SHENTON, MR: Sir, the problem with that of course is then they're going to get up and say, 'Well, this is relevant and that's not relevant.'

SHENTON, MR: I'm not being pedantic here, you understand.

THE REGISTRAR: No, I know, but are you saying though?

SHENTON, MR: What I'm saying is this, that there are no documents that I have in my possession. There are documents common to us which we clearly have but the only wording of that, 'And other documents,' happened to be - I copied it from his statement and added it in. There are no other documents. There is nothing else. Simply what I'm saying is whatever it needs within - I don't want to be and you don't want to be back in court next week where we sort of say, 'Oh, Mr Shenton, you haven't put an extraneous list - - - '

THE REGISTRAR: I don't know, Mr Shenton. I understood you to be saying you had no difficulty - - -

THE REGISTRAR: - - - with an order being made that you file and serve an affidavit which sets out all documents which you have had and which you no longer have - - -

SHENTON, MR: What I don't want to be caught with - - -

THE REGISTRAR: - - - and which are relevant to this matter. Now, I don't know how else I can do it other than - - -

SHENTON, MR: I see, but you understand what I'm trying to say to you is that I don't want to be caught with, 'Oh, and you forgot such and such document,' or, 'Did you have such and such?' which means we have to come back and do this again.

THE REGISTRAR: Mr Shenton, you're the one who has sought the springing order. It's not a problem if there's no springing order because we could have that argument without difficulty. It's only a difficulty if there's a springing order.

SHENTON, MR: Okay then. We don't have a springing order I suppose.

THE REGISTRAR: But you're the one who sought the springing order.

SHENTON, MR: Okay, but you understand why I'm trying to do that.

THE REGISTRAR: I don't really because if you're keen to do it, you will do it anyway whether there's a springing order or not, unless you think you need to have a big stick.

SHENTON, MR: I see; point taken, yes. Okay, so we don't have a springing order. We just have that stuff, still by Friday because it can be done by then.

SHENTON, MR: And in such a way by not being a springing order, then if there is some pedantic argument, then that argument can be raised without the springing order.

THE REGISTRAR: That's right. You're not at risk that a judgment will have been entered against you.

THE REGISTRAR: Can I just say that it's only going to be a problem if you file nothing.

SHENTON, MR: I have got no intention of filing - I have got no - I mean, I'm not - - -

MacLAURIN, MR: I don't think it has ever been the case that a springing order for affidavit of discovery if it's subsequently found to be deficient would self-execute the order so - - -

THE REGISTRAR: That's right; that's right, but I also - I mean, that's right.

MacLAURIN, MR: Mr Shenton's submission on the springing order have been quite forceful as well so - - -

THE REGISTRAR: I mean, I will leave the springing order in if you want.

SHENTON, MR: No, no. I understand your point. I'm happy by Friday to submit all the documents that I have in the way that you have asked. It doesn't necessarily need a springing order as you said because likely there's no point to the springing order if I'm going to do it anyway.

THE REGISTRAR: Yes. I mean that's what - yes, all right; so we will amend this - - -

MacLAURIN, MR: The only other form I might suggest, registrar, is the standard form of, 'Relating to matters in question in this action.' That directs Mr Shenton to the pleadings and - - -

THE REGISTRAR: All right: by 5 November 1999 the defendant file and serve an affidavit deposing to all documents - what was the wording you just used?"

5 The upshot of this exchange was that an order for discovery was made but it was not a self-executing order. However, the exchange makes it plain that the defendant had a clear idea of what was involved in a self-executing order and he appreciated its consequences. The defendant took no steps to comply with the order. The matter then came on before Registrar Dixon again on 17 November. Just prior to the hearing the defendant gave to the plaintiffs' counsel a document which purported to comply with the order made on 3 November, but which clearly did not do so. At the hearing there was then the following exchange:

"THE REGISTRAR: The order made on the last occasion was that by 5 November you file and serve an affidavit deposing to all documents relating to the matters in question in this action which are or have been in your possession, custody or power and if not now in your possession, custody or power, when you parted with them and what has become of them. Now, as far as I am concerned it is not good enough for you to say, 'I had documents but the NCA now has them.' You need to identify the documents as best you can.

THE REGISTRAR: Well, I tried to give you an example. If there are a series of agreements or invoices or letters between you and Servcom of various dates, whatever, you need to say that.

SHENTON, MR: But I cannot either recall or I haven't got the documents.

THE REGISTRAR: You gave me an example, or you started to give me an example a few moments ago.

SHENTON, MR: Can I give you an example of what I could do and see if this works out? There is a list there from Servcom, their side, saying what documents they have got. I have had those similar documents and a lot of others which are now with the National Crime Authority. Does that help anybody?

THE REGISTRAR: Well, it may not in the long run assist anybody but there is the requirement.

SHENTON, MR: Okay, then can we do it right now, today that you put on record that they accept that I have had all of the documents they talked about and others because I can't find them? I can't get them from National Crime Authority. They won't give them back.

THE REGISTRAR: I will try again. All you've got to do is identify as best you can those documents that you have now, or the documents that you once had but no longer have in your possession, and what has become of them. Now, if there are any documents you have in your possession, you simply prepare a list of those. The documents that you have had in your possession but no longer have in your possession, you need to, as best you can, prepare a list of those. So if, for example, there are - if it's correspondence passing between you and Servcom just say what you need to say, 'Correspondence passing between' - in as much particularity as you can. That's what you're required to do.

SHENTON, MR: So why can't we do it right now, that I have had correspondence passed between - - -

THE REGISTRAR: Because the order that was made and the order that you were content for me to make on the last occasion, and indeed encouraged me to make on the last occasion, was that you file and serve an affidavit deposing to these matters.

THE REGISTRAR: I know - all right. I understand that you have thought that, but - - -

SHENTON, MR: It just seems to me a complete waste of time and energy because I cannot get the documents unless - - -

THE REGISTRAR: It doesn't matter. No, no. Look, you don't have to get the documents. All you're required to do is list the documents that you had and that you have.

SHENTON, MR: Okay. Then can we have an adjournment today for a couple of hours - - -

SHENTON, MR: - - - because I'm going to Sydney tomorrow, so I'm not going to be available; so can we have an adjournment today for a couple of hours where we get together and their discovery - I can say, 'Yes, I have had that document, that one, that one, and other documents with the National Crime Authority'?

THE REGISTRAR: If Mr MacLaurin is agreeable to me vacating the order made on a previous occasion I will do it, but - - -

SHENTON, MR: Or if you vacate for a quarter of an hour it would - - -

THE REGISTRAR: No, no; but the order requires that you file and serve an affidavit.

THE REGISTRAR: It does not depose to what is required.

SHENTON, MR: But I could add an addendum to this and get it signed and witnessed.

THE REGISTRAR: Mr reservations are still whether this would be accepted for filing in the Supreme Court.

SHENTON, MR: Originals accepted and filed this morning.

SHENTON, MR: I'm telling you under oath it has been accepted and filed - - -

SHENTON, MR: Okay, but I'm just telling you so you know that it has been done.

SHENTON, MR: They actually told me how to do it. They gave me the form and said, 'Put this bit, put that bit.'

THE REGISTRAR: It doesn't appear on the court system yet, but - I don't know. What have you got there?

SHENTON, MR: It's exactly the same. They're just copies. They're exactly the same. The originals are in the Supreme Court.

THE REGISTRAR: From my point of view, unless Mr MacLaurin is prepared for me to vacate the order, you must file and serve an affidavit which complies with the order made if this affidavit, assuming it has been filed and served, does not do that, for reasons I have tried to outline.

SHENTON, MR: I take you point. It just seems silly because - - -

THE REGISTRAR: No, no. Mr Shenton, I don't want to - - -

THE REGISTRAR: You encouraged me on the last occasion - - -

SHENTON, MR: Are you allowed to rub a bit out like that?

THE REGISTRAR: So as far as I'm concerned you can't complain about the order.

SHENTON, MR: No, I'm not complaining about it. It's just that - - -

THE REGISTRAR: No. You must comply with the order. All right? Now, you have said to me that you filed this in the court and if you say so, I accept that you have done so. Can I say that I think if you wish to - well, in complying with this order you must file a fresh affidavit and I would seriously suggest that you make an effort to get the thing typed so that - - -

SHENTON, MR: Sir, I don't want to spend any more money on this or any other matter. I have been in that court 122 times - - -

SHENTON, MR: - - - and I'm not going to spend any money for - this is acceptable.

THE REGISTRAR: But the writ - I'm surprised that this is acceptable to the court, frankly.

SHENTON, MR: They gave me the documents. They actually then said that - - -

THE REGISTRAR: Hang on. I'm simply saying that I'm surprised that this is acceptable and I'm encouraging you to get the document typed up and ensure that it complies with the rules of the court regarding court documents. All right? If someone at central office chooses to accept it, so be it.

SHENTON, MR: Not only accept, but actually give me the forms on which to copy; give me the paperwork - - -

THE REGISTRAR: This does not follow the normal court form.

THE REGISTRAR: It doesn't say who has filed it; it doesn't say anything like that. There should normally be as section up here with who has filed it, the date of the document and on whose behalf it is filed.

THE REGISTRAR: That's why I'm surprised it has been accepted for filing. Now, I give this back - I can't recall whose this is.

THE REGISTRAR: It's a question of what order I now make. What order do you seek, Mr MacLaurin?

MacLAURIN, MR: Yes. If Mr Shenton is going to be out of the state I think it's better to make the springing order with a slightly longer period of time for compliance than another regular order.

MacLAURIN, MR: For the assistance of Mr Shenton, lest he think that this exercise is fruitless, we can refer him to paragraphs 19 and 20 of the statement of claim, dealing with allegations that he held agencies with other bodies and things of that nature. The second observation we would make is that it would seem odd if the National Crime Authority had seized documents without providing some form of a receipt for them or a receipt - I don't know if that's the case, but it would seem to me self-evidence that that would issue. We would just simply move for a springing order in the same terms. Mr Shenton is away - I'm not sure for what period.

SHENTON, MR: I'm back on Saturday so there's really not a problem to have this done by Monday.

THE REGISTRAR: Don't make a promise you can't keep.

SHENTON, MR: We have just got to get on with it. I mean, paragraph 19 and 20 refers to other agencies - nothing to do with Servcom and their documents.

THE REGISTRAR: It depends - if it's an issue in the proceedings, then it's relevant. You need to sit down, have a look at the pleadings and work out what documents are relevant. The fact that you think, 'How can this have anything to do with the matters in issue?' won't matter if it's on a pleadings and if it's an issue raised on the pleadings and the plaintiff has put it in issue then it may well become relevant.

MacLAURIN, MR: Registrar, because it formed part of our submissions before you on another matter we would say that 14 days would be appropriate because the springing order - if it was pleadings or something of that nature it's different but essentially what we have wanted from Mr Shenton is for him to go on oath with a full and complete list and I don't want it to be said at a later stage that an inadequate qualified list was filed because a springing order was about to lapse and that's really a submission we put to you before. It stands in a slightly different - - -

MacLAURIN, MR: Because you are asking somebody to go on oath with a severe consequence at the other end, so we would say 14 days should be the order and then if the matter can be brought back perhaps 14 days after that to allow for inspection and for the filing of any other affidavits as are necessary on the plaintiffs' applications.

THE REGISTRAR: Do you want to say anything further about that, Mr Shenton?

SHENTON, MR: Another month, another waste of time. It can be done on Monday, we can be back next Wednesday.

THE REGISTRAR: The reason we are here, though, Mr Shenton is because you didn't reply at the last - - -

SHENTON, MR: I take your point, sir. I realise that I have made a mistake on the paperwork. I can ratify it by 4 o'clock on Monday afternoon in a springing order; we can be back here on Wednesday. I am in the court on another matter early in the morning on the Wednesday. We can make it Wednesday lunchtime.

THE REGISTRAR: So are we talking about Wednesday the 24th?

SHENTON, MR: The 24th. Springing order by Monday, which I will comply with. I now understand what is - - -

THE REGISTRAR: Mr Shenton, on the last occasion you encouraged me to make a springing order against you - - -

SHENTON, MR: I understand and I'm not silly now, sir.

THE REGISTRAR: - - - and you would not have complied with it.

THE REGISTRAR: I don't want to make a springing order - - -

SHENTON, MR: Okay, let's make the order for 4 o'clock Monday, that I will have the affidavit, I will go down to the solicitors and get them to type it out and do it properly and comply particularly with paragraph 19 and 20 of the order with the previous agencies or whatever else and play from there.

SHENTON, MR: Yes, 4 o'clock, Monday the 22nd. It will be served in their office because the other solicitor is just in the same building.

THE REGISTRAR: And that gives you enough time to actually prepare all this?

SHENTON, MR: It's just Monday, it's just a matter of just finding out what documents - - -

SHENTON, MR: I take your point. On Monday I will get hold of the document they are after, take it down to the solicitors, get them to type it out and give it to - - -

THE REGISTRAR: I am going to do it this way, Mr Shenton. I will give you until Friday the 26th.

SHENTON, MR: I don't want it stalled, please. You don't seem to understand. It's all right for you. I have got to try and do some work as well as play.

SHENTON, MR: After next week I won't be in the state or around the state for at least 2 months, so if it's done on Monday we can be back on Wednesday; it's all finished.

THE REGISTRAR: I understand perfectly, Mr Shenton. I am reluctant to make a springing order which will have you rushing around to comply with it if the risk is that you will not provide proper discovery.

SHENTON, MR: Let's not make it a springing order then, sir.

THE REGISTRAR: No, no. I am going to make a springing order. Do you wish to have until the 26th?

SHENTON, MR: No. I would prefer to have until Monday, which I can comply with.

THE REGISTRAR: Does that give you enough time to go through and think about the documents that you previously had and to list those, not just to dash off an affidavit such as that which you filed?

SHENTON, MR: If a licence that I held in some other place is what is needed then I will get a copy of that document and add it to the order.

THE REGISTRAR: Right, but are you going to be able to do that by the 22nd?

SHENTON, MR: I will make a point of doing it. You see, the whole point is trying to get this thing done.

SHENTON, MR: And then if we get back here next Wednesday after that, which is the 24th.

THE REGISTRAR: All right. On the two matters I will make the same order that unless by 22 November 1999 the defendant complies with the order made 3 November 1999 the defence be struck out; judgment be entered for the plaintiffs - - - "

6 Reading these two excerpts from the transcript, one can only admire the learned Registrar's patience. At least two things emerge from the exchanges which took place. First, the defendant well and truly understood the nature of a springing order. Of that there can be no doubt and the defendant did not suggest otherwise during the course of his submissions in this application. Secondly, the defendant could have been under no misapprehension of what was necessary for him to satisfy the requirement providing discovery. The learned Registrar went to great lengths to explain the form of discovery and what was needed to comply with the order. During the course of his submissions on this application, the defendant suggested he was not familiar with the procedures of this Court and was genuinely lost and confused as to his obligations in relation to discovery. Frankly, his submission had a hollow ring. Leaving to one side the clear wording of O 26 and the form for discovery provided in the rules, after hearing what the learning Registrar had to say on the subject it is difficult to accept the defendant was unaware of his obligations.

7 It was not in dispute that there is power in the court to extend time for compliance with a springing order, even though judgment has been entered: see FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 154 CLR 268. The principles upon which the discretion to extend time are to be exercised were considered by the English Court of Appeal in Re Jokai Tea Holdings Ltd [1993] 1 All ER 630. Sir Nicolas Browne-Wilkinson VC, after referring to Janov v Moris [1981] 3 All ER 780, put the position in the following terms (at 637):

"In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an unless order, the relevant question is whether such failure is intentional and contumelious. 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 he would otherwise have enjoyed."

8 Counsel for the plaintiffs submitted that reference to the transcript of proceedings before the learned Registrar clearly indicated that the failure of the defendant to comply with the springing order was, to use the words of the Vice Chancellor, "intentional and contumelious". It was not suggested that the defendant had made a decision not to comply with the order. Rather, it was said, that armed with knowledge of what was required to comply with the order, the defendant had failed to do what was necessary. It must be acknowledged that there is much force in that submission.

9 It also must be acknowledged that the plaintiffs' attempts to obtain discovery are not unreasonable, discovery in this case being of some importance. Counsel referred to this fact during the hearing before the Registrar on 17 November 1999. Without going to the pleadings, I should say that I accept that discovery is important to the plaintiffs and that they are not in some way using it as a tactical device to pressure the defendant.

10 Not without some hesitation, I have come to the conclusion that I ought make orders as sought by the defendant. I have reached that conclusion for two reasons. First, if this judgment is allowed to stand, the defendant will be denied the opportunity to put his case on the issue of liability as a result of non-compliance with a procedural requirement. I fully accept that it is essential that the court ensure compliance with its orders. But I am reluctant to reach a decision which will mean that a litigant in person, as a consequence of a procedural lapse, is denied his day in court. I am not satisfied that such a result would be in the interests of justice.

11 Secondly, and of lesser importance, there is the fact that in the past I extended time to allow the fourth plaintiff to comply with a springing order. The circumstances of the fourth plaintiff's application were significantly different to the circumstances in this case. Nonetheless, an indulgence was extended to the fourth plaintiff in the face of a refusal by the Registrar to extend time. While the earlier decision does not in any way govern the decision in this case, it is important the Court be seen to be even-handed.

12 I will conclude these reasons with a blunt and clear warning to Mr Shenton. A review of the transcript from various hearings makes it plain that his attitude to this action is cavalier. He appears to have adopted the view that the procedures of this Court are in some way arcane and unfathomable. If he persists in that approach and does not make an effort to understand the procedures of the Court and his obligations in relation to the action, he will inevitably fail to comply with an order which will have disastrous consequences. It would be a mistake for him to believe that the indulgence from which he has benefited on this occasion is likely to be extended to him in the future.

13 I will hear the parties as to the precise form of the orders. However, in the circumstances, it seems reasonable that the defendant should pay all of the plaintiffs' costs of this application on a full indemnity basis, such costs to be taxed and paid forthwith.