Practice and procedure - Application to extend time for compliance with springing order - Springing order required plaintiff to file affidavit of service - Affidavit filed within time but execution defective - Judgment entered for defendants - Relevant considerations on application to extend time for compliance with springing order - Application to extend time granted - Turns on own facts

1 NEWNES J: This is an application by the plaintiff to extend the time for compliance with a springing order, his non-compliance with the time limit specified in the existing order having led to the proceedings being dismissed.

2 The proceedings have a sorry history of delay on the plaintiff's part. The overall history to June 2006 is set out in my reasons for judgment, delivered on 15 December 2006, on the defendants' unsuccessful application to strike out the action for want of prosecution: Van Blitterswyk v Sons of Gwalia Ltd [2006] WASC 283. On that application, I concluded that while there had been substantial delay on the plaintiff's part, the interests of justice did not require that the claim be struck out. I said:

I consider that the proper course is to programme the remaining interlocutory steps, with such sanctions for non-compliance as may be appropriate, with the object of getting the application for leave on for hearing as soon as that can reasonably be achieved [80].

3 The aim at that stage of getting the proceedings on for a prompt hearing was ultimately thwarted by the events which are the subject of the current application.

4 The springing order which is the subject of this application was the culmination of significant delay by the plaintiff in taking steps to effect proposed amendments to the originating process and to join additional parties as defendants to the proceedings. To trace the relevant history of this aspect of the matter it is necessary to go back to an early stage of the proceedings.

5 On 6 October 2005, the defendants' solicitors raised with the plaintiff's solicitors what the defendants' solicitors said were deficiencies in the originating process and the need to join additional parties as defendants to the proceedings, namely Sons of Gwalia, Murchison NL, Tarmoola Australia Pty Ltd and City Resources (WA) Pty Ltd (the proposed corporate defendants).

6 On 17 October 2005, an order was made by consent that any application by the plaintiff to amend the originating process and to join the proposed corporate defendants be filed by 28 October 2005. No such application was made. After further prompting by the defendants' solicitors, on 15 November 2005 the plaintiff applied by chamber summons (the application for amendment and joinder) to amend the originating process in certain minor respects and to join the proposed corporate defendants.

7 On 29 November 2005, the defendants' solicitors wrote to the plaintiff's solicitors asking them to provide affidavits of service of the application for amendment and joinder on the proposed corporate defendants. They repeated that request by facsimile of 7 February 2006, to no avail. When the application for amendment and joinder came on for hearing at a special appointment on 8 February 2006 it was adjourned because the proposed corporate defendants had not been served.

8 After a number of complaints about the continuing delay in the proceedings generally, on 23 June 2006 the defendants brought the application to strike out the proceedings for want of prosecution. That application was heard on 9 October 2006 and, as I have mentioned, I delivered my decision on 15 December 2006.

9 At the time I delivered my decision, having referred in it to the objective of getting the proceedings on for hearing as soon as reasonably practicable, I told the parties that they should confer in relation to appropriate directions to advance the proceedings and, in the absence of agreement on those directions, to re-list the matter to enable appropriate directions to be made by the court.

10 On 12 January 2007, the defendants' solicitors wrote to the plaintiff's solicitors enclosing a minute of proposed directions and asking for a response within seven days. By the minute, the defendants proposed an order that within seven days the plaintiff file and serve any application to amend the originating proceedings and to join further parties, failing which the proceedings be dismissed. The minute included further orders relating to service of documents in connection with any such application and orders consequent upon the ultimate disposition of it.

11 No response was received from the plaintiff's solicitors and the defendants' solicitors wrote again on 22 January 2007, noting that there had been no response and requesting the available dates of the plaintiff's solicitors to enable the matter to be re-listed. It appears there was no response from the plaintiff's solicitors.

12 At the defendants' instigation, the proceedings were ultimately re-listed for directions on 1 March 2007. In a telephone conversation on 1 March 2007, prior to the hearing, the plaintiff's solicitor, Ms McKenzie, told the defendants' solicitor that, due to an administrative error, she (the plaintiff's solicitor) was not in a position to attend the hearing. Ms McKenzie said she did not object to an order in terms of the minute of 12 January 2007 that the application to amend the originating process and to join additional parties, and any application for substituted service on any party, be listed for substantive hearing. (It is not clear from the affidavit evidence whether the application referred to by the plaintiff's solicitor was the application filed on 15 November 2005 or some further application that was then in contemplation.) The plaintiff's solicitor suggested that the other matters in the minute be deferred.

13 The defendants' solicitors attended at the hearing on 1 March 2007 at which orders were made, among others, that:

1. Within 14 days, the plaintiff file and serve any application to amend the originating application and any application to join further parties as defendants together with any affidavit in support of the application.
2. Within 14 days the plaintiff serve a copy of the affidavits of Carmel McKenzie sworn 13 September 2005 and 4 November 2005 in support of the originating application upon any party who it is proposed to join as a party.
3. Within 14 days of filing the application to amend and join defendants, the plaintiff file and serve affidavits verifying service of the application and the affidavits referred to in paragraphs 2 and 3 upon each defendant and proposed defendant or, in the event that a party is not served, the plaintiff file and serve an application for substituted service upon that party together with an affidavit in support thereof.

14 The defendants' solicitors wrote by facsimile to the plaintiff's solicitors the same day informing them of those directions and saying, among other things, that if any of the deadlines referred to in the orders were breached by the plaintiff, the defendants would lodge an immediate application to the court without notice.

15 On 13 March 2007, the plaintiff's solicitors filed an interlocutory application (the second joinder application) seeking orders for the joinder of the proposed corporate defendants and of three further defendants to the action, and to amend the originating process in accordance with a minute of amended originating application said to be attached to the second joinder application. It appears that it was not in fact attached. The three further defendants the plaintiff sought to join were a Ms Evans, a Mr Ian Ladyman and a Mr Richard Ladyman. The second joinder application was supported by an affidavit of William McKenzie, sworn 8 March 2007, which set out the grounds upon which it was sought to join Ms Evans and Messrs Ian and Richard Ladyman.

16 The solicitors for the defendants wrote to the plaintiff's solicitors by facsimile of 16 March 2007 pointing out what they considered to be deficiencies in the second joinder application and the supporting affidavit. The deficiencies complained of included the omission of any minute of amended originating application and the absence of any affidavit setting out the grounds upon which it was sought to join the proposed corporate defendants. The defendants' solicitors also referred to the order of 1 March 2007 which required that, within 14 days of the filing of the second joinder application, the plaintiff file and serve affidavits verifying service of it on the proposed additional defendants. They observed that the hearing of the second joinder application, listed for 26 March 2007, would have to be adjourned if service on the proposed additional defendants had not been effected before then.

17 It appears there was no response from the plaintiff's solicitors to that facsimile.

18 When the second joinder application came on for hearing on 26 March 2007 the plaintiff had not verified service on any of the proposed additional defendants. At the hearing, the plaintiff's counsel foreshadowed an application for substituted service on some of the proposed defendants. The plaintiff was ordered to file and serve any application for substituted service and supporting affidavit by 6 April 2007 and any such application, together with the second joinder application, was adjourned to 3 May 2007.

19 On 4 April 2007, the defendants' solicitors filed an application, among other things, for an order that unless, by 4.00 pm on 27 April 2007, the plaintiff filed and served affidavits verifying service on the proposed additional defendants of the second joinder application, the affidavit of Ms McKenzie of 13 September 2005 (in support of the originating process), and Ms McKenzie's affidavit of 4 November 2005 (which set out the grounds upon which it was sought to join the proposed corporate defendants), the proceedings be dismissed and judgment be entered for the defendants. That application was expressed to be made on the basis, among other things, that the plaintiff had failed to comply with the order of 1 March 2007. As I understand it, the defendants relied upon the failure of the plaintiff to file an affidavit verifying service of the second joinder application and the affidavits of the plaintiff's solicitor on the proposed additional defendants, or alternatively an application for substituted service, within 14 days of the filing of the second joinder application on 13 March 2007.

20 The defendants' application for those springing orders was listed for hearing before the acting master on 12 April 2007.

21 On 4 April 2007, Ms McKenzie, on behalf of the plaintiff, spoke by telephone to a solicitor representing the defendants and informed him that the second joinder application and the affidavits had been served on the proposed additional defendants. Ms McKenzie said she was awaiting receipt of an affidavit from the process-server and would forward a copy as soon as she received it. Ms McKenzie told the defendants' solicitor that if there were any difficulties he should telephone her.

22 On 5 April 2007, the plaintiff's solicitors filed an affidavit of a process-server verifying service on the proposed corporate defendants and on Mr Ian Ladyman. The process-server deposed to service on Mr Ian Ladyman as constituting service on Ms Evans and Mr Richard Ladyman as well. It is clear, however, and it was accepted by the plaintiff's solicitors, that service on Mr Ian Ladyman was not proper service on Ms Evans or Mr Richard Ladyman.

23 At the hearing on 12 April 2007, the acting master made the springing orders sought by the defendants. Those orders included an order in the following terms:

Unless by 4.00 pm on 27 April 2007 the Plaintiff files and serves upon the Second and Third Defendants affidavits verifying service of the Plaintiff's application for joinder and leave to amend the originating process and the affidavits of Carmel McKenzie sworn 13 September 2005 and 4 November 2005 upon the parties it proposes to join as defendants, the plaintiff's application for leave nunc pro tunc be dismissed and judgment be entered for the Second and Third Defendants with costs.

24 On 24 April 2007, the plaintiff's solicitors filed an affidavit of Mr Ian Ladyman in which he deposed to having served the documents referred to in the springing order on Ms Evans and Mr Richard Ladyman on 19 March 2007. That affidavit was witnessed by Ms McKenzie. However, by virtue of s 9(7) of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) (the Oaths Act), as the solicitor acting for the plaintiff in the proceedings, Ms McKenzie was not an authorised witness for the affidavit.

25 It is not clear from the material before me when the defendants' solicitors were served with the affidavit of Mr Ian Ladyman. However, it was not suggested on behalf of the plaintiff that there was any undue delay before the defendants' solicitors wrote by facsimile to the plaintiff's solicitors on 1 May 2007, pointing out that the affidavit of service of Mr Ladyman was contrary to the provisions of the Oaths Act. The defendants' solicitors said in the facsimile that such an affidavit did not constitute a valid affidavit for the purposes of the springing order, with the result that the springing order appeared to have self-executed and the defendants were entitled to judgment. The defendants' solicitors said that unless the plaintiff could show cause by 9.00 pm on 3 May 2007 why judgment should not be entered, they were instructed to enter judgment with costs.

26 Ms McKenzie says that immediately upon receipt of the facsimile she telephoned the defendants' solicitors and told them that an application would be made for an extension of time to enable an affidavit in proper form to be filed.

27 I should interpose that it was not disputed on behalf of the plaintiff that the defect in the affidavit of service meant that the springing order had not been complied with and that the proceedings had been dismissed: Hawthorn Football Club Ltd v Arfmas Pty Ltd (Unreported, WASCA, Library No 6896, 22 October 1987).

28 In the meantime, on 2 May 2007 Ms McKenzie swore an affidavit in which she deposed to matters relevant to the grounds upon which it was sought to join the proposed additional defendants. Ms McKenzie went on to say that on 23 April 2007 she had spoken to Mr Ian Ladyman who had confirmed that, following discussions with Mr Richard Ladyman and Ms Evans, they did not intend to oppose the application to join them as defendants and they did not intend to file a notice of appearance or to take any part in the proceedings.

29 On 2 May 2007, at 5.09 pm, the plaintiff's solicitor sent by facsimile to the court a letter enclosing, among other things, a chamber summons for an order extending the time for compliance with the springing order to 9 May 2007 and an affidavit of service of Mr Ian Ladyman of 2 May 2007, sworn before an independent solicitor. Although in her affidavit in support of the present application Ms McKenzie says that she sought to have the chamber summons listed for 9.15 am on 3 May 2007, in fact the covering letter simply said that the documents were for 'urgent filing'.

30 The second joinder application came on for hearing before me on 3 May 2007. Counsel for the plaintiff conceded that the springing order had self-executed and said that the plaintiff intended to apply to extend the time for compliance with the springing order. I told the plaintiff's counsel that he should inform his instructing solicitors that any application to extend the time for compliance with the springing order should be filed and served forthwith, and that the plaintiff's solicitors should confer with the defendants' solicitors regarding directions so that directions could be made on the papers and the application to extend time be listed immediately for a special appointment.

31 On 4 May 2007, the plaintiff's solicitors filed the original chamber summons dated 2 May 2007 seeking an extension of the time specified in the springing order to 9 May 2007.

32 In an affidavit filed on 8 August 2007 in support of the current application, Ms McKenzie says that when she returned from interstate on 7 May 2007, she directed her office manager to obtain the original chamber summons and make arrangements for it to be listed for hearing. Ms McKenzie then goes on to say:

Upon examination of the file it would appear that messages were left with the Supreme Court in relation to this matter seeking the return of the chamber summons and advice in relation to what was required for the Summons to be re-listed. The Chamber Summons was referred to as a Chamber Summons filed on 2 May 2007 which was the date we believed the Chamber Summons had then been filed.

It would now appear that the Chamber Summons had been filed at the Supreme Court on 4 May 2007.

33 Although it is by no means clear, I understand that to mean that the return of the summons to enable service of it to be effected and the obtaining of a hearing date for it were delayed because of confusion between the plaintiff's solicitors and court staff over what summons was being referred to.

34 Ms McKenzie says that subsequently her office manager, who had been diagnosed with a serious illness and was scheduled to be away for a few days for treatment, turned out to be away for an extended period. Ms McKenzie says that she became aware on 18 June 2007 that the application to extend the time for compliance with the springing order had not been listed for hearing. She wrote to the court on 20 June 2007 asking that the application be listed for hearing.

35 A copy of that letter was sent to the defendants' solicitors who in turn wrote immediately to the court saying, among other things, that the chamber summons was defective in a number of respects and should not be listed. Ms McKenzie said she then requested that the matter be listed notwithstanding the letter from the defendants' solicitors and it was finally set down for hearing on 1 August 2007. Notice of the hearing date was then given to the defendants' solicitors.

36 On 1 August 2007, programming orders were made for the hearing of the application to extend the time for compliance with the springing order. Although there was some minor delay in compliance with those directions, nothing, in my view, turns on that.

37 In support of the application to extend the time for compliance with the springing order, it was submitted on behalf of the plaintiff that there was no intention to flout or ignore the springing order, but rather the non-compliance with it was the result of an error by the plaintiff's solicitor in respect of a technical aspect of the affidavit that was filed. The defect in the affidavit was simply an irregularity and a matter of form, not substance, the documents referred to in it clearly having been served. An affidavit in the correct form was filed promptly after the irregularity was brought to the attention of the plaintiff's solicitor. Moreover, as appears from Ms McKenzie's affidavit of 2 May 2007, the proposed defendants concerned, Ms Evans and Messrs Ian and Richard Ladyman, do not intend to take any part in the proceedings. There could have been no prejudice to the defendants.

38 Counsel also argued that if the time for compliance were not extended, the plaintiff, through no fault of his own, would suffer substantial and irreparable prejudice, in that he would be denied the opportunity to participate in the objection proceedings in the Warden's Court and in the plaint for forfeiture of the relevant tenements. On the other hand, any prejudice to the defendants could be adequately cured by an order for costs.

39 Counsel for the plaintiff also argued, as she had argued in opposition to the earlier application to dismiss the proceedings for want of prosecution, that it is important to have regard to the nature of the proceedings in question.

40 In these proceedings, the plaintiff seeks leave to proceed nunc pro tunc under s 440D of the Corporations Act 2001 (Cth) to lodge and pursue in the Warden's Court both objections to exemption applications made by the first defendant (Sons of Gwalia) under the Mining Act 1978 (WA) in respect of certain mining tenements and plaints which the plaintiff has filed for the forfeiture of those tenements. The application is necessary because administrators were appointed to the registered holder of the tenements, Sons of Gwalia, on 29 August 2004. However, on 21 March 2005 Sons of Gwalia sold its interest in the tenements to the second defendant (St Barbara). In turn, on 14 October 2005 the third defendant (Saracen) acquired an interest in the tenements from St Barbara.

41 Counsel for the plaintiff argued that these proceedings do not form the substantive matters at issue between the parties, the substantive matters lying in the proceedings in the Warden's Court in relation to the tenements. The current proceedings are required simply to meet the provisions of s 440D, provisions which are designed to ensure that the interests of creditors of a company under administration are protected during the administration. In fact, those provisions are now being relied upon by St Barbara and Saracen in circumstances where the company under administration - Sons of Gwalia - has no beneficial interest in the tenements in question and has not had any beneficial interest in them since 21 March 2005. There is therefore a lack of merit in the defendants' reliance on s 440D, a matter which is relevant to the present application.

42 On the question of delay, it was argued on behalf of the plaintiff, in much the same way as it had been argued on the earlier strike out application in relation to delay, that any delay would not cause any substantial prejudice to the defendants. Regardless of the plaintiff's objections and plaints, the defendants will have to make good the grounds relied upon in the exemption applications lodged by Sons of Gwalia, and much of the same ground would have to be covered in evidence in doing so. If the objections are allowed to proceed, the only substantive difference will be that the plaintiff will have an opportunity to test the evidence relied upon in support of the exemption applications.

43 The defendants' counsel argued that it was necessary to consider the non-compliance with the springing order, not in isolation, but in the context of the history of the proceedings as a whole.

44 It was submitted that as in these proceedings the plaintiff is seeking leave to proceed nunc pro tunc - that is, leave that should have been obtained before the plaints and objections were issued - it was incumbent upon him to proceed expeditiously with the prosecution of the proceedings and the court should be reticent to relieve him from the consequences of delay.

45 The springing order was made in circumstances where there had been substantial, unnecessary and unexplained delay by the plaintiff in seeking the joinder of further defendants to the proceedings and in making amendments to the originating process, with the result that the proceedings had been languishing for a considerable period of time.

46 Moreover, not only did the plaintiff fail to comply with the springing order, but there had been substantial delay subsequently in seeking an extension of time to comply with it. The chamber summons of 2 May 2007 was sent to the court by facsimile at 5.09 pm on 2 May 2007 and that was the reason it was not listed on 3 May 2007. After the hearing on 3 May 2007, the plaintiff did not take any steps until 7 May 2007 when the plaintiff's solicitor asked her office manager to follow the matter up. Nothing more was done by Ms McKenzie until 18 June 2007 when she became aware that the application to extend time had not been listed. An amended chamber summons, directed at curing certain deficiencies in the earlier chamber summons for an extension of time, was filed and served on 23 July 2007.

47 It was submitted that the defendants are prejudiced by the plaintiff's delay in that they are faced with continuing uncertainty over the fate of the tenements while these proceedings remain unresolved and while, as a consequence, the proceedings in the Warden's Court remain unresolved. The defendants are also prejudiced by the general deterioration in the quality of justice that inevitably results from delay in litigation. In addition, the defendants are incurring holding costs in the order of $100,000 per annum while these proceedings are on foot, with no benefit to them because they cannot make use of their rights as beneficial owners of the tenements while the fate of the tenements remains unknown. On the other hand, any prejudice the plaintiff will suffer if the time is not extended he has brought on himself.

48 I set out the principles that I consider apply to an application of this nature in MTQ Holdings Pty Ltd v Lynch [2007] WASC 49. The law as stated there was relied upon by the defendants on this application and I did not understand the plaintiff to take issue with it. For convenience I will repeat, so far as relevant, what I said in that case:

It is clear, and it was not in dispute, that a court at first instance has the power to extend time under a self-executing order which has 'sprung': FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268.

It is axiomatic, however, that peremptory orders are made to be obeyed and they are generally only made where (as in this case) the party in default has already failed to comply with the requirements of the rules of court and with an order of the Court. As Auld LJ noted in Hytec Information Systems Ltd v Coventry City Council [1996] EWCA Civ 1099; [1997] 1 WLR 1666 at 1676, an 'unless order' is by its nature intended to mark the end of the line for a party who has failed to comply with it and any previous orders of the Court.

It is, moreover, plainly important to the administration of justice that orders of the Court are complied with. Browne-Wilkinson VC observed in Re Jokai Tea Holdings Ltd (supra), that obedience to orders of the Court is the foundation on which its authority is founded. It follows that any approach which tends to encourage the development of a culture of non-compliance, where orders, even peremptory orders, of the Court are not given the attention and priority they require, must inevitably tend to undermine that foundation.

Accordingly, the power to extend time when a springing order has not been complied with is a power to be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored: Samuels v Linzi Dresses Ltd [1981] QB 115, per Roskill LJ at 126 - 127.

...

... given the nature of a springing order, the starting point must be that it is for the defaulting party to establish why it should be permitted to continue with the litigation despite its non-compliance. In my view, it will generally not be sufficient simply to show that the non-compliance was not intentional and contumelious. The authority of the Court will equally be undermined, and the quality of justice for the innocent party eroded, if the ultimate sanction effected by the operation of a springing order can be avoided by showing that non-compliance with the springing order came about by the same sort of inattention or laxity that caused the order to be made in the first place.

Whether the consequences of non-compliance should be visited upon the litigant when the fault lies wholly with its solicitor will depend upon the particular circumstances. But I do not consider that the fact the litigant did not contribute to the default, or even that it was unaware of the springing order, is necessarily sufficient to enable it to avoid the consequences of non-compliance.

Much that occurs in the course of the interlocutory process in litigation is done, and necessarily done, by the solicitors alone, without the active, or any direct, involvement of the litigants. The litigant reasonably leaves such matters wholly in the hands of its solicitors. But that does not mean that the litigant is necessarily excused from the consequences of its solicitor's failure to comply with the requirements imposed by the rules and the orders of the Court in respect of such matters.

The failure to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity offered to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity. That will generally mean that the litigant must bear the consequences of a failure to comply with a springing order, whether the failure was due to the litigant or its solicitor.

The matters to which I have referred above provide the backdrop, in my view, against which the specific matters to which, in any particular case, the Court is to have regard in the exercise of its discretion are to be considered. And while no hard and fast rules can be laid down as to the matters to which the Court should have regard, in my view in the exercise of its discretion the Court will normally have regard to at least the following matters:

(1) the circumstances in which the springing order came to be made;

(2) the reason for non-compliance with the springing order;

(3) the prejudice to the defaulting party if the time were not extended; and

(4) the prejudice to the other party if the time were extended.

It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits - there being no point in resuscitating a case that is devoid of merit - but, on the other hand, the fact that a party has an apparently meritorious case cannot be permitted effectively to act to insulate it from the consequences of a failure to comply with a peremptory order of the Court.

But as I have said, in the end the matters that are to be weighed in the balance, and the weight to be given to each, cannot be stated definitively but must depend upon the circumstances of the particular case [38] - [57].

49 It is in the light of those principles that I turn to the merits of the plaintiff's application.

Should the time for compliance be extended?

50 I accept the defendants' submission that the circumstances to be considered on this application extend beyond the immediate events which caused the plaintiff to fail to comply with the springing order and include the circumstances which led up to the springing order being made in the first place and the events which followed the plaintiff's non-compliance with it.

51 In my reasons for decision of 15 December 2006, I observed that in light of his delay in commencing the proceedings, it was particularly incumbent on the plaintiff to pursue them with appropriate despatch. I concluded that he had not done so; that it was clear the proceedings had not been pursued with proper diligence and that there had been substantial unnecessary delay on the plaintiff's part. In the end, however, I did not consider that the interests of justice required that the proceedings be dismissed and concluded that the proper course was to programme the remaining interlocutory steps to bring the application on for hearing as soon as that could reasonably be achieved.

52 In the light of what I said at that time, I do not think there could have been any doubt that it was necessary for the plaintiff to ensure that there was no further unnecessary delay on his part and that the outstanding interlocutory matters were attended to expeditiously.

53 The need for timeliness appears, however, to have made, at best, only a limited impression on him or, possibly more accurately, his solicitors. More than six weeks elapsed from 16 January 2007, when the defendants' solicitors forwarded the minute of proposed directions to the plaintiff's solicitors, to 1 March 2007, when the plaintiff's solicitors responded to it, that response only occurring on the morning of the directions hearing. And whilst the second joinder application was lodged by the plaintiff's solicitors on 13 March 2007, within the 14 days required by the directions given on 1 March 2007, by the time of the hearing of that application on 26 March 2007 there was still no evidence that it had been served on any of the proposed defendants. The plaintiff then foreshadowed an application for substituted service on some of the proposed defendants, leading to an order made on 26 March 2007 that any such application be made by 6 April 2007. No application for substituted service was made.

54 When the defendants' application for a springing order came on for hearing before the acting master on 12 April 2007, the plaintiff was more than two weeks outside the time limit specified in the order of 1 March 2007 for the filing of affidavits verifying service of the second joinder application on the proposed defendants. In the light of the history of the matter, it could have come as no surprise to the plaintiff's solicitors that the springing order was made, nor could they have failed to appreciate the drastic consequences if the order was not complied with, and therefore the need to take particular care to ensure that that did not occur. Nevertheless, it did occur.

55 It is correct, as the plaintiff's counsel pointed out, that the defect in the affidavit of service which led to the non-compliance with the springing order is a technical one. That is clearly a significant factor. However, I must say it is an error on the part of the plaintiff's solicitor (who is an experienced practitioner) which it is very difficult to understand. The rule that the practitioner acting for a party is not a competent witness for an affidavit of that party is certainly not a new one, nor could it be described as obscure. Indeed, in this jurisdiction until 1992 it had been the rule, contained in O 37 r 12 of the Rules of the Supreme Court 1971 (WA), that neither the practitioner acting for a party nor any agent or partner of that practitioner was a competent witness for an affidavit of that party. Order 37 r 12 was amended in 1992 to allow a practitioner to witness an affidavit so long as the practitioner had not participated in the preparation of the affidavit or in the conduct of the proceedings in which the affidavit was to be filed. As from 1 March 2007, O 37 r 12 was repealed and the same rule was embodied instead in s 9(7) of the Oaths Act.

56 That rule is so fundamental and so well known to practitioners who practice in litigation as fairly to be regarded as trite. In the circumstances, it is not easy to conceive how the plaintiff's solicitor came to witness the affidavit.

57 In any event, while the nature of the non-compliance with the springing order is a significant factor to be weighed in the balance, it cannot be considered in isolation but must be considered in the context not only of the conduct that led to the springing order being made, but also the plaintiff's conduct after it.

58 Once the springing order had 'sprung', it was plainly incumbent upon the plaintiff to move promptly to bring on any application for an extension of time. In the circumstances, I do not consider that it was sufficient for Ms McKenzie to direct her office manager to arrange for the chamber summons for an extension of time to be listed, and apparently then not to turn her attention to the matter again for some six weeks, until she became aware on 18 June 2007 that it had not been listed. Whatever the specific reason or reasons that the chamber summons was not listed for hearing, in the circumstances the failure, over the period 7 May 2007 to 18 June 2007, to follow the matter up gives cause for concern that the plaintiff, or his solicitor, is still not prepared to give, or is not capable of giving, the proceedings the attention and priority they require.

59 It was not in issue for the purposes of this application that the plaintiff has a reasonably arguable case. While I was urged by counsel for the plaintiff to go further than that and to find that there was a lack of merit in the defendants' reliance on s 440D of the Corporations Act, I consider that it is neither possible nor appropriate to do so. Apart from any other consideration, on the basis of the necessarily limited material before me on this application it is simply not possible fairly to weigh the respective merits of the parties' cases.

60 If the time for compliance is not extended, the result will be that the plaintiff will lose the opportunity to object to the exemptions sought under the Mining Act and will lose the benefit of the plaints. I accept that the prejudice to him would be substantial. On the other hand, I also accept that the defendants are prejudiced by the delay in these proceedings in that, apart from the general sort of prejudice that is inherent in delay in litigation, their entitlement to retain the tenements has been, and will remain, effectively in limbo for the duration of these unnecessarily prolonged proceedings and that in the meantime they continue to incur expenses in relation to the tenements.

61 It remains the case, however, that regardless of the plaintiff's applications in the Warden's Court, it will have to be established on behalf of the defendants that the exemption applications lodged by Sons of Gwalia should be granted, and in that respect much of the same evidence will have to be covered whether or not the plaintiff's objections and plaints remain on foot. I canvassed the relevant considerations in that connection in my reasons for decision in the application to strike out these proceedings for want of prosecution and I will not repeat them.

62 The plaintiff's counsel has frankly, and quite properly, acknowledged that the fault in failing to comply with the springing order, and the delay in having the application to extend the time for compliance listed for hearing, lies entirely with the plaintiff's solicitors, not with the plaintiff himself. However, while that is plainly a relevant consideration on an application of the present nature, the fact that the fault lies entirely with the defaulting party's solicitor is by no means decisive. It is only one element to be weighed in the balance. In the end, what falls to be determined is what is in the interests of justice, having regard to the interests of both parties and to the proper administration of justice.

63 I consider that, in all of the circumstances, the interests of justice require that the time for compliance with the springing order should be extended. I have reached that conclusion not without some hesitation. But, in particular, having regard to the fact that the non-compliance with the springing order lay only in the form in which the affidavit of service was witnessed rather than a substantive failure to comply with the time limit, to the fact that the fault in that respect and the delay in pursuing this application lay wholly with the plaintiff's solicitor rather than with the plaintiff himself, and to the prejudice that would be suffered by the plaintiff and the defendants respectively if the time was extended or alternatively if it was not, in my opinion on balance it is appropriate to grant the application.

64 It must be stressed, however, that so far as non-compliance with the rules of court and orders of the court are concerned, the plaintiff should proceed on the basis that he has now run out of lives. I propose to set a timetable to ensure that the proceedings go to a substantive hearing as soon as that can realistically be achieved and, absent compelling circumstances, the plaintiff will be expected to comply strictly with it. The plaintiff and his solicitors will have to marshal such resources as may be necessary to ensure that they are in a position to do so.

65 I will hear the parties on the appropriate orders and on costs.