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.
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... 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].