Woodleigh Nominees Pty Ltd as Trustee of the Casey Family Trust & Ors v Commonwealth Bank of Australia [1999] NTSC 63; 150 FLR 460

extend time to comply with the Masters order, and for consequential relief.

The defendants summons of 16 December 1997 was before the Master on

19 February 1998. In that summons the defendant sought to have the

plaintiffs action dismissed for want of prosecution; alternatively, that the

plaintiffs file and serve interrogatories within 14 days and, should they fail

to do so, their action stand dismissed. In a supporting affidavit of 16

December 1997 filed by the defendant, Ms Porter referred to various e arlier

steps in the proceedings. There was a consent order of 16 May 1995 under

which the parties were to "file and serve any interrogatories within 28 days"

of that order; by earlier advice of 21 April 1995 to the plaintiffs then

solicitors the defendant had advised that it did not then intend to interrogate,

but would "comply with the [consent] order [to be made] should it

ultimately decide to [do so]"; and there was advice by the plaintiffs then

solicitors of 25 October 1995 that the plaintiffs interrogatories were then

"in the process of preparation". Ms Porter deposed that there had been

nothing further since then from the plaintiffs, except an indication on 3 June

1997 by a solicitor from the plaintiffs then solicitors that the plaintiffs

intended to administer interrogatories; and that the defendant had never in

fact received any interrogatories from the plaintiffs.

Messrs Mildrens, on the record at the time as the plaintiffs solicitors, did

not appear before the Master on 19 February. The plaintiffs had been

seeking for some time, unsuccessfully, to obtain legal representation. The

fourth named plaintiff, Mr Geoffrey Casey, represented all the plaintiffs

before the Master; it is not suggested that he was not authorized to do so. It

is clear from the transcript of the proceedings before the Master that the

plaintiffs had decided at that time that they still wished to serve

Ms Porter of counsel for the defendant initially informed the Master that the

parties now sought an order by consent, in self-executing terms, as regards

the alternative relief sought by the defendant in par [2]. If the order were

made, the defendant would not proceed further on its application to have the

action dismissed for want of prosecution. Eventually the Master ordered, by

consent, that if the plaintiffs did not file and serve interrogatories for the

examination of the defendant within 6 weeks, that is, by 2 April, the

plaintiffs action would stand dismissed for want of prosecution.

On 6 April, the defendant lodged for entry a form of judgment that the

plaintiffs action be dismissed for want of prosecution, because of their

default in complying with the self -executing order of 19 February; this

judgment was authenticated under r60.02 and entered on 8 April, prior to the

plaintiffs interrogatories being filed later that day, 6 days outside the time

limit allowed by the self -executing consent order of 19 February.

By Notice of Appeal of 27 April 1998 prepared by Mr Casey, the plaintiffs

sought an extension of time within which to appeal against the Masters

decision of 19 February, an extension of time to 8 April to file and serve

their interrogatories, and the reinstating of their dismissed action.

By the time the plaintiffs appeal came on for hearing before me on 14 May,

the plaintiffs had very recently managed to obtain legal representation.

Their counsel, Mr McCormack, applied to have the hearing adjourned. Mr

Lunn of counsel for the defendant opposed this application. It quickly

became evident that the appeal itself was misconceived; for example, under

r77.05(2) leave is required before a consent order of the Master can be

appealed. In the result, Mr McCormack did not pursue his application for an

adjournment of the hearing of the appeal, and instead sought leave to

withdraw the appeal. He also applied orally to extend the time for

compliance with the Masters order of 19 February from 2 April until 8

April, the date on which the plaintiffs had in fact filed their interrogatories,

Mr Lunn sought to have imposed as a condition of granting leave to

withdraw the appeal, that the plaintiffs pay the costs of the action to 8 April;

alternatively, that they pay the costs relating to the judgment of 8 April and

the costs of the appeal against that judgment on an indemnity basis or,

Mr McCormack conceded that the plaintiffs must bear consequences in

costs, if they succeeded in their application for leave to withdraw their

appeal. He submitted that those costs should not be ordered to be paid on an

indemnity basis, since there were no special circumstances.

I granted leave to withdraw the appeal of 27 April and reserved on the

question of costs in relation thereto. I now rule on that issue. I see no

reason why the application for leave to withdraw the appeal should result in

any costs order generally in relation to the action to date, or to obtaining the

Masters order of 19 February 1998, which was an order by consent. The

defendant is entitled to be reimbursed by the plaintiffs for any costs it has

thrown away in preparing for the hearing of the appeal of 27 April 1998, in

general accord with r63.11(6); I so order. Unless agreed by the parties, the

amount of those costs is to be as taxed by the Taxing Master, on the

standard basis set out in r63.26. In that connection, I note that Mr

McCormack was still seeking to pursue some of the items of relief sought in

the appeal - an extension of time to comply with the Masters order of 19

On 15 May, Mr McCormack argued his application to extend the time to

comply with the Masters order of 19 February by 6 days, to 8 April.

relief sought was set out in a summons filed on 15 May, in which the

plaintiffs also sought that the Masters order of 19 February and the

judgment which flowed therefrom of 8 April, be set asi de as an abuse of the

Mr McCormack referred to the defendants summons of 16 December 1997

to dismiss the action for want of prosecution, and to Mr Caseys affidavit of

15 May 1998. He noted the course of the proceedings before the Master on

19 February. He referred to Order 30 of the Rules, dealing with

interrogatories, noting that there was no express power for the court to order

that proceedings be dismissed if a plaintiff failed to deliver interrogatories;

cf. r24.02(1) at par [17]. He made 3 submissions.

First, he submitted that the Master lacked power to make the self -executing

order of 19 February, even though it had been made by the parties consent.

I see no merit in that submission; the parties had agreed to ordering their

affairs in this way. As to the ,,consent aspect, he stressed the plaintiffs

lack of legal representation before the Master. In the circumstances, I do

not consider that Mr Caseys consent to the order was other than full, free

and informed; it was not vitiated by his then lack of a legal representative.

Second, as to the application to set aside the order of 19 February and the

judgment of 8 April for abuse of process, Mr McCormack referred to Packer

v Meagher (1984) 3 NSWLR 486 at 492. That case involved defamation

proceedings brought not for the proper purpose of protecting the plaintiffs

reputation, but for a different dominant and ulterior purpose, or to secure a

collateral advantage beyond that which the law allowed. Hunt J held that

such proceedings could be dismissed as an abuse of the process of the Court.

I respectfully agree. That case was very different to the circumstances of

Mr McCormack submitted that the categories of ,,abuse of process are not

closed; he relied on Sea Culture International Pty Ltd v Scoles (1991) 32

FCR 275 at 279. In that case it was contended that allegations made by a

party before a tribunal were inconsistent with its later claims in the Federal

Court; on that basis, it was sought to have the claims in the Federal Court

dismissed as an abuse of process. French J said at 279: -

"... there is little doubt that the court has an implied incidental power

to control its own process and to prevent misuse of it. It is a power

which ought to be very sparingly exercised and only in exceptional

cases: see Lawrence v Lord Norreys (1890) 15 App Cas 210 at 219,

per Lord Herschell; Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at

95, per Isaacs J. The possible varieties of abuse of process are only

limited by human ingenuity and the categories are not closed. An

unmeritorious claim brought merely in order to put pressure on a

respondent for commercial or other reasons would no doubt be

treated as abuse. .... Underlying the power that courts have assumed

to stay or dismiss proceedings for abuse of process is a policy of

preventing waste of judicial resources and their use for purposes

unrelated to the determination of genuine disputes. There is, in my

opinion, another element to be considered and that is the necessity to

maintain confidence in and respect for the authority of the courts. If

a party in litigation in this Court makes a formal and public

allegation by way of its pleading which is inconsistent with a formal

and public allegation in another forum, then such an issue may

In light of these authorities, Mr McCormack submitted that the defendant

had abused the process of the court on 19 February in that it had used the

courts interrogatory process to attain an object not within the proper scope

of that process; that is to say, to secure that if the plaintiffs failed to use the

discretionary process of serving interrogatories, their claim would be struck

out. I note that this takes no account of the material history of the

plaintiffs ongoing intention to interrogate referred to in par [2], or of Mr

Caseys current desire to serve interrogatories � see par [3] � when before

the Master, or the consensual nature of the order ultimately made.

Mr McCormack noted that while r24.02(1)(a) provided for entry of judgment

of dismissal where there had been a failure to comply with an order to

answer interrogatories, there was nothing in the Rules which required a

party to serve interrogatories. That is of course correct. At the time,

r30.02(1) permitted a party to serve interrogatories. The plaintiffs wished to

serve interrogatories. Mr McCormack submitted that the defendant had

chosen to secure the object of its summons of 16 December 1997 � the

dismissal of the action � by obtaining an order to the terms of which a

layman had consented; and that as at 19 February 1998 the defendants

counsel Ms Porter was aware from other litigation between the parties, that

Mr Casey would have difficulty in framing int errogatories which would

require to be answered. I consider that this point is irrelevant; it is obvious

that Mr Casey knew what he was about, in seeking to serve interrogatories,

and understood both the terms and the significance of the order of 19

Mr McCormack characterized the alternative relief sought by the defendant

in par [2] as an "irregular procedure"; he summed up his ,,abuse of process

"... twisting the interrogatory procedure and utilising it for a purpose

for which it wasnt intended; and in so doing, dealing with a lay

person to achieve the end of a ,,strike out of a significant claim if

that lay person and his co-plaintiffs failed to do something that was

an ,,optional extra, so to speak, in terms of the litigation process".

As noted in par [16], this argument ignores the factual background to the

question of the plaintiffs interrogatories; see pars [2] and [3].

Third, Mr McCormack submitted that the default judgment of 8 April should

be set aside under r24.06 � see par [22] - because the judgment would

operate unjustly in that it would deprive the plaintiffs of their right to have

tried the questions raised in their action. He submitted that events which

occurred after the order of 19 February were such as to excuse the plaintiffs

non-compliance therewith. In this connection he referred to the topics of

accident and inadvertence, relying on Mr Caseys affidavits of 27 April and

15 May. In those affidavits Mr Casey referred to his grav e concern for his

fathers health during March 1998 when he was having medical tests, and to

his own mistake in erroneously believing that he was still within time when

serving the interrogatories on 8 April, after he had earlier checked the court

file. I note that in her affidavit of 15 May Ms Porter deposed that she

forwarded to the plaintiffs by letter a copy of the order of 19 February on 2

March, and a copy of the judgment of 8 April on 20 April. At that time

Messrs Mildrens were still solicitors on the record; it appears that they had

ceased to act for the plaintiffs, but had failed to comply with r20.03(1).

Mr McCormack referred to Southern Motors Pty Ltd v Australian Guarantee

Corporation Ltd [1980] VR187 at 193; Link Blocks (1981) Pty Ltd v Fullin

[1986] WAR 187 and McNiece Mechanical Services Pty Ltd v Watts

Constructions Division Pty Ltd [1988] WAR 64, in support of his

proposition that if the court considered that justice required that the order of

19 February be set aside, it would set aside both that order and the resulting

judgment of 8 April. I note that these authorities show that the applicable

test is whether it is just in all the circumstances that the time for compliance

with an order should be enlarged, and consequential relief given.

He submitted finally that the interests of justice pointed to time being

extended by 6 days to 8 April for the plaintiffs to comply with the order of

19 February, and to the consequential judgment of 8 April being then set

Mr Lunn noted the various applications now made by the plaintiffs, and that

it was not suggested that Mr Casey did not have actual and ostensible

As to the application to set aside the judgment of 8 April on the basis that it

stemmed from an abuse of process, Mr Lunn submitted that there had been

no abuse of process on 19 February: the plaintiffs still sought to serve

interrogatories, needed to have the time to serve those interrogatories

extended, and had achieved this on 19 February at the cost of a self-

executing order if they defaulted. He submitted that the Court had inherent

power to make the order of 19 February; I accept that. He submitted that

there was nothing to show an abuse of process in what the defendant had

He submitted that judgment had thereafter been regularly entered on 8 April;

see Australian Telecommunications Commission v Elmec Pty Ltd (1986) 43

NTR 8. I accept that. He submitted that until that judgment was set aside,

the court had no power to make any orders in the action; he relied on Bailey

v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530. That authority established a court

has no inherent power to review and set aside a judgment formally

authenticated, except by way of appeal. However, that is subject to any

special provision in the Rules; see in particular r24.06(b), enabling the

a judgment entered ... upon the failure of a party to ... comply

with an order that he do any such act or take any such step [as

under the Rules he ,,is required to do or take]". (emphasis

Mr McCormack had relied on r24.06, in par [19]. Mr Lunn noted that

serving interrogatories is not an act or step which the Rules require a party

to do or take, a matter indeed to which Mr McCormack had drawn attention

in par [17]. Therefore, he submitted, the plaintiffs could not rely on

r24.06(b); the present case did not fall within it. I accept that r24.06(b)

does not empower the setting aside of the judgment of 8 April, in the present

circumstances; nor would r24.05. There remains, however, the question of

extending time under the order of 19 February; if time is extended, the

In this connection, Mr Lunn sought to distinguish FAI General Insurance Co

Ltd v Southern Cross Exploration N.L [1988] HCA 13; (1987-88) 165 CLR 268. In that case

a self-executing order had been made. The High Court held that the court

had power to extend the time for complying with a self-executing order after

the period for compliance had expired, whether or not the proceedings were

still pending. If this authority applies, the 6 weeks allowed under the order

of 19 February may be extended. Mr Lunn submitted, however, that this

authority turned on the interpretation of particular Rules of Court in New

South Wales, different to those in the Territory. I note that the relevant

"(1) The Court may ... extend any time fixed by ... any order ... "

There was also a provision similar to r3.02(2). Wilson J (with whom Deane

and Dawson JJ agreed) said of these provisions at 283-4:-

"The plain meaning of these words is very wide. The Court may

extend ,,any time fixed by ,,any ... order and may do so as well after

as before the time expires and even though the application to extend

is not made until after the time has expired. As Baggallay L.J. said

in Carter v Stubbs (1886) Q.B.D., at p.120) of the analogous English

rule, it gives ,,very full discretionary power; indeed, I can hardly

imagine a more extended discretion. It is a remedial provision

which confers on a court a broad power to relieve against injustice.

The discretion so conferred is not readily to be limited by judicial

fiat. The fact that it manifestly is a power to be exercised with

caution and, in the case of conditional orders, with due regard to the

public policy centred in the finality of litigation does not warrant an

arbitrary limitation of the power itself, not expressed in the words of

the rule, so as to deny its capacity to apply to circumstances such as

those which are to be found in the present case. It would be wrong to

so read the rule as to deny to a court power to prevent injustice in

circumstances where the party subject to a conditional order ought to

The corresponding Territory Rule is r3.02(1) which provides, as far as

"(T)he Court may extend ... a time fixed by ... an order fixing,

Mr Lunn stressed the word "any", twice appearing in the New South Wales

Rule, submitting that its absence from r3.02(1) limited the effect of that

Rule, because a court would not normally interfere with an order made by

consent; accordingly, the very broad view of the New South Wales Rule

taken in FAI General Insurance Co Ltd v Southern Cross Exploration N.L

(supra) was not open, when considering the scope of r3.02(1).

I do not consider that the use of the word "any" in the New South Wales

Rule gives that provision a wider effect than r3.02(1). Further, it seems

clear that the court may extend a time fixed by an order, even though that

order was made by consent of the parties; see Siebe Gorman & Co Ltd v

Pneupac Ltd [1982] 1 WLR 185.

In that case a self-executing consent order for discovery came into effect.

The plaintiffs then sought an extension of time to comply. The Master

extended time for compliance, for 7 days. Farquharson J, allowing the

defendants appeal, held that a consent order made with both parties fully

aware of its consequences could not be varied unless there were

circumstances such a fraud, mistake or misrepresentation. The Court of

Appeal allowed the plaintiffs appeal and restored the Masters order, on the

basis that the "consent order" neither evidenced a contract between the

parties, nor that the parties had agreed that the Court would not be asked to

exercise its discretion to extend time under 0.3 r5(1); it indicated only that

no objection would be taken by the parties to the order that had been made.

To my mind, that also accurately characterizes the circumstances of the

I consider that the principle laid down in FAI General Insurance Co Ltd v

Southern Cross Exploration N.L (supra) is fully applicable to r3.02(1). Also

applicable are the observations of Kirby P (as he then was) in Morgan v 45

Flers Avenue Pty Ltd (1987) 11 NSWLR 573 at 578-580 on the broad

discretion which flows from the New South Wales Rule corresponding to

r3.02(1), with all of which I respectfully agree; and see Paino v Hofbauer

(1988) 13 NSWLR 193 at 198 and 200-1. This Court therefore has power to

extend the time for complying with the self-executing order of 19 February.

Does the fact that it was a ,,consent order affect matters?

Mr Lunn had touched on this in par [27]; the order of 19 February was an

order by consent. He submitted that courts have very limited powers to set

aside or alter consent orders. He relied for this on Harvey v Phillips (1956)

[1956] HCA 27; 95 CLR 235 at 243-4, and Tresize v National Australia Bank Ltd (1994) 122

ALR 185 at 195-7. I note that Harvey v Phillips (supra) involved a quite

different set of facts to the present. In that case there had been an

acceptance of an offer to settle litigation; consent to the compromise having

been given, it was held that there were no grounds for any exercise by the

court of its discretion to set aside that compromise or to intercept the final

judgment. Similarly, in Tresize v National Australia Bank Ltd (supra) there

was a consent judgment and deed of settlement in relation to litigation; the

plaintiffs unsuccessfully sought to set it aside, on the basis that their own

legal advisers had exercised undue influence on them. Both of these cases

are distinguishable from the present; in both there was a real contract

between the disputing parties. I respectfully agree with the observations of

Lord Denning M.R. in Siebe Gorman Ltd v Pneupac Ltd (supra) at 189:-

"It should be clearly understood by the profession that, when an

order is expressed to be made ,,by consent, it is ambiguous. There

are two meanings to the words ,,by consent. That was observed by

Lord Greene M.R. in Chandless-Chandless v Nicholson [1942] 2

K.B. 321, 324. One meaning is this: the words ,,by consent may

evidence a real contract between the parties. In such a case the court

will only interfere with such an order on the same grounds as it

would with any other contract. The other meaning is this: the words

,,by consent may mean ,,the parties hereto not objecting. In such a

case there is no real contract between the parties. The order can be

altered or varied by the court in the same circumstances as any other

order that is made by the court without the consent of the parties. In

every case it is necessary to discove r which meaning is used. Does

the order evidence a real contract between the parties? Or does it

I consider that the present case falls into Lord Dennings second category,

and the fact that the order of 19 February was made by consent, does not

affect the discretionary power to extend time. In any event, the Court has

inherent power to extend time, even if the consent order were part of a

contract made between the parties; see Du Pont de Nemours & Co v

Commissioner of Patents (1987) 83 ALR 499 and Logwon Pty Ltd v

Warringah Shire Council (1993) 33 NSWLR 13 at 30, per Sheller JA. The

terms of any such contract might be relevant to the exercise of the

A party who has not obeyed a Court order but seeks the indulgence of the

Court that his proceedings continue despite his default, must satisfy the

Court that justice requires that his default be overlooked, and that he has

some reasonable explanation or excuse for i t. See Re Jokai Tea Holdings

The question is, should the time be extended by the 6 days sought by the

plaintiffs? There are good reasons to refuse an extension of time in this

case: the order of 19 February was duly made and the judgment of 8 April

was duly entered, and orders properly made normally should not be

disturbed or varied; the order of 19 February fixed the time for compliance

in clear and unmistakable terms, which were known to the plaintiffs through

Mr Casey, but not complied with; the terms of that order came about through

past serious delay on the part of the plaintiffs, while the defendant has

endeavoured to have the action prosecuted with proper attention to the rules

As against that, the actual period of the plaintiffs non-compliance is

relatively short, 6 days; some show of a mistake in calculating dates to

explain the failure to comply with the time for requirement has been made

by Mr Casey, who was not legally represented at the time; the pla intiffs

sought to challenge the judgment of 8 April within a few days of being

notified of it, albeit by adopting a mistaken procedure; and the respondent

claims no special prejudice from the 6 days delay, which cannot be cured by

There are arguments both ways. I consider that the balance should tip in

favour of the plaintiffs, this time. An extension of time will enable them to

have the opportunity to have their case dealt with on its merits; that is the

preferred course these days, though only where the balance of discretionary

considerations properly permits it. In this case, I think that the plaintiffs

have shown just enough to warrant their obtaining relief.

The time for compliance with the order of 19 February 1998 is extended to

and including 8 April 1998. Since the basis of the judgment entered by the

defendant on 8 April is thereby cut away, that judgment is set aside. The

plaintiffs must pay the defendants costs in and about entering the judgment

of 8 April, though not the costs of the order of 19 February. They must also

pay the defendants costs of this application, as the plaintiffs are seeking an

indulgence; see r63.11(5). I note that I dealt at par [10] with the costs

arising from the granting of leave to withdraw the appeal.