F.J. WALKER LTD V HENDY

Supreme Court of the Northern Territory Kearney J
9 August, 7 and 13 September 1988 at Darwin

JUDGMENT AND ORDERS - Self executing interlocutory order - effect of - when use appropriate - wording to be clear and unambiguous

JUDGMENT AND ORDERS - Workers' Compensation Court - formal order not according with Magistrate's note -  no provision in Rules for authentication - Whether note authoritative - effect of taking out formal order after time limit set by self-executing order has
expired

WORKERS COMPENSATION - Practice and procedure - authentication of orders - application of Rule 18 of Workers' Compensation Tribunal Rules

WORKERS' COMPENSATION - Practice and procedure - self-executing order - need to be precise and unambiguous

WORKERS COMPENSATION - procedure for discovery - curial and non-curial processes - Workers' Compensation Tribunal Rules - validity of Rules providing for self-executing order for dismissal

Cases followed:

Australian Telecommunications Commission v Elmec Pty Ltd (1986) 43 NTR 8
Broers v Forster (1981) 36 ALR 605
Abalian v Innous (1936) 2 All ER 834
FAI General Insurance Co. Ltd v Southern Cross Exploration NL (1988) 77 ALR 411
Kave v Levinson (1950) 1 All ER 594 Exell v Exell (1984) VR l
Smith v Morrow (1932) VLR 492
Bailey v Marinoff (1971) 125 CLR 529
Freeman v Rabinov (1981) VR 539

Cases referred to:

Baines v State Bank of NSW (1985) 2 NSWLR 729 S & Y Investments (No.2) Pty Ltd v Commercial
Union Assurance Co. of Australia Ltd (1985)
35 NTR 19
Metcalfe v The British Tea Association (1882)
46 LT 31
Samuels v Linzi Dresses Ltd (1981) l QB 115 Whistler v Hancock (1878) 3 QBD 83

Counsel for the appellant Solicitor for the appellant

Counsel for the respondent Solicitor for the respondent

: P.J.B. Tiffin
: Ward Keller
J.B. Waters
Waters James & O'Neil

kea880130
TN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
No.219 of 1988

IN THE MATTER OF the
Workers' Compensation Act
AND IN THE MATTER OF an
appeal from a decision of the Workers' Compensation Court at Darwin
BETWEEN:
F.J. WALKER LIMITED
Appellant

AND:
DIANNE MF.REE HENDY
Respondent

CORAM:	Kearney J.

REASONS FOR DECISION
(delivered 13 September 1988)

On 7 September I ordered that this appeal be dismissed with costs, for reasons to be published. I now  publish those reasons.

This is an appeal from an interlocutory order of the Workers' Compensation Court (herein "the Court") made on
21 March 1988. It is necessary to sketch in the history of proceedings which led to that order, to understand the issues which now require resolution.

The Application

On 4 February 1986 the respondent by Application sought that the Court determine whether the appellant was liable to pay compensation to her under the (now repealed) Worker's Compensation Act (herein "the Act"); and, if so, the amount of that compensation.

The provision for discovery - Rule 13

The Workers' Compensation Tribunal Rules applied to proceedings in the Court; see s.23(4) of the Workmen's Compensation Amendment Act 1984. Those Rules were made pursuant to an ample rule-making power in s.6F of the Act. They follow the same approach as the Supreme Court Rules, but are much less comprehensive. Presently  relevant  is Rule 13 which provided for the discovery of documents; that is, for the means whereby one party to the litigation could obtain from the other a list describing all documents relevant to the proceedings which were in the latter's custody or control.

Rule 13(1)(ii) provided for a request by "letter or notice in writing" that documents "relating to any matter in question" be disclosed. Disclosure was  to be made by a reply within 7 days; the reply had to list the documents in

the party's possession or power, state what had become of those no longer in his possession or power, and state the documents for which and the grounds upon which privilege from  production  of  any  document  was   claimed   see Rule 13(2). Clearly, the reply had to be in writing. By virtue of Rule 13(3)(a) this reply had the same effect "as an affidavit of discovery of documents"; and so, for example, the credit of the party making the reply could be impeached if it later transpired that he had not disclosed relevant documents. It can be seen that this was a process of discovery by an extra-curial mechanism in which a list of 3 categories of documents was to be provided.

The Rule also provided for discovery by curial process. The Court's power to order discovery stemmed from its power under s.6B(l) of the Act -

n	to
questions

hear	and incidental

determine	all	matters	and to or arising out of claims for

compensation 11 ,

as well as its rule-making power in s.6F.

The Rule contemplated that there would usually be recourse to the Court only after the extra-curial procedure had proved ineffective; see Rule 13(6)(a).

Rule 13(12) provided for an application to the Court for an order for discovery.  Rule 13(7) provided that a party ordered to make discovery had to do so on oath; in the context of the Rules, this clearly meant that he had to make an affidavit of discovery, that is, an affidavit verifying the matters which Rule 13(2) would have required him to state in a reply. Rule 13(8) required him to deliver a copy of the affidavit of discovery within 4 days "or within such other time as the [Court) may order".

The interlocutory order of 17 February 1987

By Interlocutory Summons of 4 February 1987 the appellant sought an order that the respondent "file and serve her List of Documents  herein"  (emphasis  mine).   On
17 February 1987 the Court pronounced an order by consent requiring the respondent to "give discovery within 28 days in the form of a written list" (emphasis mine). She did not comply with that order. This order conflicts with the requirement of Rule 13(7), in that it requires specifically that discovery be made by a written list, and not by affidavit. This no doubt is because that is precisely what the appellant had sought; it should have sought an order under Rule 13(7) that the respondent answer on affidavit. The distinction between discovery by furnishing a list and discovery by answering on affidavit is clear and wellknown

in the conduct of litigation generally, and it is particularly  clear  in  Rule 13.   Non-compliance  with Rule 13(7) amounts to  an  irregularity  and  the  order  of
17 February 1987 (if it still had force) could not now be set aside; see Rule 28(2). Both parties have proceeded on the  basis  that the obligation imposed on the respondent on
17 February was to produce a written list of documents and deal with the matters referred to in Rule 13(2). It was not sought to be argued that the order of 17 February was not an order for discovery within the meaning of Rule 13(5).

The interlocutory order of 21 October 1987

Rule 13(5)	provided	that	upon failure by a party to comply with an order for discovery, inter alia -

"the party shall ...	if an	applicant,	be	liable	to	
have his application	dismissed •..•			

I think the better view is that Rule 13(5) is valid, despite the absence of any specific power enabling dismissal in the Act. See for  example  the  corresponding  provision  in Rule 25(a) of the County Court Rules (Vic.) made pursuant to a general rule-making power in s.78 of the County Court Act 1958 (Vic.). Rule 13(5) serves to ensure the proper conduct of litigation in the Court and that the interests of justice

)

are not defeated by the failure or refusal of a party to provide discovery. As such, it is a power incidental to the jurisdiction of the Court under s.6B(l) of the Act to hear and determine an Application; see Exell v Exell (1948) 1 VR 1.

The effect of a dismissal under Rule 13(5) is that while the particular application is dismissed the applicant is not barred from making a fresh application for compensation in respect of the sai e injury - Smith v Morrow (1932) VLR 492; though new procedural difficulties may then be encountered, for example, those arising under s.25(1) of the Act relating to the time for making a claim. Such a dismissal would not give rise to an estoppel or defence of res judicata in any later proceedings between the parties, as there would have been no hearing on the merits.

On 14 October 1987 the appellant applied to have the respondent's Application of 4 February 1986  dismissed because of her failure to comply with the order of
17 February.	This	resulted	in	an	order	by	consent	on
21 October 1987 requiring the respondent to file and serve an affidavit of documents within 28 days "in accordance with the terms of the order made 17 February 1987". She did not comply with the order of 21 October. It seems that the effect of this order was intended to be that the written list of documents the subject of the order of 17 February

was now (again) required to be filed and served, but this time verified by affidavit; the wording is, however, somewhat obscure. On first reading, it conveys the mistaken impression that discovery by affidavit had been ordered on
17 February; as Mr Waters, counsel for the respondent submitted, it was ambiguous.

It is clear, I consider, that	the	consent	order	of
21 October 1987 superseded in all respects the consent order of 17 February 1987, so that after 21 October the  order  of
17 February  ceased  to have effect, with the result that no

further action could	be	taken	under	Rule 13(5) non-compliance with it.

for	the

The self-executing interlocutory order of 28 January 1988

On	8 January	1988 the appellant sought the following relief by Interlocutory Summons:-

"1. That the Applicant's [that is, the respondent's] Application dated the 4th February 1986 and filed herein be struck out for the Applicant's failure to comply with:
the order made with the consent of both parties by Her Worship Ms. Thomas C.S.M. in Chambers on the 17th day of February 1987 whereby the Applicant within 28 days was to file and serve her List of Documents;

the order made	with	the	consent		of part:ies	by	His		Worship Mr. Lauritsen made on the 21st day of	October	1987

both S.M.
that

·'

the Applicant within 28 days file and serve her Affidavit of Documents in accordance with the terms of the order of this Honourable Court made the 17th day of February 1987;"

Because the order of 17 February 1987 had ceased to have effect on 21 October, it was not open to the appellant to seek the relief it sought in para.l(a) of its Summons of 8 January 1988. Para.l(a) does, however, accurately set out the terms of the order of 17 February 1987.

An order was made by consent on 28 January 1988; both parties were legally represented. The learned  Magistrate, Mr Lauritsen SM, noted on the file in the following terms the order he then pronounced:-

" ( 1)	Applicant [that is, the respondent] serve	an	affidavit	of	discovery ordered on 21/10/87 within 28 days. affidavit		is	not		so		filed, application dated 4/2/1986 shall be

to	file		and as previously If the	said the		worker's
dismissed.

Applicant shall pay respondent's	costs	of	this application to be taxed in default of agreement.
Liberty to either party to apply."

_ It will be noted that para.(1) involves a reference back to the order of 21 October 1987; and that in turn required an affidavit "in accordance with" the order of
17 February 1987 which, of course, did not require an affidavit at all but a list. So while the terms of para.(1) appear patently clear, it contains a latent ambiguity.

For the purpose of embodying in a formal document	the order	pronounced	on	28 January	the	appellant	filed		on
1 March (that is, after the time limited for compliance with the order had expired) a draft order which was settled by the Registrar and sealed on that day in the following terms:-

"l.	That the Applicant do file and serve an Affidavit
of Discovery as	per	the	Order	of	Ms.	Thomas

C.S.M.	made within		28 Application dismissed;

the days
dated

17th	day	of	February, 1987, OR ELSE	the			Applicant's 4th	February,		1986 shall be

That if the Applicant's Application be dismissed then there be liberty to either party to apply re costs;

That the Applicant pay the Respondent's costs of the said Chamber Summons, to be taxed in default of agreement."

The respondent was	not	served	with	the	draft	order	or notified of or present at the settling of the order.

The formal order taken out by the appellant was never served on the respondent but remained on the Court file. There is no requirement that it be served. It contains manifest and serious inconsistenci_es.,.,with'. - :;:\ ed Magistrate's note of the· order he pronounced on 28 January, particularly in its internally inconsistent reference to the "Affidavit of Discovery as per the Order of Ms Thomas CeS.M. made the 17th day of February, 1987", and to the

subject-matter of the liberty to apply. It will be recalled that the order of 17 February 1987 required discovery to be made by way of a "written list", and not by affidavit; that is to say, para.(1) of the formal order of 1 March contains the same ambiguity as para.(1) of the learned Magistrate's note of his order of 28 January; but this time it is patent and not latent.

A question arose as to whether the Magistrate's file note of 28 January 1988 or the formal order as settled by the Registrar on 1 March is to be regarded as correctly stating the terms of the order pronounced on 28 January. Rule 18(1)(a) was in the following terms:-

"The award of the [Court] on any determination shall be prepared and settled by the Registrar and shall be signed by the [Magistrate constituting the Court] which pronounced the award, or the Registrar, and shall be sealed and filed and a copy thereof forwarded to each of the parties."

This is the only Rule providing for the authentication of any decisions of the Court. Mr Tiffin, counsel for the appellant, submitted that the effect of Rule 18(1)(a) was that a party was not required to draw up and file a draft order following an interlocutory order pronounced by the Court or to take out and serve the order when settled and sealed; it was instead the duty of the Court to draw up the formal order and serve it on the parties. I reject this

submission. I do not think that Rule 18(1)(a) deals  with the authentication of interlocutory orders such as that made on 28 January 1988; it deals only with "an award .•. on any determination", that is, the ultimate order of the Court following its decision on an Application. The Rules distinguish between awards and determinations on the one hand, and interlocutory orders on the other; the latter are sought by way of Interlocutory Summons under Rule 25.  In the absence of any specific provision for the authentication of interlocutory orders the file note made and signed by the Magistrate who pronounced the order of 28 January 1988 must be taken as authoritatively stating the terms of his order. The errors in the formal order of 1 March may be corrected as a ''slip".

It was however in accord with Court practice that the appellant took out the formal order. This was done on
1 March, 4 days after the respondent had filed and served her affidavit of documents on 26 February,, one day late.

The 28 days which the order of 28 January 1988 limited for the  filing  and  serving of an affidavit of discovery, e 'Pired on 25 February. On that day the respondent's solicitor filed and sought to serve by way of discovery a list of documents, dated 25 February. The appellant's solicitor refused to accept service of the list, stating

that the order of 28 January required that discovery be in the  form  of  an  affidavit of documents.  On the next day,
26 February, the respondent's solicitor filed and served an affidavit of documents sworn on that day; this was of course one  day  outside  the  time  permitted  by  the  order   of
28 January. In his  reasons for decision of 21 March 1988 the  learned  Magistrate  noted  that   the   affidavit   of
26 February discovered documents additional to those in the list of 25 February. However, no point was taken on that, and the sole basis of the proceedings before the Court in March and on this appeal  is  the  fact  that  the  list  of
25 February was not verified by affidavit, and thus did not meet the affidavit requirement of the order of 28 January, while the affidavit of 26 February was 1 day outside the time allowed by that order for filing and service.

It has been said that if a party takes out a formal order after the time limit set by a self-executing order has expired, it thereby treats the proceedings as still alive; see Metcalfe v The British Tea Association (1882) 46 L.T. 31, per Grove and Bowen JJ. See also the authorities cited by Powell Jin Baines v State Bank of NSW (1985) 2 NSWLR 729 at 735-6. If this be correct, and if the order of
28 January is  to  be  treated  as  taking effect only from 1 March, the date it was formally drawn up, the filing and serving  by  the respondent of her affidavit of documents on
26 February  was  a  step  in  a  proceeding,  then  current

instituted by her Application of 4 February 1986 and not terminated automatically on 25 February for non-compliance with the order of 28 January. I express no considered opinion on this point, which would be decisive in favour of the respondent, as it was not argued before me; it is a matter of practice and not by Rule that formal orders are taken out in the Court.

Effect of the self-executing order

Paragraph (1) of the learned Magistrate's note of his order of 28 January (p.8)and para.1 of the formal order taken out on l March (p.9) provided in effect that if an affidavit of documents was not filed by 25 February the respondent's Application to the Court for workers' compensation "shall be dismissed". I consider that on its proper construction what was pronounced on 28 January was clearly a self-executing or "unless" or "guillotine" order; that is, it provided that on default in giving discovery by the designated means within the time fixed by the order, the Application  stood  automatically   dismissed.   I  reject Mr Waters' submissions that the words "shall be" connoted that there had to be some further step taken before
dismissal.

It is a well established general rule of law that once there is a formal order disposing of a particular proceeding which correctly expresses the intention of the Court, the Court which pronounced the order has no inherent jurisdiction to alter that order or set it aside; see Bailey v Marinoff (1971) 125 CLR 529 at 539, per Gibbs J. That is to say, that Court's jurisdiction is then exhausted and the particular proceeding is dead, and can be revived only by appeal; there is no inherent power to set aside the order or extend the time for compliance. The plaintiff's only remedy in such a case is to appeal against the order; this Court has power to entertain, if necessary, an application to extend the time to appeal. No such application or  appeal was lodged by the respondent in this case.

When a plaintiff fails to comply with an ordinary order for discovery a Court generally will not exercise its discretion to dismiss his action unless it is satisfied that he is trying to avoid giving discovery, that is, unless he is culpable. And so, for example, dismissal will not be ordered where the non-compliance is due to matters, for example loss of memory or mental illness, which show a lack of culpability on the plaintiff's part. A self executing order for conditional dismissal of an action precludes examination of the actual reasons for non-compliance; it is for that reason that such orders should not be made except
where	the	circumstances	so	require.	As	Sir	Raymond

'

Evershed MR put it in Kaye v Levinson (1950) 1 All E.R. 594 at 596, the order should be used "cautiously". See also the observations of Muirhead ACJ ins & Y Investments (No.2) Pty Ltd v Commercial Union Assurance Co of Australia Ltd  (1985)
35  NTR 19 at 25, to the same effect.  As Jenkins LJ pointed

out in Kaye v Levinson	(supra)	at	p.598	the

more	usual

practice	is	to	indicate,	when	the		order against a plaintiff is made, that no	further

for discovery extension	of

time will be granted, with the consequence that if there is non-compliance the defendant can move to dismiss the action. A self-executing order may be appropriate where a party is contumacious or persistently dilatory in taking steps; see Freeman v Rabinov (1981) VR 539.

It is clear, however, that the effect of a self-executing conditional order for dismissal is that non-compliance within the time prescribed puts an end to the Application, in accordance with the general rule set out above. The dismissal, by the terms of the self-executing order, becomes effective when discovery is not made in the designated manner by the appointed day. As noted above, there is no inherent jurisdiction to set aside the consequences of the order, which on non-compliance operates to dismiss an action; see Bailey v Marinoff (supra) at pp.531-2 per Menzies J. However as Gibbs J (as he then was) pointed out at p.539:-

"	there are a number of exceptions	to	[the	rule]
...the court has power to vary an order so as to ... make plain language which is doubtful, and that power does not depend on rules of court but is inherent in the court: Lawrie v Lees (1881) 7 App. Cas. 19 at pp.34-35; Thynne v Thynne (1955) P. 272 at p.313."

Bailey v Marinoff (supra) was concerned with the question whether there was inherent power in a Court to vary its self-executing order. The approach taken was based on the decision in Whistler v Hancock (1878) 3 QBD 83. This case was overruled in England 10 years later by the Court of Appeal in Samuels v Linzi Dresses Ltd (1981) 1 QB 115. In that case particulars had been served 3 days after the date specified by a self-executing order conditionally striking out a defence. It was held that the Court had jurisdiction after the specified date to extend the time for compliance, on the basis that the modern practice was not to treat the action as dead. At p.120 Roskill LJ described Whistler v Hancock (supra) as "oft-quoted and oft-criticized".

In FAT General Insurance Co Ltd v Southern Cross Ex- oloration NL (1988) 77 ALR 411 a decision handed down on
25 March 1988, 4 days after the Magistrate's decision the subject of this appeal, the High Court held that on a proper interpretation the Supreme Court Rules 1970 (NSW) gave the trial court power to extend time after the date specified by a self-executing order for conditional dismissal had expired. Wilson J (with whom Brennan, Deane and Dawson JJ agreed) said at p.414:-

the potential for rule laid in	Whistler judicial	dexterity distinctions".

injustice inherent in the rigid gave rise to a century  of based on highly artificial

At p.415 his Honour said:-

[the Whistler rule] has also been held to be inapplicable in a case where, a conditional order for the dismissal of an action not having been complied with, the order has not been taken out or judgment entered: see Baines v State Bank of NSW (1985) 2 NSWLR 729 at 735-6."

The relevant NSW Rule Part 2 Rule 3, provided:-

"(1) The Court may, on terms, by order, extend or abridge any time fixed by the Rules or by any judgment or order.

(2) The Court may well after as before an application for time expires .. "

extend time under sub-rule (1) as the time expired whether	or	not the extension is made before the

At p.417 Wilson J said:-

"The plain meaning of these words is very wide    it is a remedial provision which confers on a court a broad power to relieve against injustice."

The Court distinguished Bailey v Marinoff (supra) on the basis that that case dealt only with the inherent power of the Court.

,­

-  I

The order of 21 March 1988

On 1 March 1988 by Interlocutory Summons the appellant applied to the Court ex parte for an order that the Registrar be directed to prepare and settle:-

a Determination that the Applicant has failed to comply with [the order of 28 January 1988] and the Applicant's claim is therefore struck out."

Before me Mr Tiffin stressed that at all times in the proceedings before the Court it was made clear that the application of 1 March had been made ex abundante cautela and not because it was required; in his submission the Court itself should have issued on or after 26 February 1988 a certificate of the determination of the Application of
4 February 1986, under Rule 18(2)(a). I reject this submission because I consider that Rule 18 does not apply to interlocutory  orders.  The  appellant's   application   of l March was in fact similar to the procedure adopted in Australian Telecommunications Commission v Elmec Ptv Ltd (1986) 43 NTR 8; in that case it was held that the dismissal effected by a self-executing order did not prevent the Court from doing what flowed from that order, that is, the entry of judgment.

Quite rightly, the Court declined to deal with the application ex parte; see the observations of Deane Jin

Broers v Forster (1981) 36 ALR 605 at 624, where his Honour emphasized that in general the rules of natural justice entail that the party against whom such an order is sought be given an opportunity to be heard. The application was argued by the parties before Mr Lauritsen SM on  16 March. Mr Tiffin   contended   at  that  time  that  the  order  of
28 January was precise in its terms and had not been complied with; and so the Application of 4 February 1986 stood dismissed and the Court was functus officio, except for the purpose of giving effect to that determination of the Application. Mr Schneider for the respondent  applied for the order of 28 January to be set aside; he relied on Rule 28(6) which deals  with  orders  made  "in  default  of

pleading

or	attendance

at	a	hearing".

The	learned

Magistrate

rejected

Mr Schneider's

application;	I

respectfully

agree

with	his

Worship's	approach,	as

Rule 28(6) was clearly inapplicable to	the	proceedings	of
28 January.

On 21 March his Worship delivered his decision on the application of 1 March; it is the subject of this  appeal. In his reasons for decision, his Worship referred to the

history of these	discovery	proceedings. various authorities he stated at p.26:-

After	reviewing

"I cannot set aside my order of 28 January 1988. I cannot extend the time for compiiance. I  can entertain the present application [of the appellant) beca..use it seeks to obtain what flows from the  action

His Worship held, correctly in my opinion, that time for compliance  with  the  order  of  28 January  expired   on 25 February, and continued at p.27:-

"The	list	of	documents was served and filed on
25 February 1988, while the document entitled 'Affidavit of the applicant' was not. (Inaudible) argues that she has complied with my order; she says that  a  list of documents was filed and served within
28 days. She refers to the terms of the 3 relevant orders  made on 17 February 1987; 21 October 1987, and
28 January 1988. She says that the self executing order refers to my previous order made 21 October 1987, and that order in turn refers to  the  order  of
17 February 1987.  That last mentioned order required a list of documents {inaudible).

Her solicitor understood my order a list of documents

seems	to of 28 January
{inaudible).

maintain	that	he 1988 and referred to

In that regard I refer to paragraph 18 of the affidavit of Gary Raymond Schneider, sworn on 15 March 1988. At first blush one might think it impossible to confuse an order for an affidavit of discovery and an order for a list of documents, but in that regard I was referred to Rule 13.2 (inaudible) and 13.4 of the Rules"

His Worship	then	referred		to	part	of	the	contents	of Mr Schneider's	affidavit	of 15 March 1988 and continued at
p.29 in a passage which is crucial to the	outcome	of	this appeal:-

"One can infer from those paragraphs that the solicitor {inaudible) was complying with my order when he filed and served a list of documents on 25 February 1988. It does not matter whether that belief was reasonable or not. What the existence of that belief raises is whether mv order was sufficiently precise in terms of a self executing order must be precise".

His	Worship	then referred to Abalian v Innous (1936) 2 All
E.R. 834 at 837 and Kaye v Levinson (supra).	In	Abalian v
Innous (supra) a self-executing order for dismissal of an action required compliance with a condition as to time fixed with reference to the "date of the alleged loss". That date could not be ascertained from the pleadings. The Court of Appeal held that an interlocutory order must be absolutely precise in its terms, and as the self-executing order fixed no ascertainable date it was inoperative to effect a dismissal of the action. Greene LJ said at p.838:-

"Speaking for myself, I think that any order dealing with the dismissal of an action unless something is done should be absolutely and perfectly precise in its terms. The dismissal of an action at an interlocutory stage is a very serious matter and may well work serious injustice. If an order is to be made in the form that, unless one party or another party does somet.. ing, the action will be dismissed, it is imperative that the thing to be done in order to avoid dismissal of the action should be specified in the clearest and most precise language, so that it may be possible for the party on whom the necessity of doing the act lies - which would normally be the plaintiff - to be in no doubt whatsoever as to the steps which he is to take if he is to avoid his action being dismissed. Looking at it in another way: where the defendant, in reliance on such order, goes to the court and asks it to say that, as a result of the order, the action stands dismissed and is no longer existent, he must be able to show first of all, that the language of the order is sufficiently precise, and, secondly, that the facts which the order contemplates have occurred." (emphasis mine)

Scott LJ said at p.840:-

"I very much agree with what my Lord has said as to the importance, wherever an action is ordered to be

dismissed without a absolutely precise in my view, neither

trial, of the order so made	being and unambiguous.	This order was,
the one nor the other."

I note that the necessity for a self-executing order to be precise and unambiguous was also stressed in Broers v Forster (supra). As Deane J said at p.620:-

"There is strong authority to support the view that a self-executing interlocutory order of the type under consideration [requiring that particulars of defence be supplied] must, if it is to be effective, be clear and precise both in the terms used and in the designation of the circumstances which will trigger interlocutory judgment." (emphasis mine)

At	the	conclusion	of	the	judgment	in	Abalian v Innous (supra) the following exchange is recorded at p.841:-

"Willink, K.C.: Do your Lordships hold that the words were inoperative, or that at the present stage enough had not been shown to make them operative?

that
vague

Greene,	L.J. :
the paragraph is in	the	sense

The view which we both take is inoperative, because it	is	too that	it fixes no ascertainable

date."

In Kaye v Levinson (supra), where Abalian v Innous (supra) was applied, a self-executing order required that a Statement of Claim be delivered by 28 November 1949 or the action stood dismissed. The Stqtement of Claim  was delivered at 5.45pm on that day, whereas the Rules of Court

provided for delivery by 4.00pm. It was held that an order which involved a dismissal in limine of an action, unless a condition was complied with, should state the condition in clear and unambiguous terms. Since it was doubtful whether it was essential for the purposes of the order that delivery should be made before 4.00pm, as opposed to any time on that day, the order was ambiguous in its terms and it was undesirable that it should stand.

Having considered these cases his Worship concluded at
p.29:-

It is arguable that the progression from list of documents to affidavit of discovery in the 3 orders, bearing in mind the provisions of rules 13.2, 13.3(a) and 13.4, could mislead a party into thinking that a list constituted compliance and not an affidavit.

The reaction of the worker's solicitor as disclosed in paragraphs 4 and 5 of the affidavit of John Michael Neal (sic) sworn 8 March 1988, in my view supports that conclusion. Although it is embarrassing to admit it, I believe that my self-executing order was not absolutely and perfectly precise in its terms. As a result, in my view, the order is inoperative."

His	Worship	then referred to the exchange set out above at p.841 of Abalian v Innous (supra) and concluded:-

Since in my view the order is inoperative, as a result it does not deprive the worker of her right to a hearing of her substantial claim."

···-- ..,,,,_

The proceedings on appeal

The appellant seeks to have the judgment of 21 March quashed, and a declaration that the order of 28 January is valid and operative; it also seeks certain consequential relief which would flow therefrom.

Mr Tiffin's	basic	submission	was	that the order of
28 January 1988 was clear and precise in its terms. He submitted  that  the  Court  and  the  parties  proceeded on
16 March on the basis of the learned Magistrate's file note of the terms of the order of 28 January.  That is in fact far from clear, although the tenor of the arguments advanced on 16 March tend to support that view.  What is clear is that the appellant-caused to be taken out and placed on record on l March a formal order purporting to embody the terms of the order of 28 January, in terms which were patently confusing and quite ambiguous as to whether a list of documents or an affidavit was required. Further, the learned Magistrate's note of his order contained a latent ambiguity, as set out earlier.

I accept Mr Tiffin's submission that it is clear that the Court had no inherent power t_o vary a self-executing order after it had executed. But as Gaudron J pointed  out in FAI General Insurance Co v Southern Cross Exploration NL(supra) at p.422:-

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" a conditional order, of its nature,  necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time."

The	same	point had been made by Bowen CJ and Ellicott Jin Broers v Forster (supra) at p.612,	in	stressing	that	the Court		was		not functus officio because it must be satisfied by evidence that the event had occurred or not occurred,		as the case might be.

It was that exercise upon which the learned Magistrate embarked on 16 March and it was in the course of that exercise that he came to his conclusion that his order of
28 January lacked the high degree of clarity	and	precision required of a self-executing order.

It will be recalled that his Worship ruled (p.19) that he could not "extend the time for compliance". Mr Tiffin submitted that the learned Magistrate had no power under Rule 26(3)(a) to extend the time. That Rule provides:-

"The [Court] may enlarge or abridge the time appointed bv these Rules, or fixed by any order enlarging or abridging time for doing any act and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed."

Rule 13(8)	provides	for	delivery	of	an	affidavit	of

discovery "within 4 days

or within such	other	time	as

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the [Court] may order". The order of 28 January fixed 28 days. In terms of Rule 26(3)(a) this 28 day period may fairly be regarded, as Mr Waters submitted, ·as enlarging the
4 day period fixed by Rule 13(8), and accordingly, in accordance with FAI General Insurance Co Ltd v Southern Cross Exploration NL (supra), handed down 4 days after the Magistrate's decision of 21 March, his Worship had power under Rule 26(3)(a) to extend the time for compliance. In all the circumstances, had the decision in FAI General Insurance Co Ltd v Southern Cross Exploration NL (supra) been available at the time, I have no doubt that his Worship would have utilized his power under Rule 26(3)(a) to extend the time for compliance by the one day necessary.

I consider that his Worship was perfectly correct in his conclusion that the way matters had progressed there was in fact a degree of ambiguity as to what was required of the respondent in order that she might comply with the order of
28 January; that is to say, whether a list was sufficient or an affidavit of documents was required.

I also consider that his Worship was perfectly correct in holding as a result that his order was inoperative.  It is clear that in using the word "inoperative", his Worship had in mind its usage in Abalian v Innous (supra}, that it was inoperative to effect a dismissal of the action.

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It is unnecessary to deal with Mr Waters' alternative submission that an enlargement of time to comply with the order of 28 January, should now be granted. It is also unnecessary to deal with his submission that a list had the same effect as an affidavit, because of Rule 13(3)(a), and that the order of 28 January was therefore substantially complied with on 25 February; Rule 13(3){a) dealt with an extra-curial reply and not a list provided under an order of the Court.

It was for these reasons that on 7 September the appeal was dismissed with costs.

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