Peter A Clarke

When is a self executing order not a self executing order.  When a court is loathed to stop someone having their day……. eventually.  A court will bend over even further when the malefactor is self represented. 

Things don’t auger well when a judgment starts:

1 The appellant, Alan Jorgensen, is a serial defaulter. That is to say, he has been persistently dilatory in taking steps in his appeal.[1] His notice of appeal was lodged in January 2006. More than two years later, there is no agreement on the contents of the appeal book.

After setting out his dismal record of non compliance the Court recited the self executing orders and their Honours. mandatory, ominous warnings:

3 Their Honours made a self-executing order concerning the service by Mr Jorgensen of the revised notice of proposed contents of the appeal book, and subsequent steps necessary for the prosecution of the appeal. In conclusion their Honours said:

… in our view Mr Jorgensen should not be given an opportunity to seek further indulgences, if he fails to comply with the orders which we now propose to make. We note that Slater & Gordon has had to expend time and energy in the management and defence of an appeal which is not being diligently prosecuted by Mr Jorgensen. Further, that appeal involves serious allegations of fraud and breach of fiduciary duty against it.[2]

Mr Jorgensen was ordered to pay SG’s costs of the application on an indemnity basis.

So Mr Jorgensen knew his obligations before he got to this pretty pass.

5 Mr Jorgensen was, accordingly, required to serve the revised note of proposed contents by 7 April 2008. He did not do so. Upon that non-compliance, his appeal stood dismissed by operation of paragraph 4 of the March orders. An order described as self-executing is precisely that. It operates of its own force. That is, if the order has not been complied with, the sanction specified in the order takes effect automatically upon the expiration of the time fixed for compliance.[3]  (my emphasis)

Yet Mr Jorgensen still didn’t comply with the orders (though he explained why) so Slater and Gordon grabbed for the brass ring and brought on a summons seeking orders dismissing the Appeal. 

This is a very interesting decision because the Court considered at length, pulling together the principles garnered from the relevant authorities, what should guide a decision maker in dealing with the consequences of a self executing order.  Most practitioners are at the receiving end of an applicatoin to dismiss a claim or a defence.  It is a grim experience which is only made sufferable by most judges extreme reluctance to shut someone out of the court system. 

9 The court has a wide discretion to relieve a party of the consequences of non-compliance with a self-executing order. The governing consideration, as in every aspect of practice and procedure, is what justice requires.[5] As Burt CJ said in Link Blocks Pty Ltd v Fullin,[6] all the circumstances must be weighed in the balance and

one must not … lose sight of the fact that the justice spoken of is an even-handed justice to [both sides].

10 The power to relieve must be exercised with care. As Roskill LJ said in Samuels v Linzi Dresses Limited,[7] it is a power

which should 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.

We respectfully agree with what was said by Newnes J in the Western Australia Supreme Court in MTQ Holdings Pty Ltd v Lynch, as follows:

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 [self-executing] order can be avoided by showing that non-compliance with [that] order came about by the same sort of inattention or laxity that caused the order to be made in the first place.[8]

11 We would also adopt what Newnes J said regarding the considerations which should ordinarily be brought to bear in considering the exercise of this discretion. The court should have regard at least to the following matters:

(a) the circumstances in which the self-executing order was made;

(b) the reasons for non-compliance with it;

(c) the prejudice to the defaulting party if relief were not granted; and

(d) the prejudice to the innocent party if relief were granted.[9]

Having established the core principles the Court should look to why the self executing order wasn’t complied with.

12 As to the reasons for non-compliance, it is of the first importance to ascertain whether the failure to comply was wilful, that is, was reflective of deliberate disregard of, or indifference to, the court’s order.[10] As Browne-Wilkinson VC said in Re Jokai Tea Holdings Limited:

The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.[11]

………….

After reviewing the evidence the Court found for Jorgensen and allowed him to continue on with this incredibly long and drawn out process. 

30 Ultimately, however, we have concluded that the interests of justice require that Mr Jorgensen be relieved of the consequence of the self-executing order. Critically, in our view, the conduct of Mr Jorgensen in the seven day period fixed by the court for compliance did not reflect either deliberate disregard of or indifference to the court’s order. On the contrary, as we noted earlier, Mr Jorgensen took active steps to secure fresh legal representation for the purposes of having the draft appeal index completed, as he had told the court on 31 March he would do. He cannot, in our view, be criticised for having directed some of his time and energy towards immediately pressing court commitments in which (as the representative of his companies) he was unavoidably involved.

…….

32 A self-executing order is, quite intentionally, penal in character. The order has several purposes – to signify the court’s disapproval of prior non-compliance; to emphasise the importance of obedience to court orders; and to secure the performance of the particular procedural step(s) the subject of the order. The imposition of a self-executing order in the present case has, in our view, secured all of these purposes. It sent the clearest message to Mr Jorgensen, and to others who will doubtless follow him, that disobedience to procedural orders will not be tolerated. It also secured, albeit two weeks late, the filing of a revised court book index

While a court will keep a party in for as long as possible the real danger for a party who survives this application is the costs penalty.  It is quite common that a malefactor will end up with a indemnity costs order.  Multiple costs orders can crush a sloppy litigant or at least stay procedings.