Use of Springing Orders

In Firmware Technologies Inc -v- Asia Platinum Group Ltd [2016] WASCA 179 the Court of Appeal established the appropriate use of Springing Orders. Below are extracts of the judgement.

Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185 [17]:

Devising and applying appropriate sanctions for non-compliance is one of the major problems which case managers face. An innocent party is entitled to expect that the Court will act to support the integrity of its processes where another party is in default. On the other hand, case management is a means to an end and not an end in itself. All processes and sanctions must be carried out and imposed in a way that will facilitate the achievement of justice.

The entry of judgement prior to trial without regard to the merits of a case is, generally speaking, the antithesis of justice. It follows that, at least generally speaking, a springing order which would have that consequence can only be justified where necessary to enable the court, to fairly determine the substantive matter in dispute and as a last resort.

[A springing order can only be made when]

First… [b]ecause a springing order can result in injustice, it should ordinarily only be made when a party has, by their conduct, shown a contumelious disregard for compliance with the orders of the court.

Second, because of the potential for injustice, a springing order should only be made when there is no other less severe, sufficient and appropriate sanction available to enable the court to determine the matter in a manner which is procedurally fair to all parties and which gives them sufficient opportunity to present their case.

Third, a springing order should not be made if its execution would prevent a party from advancing an argument unrelated to the procedural step the subject of the springing order.

Fourth, springing orders should only be made if the criterion for compliance is clear and unequivocal and the question of whether or not the order has been complied with can be resolved simply and clearly.

Fifth, before making a springing order a case manager should bear in mind that the order is, in effect, self-executing and that, once made, in the absence of an application for an extension of time for compliance, the only question is whether there has, in fact, been compliance.

Finally… that when there is a motion for judgement based on a springing order, consideration should always be given to the question of whether there are grounds for an extension of the time for compliance.

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