Drabsch v AMP Fire & General Insurance Company Ltd [1990] QSC 355 [1991] 2 Qd R 614

I I . ( \°'-.\ .\)( q, 10 30 40 IN THE SUPREME COURT OF QUEENSLAND CHAMBERS BEFORE MASTER WHITE~.· BRISBANE, 17 OCTOBER 1990 No. 4422 of 1982 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of theChief Court Reporter,Court Reporting Bureau.) BETWEEN: MASTER: 'J.:J MALCOLM THOMAS DRABSCH -and- AMP FIRE AND GENERAL INSURANCE COMPANY LIMITED -and- MAXWELL BOURNE JUDGMENT . have- formed the view Plaintiff First Defendant Second Defendant do not have power pursuant to Order 19 Rule 6 to extend the time but I do have power pursuant to Order 45 Rule 1 of the Rules and I have exercised my discretion in favour of the plaintiff. So the formal orders are that the plaintiff should be relieved from the consequences of the orders made 1 August 1990 and 13 September 1990. It is further ordered that all 10 20 30 40 so 50 steps taken in this action by the plaintiff after 24 August 1990 are proper and regular steps in the action. However, it is appropriate that the plaintiff pay the defendant's costs of the applications made on 1 August 1990 and 60 60 Qld. 1 -- 1 of 17 -- 10 20 30 40 50 60 13 September 1990 to be taxed, and it is so ordered. It is' further ordered that the applicant/plaintiff pay the respondent's/defendant's costs of and incidental to this application to be taxed and I publish my reasons. :V.tASTER: While it is not on my reasons here, I think I should add liberty to apply in relation to any particulars of the order with respect to the dates. /tf' - /0 - 90 'rinter, Qld. 2 10 20 30 40 50 60 -- 2 of 17 -- IN THE SUPREME COURT OF QUEENSLAND No. 4422 of 1982 BETWEEN: MALCOLM THOMAS DRABSCH Plaintiff AMP FIRE AND GENERAL INSURANCE COMPANY LIMITED First Defendant AND: MAXWELL BOURNE Second Defendant Delivered the seventeenth day of October, 1990 CATCHWORDS: COUNSEL: SOLICITORS: PRACTICE - plaintiff in default of self executing order - whether power to vary order which had effect of terminating action - 0.90 r.6 - 0.45 - F. A. I . General Insurance Co. Ltd. v. Southern Exploration N.L. - K.G.K. Constructions Pty. Ltd. v. East Coast Earthmoving Pty. Ltd. A. Collins for applicant/plaintiff C. Francis for respondents/defendants Conwell Kirby & Lilley for plaintiff Morris Fletcher & Cross for defendants HEARING DATES: 24th September, 1990 -- 3 of 17 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: No. 4422 of 1982 MALCOLM THOMAS DRABSCH Plaintiff AND: AMP FIRE AND GENERAL INSURANCE COMPANY LIMITED First Defendant AND: MAXWELL BOURNE Second Defendant JUDGMENT MASTER WHITE Delivered the seventeenth day of October, 1990 On 1st August 1990 the defendants applied for orders that the plaintiff's action be struck out for want of prosecution. That application was dismissed but certain orders as to the further conduct of the action were made, including an order: "That the solicitors for the Plaintiff shall, within seven (7) days of receipt of [a] Certificate of Readiness for Trial, enter this action for trial," and in default thereof that the plaintiff's action be struck out. It is undisputed that the entry of cause for trial had not been filed within the time specified and that accordingly the plaintiff's action in accordance with the terms of the order stood dismissed. On 13 September 1990 counsel for both the plaintiff and defendant appeared pursuant to the liberty to apply order made 1st August 1990 and orders were made on the application of the defendant pursuant to 0.91 r.16 disposing of all outstanding costs in the action in including the costs of the application. The taxation of those costs was stayed for 14 days to enable the plaintiff to take whatever course he might be advised. It was the clear understanding of both parties that the -- 4 of 17 -- plaintiff's action was at an end by virtue of non-compliance with the order of 1 st August 1990. On 24th September 1990 the plaintiff applied for orders, so far as are relevant: "That the Order of Master White made the first day of August, 1990 be varied such that paragraph 4 of that Order is to read: '4. That the solicitors for the Plaintiff shall on or before the thirteenth day of September 1990 enter this action for trial.' That all steps taken in the action by the Plaintiff after the 24th August, 1990 are proper and regular steps in the action." In an affidavit read that day, an articled clerk in the firm of solicitors acting for the plaintiff swore that he dictated the instruction for an entry of cause for trial to be prepared for execution by a partner of the firm and for it to be filed by a clerk in the Registry of this court. That that did not occur is said to be due to some procedural or administrative oversight in the firm's office and it was not until the solicitors for the defendant advised that a search revealed that such entry for trial had not been filed that the plaintiff's solicitors knew of the oversight. The question for determination is whether I have power to vary the order made by me on 1st August 1990 which had the effect of terminating the plaintiff's action. There is the further matter for consideration, namely, that if I find that I have that power, whether I ought, in the exercise of my discretion, to vary the order as sought. Mr. Collins of counsel, who appeared for the plaintiff, submitted that Order 90 Rule 6 empowers me to enlarge the time for doing any act required to be done by my order of 1st August, 1990. Order 90 Rule 6 provides: "The Court or a Judge may enlarge or abridge the time for doing any act or taking any proceeding allowed or limited by these Rules, or allowed or limited for the like purpose by any order of the Court or a Judge, whether so allowed by way of enlargement or otherwise, upon such terms, if any, as the justice of the case may require; and any such -- 5 of 17 -- enlargement may be ordered although the application for the same is not made until after the expiration of the time originally allowed or limited." Mr. Collins relies upon the decision of the High Court in F.A.I. General Insurance Co.Ltd. v. Southern Exploration N.L. (1988) 165 C. L. R. 268 to support this submission. The court there considered the power of a judge at first instance to extend the time for compliance with a condition giving rise to a self-executing order after the time for the doing of the act had passed. The court considered the ambit of the Supreme Court Rules 1970 (N.S.W.) Pt.2, r.3 which is in substantially the same terms as Order 90 Rule 6 of our Rules. The Queensland Full Court considered the question of the extension of time for self-executing orders _after the order had taken effect in K.G.K. Constructions Pty.Ltd. v. East Coast Earthmoving Pty.Ltd. [1985] 2 Qd.R.13 ("K.G.K. Constructions") and Marshall v. Dunkley unreported decision of 2nd November 1984 (No.20 of 1983). In both of those actions appeals were made to the Full Court from self-executing orders made at first instance (or from a chamber judge hearing an appeal from a Master) which had taken effect. The combined effect of the orders in K. G. K. Constructions was to strike out the defendant's defence and counter claim. The plaintiff obtained interlocutory judgment with damages to be assessed. McPherson J. (with whose reasons Campbell C.J. and Sheahan J. agreed) held that the decision of the Full Court of Victoria in Freeman v. Rabinov [1981] V.R. 539 ought to be followed. That case decided that where a Judge or Master has made a self-executing order which has resulted in the termination of the litigation of issues other than damages, his jurisdiction is then exhausted and it .is not within his power to extend the time fixed by the order. The Court in Freeman v. Rabinov relied upon two previous decisions of itself in Pollard v. Incorporated Nominal Defendant -- 6 of 17 -- 4 [1972] V.R. 955 and Southern Motors Pty.Ltd. v. Australian Guarantee Corporation Ltd. [1980] V.R. 187 and the High Court decision of Bailey v. Marinoff (1971) 125 C.L.R. 529 which followed a line of English decisions of-some antiquity beginning with Whistler v. Hancock (1878) 3 Q.B.D. 83 (see fuller report in 47 L.J. (Q.B.) 152). Following the decision in Whistler v. Hancock courts had found a way of avoiding the injustice which the rigidity of the rule might otherwise have caused. It was held that an appellate court might entertain an application for extension of time for appealing against the self-executing order and after extending the time for appealing might, on appeal, vary the order by enlarging time for fulfilment of the condition, see Burke v. Rooney (1879) 4 C.P.D. 226, Carter v. Stubbs (1880) 6 Q.B.D. 116 and Johnson & Co. Ltd. v. Clifford (1904) 7 W.A.L.R. 130. The English decisions of Whistler v. Hancock, supra, Wallis v. Hepburn (1878) 32.B.D. 84N, and Script Photography Co.Ltd. v. Gregg (1890) 59 L.J. Ch.406 were overruled by the Court of Appeal in Samuels v. Linzi Dresses Ltd., [1981] Q.B. 115, but the Victorian Full Court felt unable to depart from its own previous decisions or that of the High Court in Bailey v. Marinoff, supra. McPherson J. was of the view, at p.17, in K.G.K. Constructions, that since the majority in Bailey v. Marinoff referred with apparent approval to the Whistler cases, then, "until the High Court again reviews the matter I consider that we should follow that earlier line of authority even though it has since been overruled in England." His Honour followed Freeman v. Rabinov in holding that the Full Court could extend time for appealing in order to entertain an appeal ~gainst the original self-executing order. held at p.18: His Honour "This Court has and in appropriate cases should exercise the power to allow an appeal against a self-executing order even where the time limited by that order has expired without the condition being fulfilled,, at least in cases where non- -- 7 of 17 -- fulfilment of the order does not of itself spell the end of the action. As I understand, the basis of the Victorian decisions is the power of an appellate court to consider further evidence consisting, in cases like the present, of events subsequent to the making of the order, including the facts of the condition on which the self-executing order was limited to operate had not been fulfilled and the reasons why it had not been fulfilled. The making of the order may itself not be open to challenge, but, as was said by Lush J.in Freeman v. Rabinov [1981] V.R. 539, 548: 'One use that is made of evidence of events subsequent to decision is to demonstrate that a chance or risk which might have appeared small at the time of decision has emerged as real and substantial, thus making wrong any small evaluation of it which might have been made at the time of the decision.' That decision and the later decision of the Court in Composite Buyers Ltd. v. J.C.Taylor Constructions Pty.Ltd. [1983] 2 V.R. 311 make it clear that an appeal against a self-executing order may succeed if it is shown that the order has in the result, by reason of supervening eyents, perhaps not readily foreseeable at the time the order was made, subsequently operated in a manner that has turned out to be unjust." His Honour continued at p.19, "In my opinion these considerations would justify this court, consistently with the approach adopted in the Victorian decisions, in allowing the appeal in the present case. It is important that Judges sitting at first instance should retain the power, in cases of contumelious disregard of, or even simply repeated default in complying with orders as to interlocutory steps, of making self-executing orders where that course is warranted by the circumstances. The sanction against a party who ignores such an order lies, as was pointed out by Fullagar J. in Composite Buyers Ltd. v. J.C.Taylor Constructions Pty.Ltd. [1983] 2 V.R. 311, 317 in the risks and uncertainties, and no doubt also the cost of seeking to appeal in such a case, as well as the conditions that may on appeal be imposed as the price of intervention by the appellate court." · The Full Court shortly after the judgment in K.G.K. Constructions considered a similar self-executing order in Marshall v. Dunkley, supra. Kneipp J., with whom Kelly J. (as he then was) and Carter J. agreed, distinguished the Whis~ tler line of cases on the basis that in the case before him (a:, in K.G.K. Constructions) the action was not at an end when it came before the learned Judge at first instance on the application to enlarge time ( the plaintiff not having entered judgment) . His Honour held at p.6: -- 8 of 17 -- "Neither in this case, nor in the previous case in this Court, was the action at an end when it came before the learned Judge at first instance. It was still a live action, subject to the operation of the Rules. The distinction was recognised by Menzies J. in Bailey v. Marinoff (at p.531), when he said 'this appeal is not concerned with the power of a Court to alter orders in pending litigation. It is concerned with the power of the Court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the Court.' (My emphases)." His Honour concluded that the learned Judge at first instance had power to extend time for the doing of the act which was envisaged in the self-executing order. However his Honour conceded, that having regard to the decision of the High Court in Bailey v. Marinoff, supra, the broad basis for extending time, namely, that there is a general jurisdiction to extend time for compliance with a self-executing order whether or not its operation has resulted in a disposal of the proceedings as was the decision of the Court of Appeal in Samuels v. Linzi Dresses Ltd., supra, was not available. He held: "A case such as this, where the action was still alive when it came before the learned Judge at first instance, falls squarely within the language of Order 90 Rule 6, and in my view no Court could properly hold that the discretionconferred by that provision could not ever be exercised regardless of the circumstances. The matter is of some consequence because the jurisdiction under Order 90 Rule 6 can be exercised at first instance, whereas the recognised means of affording relief if the action is at an end, to which I now turn, is available only on an appeal." Accordingly the situation appeared to be that as a result of the High Court decisions Goodwin v. Southern Tablelands Fi:,nance Co.Pty.Ltd. (1968) 42 A.L.J.R. 309(N}, Bailey v. Marinoff s~:,pra, and Gamser v. Nominal Defendant (1977) 136 C.L.R. 145 and tbeir interpretation in the Victorian Full Court and the Qu1eensland Full Court if an action which has been the subject of a self-executing order is at an end then there is no action upon whi~h a Judge or Master sitting at first instance can exerciseI -- 9 of 17 -- l his discretion under Order 90 Rule 6 so as to extend the time for the doing of the act which is contemplated in the self-executing order. The injustice that might result on any particular occasion from that state of affairs is mitigated by the availability of an appeal to the Full Court to extend the time within which to appeal from the order making the self-executing order. A Full Court could then determine, in the exercise of its discretion, if the party appealing should be relieved from the operation of the order appealed if time were extended. If there were nothing more, then it would appear that since the action in this case has come to an end that the only relief which the applicant could seek would be from the Full Court itself. In F. A. I. General Insurance Ltd. v. Southern Exploration N. L. , supra, the High Court reviewed the authorities in relation to self-executing orders. Wilson J. (with whom Brennan, Deane and Dawson JJ. agreed; Gaudron J. wrote separate concurring reasons) considered Australian, English, and Canadian authorities in relation to self-executing orders. His Honour sought to distinguish Goodwin v. Southern Tablelands Finance Co.Pty.Ltd., supra, Bailey v. Marinoff, supra, and Gamser v. Nominal Defendant, supra. He stated that although the equivalent of the N.S.W. extension of time rule was part of the High Court Rules in Goodwin, and although no reference was made to it in the judgments, the point may never have been taken since the appellant appeared in person. He conceded that the High Court in Bailey "gives a passing endorsement to the Whistler cases". This with the greatest respect is something of an understatement since Menzies J. in that case, with whose reasons Barwick c.~. agreed, stated unequivocally at p. 532 that: "Cases such as Whistler v. Hancock (3), Wallis v. Hepburn (4), King v. Davenport (5) and Script Phonography Co. Ltd. v. Gregg (6), where it was decided that an order dismissing an action unless a condition is fulfilled within a specified -- 10 of 17 -- time, .exhaust the jurisdiction of the court once the time has expired without fulfilment of the condition, were unquestionably rightly decided." Even Gibbs J. (dissenting) appears to have accepted the authority of those decisions at pp.540 and 544. It is worth noting that at the time that Whistler v. Hancock was decided in the Divisional Court of the Queen's Bench Division and Wallis v. Hepburn was decided in the Divisional Court of the Exchequer Division the English rules contained the equivalent of our Order 90 Rule 6 in Ord. LVII, r.6. Roskill L.J. in Samuels v. Linzi Dresses Ltd. [1981] 1 2.B.115 observed at p.121: " ... it is not readily apparent why each of those two cases did not fall within the express language of the rule. However, the two Divisional Courts, after being referred to that order and that rule, held otherwise." Lawnton L.J. observed at p.127 that Whistler v. Hancock was wrongly decided in the first place but that this was very likely due to the court being coloured by pre-Judicature Acts practice. He held that the decision was plainly contrary to the wording of, what was then, new Ord. LVII r.6. Wilson J. in F.A.I. General Insurance Co. Ltd. v. Southern Exploration N. L. went on to distinguish Bailey on the ground that it considered only the inherent jurisdiction of an appellate court to vary its own order bringing an action to an end. He observed at p.285 that: "The authority of Bailey may also be limited by the fact that its subject-matter was, as Aickin J. said in Gamser, in a passage to which I have already referred, an appeal which 'has been finally disposed of in a court of appeal by an order duly entered'. Indeed, the same may be said of Goodwin and Gamser." He further distinguished Gamser by stating that the question of extending time was not in issue in that case and consequently the extent of the discretion conferred by Pt.2, r.3 (N.S.W.) did not arise. He also considered Pollard v. Nominal Defendant, supra, which the Full Court in Freeman v. Rabinov felt bound to follow. He quoted the following passage from that judgment at p.286: -- 11 of 17 -- "The Court after referring to a number of cases, including Whistler and Bailey, expressed the opinion that 'once any proceedings, whether final or interlocutory, have been concluded by a court order which has fully taken effect so as to create new rights and obligations as between the parties then those proceedings may properly be treated as dead, subject only to appeal'. Holding that view, the Court limited the power to enlarge time conferred by 0.64, r.6 of the Rules of Court, a rule comparable though not identical to Pt 2, r.3, so as to have no application in such a case. For the reasons I have expressed, I am unable to take the same view of Pt 2, r.3." It was against that background that Wilson J. considered the construction of the New South Wales rule. He held at p.283: "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 parties subject to a conditional order ought to be excused from non- compliance." Since the Court was not pressed to consider the correctness of Goodwin, Bailey and Gamser in F.A.I. General Insurance Co. Ltd. v. Southern Cross Exploration N.L. it did not do so. Gaudron J. concurring, but writing separate reasons, recognised at p.287 that Barwick C.J. and Menzies J. in Bailey appeared to have relied on considerations applicable to all proceedings. She was of the view that where a party may commence fresh proceedings then the administration of law and justice would .be well served by a power to reinstate proceedings. This approach is in line with the reasoning in applications to dismiss for want of prosecution, see Birkett v. James [1978] A.C. 297. She further intimated that because the English cases approved by Menzies J.. were overruled by the Court of Appeal in Samuels v. Linzi Dresses Ltd., supra, a different view might be appropriate, at pp. 288- 9, but she did not, however, conclude that Bailey was wrongly -- 12 of 17 -- 10 proceeded as an application to vary an earlier order and not to extend time. She noted at p.289 that: "Although the rule that a court may not vary a duly entered order which brings proceedings to a conclusion rests~ at least in part, on the obvious desirability that litigation should be brought to an end, the converse of that rule viz. that a court of record may vary an order before the order is entered must rest on the notion that a court is not functus officio whilst there remains any judicial function which may be performed in relation to a proceeding, even if it be only that of ensuring that the final order correctly records the meaning of the court .... Although it has been common to speak of a conditional order for dismissal as self-executing or of a proceeding upon which an order has operated as 'dead', that seems to me to obscure the fact that 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. When such an issue remains to be determined in relation to a proceeding it cannot be said that the Court is functus officio. That being so there seems to me ~o be no relevant distinction between a proceeding in which a conditional order for dismissal has been entered and a proceeding in which an order has been made but not entered, notwithstanding the decisions in Goodwin and Bailey." Gaudron J. went on to observe at p.290: "However, as a conditional order for dismissal for that presently under consideration neither renders the court functus officio nor of itself precludes the bringing of fresh proceedings there is no question of fundamental legal principle or policy brought into issue by the grant of power in Pt.2, r. 3. That being so, and the languqge of the rule being such as to comprehend the power, Pt.2, r.3 must be construed as authorizing the court to enlarge the time fixed by a duly entered conditional order for dismissal notwithstanding that the time so fixed has expired, unless such authority is expressly excluded by statute or other rule of court." The difficulty in the matter under decision seems to be that although Order 90, Rule 6 is in the widest possible terms, the action is completely at an end so far as the court is concerned, and no fresh proceedings might be instituted due to the expiration of the limitation period. It seems then to fall within those exceptions to which their Honours made referenc~. It would appear that notwithstanding that the very underpinning of the rationale in Whistler has gone and has been demonstrated to have been wrong ab initio, because the High Court in F.A.I. -- 13 of 17 -- lJ. ~o have been wrong ab initio, because the High Court in F.A.I. General Insurance Co.Ltd. v. Southern Exploration N.L., did not approach the matter in a similar fashion to the Court of Appeal in Samuels v. Linzi Dresses Ltd., supra, and further, because McPherson J. in K.G.K. Constructions potentially qualified the power to extend time (on appeal it is true) to "cases where non- fulfilment of the order does not of itself spell the end of the action", see p. 18, I am of the view that I do not have power pursuant to 0.90, r.6 to extend the time for compliance with my order. It should be noted that the Court of Appeal in Morgan v. 45 Flers Avenue Pty.Ltd. (1987) 11 N.S.W.L.R. 573 held that notwithstanding that judgment had been entered on a self- executing order related to the prosecution of an appeal there was power under Pt.2., r.3 of the N.S.W. Rules to extend time. The High Court had heard but had not handed down its decision in F.A.I. General Insurance Co.Ltd. v. Southern Cross Exploration N. L. when the Court of Appeal gave its decision. Paino v. Hofbauer (1988) 13 N.S.W.L.R. 193, a decision of the Court of Appeal given after the High Court's decision was handed down suggests, obiter, that a broad approach to the ambit of the power to extend time given by the rules is the correct one. That however is not to conclude the matter because there still exists for consideration the provisions of Order 45 of the Rules, which is in the following terms: "1 . When facts arise after the giving of a judgment or making of an order which entitled the person against whom the judgment or order is given or made to be relieved from it, or when facts are discovered after the giving of a judgment or making of an order which, if discovered in time, would have entitled the party against whom the judgment or order is given or made to a judgment or decision in his favour, or to a different judgment or order, he may apply to the Court or a Judge for a stay of execution or other appropriate relief; and the Court or a Judge may grant such relief, and for that purpose may direct such proceedings to be taken, and such questions or issue of fact to be tried or determined, and such enquiries to be made, as may be just. -- 14 of 17 -- 2. Any party against whom a judgment is given may apply to the Court or a Judge for an order directing entry of satisfaction of the judgment to be made, and the Court may make such order accordingly. 3 . No proceeding shall be taken for the purpose of obtaining relief from judgment or orders on the ground of facts arising or discovered after the judgment or order, except as by this Order provided." As was observed by McPherson J. in K.G.K. Constructions this rule is peculiar to the Queensland Rules of Court, and see also the reference to it in passing by Wilson J. in F. A. I. General Insurance Co. Ltd. v. Southern Cross Exploration N.L., supra, at p.279. In Woods v. Sheriff of Queensland (1895) 6 Q.L.J. 163, Griffith C.J. held at p.164: "But, when a judgment or order is pronounced or made after hearing both sides, it is a general rule that the tourt which pronounced the judgment or made the order cannot reverse or vary it. To this rule, which in my opinion applies equally to all judgments and orders, whether final or interlocutory, and whether pronounced by the Full Court or by a single Judge, and whether he is sitting in court or in chambers, there were, before the Judicature Acts some exceptions." His Honour then discussed the rules of the Court of Chancery which on occasion allowed orders to be reviewed. His Honour went on to observe: "Thus, although the mode of procedure is altered, full power is retained to relieve a party from the effect of a judgment which, though just when pronounced, ought not to be carried into execution. The same principle that allows relief to be given against the continued operation of a final judgment obviously extends also to giving relief against the continued operation of an interlocutory order, if after it is made new facts come into existence or are discovered which render its enforcement unjust. Such a contingency is plainly more likely to arise in the case of an interlocutory order than in that of a final judgment. In my opinion it is the settled practice of the Court to exercise the power of giving relief in such cases. An application for such relief is not in the nature of an appeal or re-hearing; each of these is founded on the contention that the order appealed from ought not to have been made. An application for a new order would test the effect of suspending the whole or in part the operation of a previous order starts with the assumption th~t the order was rightly made. There is therefore no question of reversing or varying or re- hearing the original decision or order. It follows that the application for relief from it need not be made to the Court or Judge by whom the original order was made, but may be made to any Judge who can exercise the jurisdiction of the -- 15 of 17 -- made to any Judge who can exercise the jurisdiction of the Court, although it would ordinarily be made to the same Court or Judge; and the relief may be granted by a Judge in chambers (if it is a proper case for chambers) although the original order was made by the Full Court - whether on appeal or otherwise. If it should turn out that the application is based upon the assumption that the order, the operation of which it is desired to modify, was wrongly made, it must fail. The only question is whether the party applying is entitled under the altered circumstances to be relieved from the operation of the order." It seems to be recognised that this practice was enshrined by Griffiths C.J. in Order 45 of the Rules, see K.G.K. Constructions, supra, p.20. In K.G.K. Constructions McPherson J. was of the view that Order 45 Rule 1 applied to the facts before him and granted the appropriate relief to the applicant. The application of Order 45 Rule 1 to a self-executing ?rder situation was also approved by the Full Court in Marshall v. Dunkley, supra. The question which falls for my decision is whether in this matter facts were discovered after the making of the order, which, if discovered in time, would have entitled the party against whom the order was made to a different order. The present situation falls within Order 45 Rule 1 in as much as it could be said that had it been known at the time when the self- executing order took effect that due to an administrative oversight in the plaintiff's solicitor's office, the matter had not been entered for trial, then time may very well have been extended for the giving effect to that order. I have thus concluded that the decision of F .A. I. Insurance Co.Ltd. v. Southern Exploration N.L., supra, read with K.G.K. Constructions, supra, does not extend to a situation where by virtue of the self-executing order and orders which have thereafter been entered the action is truly at an end. In that circumstance it would appear that a court or judge thereof (including a Master) may not entertain an application to extend time pursuant to Order 90 Rule 6. I am, however, of the view -- 16 of 17 -- ll that Order 45 Rule 1 in this case enables me to entertain ksuch an application. I was pressed by Mr. Francis of counsel who appeared for the respondent/defendant that if I did form the view that I had jurisdiction to entertain the plaintiff's application I ought not exercise my discretion in favour of the plaintiff, bearing in mind his extreme dilatoriness in prosecuting his action. Should I refuse to exercise my discretion in favour of the plaintiff, subject of course to any appeal from this order, the plaintiff's action would be at an end, it being common ground that it is after the expiration of the limitation period for the commencement of fresh proceedings. I am also conscious that, this action has been entered for trial notwithstanding the self- executing order and that it is in all respects ready for trial. It appears to me that bearing in mind the approach that courts take in dismissal for want of prosecution cases and bearing in mind that it seems to be a fault which lies solely within the office of the solicitor for the plaintiff and can in no way be directed to the plaintiff himself that there would be a want of justice towards the plaintiff were I not to exercise my discretion in favour of him in this application. Accordingly I am of the view that the plaintiff should be relieved from the consequences of the orders made 1st August 1990 and 13th September 1990. Further it is ordered that all steps taken in this action by the plaintiff after 24th August 1990 are proper and regular steps in the action. It is appropriate that the plaintiff pay the defendant's costs of the applications made 1st August 1990 and 13th September 1990 to be taxed and it is so ordered. It is further ordered that the applicant plaintiff pay the respondent defendant's costs of and incidental to this application to be taxed. . ' ) -- 17 of 17 --