COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
Kearney J.(1)

CWDS
  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
    Kaye v Levinson (1950) 1 All ER 594
    Exell v Exell (1984) VR 1
    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 and 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) 1 QB 115
    Whistler v Hancock (1878) 3 QBD 83

HRNG
DARWIN
#DATE 13:9:1988
  Counsel for the appellant :    P.J.B. Tiffin
  Solicitor for the appellant :  Ward Keller
  Counsel for the respondent :   J.B. Waters
  Solicitor for the respondent : Waters James and
                                 O'Neil

ORDER
  Appeal dismissed with costs.

JUDGE1
  On 7 September I ordered that this appeal be dismissed with costs, for
reasons to be published.  I now publish those reasons.
2.  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
3.  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
4.  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.
5.  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.
6.  The Rule also provided for discovery by curial process.  The Court's power
to order discovery stemmed from its power under s.6B(1) of the Act -
      "... to hear and determine .. all matters and
    questions incidental to or arising out of claims for
    compensation",
as well as its rule-making power in s.6F.
7.  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).
8.  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
9.  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
10.  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(1) of the Act to hear and determine
an Application; see Exell v Exell (1948) 1 VR 1.
11.  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 same 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.
12.  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.
13.  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) for the
non-compliance with it.
The self-executing interlocutory order of 28 January 1988
14.  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:
    (a)  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;
    (b)  the order made with the consent of both parties
    by His Worship Mr Lauritsen S.M. made on the 21st day of
    October 1987 that 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;"
15.  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.1(a) of its Summons of 8 January 1988.  Para.1(a) does, however,
accurately set out the terms of the order of 17 February 1987.
16.  An order was made by consent on 28 January 1988; both parties were
legally represented.  The learned Magistrate, Mr Lauritsen S.M., noted on the
file in the following terms the order he then pronounced:-
      "(1)  Applicant (that is, the
    respondent) to file and serve an affidavit of discovery
    as previously ordered on 21/10/87 within 28 days.  If
    the said affidavit is not so filed, the worker's
    application dated 4/2/1986 shall be dismissed.
    (2)   Applicant shall pay respondent's costs of this
    application to be taxed in default of agreement.
    (3)   Liberty to either party to apply."
17.  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.
18.  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:-
     "1.  That the Applicant do file and
    serve an Affidavit of Discovery as per the Order of Ms
    Thomas C.S.M. made the 17th day of February, 1987,
    within 28 days OR ELSE the Applicant's Application dated
    4th February, 1986 shall be dismissed ;
     2.   That if the Applicant's
    Application be dismissed then there be liberty to either
    party to apply re costs ;
     3.   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.
19.  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 inconsistencies with the learned
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 C.S.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.
20.  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."
21.  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".
22.  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.
23.  The 28 days which the order of 28 January 1988 limited for the filing and
serving of an affidavit of discovery, expired 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.
24.  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 LT 31, per Grove and Bowen JJ.  See also the authorities cited by Powell J.
in 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
25.  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 1 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.
26.  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.
27.  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 ER 594 at
596, the order should be used "cautiously".  See also the observations of
Muirhead A.C.J. in S. and 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 L.J. pointed out in Kaye v Levinson (supra) at p 598 the more usual
practice is to indicate, when the order for discovery against a plaintiff is
made, that no further 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.
28.  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."
29.  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 L.J. described
Whistler v Hancock (supra) as "oft-quoted and oft-criticized".
30.  In FAI General Insurance Co Ltd v Southern Cross Ex-ploration 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 injustice inherent in
    the rigid rule laid in Whistler gave rise to a century
    of judicial dexterity based on highly artificial
    distinctions".
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 extend time under sub-rule
    (1) as well after as before the time expired whether or
    not an application for the extension is made before the
    time expires."
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.
The order of 21 March 1988
31.  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 1 March was in fact
similar to the procedure adopted in Australian Telecommunications Commission v
Elmec Pty 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.
32.  Quite rightly, the Court declined to deal with the application ex parte;
see the observations of Deane J. in 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 S.M. 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.
33.  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. After
reviewing various authorities he stated at p 26:-
    "I cannot set aside my order of 28 January 1988.  I
    cannot extend the time for compliance.  I can entertain
    the present application (of the appellant) because 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 seems to maintain that he understood
    my order of 28 January 1988 and referred to a list of
    documents (inaudible).
    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 my 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 ER 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 L.J. 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
    something, 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 L.J. 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 trial, of the order so made being
    absolutely precise and unambiguous.  This order was, in
    my view, neither the one nor the other."
34.  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?
      Greene, L.J.: The view which we both take is
    that the paragraph is inoperative, because it is too
    vague in the sense that it fixes no ascertainable date."
35.  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 Statement 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.
36.  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
37.  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.
38.  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 1 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.
39.  I accept Mr Tiffin's submission that it is clear that the Court had no
inherent power to 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:-
      "... 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 C.J. and Ellicott J. in 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.
40.  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.
41.  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 by 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."
42.  Rule 13(8) provides for delivery of an affidavit of discovery "within 4
days ... or within such other time as 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.
43.  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.
44.  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.
45.  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.
46.  It was for these reasons that on 7 September the appeal was dismissed
with costs.