Verity, C.J. This appeal arises from litigation, long drawn out, during the course of which the present appellant was in default for almost every possible reason that a party could be in default in the conduct of proceedings, until at last a stage was reached when one of the learned Judges before whom the case came, made an Order that he would only extend the time in which the appellant should file his defence and counterclaim upon a certain condition. That Order was, in the event, not appealed against by reason of various other defaults on the part of the present appellant, but although the defendant failed to comply with the conditions which the Court had ordered, he nevertheless, put in his statement of defence. He included in the statement of defence a counterclaim. The respondent in this action then sought for judgment on the ground that no defence had been filed.
The learned Judge before whom the case then came entered judgment in these circumstances for the respondent.
In the first place it is submitted on behalf of the appellant that the learned Judge should not, in those circumstances, have entered judgment for the plaintiff without first having regard to the terms of the defence which had been so filed out of time and in non-compliance with the conditions laid down by the Court.
Counsel for the appellant has cited to us a number of authorities which appear to establish that where a defendant is in default in filing his defence, in the sense that he does not do so within the right time, that nevertheless, the Court will look at the defence filed out of time before entering judgment. I do not think that those authorities are applicable in the present circumstances. In this case it is not merely a default to file the defence within the prescribed time by reason of carelessness or negligence, but it is an attempt to file the defence in direct disobedience and defiance of an Order from the Court. At no time did the appellant attempt to comply with the Order of the Court; at no time did he attempt to show that he was unable to comply therewith, and the only conclusion that I can come to is that he deliberately refused to obey the Court's Order. Such an attempt to disobey the Court would, if it were upheld by this Court of Appeal, render nugatory the powers which are conferred on the trial Court for the enforcement of its control of proceedings. In my view, therefore, the Judge was, so far as this ground is concerned, entirely justified in granting the order for judgment.
It was then argued that in the particular circumstances of this case, the learned Judge was wrong in dismissing what he described as the appellant's counterclaim. In the consideration of those circumstances, I have to bear in mind that there were originally two separate actions, one brought by the respondent against the appellant and one brought by the appellant against the respondent. After some discussion the learned Judge before whom the matters came made an Order consolidating the actions and at the same time, an Order that there should be one set of pleadings in both actions. That meant that the plaintiff would have filed a statement of claim, the defendant file his defence and counterclaim, and the plaintiff his reply. After discussion it was decided that the particulars afforded by the writ and the particulars thereto were sufficient to enable the defendant to file his counterclaim and no Order, therefore, for statement of claim was made. The defendant having failed to file the defence and the counterclaim, the question is what happened to his original action? There can be no doubt that had the actions been brought separately it would have been necessary for the appellant to file a statement of claim with his cross action, and if he failed to do so the action could have been dismissed for want of due prosecution. In regard to the consolidated action the defendant failed to file his counterclaim which was, in effect, a statement of claim, and the action was, therefore, dismissed in default of statement of claim. I think that is what the learned Judge meant when he said, “I dismiss the counterclaim”, because, as was pointed out by Counsel for the respondent, the Judge used the words “counterclaim” and “cross-action” as synonymous. I think, therefore, the appeal must fail on that ground also.
The appellant also put forward a ground that the writ and the particulars afforded by the respondent disclosed no cause of action. It is a well established rule that if a party considers that his opponent's pleadings disclose no cause of action he should move, at the earliest possible time to have it struck out and not wait until the Court of Appeal, but in this case that position hardly arises. The point was raised at a very early stage in the discussion of pleadings, and there can be no doubt, to my mind, that the parties were well aware of the nature of the plaintiff's claim, that a certain course of proceedings was agreed to and the Order made in that sense. In these circumstances I do not think that it can lie in the appellant to say that he was not sufficiently informed by the pleadings in the consolidated action, and that is really what it amounts to. I think, therefore, that this ground of appeal fails also.
Having considered very carefully the arguments which we have heard by the appellant, and I hope we allowed him to put forward all that he wished to. I have come to file conclusion that there is, in fact, no substance in this appeal whatever. The appellant's conduct throughout the proceedings has not entitled him to any consideration or any latitude, and I think there is only one thing that can be done and that is to dismiss this appeal with costs.
Arthur Lewey, J.A. I agree and have nothing to add. M. de Comarmond, S.P.J. I agree.
Appeal dismissed.