Allchin v Hunter Water Corporation (No 3)

[2025] NSWCA 75

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Allchin v Hunter Water Corporation (No 3) [2025] NSWCA 75

Hearing dates:

24 March 2025, 14 April 2025

Date of orders:

16 April 2025

Decision date:

16 April 2025

Before:

Kirk JA

Decision:

(1) The respondent’s notice of motion filed on 1 November 2024 is dismissed, with costs of the motion to be costs in the cause.

(2) Pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) the appellant is referred to the Registrar of the Court of Appeal for referral to a barrister or a solicitor for the purpose of legal assistance with respect to his appeal.

(3) List the matter for directions before the Registrar on 14 May 2025.

Catchwords:

CIVIL PROCEDURE — summary disposal — want of due despatch — delays by self-represented appellant in prosecuting an appeal — new circumstances come to light — not in the interests of justice to dismiss proceedings

CIVIL PROCEDURE — Court of Appeal — objections to competency of appeal — uncertain whether leave to appeal required — appellant has attempted to comply with orders to file a summons seeking leave to appeal — appellant’s notice of appeal filed two days out of time — not in the interests of justice to dismiss proceedings

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — non-appearance of plaintiff — plaintiff withdrew legal representation mid-way through hearing and later left the courtroom— whether r 29.7 of the Uniform Civil Procedure Rules (2005) (NSW) applies where a party leaves the court room mid-way through a hearing

CIVIL PROCEDURE — Court of Appeal — pro bono referral — party terminated previous pro bono referral — issue of principle emerged on appeal satisfying the “special reasons” requirement in r 7.36 of the Uniform Civil Procedure Rules (2005) (NSW)

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56-60, s 91

District Court Act 1973 (NSW), s 127(2)

Supreme Court Act 1970 (NSW), s 101(2)(r)

Supreme Court Rules 1970 (NSW), Pt 34, r 5 (repealed)

Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 12.7, 13.6, 29.7, 36.16(2)(b), 51.1(3), 51.12, 51.16(1)(c), 51.22, 51.41

Cases Cited:

Allchin v Hunter Water Corporation [2024] NSWCA 290

Allchin v Hunter Water Corporation (No 2) [2024] NSWCA 315

Fleet v Blacktown City Council [2010] NSWLEC 46

Fong Bhnf Fong v Weller [2024] NSWCA 46

Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334

GJ v AS [2014] ACTSC 1890

Harry v Inner West Council [2024] NSWSC 770

Hoser v Hartcher [1999] NSWSC 527

Ibrahim v Ayoubi [2013] NSWCA 405

Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267

Lake Macquarie City Council v McKellar [2002] NSWCA 90

Lane v Northern New South NSW Local Health District (No 2) [2014] NSWCA 32

Magjarrajv Asteron Life Limited [2009] NSWSC 1433

Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274

Michailv Mount Druitt & Area Community Legal Centre (No 2) [2015] NSWDC 214

Michail v Mount Druitt & Area Community Legal Centre [2015] NSWCA 396

Pannozzo v Fowler [2013] NSWCA 269

Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41

Shaw v Official Trustee in Bankruptcy [1999] NSWSC 258

Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119

Stollznow v Calvert [1980] 2 NSWLR 749

The Estate of Alberto Magri [2022] NSWSC 873

Van Gorp v Davy [2017] NSWCA 167

Wakim v Kolotouros [2018] NSWCA 24

Warne v Chandlers International Lawyers [2024] NSWCA 244

Wilson v Alexander [2003] FCA 183

Witten v Lombard Australia Ltd [1968] 2 NSWR 529

Category:

Procedural rulings

Parties:

Craig Allchin (Appellant; self-represented)
Hunter Water Corporation (Respondent)

Representation:

Counsel:
I Griscti (Respondent)

Solicitors:
Moray & Agnew (Respondent)

File Number(s):

2024/222409

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

Not applicable

Date of Decision:

30 April 2024

Before:

Weber DCJ

File Number(s):

2021/269449

JUDGMENT

1. In this matter the appellant, Mr Craig Allchin, has filed a notice of appeal from the orders of the primary judge, Weber DCJ, made on 30 April 2024 which dismissed his claim for damages for personal injury against the respondent, the Hunter Water Corporation.

2. On 1 November 2024 the respondent filed a motion seeking that the appeal be dismissed pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for want of due despatch, or alternatively that it be dismissed as incompetent pursuant to r 51.41 of the UCPR. That motion falls to me for determination.

3. There are some unfortunate aspects to the matter, including that relevant material was not known to the respondent through no fault of its own. In the circumstances as now disclosed I am not persuaded that the matter should be dismissed for want of due despatch or as incompetent.

4. I will address the issues as follows:

1. what occurred in the District Court (at [5]-[13]);

2. the procedural history in this Court (at [14]-[31]);

3. a possible issue of principle (at [32]-[49]);

4. competency (at [50]-[54]);

5. the claimed lack of due despatch (at [55]-[68]);

6. referral for pro bono legal representation (at [69]-[77]).

The District Court proceeding

5. In the District Court, the appellant claimed damages for personal injuries he allegedly suffered due to a fall which occurred on or about 15 March 2020 at Lemon Tree Passage, a suburb of Port Stephens on the mid-north coast of New South Wales. The appellant alleged that he stumbled on a “manhole” for which the respondent was responsible, causing him to fall to the ground and incur various injuries. He alleged that the respondent’s negligence caused his injuries. The respondent denied liability and contended that the alleged fall did not cause significant or ongoing injuries or disability, and any injuries he did have had other causes.

6. The hearing commenced in the District Court on Monday 29 April 2024. There were some short opening exchanges. Counsel then appearing for the appellant had said to his Honour (unpromisingly, from the appellant’s perspective):

In relation to damages, there's been a conclave with two sets of experts: the occupational therapists and the orthopaedic surgeons. I do expect, in essence, the result of the conclaves is not in the plaintiff’s flavour. I do expect, perhaps, to be making an application when our witnesses, Dr Bartle and Ms Urbanek, give evidence, making an application to cross-examine.

7. Counsel for the respondent indicated to the primary judge that the specialists relied on by the appellant were not required for cross-examination, apparently because the respondent was content with the outcome of the conclaves as recorded in the joint reports.

8. The appellant was then called to give evidence, in the course of which a number of medical reports and other exhibits were tendered without objection. It appears that the joint reports were not tendered by the appellant. Cross-examination of the appellant finished in the morning of the following day. There was then a short adjournment.

9. It is relevant to note in passing that in the course of giving evidence the appellant testified to having various physical and mental problems from various causes not connected to his claim against the respondent. These included a vision impairment in his left eye, a hearing disability on both sides, an acquired brain injury, PTSD, and Korsakoff syndrome, being an alcohol-induced memory disorder. I do not understand the respondent to have challenged the existence of these afflictions in cross-examination – on the contrary. I note he used a hearing loop when appearing before me. And when before both the primary judge and me he was accompanied by a companion dog.

10. After the adjournment on the second morning of the hearing counsel for the appellant said “I regret to inform the Court that my brief, and the brief for my instructing solicitor, has been terminated”. They were permitted to withdraw. The liability expert for the appellant was then due to give evidence and appeared on screen. Before he commenced being asked questions there was some exchanges about another of the appellant’s experts, in the course of which the appellant sought an adjournment, which was refused. Counsel for the respondent then began to cross-examine the expert, the appellant made some objections which the judge rejected. The appellant then said:

This is a joke. Look, my head’s gone. I can’t deal with it. It needs to be adjourned, sorry. You just wrecked a really good man and probably all your other appointments. So, you do all that the way you want to, because, obviously, that’s how you deal with it, and I’m not [sic – now?] abandoning the Court. I'm leaving because you put me under that much stress and pressure that I can't handle it. Okay. I’m going down to the registrar now and I'm going to speak to the lead judicial – whoever the judicial person is – about your conduct. Thanks for your time, and if it is dismissed, you can explain that to the Commissioner. Thanks for your time, and if you continue without me being here come after there will be a complete denial.

11. It appears that he then left the courtroom. The primary judge indicated that the cross-examination of the liability expert should be completed and then he would adjourn briefly to consider the position. After the cross-examination there was some discussion. Counsel for the respondent raised the potential applicability of r 13.6 and r 29.7(4) of the UCPR to the circumstances. With respect to the latter, his Honour said:

HIS HONOUR: …it seemed to me that there would be no rational difference between the plaintiff who doesn’t turn up on day 1 and the plaintiff who storms out in high judgment on day 2.

GRISCTI: Yes, your Honour. My only query is 29.7(1), which states this rule applies when a trial is called on. That raises the issue, does it only apply at the moment it’s called on?

HIS HONOUR: I wouldn’t have thought so.

GRISCTI: I can continue to apply it for the course of the hearing.

HIS HONOUR: But sub-rule 4 is not so limited.

12. There was then an adjournment for some 20 minutes, after which counsel applied for the proceedings to be dismissed pursuant to r 29.7(4) of the UCPR. The primary judge then delivered a short ex tempore judgment granting that application, in which his Honour said the following:

The defendant makes application for the dismissal of the proceedings pursuant to the provisions of Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 29.7(4). lt may also be, in my view, that such relief is available to the Court under UCPR r 13.6. I note that r 13.6(3) makes it clear that the Court has powers to dismiss proceedings, which are unaffected by the procedure set forth in r 13.6(1) and (2), which involves an adjournment.

I also consider that UCPR r 29.7(4) is available in the circumstances, and while 29.7(1) seems to contemplate that the Rule is directed to the position of a plaintiff who fails to appear when the matter was initially called on, sub-rule (4) does not. Indeed, to my mind it would be strange, in any event, if a different outcome could apply to the plaintiff who never appears, and the plaintiff who ceases to appear of his own volition.

ln all the circumstances, therefore, I consider that the application of the defendant is the appropriate one, and I order that:

1. The proceedings be dismissed.

2. The plaintiff pay the defendant’s costs.

13. That the primary judge ultimately dismissed the proceedings pursuant to r 29.7(4), and not some other rule or otherwise, is apparent from his reference to the defendant’s application “being the appropriate one”.

The Court of Appeal proceedings

14. The appellant filed a notice of appeal in relation to the primary judge’s orders on 30 May 2024. That was two days late: cf UCPR r 51.16(1)(c). Under “Appeal Grounds”, the appellant wrote the following:

The district court acted in a biased manner and refused me procedural fairness and denied me natural justice. I was refused the right to an adjournment due to my mental health and self representation. The proceedings were also a miscarriage of justice. They were dealt in my absence without consent.

15. The appellant did not include a certificate pursuant to r 51.22 of the UCPR certifying that the amount in issue in the appeal exceeds a specified amount. Rather, this section of his notice was left as it appears in the template form. Under the heading “Orders sought” is a paragraph which substantially echoes what is written in the appeal grounds, without adding anything in substance to those four sentences.

16. Evidence from the respondent’s solicitor indicates that there are no records of this notice having been served on his firm or the respondent. The respondent first became aware of the notice following receipt of orders from the Court made on 10 July 2024. On that date, the then Registrar of this Court made orders directing the appellant to file and serve a summons seeking leave to appeal, along with a white folder by 11 September 2024, and waiving the filing fee for the summons.

17. The appellant emailed the Registry on 22 July 2024 concerning the Court’s orders of 10 July 2024. The email evidences a misunderstanding by the appellant that a summons seeking leave to appeal was being requested because his appeal was filed two days out of time. On 6 August 2024 the then Registrar of this Court responded as follows:

Leave is required pursuant to section 101(2)(r) of the Supreme Court Act 1970 (NSW) (attached) as the decision of Justice Weber, in which your claim against Hunter Water Corporation was dismissed, does not appear to be an appeal that involves a “matter in issue” or “(directly or indirectly) any claim, demand or question to or respecting any property or civil right” amounting to or of the value of $100,000 or more. You did not file a certificate pursuant to rule 51.22 of the Uniform Civil Procedure Rules 2005 (NSW) (attached) to specify that the amount in issue on your appeal exceeds $100,000 and it was not apparent from the material filed that the amount in issue would amount to $100,000 or more.

It is for these reasons that the Court made orders that you file a Summons Seeking Leave to Appeal along with a White Folder. …

18. Whilst the email erroneously referred to section 101(2)(r) of the Supreme Court Act 1970 (NSW) rather than s 127(2)(c) of the District Court Act 1973 (NSW), nothing turns on that. On 14 August 2024 the appellant responded to the Registrar’s email claiming that the amount involved was $10 million.

19. On 30 August 2024 the appellant sent an email to the Legal Assistance Referral Scheme (LARS) querying his request for counsel for his appeal, and noted the 11 September deadline in this Court for the filing of his material.

20. On 2 September 2024 the appellant sent a summons seeking leave to appeal to a template email address found on the Court’s template summons form. A couple of minutes later, after the email had bounced back, the appellant forwarded the email, without the attached documents containing the summons, to the Registrar’s email. After the initial email seemingly failed to send, the appellant successfully sent the summons to the then Registrar on 3 September 2024. The respondent’s solicitor was not copied into these emails. In the last email, the appellant wrote “SUMMONS SEEKING LEAVE TO APPEAL AS REQUESTED…”. It appears that this email has, until recently, been overlooked by the Registry.

21. Over the course of August and September 2024 the appellant sent a number of emails to the legal practitioners who had represented him in his matter in the District Court, requesting that his file and materials from the District Court matter be sent to him. In some of this correspondence the appellant notes that he needs to file material to meet a deadline in the Court of Appeal. It appears that the appellant was attempting to retrieve his files as late as November of last year, although there is also an email from the District Court Registry in August which indicates that the court file had been “forwarded to the Court of Appeal”.

22. On 21 October 2024 the Registrar made orders directing the respondent to file any notice of motion seeking dismissal of the appeal. The respondent’s motion was filed on 1 November 2024.

23. On 15 November 2024, after the Registrar noted that the appellant had not filed written submissions on the respondent’s motion in accordance with the direction made on 21 October 2024, the appellant sent an email back to the Registrar (not copied to the respondent’s solicitor) stating that he was waiting to be contacted regarding his LARS application.

24. It seems that on 18 November 2024 the appellant asked that an application for pro bono assistance that he had foreshadowed be dealt with in chambers.

25. The matter came before Griffiths AJA as referrals judge on 25 November 2024 in relation to both the respondent’s motion and the appellant’s foreshadowed application. The appellant did not appear, and his Honour stood the matter over to 16 December 2024, giving short reasons for doing so: Allchin v Hunter Water Corporation [2024] NSWCA 290 (Allchin (No 1)). His Honour made no other order. The appellant subsequently provided an explanation for his absence.

26. On 27 November 2024 the appellant filed a notice of motion, with a supporting affidavit, seeking a referral for legal assistance under r 7.36 of the UCPR. Justice Mitchelmore heard that application on 16 December 2024 and declined to refer the appellant for legal assistance on 20 December 2024: Allchin v Hunter Water Corporation (No 2) [2024] NSWCA 315 at [25]-[26] (Allchin (No 2)). The respondent at the time accepted that it was appropriate to deal with the appellant’s motion first and to stand over the respondent’s motion for hearing on 3 February 2025: ibid at [10].

27. In various emails in January 2025 the appellant indicated a desire to “appeal” the decisions of Griffiths AJA in Allchin (No 1) and Mitchelmore JA in Allchin (No 2). The hearing of the respondent’s motion was vacated twice earlier this year: the first seemingly on the basis of medical certificates provided by the appellant; and the second due to a conflicting appearance by the appellant in another matter.

28. The appellant did not provide any formal written submissions in relation to the respondent’s motion and has not yet provided a white folder or written submissions on the appeal. The appellant has claimed to the Registrar on a number of occasions that he is unable to provide written submissions.

29. The motion came before me for hearing on 24 March 2025. A substantial portion of that hearing concerned dealing with the materials which the appellant sought to rely on. I indicated that I would treat before me “all email exchanges between the Registrar and the parties”. No objection was taken to that course. In the end, the appellant tendered three exhibits of material to the Court. The appellant also communicated to me the core tenets of his complaint regarding the proceedings before the primary judge. At the conclusion of that hearing, I reserved my decision.

30. Subsequent to the hearing of the respondent’s motion, and following investigations carried out by my chambers, it emerged that there were potentially relevant communications between the appellant and the Court’s registry on which the respondent’s solicitor had not been copied. Nor was that material included in the appellant’s exhibits tendered on 24 March 2025. The most significant of these emails have been referred to above. Furthermore, I came to identify a possible issue of principle which was raised, somewhat obliquely, by the appellant’s oral submissions (as discussed immediately below).

31. In that context my associate sent the parties an email attaching the most significant emails in question and identifying the possible issue of principle, and the matter was relisted before me on 14 April 2025 in order to provide the parties procedural fairness in relation to these two matters. At that hearing I also raised with the appellant whether he wished to renew before me his application for pro bono representation in light of the possible issue of principle identified. He said that he did. There were some other exchanges which I identify below when dealing with that application.

A possible issue of principle

32. As discussed below, one of the factors potentially relevant to considering whether the proceedings should be dismissed for lack of due despatch is the claimant’s prospects of success. Self-evidently this appeal is at a very early and undeveloped stage. Nevertheless, the judgment below is brief and I have read the transcript of what occurred before the primary judge. In that context I am able to express some broadbrush and provisional views about the appellant’s prospects of success.

33. The “grounds” section of the appellant’s notice of appeal, as quoted above at [14], contains four sentences. The first sentence, which complains of bias, and a refusal of procedural fairness and denial of natural justice, currently appears to me to have low prospects of success.

34. The second sentence alleges that the primary judge refused the appellant’s “right” to an adjournment due to his mental health and self-representation. Justice Mitchelmore considered that aspect of his complaint in her judgment, noting the difficulties in challenging a primary judge’s discretionary decision on a matter of practice and procedure: see at [23]. I respectfully agree with her Honour, and currently consider that this second point, too, has low prospects of success.

35. The third sentence is a conclusory complaint with no specific ground asserted.

36. The fourth sentence relates to the proceedings being dealt with in the appellant’s absence but does not elaborate on or explain the complaint in any legal terms, for example, by reference to r 29.7 of the UCPR. However, in oral submissions the appellant made before me on 24 March 2024 it became clear that a core tenet of his complaint does concern the inapplicability of r 29.7(4) to the circumstances of the proceedings before the primary judge. That complaint can reasonably be regarded as falling within his more general statement in the notice of appeal in the fourth sentence.

37. Rule 29.7 is as follows:

29.7   Procedure to be followed if party is absent

(1)  This rule applies when a trial is called on.

(2)  If any party is absent, the court—

(a)  may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or

(b)  may adjourn the trial.

(3)  If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of—

(a)  the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and

(b)  any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff’s claim or costs.

(4)  If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings.

(5)  Subrules (3) and (4) do not limit the court’s powers under subrule (2)

38. The power granted by r 29.7(4) is discretionary and on appeal it would be necessary for the appellant to establish House v The King error. Yet in the circumstances of this case I consider that the appellant’s appeal does appear to raise a reasonably arguable issue of principle. The primary judge said in his judgment that “while 29.7(1) seems to contemplate that the Rule is directed to the position of a plaintiff who fails to appear when the matter was initially called on, sub-rule (4) does not”. Yet r 29.7(1) states that “[t]his rule applies when a trial is called on”. In terms that limitation applies to r 29.7(4), suggesting that this aspect of his Honour’s reasoning may have involved legal error.

39. If that is right, the question then is whether or not the power granted by r 29.7(4) is available in circumstances where a hearing has commenced and the plaintiff has appeared, but subsequently during the course of the hearing the plaintiff leaves the courtroom and does not participate further in the hearing. In my view it is reasonably open to argument that that situation is not covered by the words “a trial is called on” in subrule 1 and “does not appear” in subrule 4. Conversely, as the primary judge indicated, it is certainly arguable that the rule should be construed apply to such circumstances. But that could not be said to be an inevitable construction. It is necessary, of course, to construe the rule in context, which includes other parts of r 29, along with rr 13.6 and 36.16(2)(b), in the UCPR and s 91 of the Civil Procedure Act 2005 (NSW).

40. There is conflicting authority as to whether r 29.7 and equivalent provisions apply where a party initially appears but then leaves the courtroom midway through the hearing. In Magjarrajv Asteron Life Limited [2009] NSWSC 1433 Barrett J appears to have applied r 29.7 to a case where a plaintiff who had initially appeared and been represented on the first day of a proceeding, then failed to appear for further cross-examination on the second day, and his legal representatives were granted leave to withdraw. In Shaw v Official Trustee in Bankruptcy [1999] NSWSC 258 Hamilton J applied a predecessor to r 29.7 in similar circumstances, noting that the predecessor provision was not expressed in identical terms (being Pt 34 r 5 of the Supreme Court Rules 1970 (NSW)).

41. In The Estate of Alberto Magri [2022] NSWSC 873 the plaintiff appeared for herself on the first day of the proceeding and failed to appear thereafter. The opposing party applied for the case to proceed in her absence. Justice Henry applied r 29.7 determining that the matter proceed to hearing the following day “even if that means the hearing will proceed in the absence of the plaintiff”: at [41]. Notably, Henry J deemed the plaintiff to have not appeared after the matter was “called for hearing” on the second and third days listed for the hearing (see at [19] and [25]). One other significant point of difference between Magri and the present case (and Magjarraj) is that Henry J, having noted that r 29.7(2) authorises the Court to proceed with the trial or adjourn the matter, decided to “proceed to hear the matter commencing at 10am tomorrow … even if that means the hearing will proceed in the absence of the Plaintiff” (at [41]). Her Honour did not dismiss the case pursuant to r 29.7(4).

42. In contrast to those cases, in Michail v Mount Druitt & Area Community Legal Centre (No 2) [2015] NSWDC 214, Gibson DCJ considered that r 29.7 applied when a hearing is called on and a party is absent, but that no rules apply where a party walks out mid-way through a hearing: at [16]. Her Honour proceeded to hear the case after the plaintiff walked out of the court room mid-way through a hearing. The plaintiff in Michail sought leave to appeal to this Court, complaining, amongst others, about her treatment at the hearing before Gibson DCJ, which appeared to raise procedural fairness grounds: see Michail v Mount Druitt & Area Community Legal Centre [2015] NSWCA 396 at [41]-[45]. This Court, comprised of Leeming JA and Emmett AJA, rejected the claim of procedural unfairness in what occurred before Gibson DCJ and leave to appeal was refused. Their Honours did not refer to the applicability of r 29.7, presumably because the issue was not raised in submissions.

43. An equivalent Federal Court rule was considered by Jacobson J in Wilson v Alexander [2003] FCA 183. His Honour said of that rule “that ‘if, when a proceeding is called on for trial, any party is absent’, the Court may proceed with the trial in the absence of the party” (at [46]). There, the claimant, appearing in person, sought an adjournment. When that application was refused the claimant walked out of the court room. Following an adjournment and a subsequent resumption, he again walked out of the courtroom, following which an application was made to proceed with the trial in the plaintiff’s absence. Notably, his Honour said as follows:

[48] Mr Wilson was present when the matter was called on for trial at approximately 10:15 am on 11 March 2003. The question which then arises is whether it can be said that by deliberately absenting himself after I had refused his adjournment applications, Mr Wilson was absent when the matter was called on for trial.

[49] In my view, he was not absent and O32 r2 is not enlivened but it does not follow from this that the Court does not have power to dismiss the claim.

[50] By evincing an intention to play no further part in the proceedings, Mr Wilson effectively closed his case. A party cannot turn his back on the Court and expect that the proceedings will remain permanently in limbo without any final determination.

44. The Federal Court rule in question (as it then applied) did not grant in terms a power of dismissal, and thus was different from r 29.7. Nevertheless, his Honour’s view that that the claimant there was not “absent” when the trial was “called on” is reasoning which could also be argued to be applicable to the similar wording in r 29.7.

45. The judgments of Gibson DCJ and Jacobson J, along with the approach taken by Henry J, illustrate that an alternative to immediate dismissal of the claim is to treat the claimant as having closed their case; giving the other party an opportunity to be heard by way of evidence and submissions; then determining the case on the material before the Court.

46. More generally, there have been numerous instances where reference has not been made explicitly to r 29.7 of the UCPR or other equivalent provisions worded in substantially the same terms, but which involve a court continuing to hear a matter when a party walks out of the hearing. There are also examples of a court dismissing a notice of motion or another type of application due to a party leaving the courtroom, although such instances have often occurred in the context of a particular statutory scheme: see eg Fleet v Blacktown City Council [2010] NSWLEC 46 at [10]-[12] and GJ v AS [2014] ACTSC 1890.

47. This Court has considered or referred to r 29.7 in certain cases without explicitly addressing the point at issue here: Ibrahim v Ayoubi [2013] NSWCA 405 at [9]; Van Gorp v Davy [2017] NSWCA 167 at [7]-[13]; Wakim v Kolotouros [2018] NSWCA 24 at [2]-[3] and [8]; and Pannozzo v Fowler [2013] NSWCA 269 at [28] and [43]-[52]. So far as I am aware, there is no appellate authority on the point. Counsel for the respondent said at the second hearing that he, too, had not located any appellate authority. As counsel said, a potential reason for that is that such cases, by their nature, are rarely fully argued.

48. In sum, this case does raise a reasonably arguable point of principle with respect to the construction of r 29.7 of the UCPR. It is a point of some practical importance.

49. I have considered whether argument on the point would be of no utility because the primary judge would inevitably have dismissed the appellant’s case anyway on the evidence before him. It must be acknowledged that the fact that the appellant’s then counsel indicated in opening that he wished to cross-examine his own experts was hardly an auspicious start. It can be inferred that the joint reports from the two conclaves involved concessions by the appellant’s experts which undermined his case. However, I do not have the evidence that was tendered below. Moreover, as I have indicated, it appears that the joint reports had not been tendered when the primary judge dismissed the case. In that context I cannot currently conclude that the appellant’s case below was hopeless, in particular as at the point when the case was dismissed, such that there was no realistic possibility that determination of the point of principle could lead to a favourable outcome for the appellant in his claim.

Competency

50. The respondent seeks that the appeal be dismissed as incompetent pursuant to r 51.41 of the UCPR. The respondent challenged competency on the basis that the appeal was filed out of time and in any event leave to appeal has not been sought.

51. As to the leave issue, in my view a question arises as to whether the matter at issue would amount to or be of the value of $100,000 per the terms of s 127(2)(c) of the District Court Act. Consistently with what this Court said in Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80(4)], the question is whether there is a “realistic prospect that the appeal would change the wealth of the appealing party by more than $100,000”. The respondent’s argument seemed to be that that was not so because if he succeeded on the appeal he would still need to succeed in the District Court. Counsel for the respondent conceded that “ultimately, the plaintiff was seeking greater than $100,000 and I couldn't stand here and say that that wasn't a realistic issue”, explaining however that the respondent disputed that there was sufficient medical evidence to support that position.

52. I do not need to determine here whether leave is required. The appellant has at least attempted to file a summons seeking leave to appeal in this proceeding. True it is that he did not actually file the summons, nor did he copy the respondent’s solicitor in his emails of 2 and 3 September 2024. Even so, he had made genuine attempts to comply, and had done so prior to the deadline of 11 September 2024 fixed by the Registrar in the directions hearing on 10 July 2024. In those circumstances I do not regard it is as just to dismiss the appeal as incompetent.

53. I note that no argument was made by the respondent that leave was required under an alternate limb of s 127(2) of the District Court Act, namely that the primary judge’s dismissal of the proceedings might be argued to be an interlocutory as opposed to a final order: cf s 91 of the Civil Procedure Act. I thus do not need to address that issue.

54. As to the timing issue, the appellant’s two-day delay in filing a notice of appeal is minor: see similarly Warne v Chandlers International Lawyers [2024] NSWCA 244. He gave some explanation for the delay in correspondence, namely that he was not sure if the 28-day period identified in the rules referred to business days. No prejudice was identified. I would not dismiss the appeal on this basis.

Claimed lack of due despatch

Relevant principles

55. The discretion to dismiss a proceeding under r 12.7 of the UCPR is available to this Court pursuant to r 51.1(3) of the UCPR. Justice Walsh discussed the exercise of such a discretion in Witten v Lombard Australia Ltd [1968] 2 NSWR 529 at 534:

a balance must be struck between the plaintiff and the defendant and, in the end, ‘the court must decide whether or not on balance justice demands that the action should be dismissed”. …

Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.

56. Those remarks have been referred to with approval by later decisions of this Court: see eg Stollznow v Calvert [1980] 2 NSWLR 749 at 751; Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 at [40]. Thus the discretion should not be undertaken by reference to fixed formulae which limit the discretion to do what is just between the parties: note Stollznow at 753; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [50]-[51]. A factor potentially relevant is the claimant’s prospects of success: see eg Hoser v Hartcher [1999] NSWSC 527 at [29]. The matters identified in ss 56-60 of the Civil Procedure Act are relevant: eg Ghosh at [42]-[43].

The appellant’s delay and his explanation

57. The appellant filed his notice of appeal on 30 May 2024, two days late. He did not serve the notice but it came to the respondent’s attention in early July 2024. The email correspondence reveals that the appellant was not sure if the 28 days referred to 28 business days. He attempted to file his summons seeking leave to appeal on 2 and 3 September 2024. In those circumstances, having filed his notice of appeal, and having provided to the Court a summons seeking leave to appeal, what was in practical terms being asked of the appellant when the Registrar ordered on 10 July 2024 that a white folder be filed was provision of the various documents comprising a white folder, including a summary of argument: UCPR r 51.12.

58. After being directed to file a summons and a white folder by 11 September 2024 on 10 July 2024, the appellant was reminded of this requirement on a number of occasions: on 6 August 2024 (when the Registrar explained the reasons he purportedly needed leave); on 21 October 2024 (during the directions hearing before the Registrar); on 1 and 4 November 2024 (when the respondent’s motion, and associated submissions were filed); on 25 November (when Griffiths AJA delivered judgment standing the matter over); and on 16 and 20 December 2024 (when Mitchelmore JA heard the appellant’s motion and delivered judgment).

59. In Allchin (No 2) Mitchelmore JA referred to an explanation the appellant offered as to why no summons seeking leave or white folder had been filed in accordance with the Registrar’s orders, namely that he placed blame on the Registry, also referring to his physical and mental incapacity to “compile what was required”: at [18]. As is now known, the appellant did in fact send the Registrar a summons seeking leave in September 2024.

60. I accept that the appellant suffers from various physical and mental difficulties, as enumerated in his evidence in the Court below (see above at [9]). I accept that this offers some explanation for his non-compliance with the orders. However, I do not accept it constitutes a completely satisfactory explanation.

61. I do not accept that the appellant’s illnesses and impairments would have entirely prevented him from making any form of written submissions on his appeal. The Court has been provided with extensive correspondence involving the appellant. Those emails demonstrate that the appellant has the capacity to express himself in writing. Moreover, the appellant’s notice of appeal satisfactorily identifies in reasonably succinct and clear terms his complaint against the primary judge’s decision.

62. Whilst the appellant has expressed his desire to make oral as opposed to written submissions because of his impairments, written submissions are an important cog in the machinery of an appeal, both for the parties and for the Court: note Lake Macquarie City Council v McKellar [2002] NSWCA 90 at [87]-[93]; Fong Bhnf Fong v Weller [2024] NSWCA 46 at [37]-[38]. The appellant’s preference for making oral submissions due to his impairments is not sufficient to relieve him of his obligation to supply such submissions, in circumstances where the written material he has provided to the Court dispels any suggestion that he is not capable of articulating matters in writing.

63. I also do not accept that the appellant is incapable of preparing and compiling relevant documents which are necessary for the progression of his appeal. For example, the appellant filed a notice of motion seeking referral for pro bono assistance in November 2024, along with a supporting affidavit. Moreover, at the hearing of this matter before me on 24 March 2025 the appellant appeared in Court with substantial materials, including two bundles which he tendered as exhibits, including email correspondence which was chronologically ordered.

64. That being said, as outlined above it is apparent from the correspondence that the appellant was making some efforts to gather and compile relevant documents and information, albeit with only limited success.

Determination on the claimed lack of due despatch

65. On the face of it, there was significant force in the respondent’s complaint about lack of due despatch given the lack of progress in the matter, where the appeal was filed at the end of May last year. Moreover, it will be apparent from the above that there is some reason to doubt whether the appellant will comply in a timely manner with his procedural obligations.

66. Nevertheless, I am not persuaded that justice requires that the matter be dismissed for a failure to proceed with due despatch given the following:

1. The appellant was two days late in filing his notice of appeal. I have already indicated I would not dismiss the appeal on that basis alone. And the two delay is immaterial for the purposes of considering the complaint of lack of due despatch. The failure to serve the notice was not shown to have caused any real delay.

2. More broadly, the respondent has not pointed to any significant prejudice it has suffered as a result of the delay by the appellant in providing written submissions, although it can be accepted that the respondent suffers the usual general prejudice of effluxion of time since the events the subject of the claim.

3. As explained above, the respondent’s argument that leave to appeal is required is open to some doubt, although it is not necessary to determine the point. In any event, he has attempted to address the possible issue here by attempting to seek leave to appeal. In that regard, the complaint that the appellant has not complied with the requirement to file a summons seeking leave to appeal, or otherwise address why leave to appeal is not required, turns out to be ill-founded. In fact the appellant sought to provide a summons seeking leave to appeal in the time required in early September 2024, but the email appears to have been overlooked by the then acting Registrar. The respondent’s solicitors were not copied on this email (as they should have been) and were thus unaware of this fact when the respondent’s motion was filed on 1 November 2024. Whilst forwarding the email to the Registrar may not be the correct manner of filing the document, this procedural irregularity could readily have been overcome.

4. The appellant has not filed a white folder and, in particular, has not filed written submissions in support of his application for leave to appeal (or in support of his appeal). As regards the white folder generally, it is apparent from the emails that the appellant has been making genuine attempts to gather documents for inclusion in the white folder. The importance of written submissions has been explained, and I do not accept that the appellant’s limitations should excuse him from providing some such submissions. That being said, it must also be acknowledged that the appellant has not been directed in terms to provide written submissions. He might not have understood that doing so was part of his obligation to provide a white folder, consistently with the Registrar’s orders of 10 July 2024.

5. Importantly, as explained, the appeal does raise a reasonably arguable point of principle with respect to the construction of r 29.7 of the UCPR (which is not to suggest that he will necessarily succeed on any appeal).

67. It is unfortunate that key facts have only come to light by way of further investigations carried out by my chambers. Some fault lies with the Registry. Yet it is the appellant who bears most significant responsibility for this situation, including by not copying the respondent’s solicitors on emails to the Registrar, by not making clear to the respondent and to Mitchelmore JA he had sent a summons seeking leave to appeal to the Court in early September, and by not articulating in express terms a ground of appeal directed to r 29.7.

68. I must now rule in light of the situation before me. For the reasons outlined, and having also considered ss 56-60 of the Civil Procedure Act, I am not persuaded that justice requires that the case be dismissed for lack of due despatch. The respondent’s motion must therefore be dismissed. In the circumstances it would not be fair to order that the respondent pay the costs of the motion. Costs should be in the cause.

Referral for representation

69. Given that the appeal does raise an issue of principle which may have some practical importance, at the second hearing I raised the issue of whether the appellant wished to make a new application for a referral for pro bono representation. Under r 7.36 of the UCPR, the Court may refer a litigant to a barrister or solicitor on the Pro Bono Panel for legal assistance. That rule states as follows:

7.36 Referral to a barrister or solicitor

(1) If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(2) For the purposes of subrule (1), the court may take into account—

(a) the means of the litigant, and

(b) the capacity of the litigant to obtain legal assistance outside the scheme, and

(c) the nature and complexity of the proceedings, and

(d) any other matter that the court considers appropriate.

(2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral. …

70. In Allchin (No 2) at [12]-[13] Mitchelmore JA referred to principles guiding the Court’s discretion under r 7.36, in terms which I will not repeat. In Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [10]-[12], Brereton JA emphasised that the key criterion is whether a referral is in the interests of the administration of justice, and noted the scarcity of pro bono assistance. In Lane v Northern New South NSW Local Health District (No 2) [2014] NSWCA 32, at [8], Basten JA also explained that while in every case the Court benefits from the availability of legal assistance, there are limits to the Court being able to impose on practitioners the provision of free legal assistance.

71. The appellant’s previous motion for referral was rejected by Mitchelmore JA for a number of reasons, including that the appellant previously had the benefit of pro-bono representation, his unresponsiveness to court directions (in particular in not having filed the order summons seeking leave to appeal), his apparent attitude towards advice (having parted company with his lawyers in the District Court proceedings), and the scarcity of pro-bono resources. In my respectful view her Honour’s judgment is unimpeachable given the circumstances known to her at that time.

72. However, further important circumstances have now become apparent, in particular, the attempts the appellant has made to comply with the Court’s requirements, and the identification of an issue of principle which is open on the notice of appeal but not raised in terms in that document. Whether or not to make a referral is an interlocutory decision which it is possible to revisit if circumstances change: note eg Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 at [26].

73. Considering the factors outlined in r 7.36(2), I consider that it would be in the interests of the administration of justice for the appellant to be referred for pro bono legal assistance, in light of these circumstances. I am prepared to accept that he has relatively limited means and that he has exhausted other avenues of legal assistance (see Allchin (No 2) at [16]). The nature and complexity of the proceedings, and in particular the nature and significance of the issue of principle identified, all militate in favour of a referral.

74. Justice Mitchelmore noted at [25] that the solicitor and counsel representing the appellant in the District Court had appeared pursuant to the pro bono referral scheme, noting that it was not clear if the referral occurred in the last three years which, pursuant to r 7.36(2A), would enliven the higher bar where there must exist “special reasons” to warrant a further referral. That rule exists for good reason: note Harry v Inner West Council [2024] NSWSC 770 at [10] per Davies J. Working on the assumption that the higher bar applies, I consider that the emergence of the issue of principle on appeal suffices as a sufficient special reason to justify a further referral.

75. Even given the new circumstances identified, two matters have caused me some hesitation in deciding whether to make a referral. I raised both directly with the appellant at the second hearing. The first is also a matter which weighed with Mitchelmore JA, namely whether or not the appellant will be prepared to act upon legal advice, given what occurred in the District Court. The appellant indicated, as I understood him, that his main concern with his representatives in the Court below related to them having had (he said) settlement discussions with the other side behind his back. He sought to assure me that he would listen carefully to, and treat seriously, any advice provided to him by legal representatives acting in the appeal on a pro bono basis. The following exchange occurred:

HIS HONOUR: So you can assure me that you will listen carefully to what any pro bono lawyer says.

APPELLANT: Yes.

HIS HONOUR: I’m not asking you to promise you won’t fire them because that’s unfair but you will listen very carefully and take seriously what they say.

APPELLANT: Yeah. I mean, that’s I just want to get the things that I’m entitled to and be treated fairly and go from there.

76. The second matter is that it might not be in the interests of the administration of justice to make a referral if the appellant was not prepared properly and sensibly to engage with the appeal process. In particular, the appellant had indicated to the Registrar in emails and again before me that he wished to seek a review of the decisions of Griffiths AJA and Mitchelmore JA in Allchin (No 1) and Allchin (No 2). As explained above, the only order made in the former was to stand the matter over. No review could sensibly be brought of such an order. As for the latter, if I made a referral then there would be no utility in pursuing a review of her Honour’s decision. The appellant assured me that “[i]f it’s a successful one [ie referral], yeah, I don’t – I don’t see that there’d be any argument against it”. I understood him to mean, in context, that he would not pursue review his foreshadowed review applications of the decisions of Griffiths AJA and Mitchelmore JA.

77. I am prepared to accept the assurances that the appellant gave on these two issues of concern. In all the circumstances as now disclosed, it is appropriate that there be a referral under r 7.36.

Orders

78. The orders of the Court are as follows:

1. The respondent’s notice of motion filed on 1 November 2024 is dismissed, with costs of the motion to be costs in the cause.

2. Pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) the appellant is referred to the Registrar of the Court of Appeal for referral to a barrister or a solicitor for the purpose of legal assistance with respect to his appeal.

3. List the matter for directions before the Registrar on 14 May 2025.

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Decision last updated: 16 April 2025