New South Wales
Court of Appeal
CITATION: Andresakis and Skouteris trading as Andresakis & Associates v Alexus Holdings Pty Ltd [2006] NSWCA 294 HEARING DATE(S): 29 September 2006
JUDGMENT DATE:
2 November 2006JUDGMENT OF: Giles JA at 1; Hodgson JA at 2; McColl JA at 3 DECISION: Appeal dismissed with costs. CATCHWORDS: PROCEDURE - District Court Rules Pt 1 r 7A - order made setting aside preliminary dismissal order - preliminary dismissal order made because of breaches of District Court Practice Note 33 and procedural directions - application to set aside approximately 3 years after preliminary dismissal order made - primary judge accepted substantial part of that period explained by fact plaintiff's former solicitors failed to inform it of preliminary dismissal order - 2 month unexplained delay in application to set aside preliminary dismissal order after plaintiff became aware of it - no actual prejudice to defendants if order set aside - held - question whether preliminary dismissal order should be set aside turns on demands of justice between the parties - court has regard to whether a satisfactory explanation and excuse for the delay in making the application has been provided, with explanation for the original failure, and whether it has been cured, both being germane - factors such as the availability of a claim against former solicitors, expiration of the limitation period and blameworthiness of plaintiff and/or legal representatives relevant but not determinative (D) LEGISLATION CITED: Fair Trading Act 1987
Limitation Act 1969
Motor Accidents Act 1988
Trade Practices Act 1974 (Cth)
District Court Rules 1973
District Court Amendment (Dismissal and Strike Out) Rule 2000
Supreme Court Rules 1970CASES CITED: Australian Broadcasting Corporation v O’Neill [2006] HCA 46
Bamforth v Betcke & Ors [2003] NSWCA 116
Batistatos (by his Tutor Rosebottom) v Roads & Traffic Authority (NSW) [2006] HCA 27; (2006) 80 ALJR 1100
Birkett v James [1978] AC 297
Blackburn v Allianz Australia Ltd [2004] NSWCA 385; (2004) 61 NSWLR 632
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Commonwealth of Australia v Smith [2005] NSWCA 478
Daroczy v B & J Engineering Pty Ltd (In liq) (1986) 83 FLR 423
Design & Survey Neon Pty Ltd v Davies [2004] NSWCA 274
Diaz & Anor v Truong [2002] NSWCA 265; (2002) 37 MVR 158
Erhardt v Bhatia [2002] NSWCA 388
House v The King [1936] HCA 40; (1936) 55 CLR 499
Mace v Murray [1955] HCA 2; (1955) 92 CLR 370
McKenna v McKenna [1984] VR 665
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Morrison & Anor v Judd (Court of Appeal, unreported, 10 October 1995)
Newcastle City Council v Batistatos; Roads & Traffic Authority of New South Wales v Batistatos [2005] NSWCA 330
Noja v Civil & Civic Pty Ltd (1990) 26 FCR 95
Repco Corp Ltd v Scardamaglia [1996] 1 VR 7
Saad v Robins & Sons Pty Ltd [2003] NSWCA 87
Soper v Matsukawa [1982] VR 948
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Details
- Case
- [2006] NSWCA 294
- Decision Date
CaseChat Overview and Summary
The appeal concerned an application to set aside a preliminary dismissal order made by the District Court of New South Wales. The original dismissal order was made due to breaches of District Court Practice Note 33 and procedural directions. The application to set aside this order was made approximately three years after it was initially granted.
The central legal issue before the Court of Appeal was whether the primary judge erred in refusing to set aside the preliminary dismissal order. This required the court to consider the principles governing the setting aside of such orders, particularly in circumstances involving significant delay and the conduct of legal representatives.
The Court of Appeal reasoned that the question of whether a preliminary dismissal order should be set aside ultimately turns on the demands of justice between the parties. In assessing this, the court must consider whether a satisfactory explanation and excuse for the delay in making the application has been provided, along with an explanation for the original failure that led to the dismissal, and whether these failures have been cured. While factors such as the availability of a claim against former solicitors and the expiration of limitation periods are relevant, they are not determinative. The primary judge had accepted that a substantial part of the delay was attributable to the plaintiff's former solicitors failing to inform them of the dismissal order, but noted a two-month unexplained delay after the plaintiff became aware of the order. Crucially, there was no actual prejudice to the defendants if the order were set aside. Despite these considerations, the Court of Appeal upheld the primary judge's decision.
The appeal was dismissed, and the appellants were ordered to pay the costs of the respondents.
The central legal issue before the Court of Appeal was whether the primary judge erred in refusing to set aside the preliminary dismissal order. This required the court to consider the principles governing the setting aside of such orders, particularly in circumstances involving significant delay and the conduct of legal representatives.
The Court of Appeal reasoned that the question of whether a preliminary dismissal order should be set aside ultimately turns on the demands of justice between the parties. In assessing this, the court must consider whether a satisfactory explanation and excuse for the delay in making the application has been provided, along with an explanation for the original failure that led to the dismissal, and whether these failures have been cured. While factors such as the availability of a claim against former solicitors and the expiration of limitation periods are relevant, they are not determinative. The primary judge had accepted that a substantial part of the delay was attributable to the plaintiff's former solicitors failing to inform them of the dismissal order, but noted a two-month unexplained delay after the plaintiff became aware of the order. Crucially, there was no actual prejudice to the defendants if the order were set aside. Despite these considerations, the Court of Appeal upheld the primary judge's decision.
The appeal was dismissed, and the appellants were ordered to pay the costs of the respondents.
Orders
Orders of the court
Appeal dismissed with costs.
Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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