Deborah Anne Abbott and Sylvia Abbott v Kerry Ann O'Donnell

[2001] NSWSC 1189

CITATION:	Deborah Anne ABBOTT & Sylvia ABBOTT v Kerry Ann O'DONNELL [2001] NSWSC 1189 revised - 03/01/2002
FILE NUMBER(S):	SC 20996/94; 20997/94
HEARING DATE(S):	17/12/01, 18/12/01
JUDGMENT DATE:	24 December 2001
PARTIES :	Deborah Anne ABBOTT - Plaintiff in 20996/94 Sylvia ABBOTT - Plaintiff in 20997/94 Kerry Ann O'DONNELL - Defendant
JUDGMENT OF:	Bell J at 1

COUNSEL :	F. Santisi (Plaintiff) W. Fitzsimmons (Defendant)
SOLICITORS:	G H Healey & Co (Plaintiff) Abbott Tout, Solicitors (Defendant)
LEGISLATION CITED:	Supreme Court Act 1970 Supreme Court Rules 1970
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Douglas v John Fairfax (1983) 3 NSWLR 126 Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 Salido v Nominal Defendant (1993) 32 NSWLR 524
DECISION:	Extension of time for filing an application for review pursuant to Pt 61 Rule 3 of the SCR to set aside orders made and entered by Deputy Registrar Haggett on 28 October 1996 in each of the proceedings 20996 of 1994 and 20997 of 1994 to 18 June 2001 granted; Orders made by Deputy Registrar Haggett on 28 October 1996 in each of the proceedings 20996 of 1994 and 20997 of 1994 set aside.; In each of the proceedings 20996 of 1994 and 20997 of 1994 the orders of Master Greenwood made on 28 February 1996 set aside

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

20996/94 & 20997/94
BELL J
24 December 2001

Deborah Anne ABBOTT v Kerry Ann O’DONNELL
Sylvia ABBOTT v Kerry Ann O’DONNELL

Judgment

: The plaintiff in each of proceedings 20996/94 (“the Deborah Abbott proceedings”) and 20997/94 (“the Sylvia Abbott proceedings”) seeks orders framed in identical terms by notice of motion in each case filed on 18 June 2001. The motions were heard jointly. They raise common issues and, in large measure, depend upon the same facts.

2 Both plaintiffs commenced proceedings against the defendant for damages for personal injuries arising out of a motor vehicle collision in which each was injured. The collision occurred on 16 January 1992.

3 Following notification of the claims, by letters in each case dated 16 March 1993, the defendant admitted breach of the duty of care owed to the plaintiff on behalf of its insured driver (in the Sylvia Abbott proceedings the defendant raised an issue that she may have contributed to her injuries).

4 By letter dated 9 February 1995 the defendant sought further and better particulars of the claim brought by Deborah Abbott. This request was not answered. By letter dated 16 March 1995 the defendant sought particulars of the claim brought by Sylvia Abbott. This request was not answered. Both proceedings were listed before Master Greenwood on 28 February 1996. On that occasion the Master made the following orders in respect of the Deborah Abbott proceedings:

Plaintiff to file DCM document on or before 4:00 pm on 21/8/96 together with particulars requested in correspondence of 9/2/95;
DCM documents to be filed in court and served on the defendant no later than 4:00 pm on 21/8/96;
If above orders are not complied with statement of claim is dismissed with costs by force of this order.

5 The Master made identical orders (save to note that the particulars to be supplied were those sought in correspondence dated 16 March 1995) in respect of the Sylvia Abbott proceedings.

6 On 21 August 1996 DCM documents, in partial compliance with the Master’s order of 28 February 1996, were filed on behalf of the plaintiff in each of the proceedings.

7 In neither proceeding were the particulars, the subject of the Master’s order, filed or served upon the defendant. There is a deal of evidence as to the reasons for that failure to which it will be necessary to return.

8 By letter dated 20 September 1996 John Urbano, the solicitor having the carriage of both sets of proceedings on behalf of the defendant, wrote to the plaintiffs’ solicitors, G H Healey and Co, in these terms in respect of the Deborah Abbott proceedings:

“We refer to previous correspondence in this matter.
In particular, we refer to our numerous prior letters requesting the plaintiff’s attitude to an informal settlement conference. To date, we have not received a response to those requests.
We also note that the plaintiff has not served any medical reports not replied to the defendant’s request for further and better particulars dated 9 February 1995, not served DCM documents, nor filed a statement of particulars.
Please note that should we not receive your response regarding an informal settlement conference within seven days, we have been instructed to move the court to strike the matter out for want of prosecution.”

9 By notice of motion filed on 25 September 1996 the defendant in the Deborah Abbott proceedings moved the Court for orders including that the plaintiff reply to its request for further and better particulars of 9 February 1995 within fourteen days of the date of the motion; that the plaintiff file and serve a statement pursuant to Pt 33 Rule 8A of the Supreme Court Rules 1970 (“the SCR”) within fourteen days of the date of the motion; in the alternative, the plaintiff’s statement of claim be struck out for want of prosecution. A supporting affidavit sworn by Mr Urbano on 23 September 1996 was filed.

10 A motion seeking like orders was filed in the Sylvia Abbott proceedings on 27 September 1996. A supporting affidavit sworn by Mr Urbano on 26 September 1996 was filed in those proceedings.

11 The motion in the Deborah Abbott proceedings was listed for return before the Court on 8 October 1996. The motion in the Sylvia Abbott proceedings was listed for return before the Court on 9 October 1996. Ultimately, the motions in each of the proceedings were stood over to 28 October 1996.

12 On 28 October 1996 both motions came before Prothonotary Whalan. On that occasion the defendant in each of the proceedings was represented by Mr Fitzsimmons, of counsel, who was instructed by Zoey Mikus of Abbott Tout, solicitors. Mr Reimer, of counsel, instructed by Ms Williams of G H Healey & Co, appeared on behalf of the plaintiffs. The prothonotary advised the parties of his view that he had no jurisdiction to deal with the motions in the light of the orders earlier made by Master Greenwood.

13 Mr Fitzsimmons sought to have both sets of proceedings listed before Master Greenwood. It would seem that the Master was not available. In these circumstances Mr Fitzsimmons considered that the appropriate course was to arrange for orders to be entered in respect of both sets of proceedings by the Duty Registrar. He duly drafted forms of order in each case.

14 Mr Fitzsimmons and Mr Reimer, together with their instructing solicitors, attended upon the Duty Registrar some time after lunch on 28 October 1996. Mr Fitzsimmons invited the Registrar to enter orders in each of the proceedings in accordance with the drafts he had prepared. Mr Reimer submitted that by sealing the orders the Registrar would be prejudicing the plaintiff’s position since there would no longer be proceedings on foot. He proposed that the proceedings be referred to a judge. In the event, the Registrar entered the orders in the terms of the draft minute prepared in each case by the defendant. It is common ground that the Registrar made an observation to the effect that he would treat the attendance in chambers as a hearing and thereby afford the plaintiffs the opportunity to seek a review of his determination.

15 Following the attendance upon the Registrar in chambers, the plaintiffs’ counsel sought to have each of the proceedings referred to the duty judge. The matters came on before Smart J later that afternoon. It is not entirely clear what took place before his Honour. It does appear that the plaintiffs’ counsel provided some outline from the bar table as to the difficulties to which they had been subject and sought a further opportunity to provide the particulars in each case. Ultimately, the Associate’s Record of Proceedings notes that his Honour “declined to entertain any application at this stage without prejudice to the rights of the plaintiff’s to make such an application.”

16 There the matters stood until 24 November 1999 when in each of the proceedings the plaintiff filed a notice of motion seeking orders including; that Master Greenwood’s orders, made on 28 February 1996, be reviewed and that they be set aside.

17 The motions came on for hearing before me on 28 August 2000. At the commencement of proceedings Mr Fitzsimmons raised a preliminary issue. It was the defendant’s submission that the orders made by the Duty Registrar on 28 October 1996 had been duly entered and, accordingly, I did not have the jurisdiction to entertain the motions in either proceeding. I determined that preliminary issue against the defendant. That determination was the subject of appeal.

18 In a judgment delivered on 21 June 2001 the Court of Appeal held that the proceedings commenced by the plaintiffs in each case stood dismissed by the orders made on 28 October 1996 by Deputy Registrar Haggett and, accordingly, that I had no jurisdiction to entertain the motions in either case. It appears that at the conclusion of the argument on the hearing of the appeal the Court granted leave to the plaintiff in each case to amend her notice of motion so as to seek (in addition to the orders already sought therein) orders extending time to apply to set aside Deputy Registrar Haggett’s order of 28 October 1996 and an order setting aside that order. Each of the proceedings was remitted to me.

19 The plaintiffs in each of the proceedings move for orders including that:

1. The time for the filing of an Application for review pursuant to Part 61 Rule 3 of the Supreme Court of New South Wales Rules be extended in respect of an Application to set aside the Orders made and entered by Deputy Registrar Haggett made and entered (sic) on 28 October 1996;
2. That the Orders made and entered by Deputy Registry Haggett on 28 October 1996 be set aside pursuant to section 121 sub-section 3 of the Supreme Court Act 1970.
3. Master Greenwood’s Orders made on 28 February 1996 containing inter alia a self-executing Order, be reviewed.
4. The self-executing Orders of Master Greenwood made on 28 February 1996 be set aside pursuant to such review.
5. The order in relation to the provision of particulars (requested in correspondence dated 16 March 1995) by 21 August 1996 (and which have since been answered) be extended pursuant to the powers of the Court to extend time.
6. Further and in the alternative, the Order in relation to the provision of particulars (requested in correspondence dated 16 March 1995) by 21 August 1996 (and which have since been answered) be extended to 28 days from the date of such Order pursuant to such review.

Strictly, in the Deborah Abbott proceedings the orders sought in prayers 5 & 6 should refer to “correspondence dated 9 February 1995”.

20 In each of the proceedings the plaintiff relied upon affidavits affirmed on 24 November 1999 by Mark Willis, solicitor, who had the carriage of both sets of proceedings while an employed solicitor of G H Healey & Co (Glebe practice) for a period commencing shortly before 24 November 1999 and continuing until February 2000. Each of the plaintiffs relied upon four affidavits affirmed by Yvonne Williams, now a partner with G H Healey & Co, who had the carriage of the proceedings for a time in 1996 and in 1997 and currently. Ms Williams was cross-examined upon her affidavits at some length.

21 The plaintiffs in each of the proceedings swore affidavits in December 1999 and each was cross-examined upon her affidavit.

22 The defendant relied on affidavits affirmed by Darren King, solicitor, in the employ of Abbott Tout, and upon two affidavits sworn by Zoey Mikus, solicitor. Ms Mikus was formerly in the employ of Abbott Tout and had the carriage of both sets of proceedings on behalf of the defendant in 1996 and thereafter. Ms Mikus was cross-examined upon her affidavits.

23 In determining whether or not to allow to extend time with respect to the plaintiffs’ application to review the orders made by Deputy Registrar Haggett both the parties submitted that I should have regard to the approach to be taken with respect to applications to extend the time in which to commence proceedings pursuant to s 52 of the Motor Accidents Act 1988. In this respect my attention was drawn by Mr Fitzsimmons to the principles enunciated by Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532. I approach the determination of the present applications with those principles in mind. In each case it is for the plaintiff to demonstrate that it is fair and just that the extension of time should be granted. Important to my determination is a consideration of the reasons for the delay in bringing the applications. In this respect I should note that I approach the matter upon the basis that the relevant period of delay is that between the date of the making of the orders on 28 October 1996 and 24 November 1999 when the plaintiffs’ filed motions in each proceeding seeking to review the Master’s order. Mr Fitzsimmons did not contend otherwise.

24 It is necessary to have regard both to the conduct of the proceedings by the plaintiffs and by their legal representatives.

25 The evidence of each of the plaintiffs was in broadly similar terms. In the period between 1992 until 1996 each was engaged in the full time care of John Abbott (Sylvia Abbott’s husband and Deborah Abbott’s father) and Arthur Williams (Sylvia Abbott’s father and Deborah Abbott’s grandfather). Both men were terminally ill. Each was suffering from Alzheimer’s disease. Both died in 1996. I accept that in these years each of the plaintiffs was subject to very considerable emotional stress such that her own needs were secondary to her concern for the emotional and physical needs of her husband/father and father/grandfather.

26 Both the plaintiffs moved their place of residence on a number of occasions in the period 1992 to 1996. Sylvia Abbott moved from Kareela, NSW, to the Gold Coast in 1992. Deborah Abbott moved from Kareela to the Gold Coast in early 1993. In June 1993 both plaintiffs moved to Beenleigh, Queensland. In December 1993 both moved from Beenleigh to Coombabah, Queensland. Sylvia Abbott moved from Coombabah to Grosvenor Court, Mudgeeraba around June 1995. In April 1996 she moved to Bonogin Road, Mudgeeraba. Deborah Abbott moved to the Bonogin Road premises in 1996. These moves made it difficult for their solicitors to obtain instructions from them.

27 Thereafter, until 1999, both the plaintiffs moved between the Bonogin Road premises and Surfers Paradise on a number of occasions. Deborah Abbott’s partner, Mark, lived at Surfers Paradise. From time to time she lived with Mark and her mother stayed with them. The relationship was one characterised by frequent separations. During these times Deborah and her mother would return to the Bonogin Road home. The relationship between Deborah and Mark came to an end in 1999. Thereafter she and her mother have continuously resided at Bonogin Road.

28 The Bonogin Road home is located in a rural area and comprises four acres. Access to it is gained across an adjacent property. Until recent times the plaintiffs’ did not have a mailbox at the property. In 1996, and in the years that followed, mail addressed to the plaintiffs was directed to a post office box registered in Deborah Abbott’s partner’s name. I infer that correspondence addressed to the plaintiffs may not have been passed on to them on occasions when Deborah and her partner were estranged.

29 There was a telephone service connected to the Bonogin Road premises.

30 On 28 October 1996 Ms Williams spoke with Sylvia Abbott by telephone. Thereafter it appears that Ms Williams was in contact with Sylvia Abbott during the first half of 1997. Sylvia Abbott attended two conferences with her.

31 Deborah Abbott was in regular contact with her mother. She tended to leave the making of any inquiries concerning the proceedings to her mother.

32 I will return to the conduct of the plaintiffs shortly.

33 In considering the conduct of the plaintiffs’ solicitors in so far as it explains the delay in seeking a review of the Master’s order it is necessary to refer to the evidence of Ms Williams as to her understanding of the orders made on 28 October 1996. In an affidavit sworn on 17 December 2001 Ms Williams asserted:

“I was of the view that no orders had been entered until receipt of a letter dated 6 June 2001 from Abbott Tout alleging a copy of the alleged dismissal order”.

In cross-examination Ms Williams maintained that there was a degree of confusion in her mind concerning the nature and effect of any orders made by the Deputy Registrar. She agreed that she was aware of the need for an application to be made to the Court for a review of Master Greenwood’s orders of 28 February 1996 and of the orders made on 28 October 1996.

34 While I accept that there may have been some confusion in Ms Williams’ mind concerning the orders made by the Deputy Registrar on 28 October 1996 I do not consider that it provides an explanation for the delays which subsequently attended the preparation of the matters on behalf of the plaintiffs. Ms Williams was aware of the terms of Master Greenwood’s self-executing orders made on 28 February 1996. Ms Williams was aware that particulars, as sought by the defendant in their letter of 9 February 1995 (with respect to the Deborah Abbott proceedings) and of 16 March 1995 (with respect to the Sylvia Abbott proceedings) had not been supplied. As at 28 October 1996, following the appearance before Smart J, she was aware of the need to bring an application seeking a review both of Master Greenwood’s orders and of the orders made on 28 October 1996.

35 By letter dated 23 December 1996 Ms Williams advised Abbott Tout of her intention on behalf of both plaintiffs of making application to the Court early in the new year for a review of Master Greenwood’s orders and of the orders made on 28 October 1996.

36 No step appears to have been taken in the Deborah Abbott proceedings between 28 October 1996 and November 1999 when the notice of motion seeking the review of the Master’s orders was filed. I note that contact was made by Deborah Abbott with G H Healey & Co in August 1999 and thereafter arrangements were made for her to attend on Dr Alam for the preparation of a report. In the Sylvia Abbott proceedings no step appears to have been taken between June 1997 when her instructions were obtained in order to reply to the request for particulars and November 1999 when the notice of motion seeking a review of the Master’s orders was filed. Again, I note that in October 1999 medical appointments were made with a view to the preparation of reports.

37 I should observe that there was an issue as to whether Ms Williams sent a letter in the Sylvia Abbott proceedings to Abbott Tout on 20 October 1997 responding to their request for particulars and enclosing a draft Pt 33 r 8A statement. In her affidavit sworn 6 March 2000 Ms Williams stated that she had done so and annexed a copy both of the letter and the draft Pt 33 r 8A statement. I accept that Ms Williams prepared a response to the request for particulars and a draft Pt 33 r 8A statement in the Sylvia Abbott proceedings around 20 October 1997. I do not believe it likely that the letter was in fact sent to Abbott Tout.

38 Ms Williams gave evidence of two conferences with Sylvia Abbott in 1997. The first was held at Mr Reimer’s chambers in February 1997 and the second was held at the city offices of G H Healey & Co in June 1997. Sylvia Abbott gave evidence of attending a conference at the city office of G H Healey and Co in March 1997. Thereafter she left Australia on a trip to the United Kingdom. Ms Williams’ file notes revealed only two conferences with Sylvia Abbott in 1997. A letter which forms part of Ex C confirms that an appointment was made for Sylvia Abbott to attend a conference at the city office of G H Healey and Co on 3 June 1997. I accept that she did so around that date and that on this occasion Ms Williams obtained instructions with respect to the particulars that had been requested by the defendant.

39 Ms Williams said that she understood it would be necessary for her to respond to the defendant’s request for particulars and to obtain medical reports, in each of the proceedings generally preparing the matters for hearing, before making application to the Court for a review of the Master’s orders. Consistent with this view is evidence that a report was obtained from Dr Fuller in June 1997 relating to Sylvia Abbott.

40 In June 1997 Ms Williams moved to the Coogee practice of G H Healey & Co She did not take the Abbott files with her. Prior to this move she had obtained Sylvia Abbott’s instructions with respect to the supply of particulars. She was aware that no letter responding to the defendant’s request for particulars had been sent. She said that there were some difficulties with administrative support and that she had arranged for a secretary at the Coogee office to type the letter of 20 October 1997. This seemed to me to be a somewhat inadequate explanation for the delay between obtaining the instructions and arranging for the letter responding to the request for particulars to be completed.

41 Zoey Mikus gave evidence that she had examined the correspondence file maintained by Abbott Tout with respect to the Sylvia Abbott proceedings. No such letter was located in the file. Significantly, G H Healey & Co sent a letter dated 7 December 1999 to Abbott Tout which purported to be a response to the latter’s letter of 16 March 1995 requesting particulars of the claim made by Sylvia Abbott. There is no reference in that letter to the supply of any further particulars of the claim by letter dated 20 October 1997.

42 I consider it likely that Ms Williams is mistaken in her belief that the letter was in fact sent to Abbot Tout. In this regard I note that in her affidavit affirmed on 24 August 2000 Ms Williams stated that contact had been made with Sylvia Abbott in October 1997 and that she, Ms Williams, had assisted by preparing correspondence to Abbott Tout of 20 October 1997. It was Ms Williams oral evidence that she had not reviewed the whole of the Abbott files at the time of swearing her earlier affidavits in the proceedings. Somewhat surprisingly she had only done so on 15 December 2001 and during the course of giving evidence. It was apparent that there was no record of any attendance on Sylvia Abbott in October 1997. There was no suggestion that Ms Williams had confirmed the accuracy of the contents of the draft Pt 33 Rule 8A statement or the response in the letter of 20 October 1997 with Sylvia Abbott.

43 The explanation for the lengthy delays which attended both sets of proceedings in the period after 28 October 1996 seems to me to be the result of poor file management by the solicitors. The conduct of both files was initially in the hands of the Hurstville practice of G H Healey & Co. Ms Williams joined G H Healey & Co in late August 1996. She was attached to the city office. She was requested to attend to some matters in connection with the plaintiffs’ files. The files, or at least some papers associated with them, were then transferred from the Hurstville office to the city practice. In her affidavit of 23 August 2000 filed in the Deborah Abbott proceedings Ms Williams stated:

“I was unable whilst at the city practice to obtain instructions due to the plaintiffs’ unfortunate predicament. On approximately 30 June 1997, I was directed to practice at the Coogee practice and not all of the files that I was working on at the city practice were transferred to the Coogee practice. The files of Abbott were not transferred.”

44 Although I accept that G H Healey & Co had experienced difficulties in obtaining instructions from their clients at an earlier time, in the period between 28 October 1996 and mid-1997 (prior to Ms Williams transfer to the Coogee office of G H Healey & Co) the evidence is that the firm were in contact with Sylvia Abbott. It was open to the solicitors to contact Deborah Abbott through her mother.

45 In her affidavit of 23 August 2000 filed in the Deborah Abbott proceedings, Ms Williams states:

“I was not involved with the file whilst at Coogee and I was not involved with this matter whilst at the Mascot office”.

46 In her affidavit of 24 August 1998 filed in the Sylvia Abbott proceedings Ms Williams asserted that, save for assisting with the preparation of the correspondence of 20 October 1997, she did not have the conduct of the matter at that point.

47 Ms Williams’ assertion that she was not the solicitor with the conduct of the Abbott files while she was at the Coogee and Mascot practices of G H Healey & Co is not easy to reconcile with the contents of correspondence addressed by her to Sylvia Abbott on 3 July 1997 and 3 April 1998. Copies of these two letters form part of Ex C. In each instance the letter advises of Ms Williams’ move and states that she has the ongoing conduct of the matter. Ms Williams said in the course of her oral evidence that she had not taken all her files with her when she moved from the city office to the Coogee practice. It may be that the letters to which I have referred were part of a routine mail out associated with Ms Williams’ move. If Ms Williams did not have conduct of the Abbott files while she was attached to the Coogee and Mascot practices of G H Healey & Co, it is to be observed that no other solicitor appears to have been assigned to handle them. I am left with the conclusion that, following Ms Williams’ move to the Coogee practice until the plaintiffs made contact with G H Healey & Co in 1999 (in connection with enforcement proceedings then being taken by the defendant) no solicitor at G H Healey & Co was responsible for the proceedings.

48 Mr Fitzsimmons submitted that I would find that the plaintiffs had been neglectful of the proper conduct of their claims in each case. Fairly, he accepted that I would find they had been distracted by their domestic circumstances throughout 1996 and, perhaps, for a period into 1997. However, he pointed to the evidence that throughout the period 1996 to 1999 both the plaintiffs would leave their home from time to time and stay with Deborah Abbott’s partner. During these periods they were not contactable by telephone at the Mudgeeraba number. When they were at the Mudgeeraba premises it was likely that they would not receive mail addressed to them care of the post office box registered in the partner’s name. There was no evidence that either of them made an attempt to keep in regular contact with G H Healey & Co. There was no evidence that either took any step to actively pursue her claim until attempts were made to enforce the judgment obtained against Deborah Abbott in respect of the costs of the dismissed proceedings.

49 Both the plaintiffs agreed that the defendant’s enforcement proceedings had led them to make contact G H Healey & Co. in connection with their claims. Deborah Abbott put it this way:

“Q. What did you mean when you said that the matter was more recently brought to your attention, how was the matter brought to your attention?
A. Because a sheriff came down – came around and knocked on the door and said, ‘we’re here to collect monies from the court case?’ And I said ‘what do you mean? that can’t be right. Why are you – what do you want?’ and he said ‘well, we’ll go and take your car’, ‘but’, I said, ‘the girl ran a red light and nearly killed my mother and myself, why would you be taking money from me?’ and he said, ‘well, I don’t know. This is what I have got here’ and I said, ‘well, you must have it wrong’ and I signed a piece of paper and I said, ‘can you please refer this back to the solicitor because this is wrong?’ and the sheriff, he said, ‘ oh OK’ and he just left and said, ‘I hope everything works out’.
Q. Did you then get in touch with GH Healey following that attendance of the sheriff?
A. I did ring the Sydney office and I said that a sheriff – and I couldn’t – I asked to speak to Greg Healey and he wasn’t available and I said, “Can you tell him that the sheriff came to the door and there’s something wrong that I’ve wrote on this piece of paper and signed it and the sheriff will be referring it back to you and can you sort it out because I don’t want” – I don’t understand most of the dispute (T 96)”.

50 There is no evidence that either Sylvia Abbott or Deborah Abbott understood that their claims had been dismissed nor that it would be necessary to bring an application to seek a review of the Master’s self-executing orders and the orders made on 28 October 1996. When cross-examined concerning any inquiries as to the progress of her matter between 1996 and 1999, when the sheriff had called to her premises, she observed “I thought everything was just going along as it should (T 97)”.

51 Sylvia Abbott was asked:

“Q. You indicate in paragraph six of your affidavit that you did not inquire, actively inquire of your solicitors as to the progress of your claim, do you remember that?
A. Where is this?

Q. paragraph six of your affidavit.

A. Well I just thought it was going along. I didn’t think there was any need to do anything (T 99).”

52 I accept both Sylvia Abbott and Deborah Abbott that they were not aware that there was any need for them to do anything since they considered their respective claims were progressing. In this regard I note the contents of a letter, dated 3 April 1998, sent by G H Healey & Co to Sylvia Abbott advising of the fact that Ms Williams had moved to the Mascot office of the firm. That letter includes the assertion:

“We take this opportunity to ensure you that your matter is proceeding and that there have been no changes referrable to your claim with the exception of this relocation.”

This letter was addressed to Sylvia Abbott at 22 Rivall Street, Kareela. It is not clear whether it was received by Mrs Abbott. However, the evidence does not suggest that G H Healey & Co at any time after 28 October 1996 brought to the attention of their clients the circumstance that their respective claims had been dismissed and that it would be necessary to bring an application in the Court seeking a review of the orders made on 28 October 1996 and the Master’s earlier self-executing order. Such a view receives support from the history given to Dr Canaris and recorded in his report, annexure “A” to the affidavit of Yvonne Williams sworn in the Sylvia Abbott proceedings on 24 August 2000.

53 The evidence does not suggest that G H Healey & Co encountered difficulties in contacting either of the plaintiffs in the period after 28 February 1996 up to November 1999.

54 In Mr Fitzsimmons’ submission, had the plaintiffs exercised a reasonable level of attention to the progress of their claims they would, in the period between June 1997 when Sylvia Abbott attended the conference with Ms Williams and November 1999, have made enquiries of G H Healey & Co. It was submitted that despite the emotional difficulties to which they had been subject they had been able to continue with the operation of their jewellery business. The business appears to have been a relatively modest one. It was conducted at jewellery markets. Prior to the accident the plaintiffs travelled to markets five days per week. After the move to Queensland they were attending the jewellery markets only two days per week. Neither plaintiff impressed me as having particular acumen in the conduct of her affairs. I accept that both considered that their respective claims were progressing in the usual course.

55 I do not accept that the plaintiffs were relevantly at fault in relation to the conduct of their claims in the period following 28 October 1996. However, their legal representatives did fail to attend to the preparation of applications seeking review of the Master’s orders and the orders made on 28 October 1996 in a timely way.

56 In deciding whether the plaintiffs have in each case demonstrated that it is fair and just that I should grant leave to extend the time for seeking a review of the Deputy Registrar’s order (notwithstanding the delay brought about by the conduct of their legal representatives) it is appropriate for me to take into account the nature and extent of any forensic disadvantage to the defendant which would flow from granting the extension. It is not contended that the defendant faces any forensic disadvantage in the event that the plaintiffs’ applications are allowed.

57 Mr Fitzsimmons relies on the statements of principle to be found in the judgments in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 concerning the extension of time in the context of limitation periods. In particular, he drew attention to the four rationales for the enactment of limitation periods set out by McHugh J at 552-553. The third rationale is said to be that people should be able to arrange their affairs upon the basis that claims may no longer be brought against them. In this context his Honour observed:

“insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.”

The fourth rationale for limitation periods is said to be the public interest in the prompt settlement of disputes.

58 Mr Fitzsimmons submitted that I might be more circumspect about granting an application to extend time in the circumstances of this case than were this an application to extend time following the expiration of a limitation period. Although, it was accepted that the Registrar did not have the power to make the order which he did, nonetheless, until set aside, it is an order of the Court. It stood as a final order of the Court without any attempt to seek a review until November 1999. The defendant was entitled to order its affairs upon the basis that the litigation was concluded. It did so.

59 I am of the view taking into account, as I do, that the lengthy delay in seeking the review was not the fault of either plaintiff but rather reflected poorly on the file management of G H Healey & Co and that these are proceedings in which no forensic disadvantage thereby is identified by the defendant, that the plaintiffs have established that the appropriate exercise of my discretion is to grant in each case the relief sought in prayer one of the notice of motion.

60 Next I turn to consider the application that in each case the orders made and entered by Deputy Registrar Haggett on 28 October 1996 be set aside pursuant to the power so to do conferred by s 121(3) of the Supreme Court Act 1970. It was accepted on the defendant’s behalf in the proceedings in the Court of Appeal that the Deputy Registrar did not have the power to make the orders which he did on 28 October 1996 in either of the proceedings. A like concession was made in the proceedings before me. In the light of that concession I propose in each of the proceedings to set aside the orders made by the Deputy Registrar.

61 I turn now to the plaintiffs’ application that I set aside in each case the orders made by Master Greenwood on 28 February 1996. Part 40 r 9(3)(b) of the SCR provides that the Court may, on terms, set aside or vary an order where notice of motion for the setting aside or variation is filed before entry of the order.

62 Mr Santisi referred me to the observations of Hunt J (as he then was) in Douglas v John Fairfax (1983) 3 NSWLR 126 at 134C in which it was noted that there may be difficulties in determining whether a self-executing order providing for the supply of particulars has come into effect. The order in that case was for the supply of “full and adequate” particulars. The Master’s orders in each of the subject proceedings related to the supply of “particulars requested in correspondence” of a specified date. There has been no issue but that particulars were not supplied by the date specified in the Master’s order.

63 I have the power to vary or to set aside the interlocutory self-executing order made by the Master where changed circumstances make it just and proper that I should do so; Douglas v John Fairfax at 134F citing Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447/8.

64 Annexed to the affidavit of Mark Willis sworn 24 November 1999 is a certificate of Dr Stephen Yelland, medical practitioner, dated 29 May 1997. The certificate is expressed to relate to both Mrs Sylvia Abbott and to Miss Debbie Abbott. It is in these terms:

“This is to certify that Mrs Sylvia Abbott and her daughter Debbie, have been members of this medical practice since 1993. In that time they have lived under enormous pressure caring for Mr John Abbott (Sylvia’s husband) and Mr Arthur Williams (Sylvia’s grandfather) who both suffered serious medical problems. This required considerable time and emotional stress and it persisted until they both died in 1996.”

65 Annexed to the affidavit of Yvonne Williams filed in the Deborah Abbott proceedings and sworn 23 August 2000 is a medical report prepared by Dr Christopher Canaris, forensic psychiatrist, dated 4 July 2000. In that report Dr Canaris notes:

“Her memory and concentration are ‘pretty shocking – once again I’m lucky I work for myself’. This ‘affects my business terribly’ as she finds it hard to focus on tasks. She describes this as less of ‘a lack of intelligence’ and more of a ‘vagueness’. It ‘takes your confidence away very much’ and she was adamant that this was not a problem before her accident.”

66 Annexed to the affidavit of Yvonne Williams sworn 24 August 2000, in the proceedings filed on behalf of Sylvia Abbott is a report dated 4 July 2000 from Dr Canaris concerning Mrs Abbott. That report contains the following observation:

“While I suspect that her husband’s alzheimer’s may have been a misdiagnosed severe depressive illness with so-called pseudodementia, this was scant comfort to your client who feared greatly the possible implications of her own subjective short-term memory loss and impaired concentration. She became very forgetful. For example ‘I’d used to remember friends’ telephone numbers off the top of my head, now I can’t remember them or jumble them up’. She finds it considerably more difficult to remember what she did a few days ago (‘things would sort of wipe out, I’d think something happened at a particular time and Debbie would say ‘oh Mum’.”

67 There was no challenge to the evidence given by each of the plaintiffs to the effect that throughout the period 1992 to 1996 each had been preoccupied with the care of their respective husband/father and father/grandfather. That each was subject to considerable emotional distress during this period has equally not been in issue.

68 In his affidavit affirmed on 24 November 1999 Mark Willis states:

“From my perusal of the file, it appears that solicitors with prior carriage of the matter lost contact with the client from the later part of 1995”.

69 As I have noted above, it appears that contact was re-established not later than 28 October 1996 when Ms Williams was able to speak with Sylvia Abbott by telephone. However, I accept that in late 1995 and into 1996 the solicitors lost contact with their clients.

70 It is apparent from an examination of Ex D that, as at 31 August 1995, G H Healey & Co sought to draw to the attention of Sylvia Abbott the fact that repeated requests for particulars of her claim had been made by the defendant and that, in the event that the particulars were not provided, the defendant was expected to make an application to have the statement of claim struck out for want of prosecution. A letter addressed to Sylvia Abbott dated 8 July 1996 includes the assertion:

“We note that we have sought particulars both from you and your daughter, Deborah on a number of occasions but have received no response.”

The copy correspondence in Ex D is principally of letters addressed to Sylvia Abbott in the period up until 22 August 1996. It was the evidence of Deborah Abbott that she tended to leave inquiries concerning her claim to her mother. A copy of a letter dated 22 August 1996 addressed to Deborah Abbott at the Mudgeeraba address invites her to make telephone contact to assist in the preparation of particulars.

71 I accept that in the period following the request for particulars made by the defendant in 1995 up to and including 21 August 1996 each of the plaintiffs was overwhelmed by her distressing domestic circumstances. This led each to fail to provide instructions to her solicitors.

72 In the light of this evidence I consider that the plaintiffs have in each of the proceedings established that it is just and proper that the Master’s self executing orders made on 28 October 1996 be set aside.

73 It is not necessary to consider the orders sought in prayers five and six of the motions since these relate to an extension of the time allowed by the Master for the provision of particulars.

74 In an affidavit sworn on 24 August 2000 in the proceedings brought by Sylvia Abbott and in an affidavit sworn 23 August 2000 in the proceedings brought by Deborah Abbott, Ms Williams deposes to the circumstance that the plaintiff in each case has now answered requests for particulars. This includes answering a request for particulars dated 14 March 2000. Amended statements pursuant to Pt 33 r 8A of the SCR have in each case been filed. Medical reports have in each case now been served on the defendant.

75 The plaintiffs in each of the proceedings seek orders restoring the matters to “the active list” and directing that the Registry undertake a review of the file history of the matter to assess any anomaly which caused it to be marked as settled and placed in the null-track in error. The latter appears to proceed on a misconception as to the effect of the orders made by the Deputy Registrar on 28 October 1996. I have heard no argument addressed to this issue and I do not propose to give such direction in either case.

76 I propose standing each matter over to 9.00am on Friday 1 February 2002 for mention before me. On that occasion the parties should be in a position to advise whether the proceedings are ready for hearing. In the event that they are not, consideration should be given prior to that date to the preparation of an agreed timetable as to the future conduct of the proceedings. Consideration might also be given prior to that date to the question of whether in each case it may be appropriate to transfer the proceedings to the District Court.

77 The plaintiff in each case seeks an order that the costs of the motion be costs in the cause. I have not heard from the defendant on the issue of costs. I will deal with the question of costs on 1 February 2002.

Orders

1. Extend the time for filing an application for review pursuant to Pt 61 Rule 3 of the SCR to set aside orders made and entered by Deputy Registrar Haggett on 28 October 1996 in proceedings 20996 of 1994 and 20997 of 1994 to 18 June 2001;

2. Set aside the orders made by Deputy Registrar Haggett on 28 October 1996 in proceedings 20996 of 1994 and 20997 of 1994;

3. Set aside the orders made by Master Greenwood on 28 February 1996 in proceedings 20996 of 1994 and 20997 of 1994;

4. Stand proceedings 20996 of 1994 and 20997 of 1994 over for mention before me at 9.00am on Friday 1 February 2002.

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Last Modified: 01/03/2002