New South Wales
Court of Appeal
CITATION: DIB by her tutor HABIB DIB v REGTOP [2006] NSWCA 380
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 6 December 2006
JUDGMENT DATE:
20 December 2006JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; McColl JA at 3 DECISION: 1.Grant leave to appeal. 2.Notice of Appeal to be filed within fourteen days. 3. Appeal allowed. 4.Orders of Balla DCJ of 10 February 2006 set aside. 5.Extend the time for the appellant’s application under Pt 12 r 4C(4) of the District Court Rules to seek an order rescinding the deemed dismissal of her action to 3 August 2005. 6. Pursuant to District Court Rules Pt 12 r 4C(4) rescind the deemed dismissal order of 1 January 1998. 7.Set aside McLachlan DCJ’s orders of 18 July 1996. 8.Direct that the action be listed for direction in the District Court on a date convenient to that Court and notified to the parties. 9.Respondent to pay the appellant’s costs of the application in the District Court from 30 August 2005. 10.Respondent to pay the appellant’s costs of the appeal and application for leave to appeal and have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified. CATCHWORDS: PROCEDURE - appellant’s motor accident proceedings deemed dismissed on 1 January 1998 by virtue of Pt 12 r 4C District Court Rules 1973 - application in August 2005 for extension of limitation period to apply to rescind deemed dismissal and if successful, to rescind deemed dismissal - HELD - whether to rescind deemed dismissal turns on what is fair and just as between parties - - principles applicable in applications to extend limitation periods must be applied cautiously in an application focusing on what is appropriate to do justice between the parties - prejudice to both parties relevant - no actual prejudice to respondent - MENTAL HEALTH - uncontradicted expert evidence before the primary judge that since at least September 1994 appellant incapable of managing her own affairs because afflicted by a form of schizophrenia - respondent concedes no personal responsibility for delay could be attributed to appellant - matter handled by inexperienced solicitors - primary judge concluded appellant had not demonstrated her mental disability explained delay HELD - primary judge’s exercise of discretion miscarried because she gave no, or insufficient, weight to appellant’s mental disability - appellant’s ability to pursue her proceedings with the diligence the law attributes to the reasonable person must have been gravely compromised by her mental disability - PROCEDURE - Pt 12 r 4C omitted from District Court Rules as part of civil procedure reforms effected in August 2005 - motion to extend time to apply to rescind deemed dismissal filed before omission but heard after - consideration of jurisdiction to grant relief HELD - substantive right in existence at time Pt 12 r 4C(4) omitted to have deemed dismissal order reconsidered and determined by the District Court…
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Details
- AGLC
- Dib v Regtop [2006] NSWCA 380
- Case
- [2006] NSWCA 380
- Decision Date
CaseChat Overview and Summary
The appeal in *Dib v Regtop* concerned a motor accident proceeding that had been deemed dismissed on 1 January 1998 pursuant to rule 4C of Part 12 of the District Court Rules 1973. The appellant sought an extension of time in August 2005 to apply to rescind this deemed dismissal, and if successful, to have the dismissal rescinded. The matter came before the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the primary judge had erred in her exercise of discretion by failing to give sufficient weight to the appellant's mental disability when considering the application to rescind the deemed dismissal, and whether the District Court retained jurisdiction to grant the relief sought given the omission of rule 4C from the District Court Rules in August 2005. The court also considered the appropriate orders for costs.
The Court of Appeal held that the primary judge's exercise of discretion had miscarried because insufficient weight was given to the appellant's mental disability, which had rendered her incapable of managing her affairs since at least September 1994. The court found that the appellant's ability to pursue her proceedings with the diligence expected of a reasonable person was gravely compromised by her mental condition, and that the respondent had conceded no personal responsibility for the delay could be attributed to the appellant. Regarding jurisdiction, the court determined that the substantive right to have the deemed dismissal reconsidered, which existed at the time rule 4C(4) was omitted, was protected by section 30 of the *Interpretation Act 1987*, and that transitional provisions in the *Civil Procedure Act 2005* also preserved the court's power to grant relief.
The Court of Appeal allowed the appeal, set aside the orders of the primary judge, extended the time for the appellant's application to seek rescission of the deemed dismissal to 3 August 2005, and rescinded the deemed dismissal order of 1 January 1998. The court also set aside earlier orders and directed that the action be listed for direction in the District Court. The respondent was ordered to pay the appellant's costs of the application in the District Court from 30 August 2005, and the appellant's costs of the appeal and application for leave to appeal.
The primary legal issues before the Court of Appeal were whether the primary judge had erred in her exercise of discretion by failing to give sufficient weight to the appellant's mental disability when considering the application to rescind the deemed dismissal, and whether the District Court retained jurisdiction to grant the relief sought given the omission of rule 4C from the District Court Rules in August 2005. The court also considered the appropriate orders for costs.
The Court of Appeal held that the primary judge's exercise of discretion had miscarried because insufficient weight was given to the appellant's mental disability, which had rendered her incapable of managing her affairs since at least September 1994. The court found that the appellant's ability to pursue her proceedings with the diligence expected of a reasonable person was gravely compromised by her mental condition, and that the respondent had conceded no personal responsibility for the delay could be attributed to the appellant. Regarding jurisdiction, the court determined that the substantive right to have the deemed dismissal reconsidered, which existed at the time rule 4C(4) was omitted, was protected by section 30 of the *Interpretation Act 1987*, and that transitional provisions in the *Civil Procedure Act 2005* also preserved the court's power to grant relief.
The Court of Appeal allowed the appeal, set aside the orders of the primary judge, extended the time for the appellant's application to seek rescission of the deemed dismissal to 3 August 2005, and rescinded the deemed dismissal order of 1 January 1998. The court also set aside earlier orders and directed that the action be listed for direction in the District Court. The respondent was ordered to pay the appellant's costs of the application in the District Court from 30 August 2005, and the appellant's costs of the appeal and application for leave to appeal.
Orders
Orders of the court
1.Grant leave to appeal. 2.Notice of Appeal to be filed within fourteen days. 3. Appeal allowed. 4.Orders of Balla DCJ of 10 February 2006 set aside. 5.Extend the time for the appellant's application under Pt 12 r 4C(4) of the District Court Rules to seek an order rescinding the deemed dismissal of her action to 3 August 2005. 6. Pursuant to District Court Rules Pt 12 r 4C(4) rescind the deemed dismissal order of 1 January 1998. 7.Set aside McLachlan DCJ's orders of 18 July 1996. 8.Direct that the action be listed for direction in the District Court on a date convenient to that Court and notified to the parties. 9.Respondent to pay the appellant's costs of the application in the District Court from 30 August 2005. 10.Respondent to pay the appellant's costs of the appeal and application for leave to appeal and have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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