Dib v Regtop

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an extension of time in August 2005 to apply to rescind this deemed dismissal, and if successful, to have the dismissal rescinded.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extended the time for the appellant's application to seek rescission of the deemed dismissal to 3 August 2005, and rescinded the deemed dismissal order of 1 January 1998.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.