Emmett v Hornsby Shire Council

[2002] NSWCA 75

CITATION:	EMMETT v HORNSBY SHIRE COUNCIL & ANOR [2002] NSWCA 75
FILE NUMBER(S):	CA 40792/00
HEARING DATE(S):	11 March 2002
JUDGMENT DATE:	21 March 2002
PARTIES :	Margaret Lorraine Emmett - Appellant Hornsby Shire Council - First Respondent Patchmaster Roadworks Pty Limited - Second Respondent
JUDGMENT OF:	Sheller JA at 1

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	10329/97
LOWER COURT JUDICIAL OFFICER :	Puckeridge DCJ

COUNSEL:	M G Stubbs - Claimant/Appellant S Glascott - Opponent/Respondent
SOLICITORS:	G H Healey & Co - Sydney - Claimant/Appellant Phillips Fox - Opponent/Respondent
CATCHWORDS:	PRACTICE AND PROCEDURE - dismissed for want of prosecution - self executing orders - powers of Registrar - failed to give reasons for dismissal - Supreme Court Act 1970 - Supreme Court Rules 1970
LEGISLATION CITED:	Supreme Court Rules 1970 Supreme Court Act 1970
CASES CITED:	Birkett v James [1978] AC 297 Allen v McAalpine [1968] 2 QB 229 Fairey v Fairey (No 2) [2000] NSWCA 173 Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268
DECISION:	1 Set aside the order made by the Registrar on 4 October 2001; 2 Extend the time for the filing of submissions by the appellant until twenty-one days from the date of this judgment; 3 The appellant to pay the respondent's costs of this application; 4 Otherwise remit the appeal to the Registrar.

CA 40792/00
DC 10329/97

SHELLER JA

Thursday, 21 March 2001

EMMETT v HORNSBY SHIRE COUNCIL & ANOR

Judgment

1 SHELLER JA: On 30 October 2000 Margaret Lorraine Emmett (the appellant) filed a holding appeal in this matter and on 2 January 2001 a notice of appeal with appointment against a decision of his Honour Judge Puckeridge QC in the District Court given on 5 September 2000. The respondents were Hornsby Shire Council and Patchmaster Roadworks Pty Limited. On 4 October 2001 Mr John Rafferty, a consulting solicitor to the law firm G H Healey & Co, the solicitors for the appellant, attended a mention of the appeal before Registrar Irwin. The Registrar ordered that the appellant’s submissions be filed and served by 25 October 2001 and that if they had not been filed and served by that date the appeal to stand dismissed for want of prosecution. I will come back to relate the circumstances in which that order was made. The appellant’s submissions were not filed within time. The minute of order is noted:

“The appeal stands dismissed for want of prosecution pursuant to the orders of 4/10/01.
Ordered 4 February 2002”

2 By notice of motion filed on 12 February 2002 the appellant applied for orders:

“1. Any ex parte orders of this Honourable Court dismissing the Appeal be vacated.
2. The orders of this Honourable Court made 4 October 2001 be vacated.”

3 Further orders were sought directed to a fresh timetable for the hearing of the appeal. I should interpolate that the appeal had been set down for hearing on 7 February 2002.

4 The application came before me on 11 March 2002. I reserved my decision.

5 Section 46(1) of the Supreme Court Act 1970 (the Act) empowers a Judge of Appeal to exercise the powers of the Court of Appeal, inter alia,

“(b) to dismiss an appeal …… for want of prosecution ……”

6 Section 119(1) of the Act provides for the appointment of a Registrar of the Court of Appeal. The powers of a Registrar are dealt with in s121 of the Act. Thereunder (subs (2)) a Registrar may exercise such powers of the Court as are, by or under this or any other Act, conferred upon the Registrar. Part 51 r58 of the Supreme Court Rules 1970 (the Rules) provides that subject to an immaterial exception the Registrar may exercise the powers of a Judge of Appeal under s46(1) and (2) of the Act. Part 61 r3 of the Rules provides that the Court may on motion by any party review an order made by a Registrar. Part 61 r4 of the Rules provides that the powers of the Court under Part 61 may in respect of the Registrar of the Court of Appeal be exercised by a Judge of Appeal.

7 Part 51 r24 of the Rules provides:

“Where an appellant has not done any act required to be done by or under these rules, or otherwise has not prosecuted his appeal with due diligence, the Court of Appeal may on application by any party or of its own motion:
(a) order that the appeal shall be dismissed for want of prosecution;
(b) fix a time peremptorily for the doing of the act and:
(i) in the event of non-compliance, subsequently order that it be so dismissed; or
(ii) in special circumstances order that in the event of non-compliance the appeal be dismissed; or
(c) make such further or other order as in the circumstances may seem just.”

8 It is obvious and well established that an order summarily dismissing an appeal brought as of right is an extreme measure; see Birkett v James [1978] AC 297, particularly in the speech of Lord Diplock at 318. Lord Diplock referred to Allen v McAlpine [1968] 2 QB 229 and the Supreme Court Practice (1976) restating the principle laid down by the Court of Appeal in that case.

“The power should be exercised only where the Court is satisfied either
(1) that the default has been intentional and contumelious, eg, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or
(2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and
(b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or as such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.”

9 In Fairey v Fairey (No 2) [2000] NSWCA 173 Mason P referred to the discussion by the Full Federal Court in Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388. In that case their Honours pointed out that it is undesirable to make any exhaustive statement of the circumstances under which the power to dismiss proceedings for want of prosecution should appropriately be exercised. However, one situation their Honours described as an obvious candidate for the exercise of the power was the case in which the history of non-compliance by an applicant was such as to indicate an inability or unwillingness to cooperate with the court.

10 In support of her application the appellant relied upon a number of affidavits. The effect of these affidavits was usefully summarised in a written submission prepared by Ms Margo Stubbs, who appeared for the appellant. On 21 December 2000 and 16 January 2001 the appellant’s solicitors wrote to the Court Reporting Services Branch requesting a transcript. On 20 April 2001 the appellant’s solicitors were advised of the Court of Appeal Callover on 24 April 2001. Ms Katarina Muc, the principal of the appellant’s solicitors, attended that callover. The Registrar listed the matter for further directions on 24 May 2001. On that date the Registrar ordered that the time for filing the appellant’s submissions be extended to 21 June 2001 and that the appellant file and serve the rule 8 affidavit and red book also by that date. The directions hearing was adjourned to 21 June 2001.

11 Between 15 June 2001 and 12 July 2001 the solicitors for the appellant made inquires which disclosed that the District Court file did not contain a copy of the judgment. It is not clear what happened at the directions hearing on 21 June 2001 but at a directions hearing on 12 July 2001 the Registrar stood the matter over to 19 July with costs reserved so that the solicitors for the appellant could explain why material was not filed and why the respondents should not be allowed costs. On that adjourned day, Ms Muc appeared with affidavits from Ms Nurmi and herself dated 19 July 2001 dealing with the efforts to obtain a transcript of the judgment. The Registrar made the following orders:

“1. The lower court file be uplifted for inspection.
2. The Registry to write to Judge Puckeridge.
3. Directions Hearing stood over to 2 August 2001.”

12 By that date the Registrar was informed that the judgment had been transcribed and was with Judge Puckeridge. It was intended to re-bind the red books to include it. The Registrar stood the matter over to 23 August 2001. Up until that date, Ms Muc was advised that the transcript of the judgment was still with Judge Puckeridge. On 23 August 2001 an affidavit by Ms Muc was filed. The Registrar made the following orders:

“1. The appellant insert lower court judgment into the red book.
2. The appellant advise the Registrar on 30 August 2001 in the event the transcript was not available by that date.
3. Costs reserved.
4. Matter stood over until 13 September 2001.”

13 On 13 September 2001 directions were given for the filing of the red book, the r8 affidavit and the callover notice before 20 September 2001 and for the appellant to file submissions on or before 4 October 2001. Provision was also made for the respondent to file submissions. The matter was stood over to 4 October 2001.

14 On 20 September 2001 the solicitors for the appellant served the solicitors for the respondent with the red appeal book, affidavit and callover notice. Apparently early in September a brief was hand delivered to senior counsel.

15 On 4 October 2001 the Registrar made the orders which I have already set out. Mr Rafferty’s evidence about this, in his affidavit of 3 February 2002, was as follows:

“1. I am a consultant solicitor to the law firm GH Healey & Co Hurstville, in Association with Denis J McCabe, Solicitors, of Suite 31, 1-5A The Avenue, Hurstville NSW 2220.
2. The Firm to whom I am a consultant is in an Association with other practices, including the firm GH Healey & Co – Sydney.
3. There is also a common Principal of both the firm at Hurstville and the firm at Sydney.
4. I am the Solicitor in charge of the Hurstville firm and Mr Costa is the Solicitor in charge of the Sydney firm.
5. The office of GH Healey & Co – Sydney is at Level 2, 141-143 Elizabeth Street, Sydney NSW 2000.
6. Whilst I practise at Hurstville a city office for the Associated Practices is located at the same premises as the GH Healey & Co – Sydney firm.
7. On 4 October 2001, I was at the city office and had time available to attend a 11.30am Mention of the within matter in this Honourable Court.
8. I was on Friday 1 February 2002 advised that contact had been made by Registrar Irwin of the Court of Appeal with Mr Costa to the effect that the matter had been dismissed pursuant to a self-executing order made on 4 October 2001.
9. Whilst I made a handwritten record of the [sic] my attendance and the orders made when I returned to 141-143 Elizabeth Street, Sydney I am informed that my handwritten file note cannot be located with the papers held in the within matter.
10. Accordingly, I have been asked by the Principal of GH Healey & Co – Sydney, Mrs Katarina Muc to review my diary and any notes I may have of the Mention on 4 October 2001, together with casting my mind back to the Mention so that I can swear an Affidavit as to my recollection of the precise orders made on 4 October 2001 when I was in attendance before Registrar Irwin.
11. Despite my also searching papers held by GH Healey & Co – Sydney today, Sunday 3 February 2002, I have been unable to locate my handwritten file note.
12. My recollection of what occurred, on 4 October 2001 in relation to the within matters is as set out hereunder:
(i) At approximately 11.30am I attended at the Registrar’s Callover before Registrar Irwin.
(ii) I confirmed to Registrar Irwin there was still a delay in completing the Appellant’s Submissions.
(iii) Registrar Irwin indicated his displeasure with this, as the matter had been in the list for so long.
(iv) Registrar Irwin then made orders as to the filing of the Appellant’s and Respondent’s Submissions by specific dates:
Submissions
(a) Appellant
Submissions to be filed within 21 days ( of 4 October 2001, namely 25 October 2001).
(b) Respondent
Submissions to be filed within 28 days of Applicant’s Submissions ( namely, 22 November 2001 ).
Hearing Date
Listed for Hearing on 7 February 2002.
13. I have no recollection of being aware when Registrar Irwin made the order as to the filing of the Appellant’s Submissions by 25 October 2001 that if the Submissions were not filed by that date it was a self executing order , which would cause the matter to be automatically dismissed.
14. My recollection is that Registrar Irwin was displeased as to the delay in the matter and I understood he was advising as to what could happen.
15. My recollection is that whilst at the Court I made a note of the Hearing date and the time for filing of Submissions for both parties.
16. My recollection is that there was a female Solicitor from the Respondent’s Solicitors, Messrs Phillips Fox, in attendance at the Mention on 4 October 2001, who also took note of the foregoing.
17. After the Mention I returned to the Sydney Practice at Elizabeth Street Sydney, where I spoke to Ms Muc and Mr Costa and confirmed:
(i) Registrar Irwin had been unhappy with the delay.
(ii) He had nonetheless allocated a hearing date.
(iii) He had set dates for the filing of Submissions.
(iv) I would make a file note of dates etc.
18. I hereafter made a handwritten file note as to the dates set out herein in paragraph ‘12’, and placed it with the papers held in respect to the Appeal.
19. Whilst I do believe that Registrar Irwin indicated at the Mention that if the Applicant’s Submissions were not filed within the timeframe indicated, the Appeal may be struck out, I did not understand that he was making a self-executing order .
20. When speaking with Ms Muc & Mr Costa I did not indicate to them that there was a self executing order in existence.”

16 Mr Helder Costa filed an affidavit of 4 February 2002 in the course of which he said that he first became involved with the appeal on 12 July 2001 when he appeared before the Registrar. Apparently thereafter he was assisting Ms Muc. He deposed:

“17. I am aware that on the 4th October 2001 Mr Rafferty of an Associated Practice at Hurstville attended a mention of the within matter before Registrar Irwin at 11.30am.
18. I recall Mr Rafferty returning to the Sydney Practice at Elizabeth Street, Sydney where he spoke to Ms Muc and myself and advised us that:
(i) Registrar Irwin had been unhappy with the delay.
(ii) He had nonetheless allocated a hearing date for 7 February 2002.
(iii) He had set dates for the filing of submissions, with the Appellant’s submissions to be filed by 25th October 2002.
19. I was not aware and did not understand that Registrar Irwin had ostensibly made an order that if the Appellant did not file its submission by 25 October 2001, the matter would be dismissed.
20. I am informed and verily believe that a brief in this matter was forwarded to senior counsel under cover of letter dated 27 September 2001. Annexed hereto and marked with the letter ‘C’ is a copy of the said letter.
21. On 8 October 2001, I was asked by Ms Muc to contact senior counsel and advise him of the orders made by Registrar Irwin on 4 October 2001 and that our firm would pay him for his advice on the merits of the Appeal.
22. On 15 October 2001, I forwarded a letter to counsel confirming my telephone conversation with him on 8 October 2001, a copy of which is annexed herewith and marked with the letter ‘D’.
23. On 16 October 2001, I received a telephone call from senior counsel advising that he would be overseas until 24 October 2001, but that he would contact counsel who appeared for the Appellant at the District Court trial in relation to preparing the submissions.
24. On 31 October 2001, I received a letter by facsimile from senior counsel requesting counsel who appeared for the Plaintiff at the trial to prepare draft submissions.
25. On 5 November 2001, I forwarded a memorandum to Ms Katarina Muc enclosing a copy of letter from counsel dated 31 October 2001.
26. On 4 December 2001 an open letter from Mr Matthew Conn at Messrs Phillips Fox addressed To: John Rafferty, Company: GH Healey & Co – Sydney [was received].
The said facsimile referred to previous correspondence and put an offer of settlement in relation to grounds two (2) and four (4) of the Appeal.
‘…..interest on past economic loss ($6,040.23) and
interest payable on past general damages ($4,259.00)’
The offer was to remain open for twenty eight (28) days, that is until 4 January 2002.
Annexed hereto and marked with the letter ‘E’ is a true copy of the said letter dated 4 December 2001.
27. On 20 December 2001 a letter from senior counsel retained in the matter was received advising, amongst other things,
(a) He was not available on 7 February 2002.
(b) The fee offered for the advice and reading of transcripts of the four day trial was insufficient.
(c) An economical solution of asking junior counsel who appeared at the trial to prepare draft submissions had not occurred.
(d) In the circumstances he thought it better that he return the brief at that stage, so that we may retain counsel who would be able to appear on the hearing and to prepare the submissions.
28. This firm closed for the Christmas period on 20 December 2001.
29. The firm did not re-open until the 14th January 2002.
30. Apparently, a ‘reminder to lodge outstanding Appeal Books’ dated 21 December 2001 was received from the Court in the DX over the Christmas period. In that reminder notice it said:
‘This matter is listed for hearing on 07/02/2002
……
If the rest of the Appeal Books are not lodged on time, the matter will be listed to determine whether the Appeal should be struck-out for want of prosecution. …”
31. I was thereafter away during the week of 21st January 2002 to 28th January 2002.
32. On the 22nd January 2002, whilst I was away, my secretary Ms Chantelle Nurmi was contacted by telephone by a person who identified herself as ‘Stephanie’ from the Court of Appeal.
33. I am informed by Ms Nurmi and verily believe that Ms Stephanie advised
‘The matter is for hearing on 7th February 2002 and Justice Mason has requested the Black and Blue Books be provided by the end of the week; three more copies of the red book and the orange books are to be ‘on their way’ otherwise he will list the matter before himself next week.’
34. On the 25th January 2002 Ms Nurmi as directed delivered to Ms Stephanie, personally, at the Court of Appeal Registry:
(a) The Black and Blue Books
(b) Three (3) more copies of the Red Appeal Book
(c) A covering letter enclosing same.
35. On the 25th January 2002 Mr Alvin Acharyia, solicitor, also delivered to Mr Matthew Conn at Messrs Phillips Fox:
(d) Three (3) copies of the Black and Blue Appeal Books
(e) A covering letter serving same.
36. On 29 January 2002 an open facsimile from Mr Matthew Conn at Messrs Phillips Fox addressed To: Katarina Muc, Company: GH Healey & Co – Sydney was received wherein it was said
“We refer to the above matter and enclose a copy of our facsimile to the Court of Appeal, Supreme Court of NSW for your reference.’
37. Annexed hereto is a copy of the said facsimile dated 29 January 2002 to Registrar Irwin, Court of Appeal, in which it was stated
‘….This matter is currently listed for hearing on 7 February 2002.

On 4 October 2001, Registrar Irwin made the following orders:
1. Appellant’s submissions to be filed within 21 days (25 October 2001) and if not, the Appeal will be dismissed for want of prosecution;
2. Respondent’s submissions to be filed and served by 22 November 2001; and
3. Listed for hearing on 7 February 2002.
We have still not received the Appellant’s Submission in breach of order one.
We confirm the matter has been dismissed for want of prosecution and removed from the hearing list on 7 February 2002 .’
38. I had not been aware of any ‘self executing orders’.
39. I thereafter advised Ms Muc of the communication as Ms Muc had herself been completing the submissions.
40. On Thursday 31 January 2002 a letter from Mr Matthew Conn of Phillips Fox dated 30 January 2002 addressed to: John Rafferty, GH Healey & Co was received at DX 711 with the reference shown as JR:LM:964534. This letter purported to enclosed a copy of sealed copy of minute of judgment .
41. In fact, what was annexed was a copy of a Minute of Judgment showing that it had been filed in the Supreme Court on 30 January 2002.
42. Annexed hereto and marked with the letters ‘F’ and ‘G’ respectively are copies of the said letter and minute of judgment.
43. On Friday 1 February 2002 at approximately 10.00am Registrar Irwin telephoned the firm, and asked to speak to me, and thereafter we had a conversation where the following matters were raised:
Registrar Irwin wanted to know what was happening with the matter.
I informed him that as I understood, Appeal books had been filed and submissions were being finalised or had in fact been finalised to be filed with the Court.
Registrar Irwin noted that:
1 Only black and blue books had been filed and not the orange book.
2 Submissions should have been filed months ago.
3 As per the Respondents letter, at the moment this matter stands dismissed due to the self-executing orders.
Registrar Irwin complained that he had had a continuing problem with this firm for over a decade in never being able to find out whom in fact had carriage of matters and said that something had to be done about it.
Registrar Irwin asked if GH Healey was the solicitor on the record. I replied that I wasn’t aware of who the solicitor on the record was.
He further wanted to know why we put our client to the expense of having Appeal Books prepared when the matter had been dismissed.
He noted that this is a matter that he may take further and refer to the Law Society.
I said that I would contact the principal and get back to him in relation to the above.
He said no, that he was placing the matter in the Motions list on Monday at 9.45am , and that he would contact the other side to inform them of this.
44. The chronology, which I annex to this affidavit clearly sets out the efforts made on behalf of the Appellant and the reasons beyond the Appellant or this firm’s control which caused the delays.
45. Annexed hereto and marked with the letter ‘H’ is a copy of the chronology.
46. Notwithstanding the firm’s difficulties in obtaining the assistance of senior and junior counsel on satisfactory financial terms.
47. All steps were being taken by Ms Muc, the principal, to prepare and complete the written submissions.
48. Ms Muc the principal of the practice has completed the written submissions which have been forwarded by facsimile today, to Mr Matthew Conn at Messrs Phillips Fox.
49. Until the correspondence from the Respondent of 29 January 2002 it had also been hoped that a reasonable offer as to the issues of most concern to the Appellant would be made which would lead to a settlement prior to the hearing of the Appeal in an endeavour to keep further legal costs to a minimum.”

17 In Ms Muc’s affidavit of 4 February 2002 she referred to Mr Costa’s affidavit and said she was aware that the Registrar had indicated he had concern as to ascertaining the principals of GH Healey & Co. She deposed:

“6. It is further noted that the Registrar directed me as the principal of GH Healey & Co – Sydney, to personally attend certain mentions, and I ensured that I did, to comply with the Registrar’s directions in this specific regard.
7. Since suffering injuries to my spine in 1992, I have had to undergo a series of treatments, the most recent of which was a laminectomy in the year 2000.
8. It became impossible for me to conduct a practice full-time on my own account as I could not sit for the hours required and I needed the assistance of staff.
9. Accordingly, I became the principal in other small firms, so that I could afford to employ staff as I now am only able to work part-time.
10. It was not my intention, nor that of my firm in any way to impede the proper administration of the court system but initially there were logistical difficulties totally outside the control of myself or my firm.
11. I believe that all steps that could be taken by me and my staff were taken in an effort to obtain the transcript of judgment in what is essentially an administrative matter for the Court Reporting Service or the Attorney General’s Department and totally outside a solicitor’s control.
12. I am alarmed that notwithstanding my advice to the Registrar of these difficulties, a cost order against the Appellant was foreshadowed, even when the Registrar indicated that he could not assist internally from within the Court system.
…
14. I do note, that whilst all steps were being taken by myself and my staff, as to obtaining the transcript of judgment, I had been endeavouring to have a meeting with the Respondent’s solicitors as to certain areas of appeal that appeared non-contentious.
15. No doubt, the Respondent’s position was reflective of my own and as I was informed by the Respondent’s solicitor that they could not take the matter further as their senior counsel was unavailable to advise.
16. The matter was not without independent administrative difficulty to me and this firm, in that I had taken conduct of the matter when the previous solicitor could no longer fund it and on the same retainer terms and we had difficulty in finding counsel who was prepared to accept the appeal brief on a speculative basis.
17. Eventually, having obtained the transcript and a certified copy of judgment, and being in a position to retain counsel, an agreement had to be made as to this firm guaranteeing a specific payment to counsel, regardless of outcome.
18. The logistical difficulties thereafter are referred to by Mr Costa in his affidavit sworn today and filed herein.
19. I have also read the affidavit of John Rafferty sworn 3 February, 2002 and filed herein.
20. I confirm I had no knowledge that self-executing orders had been made.”

18 Ms Muc enclosed the appellant’s submissions to be included in the orange appeal book. The chronology prepared by Mr Costa was set out in his affidavit of 11 March 2002. In particular, Mr Costa swore:

“35. On or about 15 October 2001 a letter was forwarded by GH Healey & Co – Sydney to Senior Counsel advising Appellant’s Submissions were to be filed within 21 days on 25 October 2001, that the matter had been set down for hearing on 7 February 2002, and requesting Submissions be prepared prior to 25 October 2001.
36. On or about 31 October 2001 a letter was received from Senior Counsel to G H Healey & Co – Sydney in relation to preparation of Submissions.
37. On or about 5 November 2001 I provided a file note to Ms Muc enclosing a copy of Senior Counsel’s letter dated 31 October 2000.
38. Ms Muc was on leave for the period 29 November 2001 to 17 December 2001.
39. On or about 4 December 2001 a letter from Phillips Fox addressed to Mr Rafferty was received enclosing an offer of settlement which was to remain open until 4 January 2001.
40. On or about 20 December 2001 a letter from Senior Counsel dated 18 December 2001 was received by this practice advising that he could not complete the submissions and that he was not available to appear at the hearing on 7 February 2002.
41. The firm was closed for the Christmas break from 20 December 2001 to 14 January 2002.
42. A letter from the Court of Appeal Registry was sent on 21 December 2001 advising that the outstanding Appeal books must be lodged. It appears this letter was received on or about 14 January 2002.
43. I was absent, on leave, for the period 21 January 2002 to 28 January 2002.
44. On or about 22 January 2002 my secretary, Ms Nurmi received a telephone call from ‘Stephanie’ at the Court of Appeal. Stephanie told Ms Nurmi that Mr Justice Mason had requested the Black and Blue books be provided by the end of the week, three more copies of the Red Book, and the Orange books to be ‘on their way’, otherwise he would list the matter before himself the next week. The hearing date of 7 February 2002 was confirmed.

45. On or about 25 January 2002 a letter from GH Healey & Co – Sydney addressed to the Court of Appeal Registry enclosing the Appellant’s Black and Blue Appeal Books and three more copies of the Red Book was hand delivered to the Registry, together with enclosures.
46. On or about 25 January 2002 a letter from G H Healey & Co – Sydney addressed to Phillips Fox serving the Appellant’s Black and Blue Appeal Books was hand delivered to Phillip Fox, together with enclosures.
47. On or about 29 January 2002 a letter from Mr Matthew Conn of Messrs Phillips Fox addressed to Katarina Muc, GH Healey & Co – Sydney advised that the matter had been dismissed for want of prosecution that it had been removed from the hearing list.
48. On or about 31 January 2002 a letter from Mr Matthew Conn of Messrs Phillips Fox addressed to John Rafferty purportedly enclosed a sealed copy of Minute of Judgment.
49. On or about 1 February 2002 I received a telephone call from Registrar Irwin.
50. On or about 1 February 2002 a letter was received from the Supreme Court providing written confirmation that the matter had been listed for mention on 4 February 2002.”

19 On 20 February 2002 Matthew Terrence Conn, a solicitor in the employ of Phillips Fox, the solicitors for the respondents, deposed as follows:

“2. I refer to paragraph 14 of the Affidavit of Katarina Muc dated 4 February 2002. I am not aware of any endeavours the Appellant’s solicitors have taken to settle any non contentious areas of the appeal.
3. I refer to paragraph 15 of the Affidavit of Katarina Muc dated 4 February 2002. This is incorrect. We received advice from Senior Counsel in relation to the appeal and made an offer accordingly by facsimile dated 4 December 2001. Annexed hereto and marked ‘A’ is a true copy of that facsimile.
4. I refer to paragraph 22 of the Affidavit of Katarina Muc dated 4 February 2002. At all times I viewed the order of Registrar Irwin as self executing.
5. I refer to paragraph 27 of the Affidavit of Katarina Muc dated 4 February 2002. This is incorrect. Settlement monies in full were paid to the Claimant’s solicitors by letter dated 18 December 2000 . Letters were also sent dated 18 December 2000 to GIO Workers Compensation and Health Insurance Commission enclosing the relevant payback amounts. Annexed hereto and marked ‘B’, ‘C’ and ‘D’ are true copies of those letters.”

20 On 20 February 2002 Christine Forostenko, also in the employ of Phillips Fox, filed an affidavit annexing a contemporaneous note of her attendance at the mention on 4 October 2001. Part of that is:

“They say can file submissions within 21 days.
Registrar directs to be filed within 21 days and if not, then appeal will dismissed [sic] for want of prosecution (by 25 October 2001)”

21 To my mind the history of this matter and the cost and delay of having to bring it before a single Judge of the Court demonstrates that self executing orders dismissing appeals for want of prosecution should only be made in the most exceptional circumstances. In accordance with Pt 51 r24(b)(ii) of the Rules, such an order can only be made “in special circumstances”. A judicial officer who makes such an order dismissing an appeal is, in my opinion, required to give his or her reasons for doing so (compare the careful detailed reasons of Mason P in Fairey v Fairey when considering whether to dismiss an appeal for want of prosecution) and must if ordering that in the event of non-compliance the appeal will be dismissed identify the special circumstances and explain why they are special.

22 The vice of self executing orders is that the order takes effect without any account being taken of what may have happened since it was made. There is no reason on the material before me not to accept that for good reason or bad the appellant’s solicitors failed to appreciate that the order made on 4 October 2001 if not complied with resulted in a self executing order for dismissal of the appeal.

23 In the present case, no attention has been directed to the prospects of the appeal. If one assumes that the appellant had some prospect of success that prospect has been lost without any fault of hers. It is notable that so far as I can make out, at no stage was the respondent pressing for any urgent hearing of the appeal. There is no contest that the delay until some time after 22 August 2001 resulted from the unavailability of the judgment at first instance. On 13 September 2001 the Registrar ordered the appellant to file submissions on or before 4 October 2001. The appellant failed to do so and that failure on the material before me can in large measure be held to the account of the appellant’s legal advisers. On 4 October the failure to comply with the Registrar’s order for the filing of submissions seems to have been dealt with by the appellant’s advisers in a cavalier manner. As a matter of courtesy and in the interests of their client the appellant’s solicitors should have filed affidavits or other evidence explaining the delay and apologising for it. There was nothing. Again, the order made on 4 October was not complied with and again, no material was put before the Registrar explaining or apologising for this further delay and seeking an extension of time. This is quite inexcusable. Apparently unaware that the order for dismissal was self executing, the appellant’s solicitors were content not to comply with the order and do nothing more.

24 It would have been quite appropriate for the Registrar on 4 October to have advised the appellant’s solicitors that if the submissions were not filed within 21 days he would require the solicitors to show cause by affidavit explaining the delay and putting any material before the Registrar to demonstrate why he should not dismiss the appeal for want of prosecution. With due respect, in my opinion, that was the far preferable course. The Registrar may have been minded to require the appellant’s solicitors to serve a copy of that order upon their client.

25 Instead of that material coming before the Registrar on a further mention day to consider whether or not the appeal should be dismissed for want of prosecution, it has now been placed before me on review. In dismissing the appeal the Registrar is exercising the power of the Court. The order is a final one which disposes of the appeal. The power of the Court to set aside such an order raises difficult questions of jurisdiction particularly if the order is entered, which I am told in this case it was not. See FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268.

26 In my opinion, the Registrar erred in not giving reasons and in not making any finding of special circumstances before he made the order he did. Furthermore, in my opinion, there was an error of discretion. In this case there was no prejudice shown to the respondents beyond the delay in receiving the appellant’s submissions. The only substantial reason for making the order was the failure to comply with the order for filing submissions made on 13 September 2001. As I have said, the appellant’s solicitors showed discourtesy to the Court in failing to explain that. But in such situations, the Court is concerned with doing justice between the parties and not with punishing parties for their delays or failure to comply with orders. In this case, against the background of difficulty in obtaining transcript, which is not a novel experience, and the difficulty at short notice of obtaining the services of counsel, again an experience which is not novel, a very important consideration was the position of the client. Both she and any fair-minded objective observer would come to the conclusion that she has lost a valuable right at fairly short notice due to the failures of the legal profession and a lack of sympathy from the Court notable by the fact that she does not have the benefit of any reasoned judgment for the dismissal of her appeal.

27 In my opinion, the order made by the Registrar on 4 October 2001 should be set aside and the time extended for the filing of submissions by the appellant until 21 days from the date of this judgment.

28 Costs presents a difficult problem. I have heard no submissions as to who should pay the costs of this application. The need for it flowed from the failure by the appellant’s solicitors to comply with the orders the Registrar made. Thus it seems appropriate that the appellant should pay the respondent’s costs of the application.

29 Pursuant to s76C(1) of the Act the Court may at any stage of any proceedings make orders therein referred to “in respect of a solicitor whose serious neglect, serious incompetence or serious misconduct delays, or contributes to delaying those proceedings”. This section was discussed by the Court in Leicester v Walton (unreported) Court of Appeal 22 November 1995. Undoubtedly, there was an element of neglect in the solicitor’s failure to comply with the Registrar’s orders. After some hesitation I have come to the conclusion on the facts presented to me that an order under that section should not be made.

30 The orders of the Court will be as follows:

1. Set aside the order made by the Registrar on 4 October 2001;
2. Extend the time for the filing of submissions by the appellant until twenty-one days from the date of this judgment;
3. The appellant to pay the respondent’s costs of this application;
4. Otherwise remit the appeal to the Registrar.

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