Harding v Bourke

[2000] NSWCA 60

Reported Decision: [2000] 48 NSWLR 598

New South Wales

Court of Appeal

CITATION:	DR BRUCE HARDING v GWEN BOURKE [2000] NSWCA 60
FILE NUMBER(S):	CA 40424/99
HEARING DATE(S):	3 March 2000
JUDGMENT DATE:	23 March 2000
PARTIES :	DR BRUCE HARDING v GWEN BOURKE
JUDGMENT OF:	Mason P at 1; Meagher JA at 31; Heydon JA at 32

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8440/95
LOWER COURT JUDICIAL OFFICER :	Naughton DCJ

COUNSEL:	Appellant: C G Gee QC/D J Hooke Respondent: K Pryde
SOLICITORS:	Appellant: Colin Biggers & Paisley Respondent: Schrader & Associates
CATCHWORDS:	District Court - deemed dismissal of action for non-filing of a praecipe for trial - validity of Pt 12 r4C District Court Rules - Court discretion to dispense with District Court Rules - discretion to extend time conferred by Pt 3 r2 District Court Rules - D
DECISION:	Appeal allowed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40424/99
DC 8440/95


MASON P
MEAGHER JA
HEYDON JA

Thursday 23 March 2000
DR BRUCE HARDING v GWEN BOURKE

In November 1995 the respondent commenced an action in the District Court claiming damages for medical negligence. A notice of grounds of defence was filed by the appellant in February 1997. Neither party thereafter filed a praecipe for trial or took any other step to set the action down for trial. Under the recently amended r4C in Part 12 of the District Court Rules, failure to file a praecipe by 1 January 1998 deemed the respondent’s action dismissed. No application to rescind the dismissal was filed by 1 July 1998, the deadline specified in r4C(4). In May 1999, the respondent moved the District Court for leave to file a praecipe for trial and for other relief against the deemed dismissal of the action.

The Trial Judge held that Pt 12 r4C was ultra vires. He directed the matter to be listed for directions before the list judge with a view to being listed for hearing.

HELD (by Mason P, Meagher JA and Heydon JA) allowing the appeal and remitting the respondent’s motion to the District Court for further hearing:

Pt 12 r4C is valid. However the rule does not exclude the power to extend time that is conferred in Pt 3 r2 or Pt 1 r5 which permits the Court if it thinks fit to dispense with compliance with any of the requirements of the rules, either before or after the occasion for the compliance arises.

Henderson v Murray Publishers Pty Ltd unreported, Goldring DCJ, 30 March 1998 (overruled); Mortimer v Torsby Pty Ltd unreported, Knight DCJ, 13 April 1999 (applied); Coco v The Queen (1994) 179 CLR 427 (referred); Vanderweil v Noyce [1999] NSWCA 304 (referred); FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 (referred); David Grant & Co Pty v Westpac Banking Corporation (1995) 184 CLR 265 (distinguished).

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THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40424/99