Iovanescu v McDermott

[2004] NSWCA 106

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Iovanescu v McDermott [2004]  NSWCA 106

FILE NUMBER(S):
CA 40570 OF 2003

HEARING DATE(S):               17 March 2004

JUDGMENT DATE: 05/04/2004

PARTIES:
Teodore Iovanescu (Appellant)
Stephen McDermott (Respondent)

JUDGMENT OF:       Sheller JA Young CJ in Eq Windeyer J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          4827 of 1993

LOWER COURT JUDICIAL OFFICER:     Nicholson DCJ

COUNSEL:
Mr P J Deakin QC with him Mr M Vesper (Appellant)
Mr P J Doherty SC with him Mr R Grace (Respondent)

SOLICITORS:
Sparke Helmore (Appellant)
Maurice May & Co (Respondent)

CATCHWORDS:
LIMITATION OF ACTION - extension of time - exercise of discretion by court - claim for extension of time to seek rescission of dismissal of case involving extensive delays - no adequate explanation for delay - appeal from District Court allowed

LEGISLATION CITED:
District Court Rules Pt 1, r5 Pt 3 r1, Pt 3 r2, Pt12 r4C, Pt26, r4B
Suitors Fund Act 1951

DECISION:
Leave to appeal granted.  Appeal allowed

JUDGMENT:

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IN THE SUPREME COURT
OF NEW SOUTH WALES  
COURT OF APPEAL

CA 40570/03

SHELLER JA,
YOUNG CJ in Eq
WINDEYER J

MONDAY 5 APRIL 2004

TEODORE IOVANESCU v STEPHEN MCDERMOTT

Judgment

1. SHELLER JA;  I agree with Windeyer J.

2. YOUNG CJ in Eq: I also agree with Windeyer J but I wish to add a few remarks of my own.

3. Mr Doherty SC almost used the phrase "merely a matter of case management" as some sort of mantra which would excuse all non-compliances with the court rules.

4. It is true, as has been said many times over, that the rules must be the servant and not the master, in litigation.

5. However, the authorities, when properly examined, do not stop there, but actually make it clear that prima facie the rules must be observed and that a person who seeks dispensation from them, particularly because of delay, must show good reason why such dispensation should be granted and must endeavour to explain away his or her apparent blameworthiness in connection with the total delay involved.

6. In the present case, it is true that unless the decision of the District Court Judge stands, the opponent would be prejudiced by not having his claim heard on the merits. However, that is not the only matter to consider.

7. As there has been no explanation of the delay, it is inevitable that the appeal must be allowed with costs.

8. WINDEYER J The opponent, McDermott, was injured in a motor vehicle accident on 2 June 1992. He commenced District Court proceedings against the claimant for damages for his injuries on 27 September 1993. On 29 March 1994 the matter was stood out of the Motor Vehicle List in the District Court as no praecipe for trial had been filed. It was automatically restored when the claimant’s solicitor filed a defence on 19 April 1994. It was struck out of that list again on 27 September 1994, pursuant to the then Pt26 r4B because it seems it was…