Kapoor v State Transit Authority of NSW

[2010] NSWCA 143

New South Wales

Court of Appeal

CITATION:	Kapoor v State Transit Authority of NSW [2010] NSWCA 143
HEARING DATE(S):	20/10/2009
JUDGMENT DATE:	24 June 2010
JUDGMENT OF:	Allsop P at 1; McColl JA at 2; Handley AJA at 3
DECISION:	(1) Appeal allowed with costs. (2) The decision of Delaney DCJ of 3 October 2008 dismissing the action for want of prosecution is set aside. (3) In lieu thereof order that the oral motion of 31 January 2008, and the notice of motion of 16 April 2008 be dismissed. (4) The dismissals are without prejudice to a fresh application to dismiss for want of prosecution should the appellant not be in a position to take a date for trial within 3 months of the publication of these reasons, or if he is in material breach of a peremptory order for the taking of a necessary step or steps to prepare his case for trial. (5) The respondent is to pay the appellant’s costs of and incidental to the motions in the District Court of 31 January and 16 April 2008 as a self-represented litigant.
CATCHWORDS:	PRACTICE & PROCEDURE - dismissal for want of prosecution - duty of procedural fairness - compliance essential.
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999
CATEGORY:	Principal judgment
CASES CITED:	International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49 Stead v State Government Insurance Commission [1986] HCA 54, 161 CLR 141
PARTIES:	Ameet Kapoor - Appellant State Transit Authority of NSW - Respondent
FILE NUMBER(S):	CA 40002/09
COUNSEL:	M L Williams SC - Appellant R Gambi - Respondent
SOLICITORS:	Appellant in Person Rankin Nathan - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 403/08
LOWER COURT JUDICIAL OFFICER:	Delaney J
LOWER COURT DATE OF DECISION:	03/10/2008

CA 40002/09

ALLSOP P
McCOLL JA
HANDLEY AJA

24 June 2010

AMEET KAPOOR V STATE TRANSIT AUTHORITY OF NEW SOUTH WALES

CATCHWORDS

PRACTICE & PROCEDURE - dismissal for want of prosecution - duty of procedural fairness - compliance essential.

HEADNOTE

On 2 March 2004 the appellant commenced an action against the Authority in the District Court claiming damages for injuries allegedly sustained on 15 March 2001 when a passenger in one of its buses. The action was later fixed for trial on 16 March 2005. The appellant's solicitors ceased to act and the trial date was vacated. On 31 May 2005 the action was transferred to the Not Ready List and remained there until listed for mention by the Court on 19 April 2007. The appellant was then and remained self-represented. The matter was before the Court on 13 September and 30 November 2007 and 31 January 2008 without being ready for trial.

When the appellant did not appear on 31 January counsel for the Authority made an oral application, without notice to the appellant, for the proceedings to be dismissed for want of prosecution. The Judge entertained the application and after hearing brief submissions reserved his decision.

The matter was again before the Judge for mention on 7 March and 21 April 2008, but the Judge continued to regard himself as having reserved judgment on the dismissal application. On 16 April the Authority filed a notice of motion to dismiss for want of prosecution, supported by a 125 page affidavit. It was not clear whether the documents reached the appellant that day or at 6 p.m. on Friday 18 April. On Monday 21 April when the matter was called on the appellant sought an adjournment because of the late service, the length of the affidavit, and certain errors and omissions in it. The adjournment was opposed and refused. The Judge heard further legal argument and again reserved his decision.

The Authority had the matter re-listed on 22 May to consider a 163 page affidavit from its solicitor which inter alia corrected the errors and omissions in the first affidavit that the appellant had identified on 21 April. The appellant had also filed a 416 page affidavit on 22 May. Counsel for the Authority submitted that the new affidavits were not relevant, and the Judge treated them as not properly before him. He gave judgment on 3 October 2008 and dismissed the action for want of prosecution. The Court granted the appellant leave to appeal. HELD: allowing the appeal (1) The proceedings on 31 January, 7 March, 21 April and 22 May 2008 denied the appellant procedural fairness; (2) The Judge erred in treating the affidavits of 15 and 22 May as not properly before him; (3) There were other errors of fact in the Judge's reasons for judgment; (4) The Judge’s exercise of discretion had miscarried and the Court had to intervene and re-exercise the discretion; (5) The Court could not be satisfied that a hearing conducted in accordance with the duty of procedural fairness could not possibly have produced a different result: Stead v State Government Insurance Commission [1986] HCA 54, 161 CLR 141, 147 applied; (6) The motion should be dismissed despite the long history of delays.

ORDERS

The following orders should be made:

(1) Appeal allowed with costs.
(2) The decision of Delaney DCJ of 3 October 2008 dismissing the action for want of prosecution is set aside.
(3) In lieu thereof order that the oral motion of 31 January 2008, and the notice of motion of 16 April 2008 be dismissed.
(4) The dismissals are without prejudice to a fresh application to dismiss for want of prosecution should the appellant not be in a position to take a date for trial within 3 months of the publication of these reasons, or if he is in material breach of a peremptory order for the taking of a necessary step or steps to prepare his case for trial.
(5) The respondent is to pay the appellant’s costs of and incidental to the motions in the District Court of 31 January and 16 April 2008 as a self-represented litigant.

CA 40002/09

ALLSOP P
McCOLL JA
HANDLEY AJA

24 June 2010

AMEET KAPOOR V STATE TRANSIT AUTHORITY OF NEW SOUTH WALES

Judgment

1 ALLSOP P: I have had the opportunity of reading in draft the reasons of Handley AJA. I agree with the orders proposed by his Honour and with his Honour’s reasons. I would only wish to add the following. Sections 56-60 of the Civil Procedure Act 2005 (NSW) provide ample power and flexibility, if used precisely and justly, to deal with dilatory and reluctant litigants. These provisions provide, however, no authority to deny procedural fairness. Procedural fairness is not a mere formality to be dispensed with in cases where litigants are not proceeding promptly with their claims; it is an essential element and attribute of judicial power: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 84 ALJR 31. The importance of procedural fairness comes to the fore in cases such as this, when judges seek to keep litigants to a proper timetable by the exercise of power under the Civil Procedure Act and the Uniform Civil Procedure Rules. Procedural fairness is a given in the exercise of such power.

2 McColl JA: I agree with Handley AJA’s reason and the orders his Honour proposes. I also agree with Allsop P’s additional remarks.

3 HANDLEY AJA: This application for leave to appeal from an order of Delaney DCJ that the applicant’s action be dismissed for want of prosecution was fully argued, as an appeal, before McColl JA and myself. At the end of the hearing the Court granted leave to appeal and made consequential orders. Counsel for the parties then agreed that the appeal could be determined on the merits by a Court comprising the two Judges who heard the leave application and a third Judge who would read the written submissions, the transcript of argument, and the relevant material in the White Books. The President later appointed himself as the third Judge.

4 The matter has a long and unfortunate history. The appellant claims to have been injured on 15 March 2001 when one of the Authority’s buses, in which he was a passenger, hit a pothole in the road. On 2 March 2004, Gerard Malouf & Partners filed a statement of claim in the District Court on his behalf. On 23 November of that year the action was listed for hearing on 16 March 2005.

5 Early in March the hearing date was vacated and the action was listed for mention on the original hearing date. The appellant’s solicitors then informed the Court that they intended to file a notice of ceasing to act. The matter was stood over to 31 May to enable the appellant to obtain other legal representation. On 25 May the Legal Aid office advised the appellant by letter that his application for legal aid had been refused.

6 The appellant appeared in person on 31 May when the matter was placed in the Not Ready List to be restored on 21 days’ notice. It remained there until Delaney DCJ directed the Registry to list the matter for mention.

7 At some date during 2005 the appellant applied to the Medical Assessment Service pursuant to s 60 of the Motor Accidents Compensation Act 1999 (the “Act”) for the assessment by a Medical Assessor of the injuries he claimed to have suffered as a result of his accident.

8 Dr Dowda, a medical assessor, issued a certificate under s 61 on 16 August 2006 in which he determined that the appellant’s injuries to his left and right shoulders and his heart were not caused by the motor accident, but that soft tissue injuries to his back and neck had been so caused (WB 132). He also determined that those injuries had stabilised and that the degree of the appellant’s Whole Person Impairment was 0% (WB 136).

9 On 25 August 2006 another medical assessor, Dr Jungfer, issued a certificate in relation to the psychiatric or psychological injuries alleged by the appellant. She certified that he had a whole person psychiatric impairment of 7% (WB 152-5).

10 On 29 September the appellant lodged an application under s 63 for a review of the assessment of Dr Dowda (WB 104), and on 12 October he lodged a similar application in relation to the assessment of Dr Jungfer (WB 109). On 8 January 2007 his application in relation to the assessment by Dr Jungfer was dismissed (WB 109-112), and on 10 January his application in relation to the assessment of Dr Dowda suffered the same fate (WB 103-108).

11 Under ss 58(1)(d) and 61(2) the certificates, subject to the Act, were conclusive evidence of the matters certified in any Court proceedings. While those certificates remained in force s 131 prevented the appellant recovering any damages for non-economic loss. He remained entitled to recover damages for his economic loss including relevant medical and hospital expenses.

12 The matter came before Delaney DCJ for mention on 19 April 2007. The appellant appeared in person and informed the Court that he had instructed Harish Prasad & Associates but no one from that firm appeared and a notice of change of solicitor had not been filed. The matter was adjourned at the appellant’s request to 31 July (WB 824-5). The appellant again appeared that day but could not report progress because he could not obtain his file from Gerard Malouf & Associates (WB 826-7). Delaney DCJ stood the matter over to 13 September for the appellant to show cause why his case should not be dismissed for want of prosecution.

13 On 10 September the appellant applied under s 62 for the further assessment of the medical disputes relating to his neck, back, and his psychiatric condition (WB 92-102, 246-256). An application by a party under this section must be based on evidence of the deterioration of the injury or additional relevant information about it. This application was opposed by the Authority and appears to have been dismissed.

14 About the same time the appellant filed a notice of motion seeking, in some way, to attack the medical assessment certificates but the document is not in the papers before the Court (WB 828).

15 On 13 September the matter was again before Delaney DCJ. The Judge was satisfied that “some progress” had been made and declined to dismiss the action (WB 903). He also declined to deal with the notice of motion which he regarded as flawed but granted leave to amend within 14 days (WB 830).

16 The appellant informed the Judge that he would be representing himself. The following exchange then occurred (WB 829):

“HIS HONOUR: … but I can tell you that the notice of motion that you filed doesn’t seem to be correct.

PLAINTIFF: I will look into that matter.

HIS HONOUR: Well you won’t have time to look into that Mr Kapoor because I have given you a stack of time now to do something about getting some legal advice. This matter has been before me now … in November 2004, March 2005, May 2005 and it’s from May 2005 that you have been representing yourself and I have given you chance after chance after chance to get legal advice to be able to put your case forward and proceed with the matter. Now I’m afraid I just can’t continue to do that because that would unfair to the other side. You have not been able to give me any further timetables to that so I am not going to allow you any further time.

PLAINTIFF: In that case I’m ready to proceed.

HIS HONOUR: I am sorry?

PLAINTIFF: I am ready to proceed.

HIS HONOUR: Well the matter is listed for hearing on all issues on 30 November. You will have to be here ready to proceed with your case no matter what the situation is.

PLAINTIFF: Thank you your Honour.”

17 The appellant filed an amended notice of motion on 27 November, supported by his affidavit of the same date, (WB 800-803, 831) seeking orders under s 61(5) and (6) rejecting the medical assessment certificates for denial of procedural fairness and a direction that the Court determine the degree of his permanent impairment instead of referring the matter again for assessment under the Act.

18 Although the action had been listed for hearing on 30 November the appellant was not ready to proceed. His amended notice of motion, filed out of time, had not been dealt with, and he complained that the Authority had not produced the documents required by his notice to produce (WB 831). There were other cases in the list, and after the lunch adjournment, when the matter had not been reached, the appellant applied for an adjournment. This was refused because the matter had been in the list 18 times (WB 836).

19 Later that afternoon when the matter had still not been reached the Judge adjourned it to 31 January 2008 (WB 837). He advised the appellant to get some legal advice in the meantime and said to him (WB 838):

“HIS HONOUR: I’m not going to let this continue on, alright?

PLAINTIFF: Yes your Honour.”

20 The matter was again before Delaney DCJ on 31 January when the appellant failed to appear. He had filed an affidavit the day before in which he applied for an adjournment “on the grounds of lack of legal representation” and because his renewed application for legal aid had not been determined. He annexed without reference or comment a medical certificate by a Dr Cheung, dated 30 January, that he had examined the appellant who in his opinion “was/is suffering from chest pain” and “will not be able to attend court on 31-1-08” (WB 303).

21 The transcript reveals the following (WB 841-2):

“COUNSEL: … My instructions are to make an application to have the matter struck out. We are sensitive to the fact that Mr Kapoor is unrepresented but given the lengthy history of this matter –
HIS HONOUR: This has been since 2005 …
COUNSEL: … Yes your Honour, fair’s fair, to use the vernacular. We believe it is an appropriate matter in which your Honour should exercise your Honour’s discretion to have the matter struck out and award costs in favour of the defendant …
HIS HONOUR: I’ll tell you what I’ll do … I’ll note your application for dismissal for want of prosecution, that’s the basis of it isn’t it?
COUNSEL: Yes your Honour.
HIS HONOUR: And note the basis of your argument and I will reserve my decision on your application and I will then set a date for judgment on that application.”

22 Thus counsel for the Authority moved ex parte for the action to be dismissed for want of prosecution and made a succinct submission in support. The Judge entertained the application, heard “argument”, and reserved his judgment, all without any notice or warning to the appellant. The Judge and counsel for the Authority may have been sceptical about the medical certificate when the appellant had been able to prepare, affirm and file an affidavit the day before, but they were not entitled to reject it without hearing the appellant and giving him an opportunity to provide further information or evidence.

23 Counsel should not have moved ex parte for a dismissal for want of prosecution and the Judge should not have entertained the application. The Authority should have been required to move formally on notice to the appellant

24 Later that day the Authority’s solicitor wrote to the appellant (WB 304) stating:

“Please note the above matter has been listed for hearing on 7 March 2008 in order to hear the defendant’s application to dismiss the matter for want of prosecution. We would recommend that you attend on this occasion.”

25 The letter misstated what had occurred earlier that day as recorded in the transcript.

26 The matter was again before Delaney DCJ on 7 March and the appellant appeared. On 5 March he had filed a notice of motion and supporting affidavit (WB 311-6) seeking an order that the Judge disqualify himself. In answer to questions from the Judge the appellant said (WB 844) that he had been too ill to attend on 31 January, that he had severe chest pains and heart problems and had received medical treatment.

27 Counsel referred to his application for dismissal on 31 January and said that his instructing solicitors had written to the appellant “explaining what happened” (WB 846). That was not strictly accurate.

28 Discussion followed relating to the appellant's disqualification application, and the future conduct of the case. The Judge then gave reasons refusing to disqualify himself (WB 867-75). Nothing now turns on this. During the earlier discussion the appellant claimed that he had been denied access to documents produced by third parties on subpoena (WB 846, 848-9). He also sought access to documents requested from the Authority by notice to produce (WB 848).

29 Counsel for the Authority said that a notice to produce had been served which was excessively wide, and that it had not yet been called on so that nothing had been produced (WB 850-1). The Judge told the appellant that he had before him an application to dismiss the proceedings on which he had reserved his decision and added (WB 855):

"Do you have anything to say about whether or not I should proceed with that judgment or do you ask for some other order?"

30 The appellant had not heard counsel's submissions on 31 January and the Judge did not inform him of their substance. He was not even invited to make submissions on the merits of that application. The Judge said later (WB 856-7):

"… when you did not appear on 31 January 2008, [counsel] made an application for dismissal of your case for want of prosecution. I heard his submissions in your absence and I reserved my judgement on that point to today."

31 The discussion included the following (WB 857):

"PLAINTIFF: I am unable to [re]present myself adequately as a result of lack of knowledge about the legal system on which this matter is based - -
HIS HONOUR: I have given you --
PLAINTIFF: And also that I am not represented --
HIS HONOUR: -- an opportunity for more than two and a half years to fix that Mr Kapoor --
PLAINTIFF: That is correct.
HIS HONOUR: And you have not done so.

PLAINTIFF: That is correct your Honour.

32 The Judge later said (WB 860-1):

"I am going to stand this case over for mention … if Mr Kapoor does not give me satisfactory explanation about (1) why he didn't turn up on 31 January by providing an appropriate medical certificate and (2) a letter from the Legal Aid saying whether they are going to deal with his case or whether they are not going to deal with it, then on that day … I am going to give judgment in [the] application … But if he does then you [counsel for the Authority] have got leave of course to put a notice of motion on and formal affidavits at any time that you see fit
…
HIS HONOUR: Do you understand what I have said?
PLAINTIFF: Yes. I have to provide with a medical certificate and a Legal Aid letter whether or not they represent me.
HIS HONOUR: That's right. Now Mr Kapoor you may find yourself facing another application to dismiss your case on that day, okay?
PLAINTIFF: Thank you your Honour.”

33 Further discussion followed and the appellant again complained about the denial of access to documents produced by other parties on subpoena and called on the notice to produce to the Authority without result (WB 864-5). The Judge gave a direction that the appellant be given access to any documents in the Registry.

34 The matter was before the Judge “for mention” on 21 April. In the meantime, on 16 April, the Authority filed a notice of motion seeking dismissal of the action for want of prosecution supported by a six-page affidavit of Ms O'Donahue sworn the same day with 146 pages of annexures.

35 Counsel for the Authority had affidavits stating that service was effected by posting the documents to the appellant's post box number and by leaving them at his home address on 16 April (WB 879). The appellant said he had received the documents (WB 877-8) when he arrived home at 6 p.m. on Friday 18 April. This if accurate only gave him the intervening weekend to deal with this material before being back in court on the Monday morning.

36 The appellant sought an adjournment to deal with this material. The Judge referred to what had occurred at the mentions on 31 January and 7 March and asked (WB 878) "What evidence, on the notice of motion to dismiss your case, do you not have that requires your case to be further adjourned?" The appellant said that he had the material "but I did not have the time to put everything together". He complained that the Authority had not produced documents in response to his notice to produce (WB 877-8) and ask for another two weeks to produce the documentation required to answer the affidavit of Ms O’Donahue (WB 879).

37 Counsel for the Authority acknowledged (WB 881-2) that it had received a notice to produce which was said to be far too wide, but there were some documents which were available and could be produced. He said that the annexures to the affidavit of Ms O’Donahue were already in the appellant's possession and he opposed the adjournment.

38 The appellant said that there was a large volume of documents to read which needed a response before he could make submissions, and that "there were a number of things" in the affidavit which were not true, one of them being that he had failed to produce documents in response to subpoenas and a notice to produce. The following exchange then occurred (WB 883).

"HIS HONOUR: … I cannot see what documentation you would have had access to that you would not have been able to bring to court today … What is it that you do not have?
PLAINTIFF: I … do not have all the prepared submissions and the necessary evidence with me because the timeframe in which it was served was not sufficient to prepare a reply to them … I only had two days your Honour. That was not sufficient time because this is a lengthy preparation."

39 The Judge refused the adjournment (WB 884) and the matter stood in the list. When it was called on counsel for the Authority moved on the affidavit of Ms O’Donahue. The appellant said that the affidavit contained false statements about his conversation with Ms Medland from the Authority's solicitors on 17 January 2008 and about his failure to comply with the Authority’s subpoenas and notice to produce. He produced a document from the Court to support the latter claim (WB 884-6).

40 Counsel for the Authority withdrew that part of the affidavit dealing with the conversation with Ms Medland, and having looked at the Court file conceded that the appellant had produced documents in answer to a subpoena (WB 886). He then made lengthy submissions in support of the motion (WB 891-3). In the course of his final submissions the appellant again raised the late service of a lengthy affidavit containing false allegations and the Authority's failure to comply with his notice to produce of 27 November 2007 (WB 898) and said (WB 893):

"It is very unreasonable and unfair to apply for a … notice of motion that this matter be struck out or dismissed when they haven't even met their obligations, your Honour".

41 The Judge again reserved his decision. The Authority had the matter restored to the list on 22 May when its counsel told the Judge that the appellant had in fact produced documents to the Court in answer to its subpoenas and notice to produce. On 15 May Ms O'Donahue had filed a further three-page affidavit with 163 pages of annexures explaining what had happened and correcting the errors in her earlier affidavit identified by the appellant.

42 She acknowledged that he produced documents under the Authority’s subpoena of 25 October 2007 on 9 November (WB 496)) and further documents under its notice to produce of 22 November 2007 on 30 November (WB 496) and again as required by its further subpoena of 14 January 2008. She also said that documents within the appellant's notice to produce of 27 November for which privilege was not claimed had been sent to him on 14 May (WB 328, 489). Counsel also told the Judge that this had been done (WB 896-7).

43 The Judge asked counsel whether these matters affected what had happened on 21 April and counsel said no. The appellant then handed up what he described as a reply to the Authority’s amended submissions in the form of a seven-page affidavit affirmed on 22 May together with 409 pages of annexures, saying that he had put everything in writing (WB 898). The following exchange occurred between counsel and the Judge (WB 899):

"COUNSEL: … I thought your Honour may have wanted to hear some further submissions based on the material which I've just been handed.
HIS HONOUR: You told me just a minute ago … that it had no bearing on the - -
COUNSEL: No, it doesn’t your Honour.
HIS HONOUR: - - [matter] on which I am reserved.
COUNSEL: No your Honour, that's right.
HIS HONOUR: Now unless there is an application before me that relates to this material, I don't see what benefit there could be in hearing further submissions about something which is not before me."

44 This suggested that his Honour did not propose to consider the new affidavits and it appears that he did not do so. Paragraphs [6], [32-33] and [39] of his reasons of 3 October refer to the affidavit of Ms O'Donahue of 16 April "in support of the application". His Honour nowhere refers to her affidavit of 15 May or the appellant's of 22 May.

45 The appellant failed, over many years, to prosecute his action effectively, and the medical assessment certificates created serious difficulties for him. The Judge was entitled to view the medical certificate of Dr Cheung of 30 January 2008 with some scepticism, and the appellant failed on 21 April and 22 May to comply with directions on 7 March for him to produce further medical evidence to support his claim that he was too ill to be in court on 31 January. A regularly launched motion to dismiss for want of prosecution supported by affidavit with adequate notice to the appellant may have succeeded.

46 Unfortunately counsel for the Authority took a shortcut, and the Judge allowed him to do so. Not for the first time the attempted shortcut turned out to be no shortcut at all.

47 The oral application to dismiss for want of prosecution on 31 January without notice to the appellant was fundamentally irregular and should not have been entertained. The letter sent to the appellant the same day contained inaccurate information and referred to an application to dismiss he knew nothing about.

48 The irregularity was not cured on 7 March. The Judge treated the oral application as regular and counsel’s brief submissions on 31 January were not conveyed to the appellant. He was not even invited to make a submission on the merits of the application: par [30].

49 The application was not put on a proper basis until a notice of motion and affidavit in support were filed on 16 April returnable on 21 April. The appellant justifiably complained that he did not have sufficient time to consider and respond to the 152 page affidavit.

50 It was no answer to say that most of this material was already in the appellant's possession. He was entitled to a reasonable opportunity to absorb it and to consider whether there were any errors or omissions. The Authority's affidavits of service suggested that the documents were served at the appellant's residence on 16 April but he claimed not to have received them until 6 p.m. on the 18th. Nothing turns on the additional two days because the appellant could not reasonably have been expected to deal with this material in time for the mention on 21 April.

51 The Judge’s reserved judgment was delivered on 3 October 2008 and he dismissed the appellant’s proceedings for want of prosecution. These reasons disclose the following errors:

(a) He relied on the affidavit of Ms O’Donahue of 16 April (para [44] above) without referring to her affidavit of 15 May which corrected errors of some significance in her earlier affidavit, or the appellant’s affidavit of 22 May.
(b) He referred (para [24]) to the appellant’s complaints that the Authority had not produced documents in answer to his notice to produce of 27 November 2007 and said that “most of these contentions were not supported by evidence”. He overlooked the evidence in the affidavits of 15 and 22 May that the Authority did not produce any documents in response to the notice to produce until 14 May 2008 (para [42] above).
(c) He found (para [39]) that the appellant had not made a second application to the Legal Aid Commission as he said he had, but the transcript for 21 April shows that the appellant tendered a letter dated 11 March 2008 from the Commission rejecting his renewed application which became Exhibit 1 (WB 881).

52 The Judge apparently did not realise that the appellant had taken steps to prosecute his case after the mention on 13 September 2007 when he was satisfied that “some progress” had been made (para [15] above). These steps were:

(a) Producing documents on 9 and 30 November 2007 and at some date in January 2008 (para [42] above) in response to the Authority’s subpoenas and notice to produce;
(b) Given a notice to produce to the Authority on 22 November 2007 (para [40] above) which the Authority did not comply with until 14 May 2008;
(c) Served many medical reports and other documents on the Authority on 26 November 2007 (WB 156).
(d) Sought access to documents produced by third parties on subpoena (para [28] above).

53 The denial of procedural fairness to the appellant on 31 January 2008 was not formally cured until it served its notice of motion and supporting affidavit of 16 April, but it was not cured in substance because the time between service and the mention date was unreasonably short.

54 The Judge’s decision on 21 April to refuse the appellant’s application for a two weeks adjournment, which the Authority had opposed, was a further denial of procedural fairness. The Judge appears to have treated the 146 page affidavit of Ms O’Donahue as a formality, putting information into one document which was already known to the appellant which was beyond challenge.

55 The appellant was entitled to a reasonable opportunity to review that affidavit to ensure that nothing of relevance had been omitted, to identify any errors, and to assemble any material that he wished to put before the Court in reply. In the relatively short time available the appellant was able to identify the errors already referred to, and the omission of any reference to the Authority’s failure to respond to his notice to produce of 22 November 2007.

56 The Court cannot be satisfied that a hearing conducted in accordance with the duty of procedural fairness could not possibly have produced a different result: Stead v State Government Insurance Commission [1986] HCA 54, 161 CLR 141, 147.

57 The further mention on 22 May compounded the problems. The Judge was given the 166 page affidavit of Ms O’Donahue of 15 May, and the appellant’s affidavit in reply of 416 pages, but treated this material as not before him. He evidently accepted Counsel’s submission that it “had no bearing” on the motion to dismiss for want of prosecution (para [41] above).

58 The affidavits were before him, and they had a bearing on the Authority’s application for the reasons already given. The Judge erred in ignoring this material.

59 The denials of procedural fairness and the other errors that have been identified caused the Judge’s exercise of discretion to miscarry, and this Court must intervene and re-exercise the discretion.

60 The proceedings on 7 March, 21 April and 22 May were adversely affected by denials of procedural fairness on 31 January, 7 March and 21 April. In these circumstances it would not be appropriate for the motion to be remitted for rehearing. Despite the appellant’s failure to have his case ready for trial, and to provide further medical evidence about his condition on 30 January 2008, as directed by the Judge, the motion should be dismissed. The dismissal is to be without prejudice to a further motion should the appellant fail to comply with a peremptory direction fixing time limits for further steps he wishes to take or if he is otherwise not in a position to take a date for trial within 3 months of the publication of this Court’s reasons for judgment.

61 The case should be case managed to have the appellant identify the further steps he wishes to take to get his case ready for trial and peremptory orders should be made fixing reasonable time limits for the taking of those steps. The appellant must understand that non-compliance with peremptory directions is likely to lead to the summary dismissal of his action for want of prosecution.

62 The Court is much indebted to Mr ML Williams SC who appeared, pro bono on behalf of the appellant, under arrangements made through the New South Wales Bar Council.

63 I do agree with the supplementary reasons of Allsop P.

64 The following orders should be made:

(1) Appeal allowed with costs.

(2) The decision of Delaney DCJ of 3 October 2008 dismissing the action for want of prosecution is set aside.

(3) In lieu thereof order that the oral motion of 31 January 2008, and the notice of motion of 16 April 2008 be dismissed.

(4) The dismissals are without prejudice to a fresh application to dismiss for want of prosecution should the appellant not be in a position to take a date for trial within 3 months of the publication of these reasons, or if he is in material breach of a peremptory order for the taking of a necessary step or steps to prepare his case for trial.

(5) The respondent is to pay the appellant’s costs of and incidental to the motions in the District Court of 31 January and 16 April 2008 as a self-represented litigant.

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