Micallef v ICI Australia Operations Pty Ltd
[2001] NSWCA 274
•27 August 2001
NEW SOUTH WALES COURT OF APPEAL
CITATION: Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274
FILE NUMBER(S):
40522/00
40060/00
HEARING DATE(S): 8 August 2001
JUDGMENT DATE: 27/08/2001
PARTIES:
Elizabeth Micallef (Appellant)
ICI Australia Operations Pty Ltd (First Respondent)
Fibremakers Australia Pty Ltd (Second Respondent)
JUDGMENT OF: Sheller JA Heydon JA Studdert AJA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 10710/97
LOWER COURT JUDICIAL OFFICER: Garling DCJ
COUNSEL:
G T W Miller QC/M G McHugh (Appellant)
J N West QC/G B Evans (First Respondent)
P J Deakin QC/N Newton (Second Respondent)
SOLICITORS:
G H Healey & Co - Glebe (Appellant)
N W Aussel (First Respondent)
Pricewaterhousecoopers Legal (Second Respondent)
CATCHWORDS:
Civil Practice and Procedure - Dismissal for want of prosecution - Whether exercise of discretion of District Court Judge to strike out proceedings miscarried - Circumstances when appellate court will allow appeal against interlocutory judgment on practice and procedure - Where three District Court orders to file updated particulars were breached by plaintiff who failed to file the particulars by the dates specified in the orders - District Court Rules 1973 (NSW), Part 18 rule 3(1) - D
LEGISLATION CITED:
Arbitration (Civil Actions) Act 1983
District Court Act 1973
Supreme Court Act 1970
DECISION:
See paras 94 and 95
JUDGMENT:
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40522/00
CA 40060/00
DC 10710/97SHELLER JA
HEYDON JA
STUDDERT AJAMonday, 27 August 2001
ELIZABETH MICALLEF v
ICI AUSTRALIA OPERATIONS PTY LTD and
FIBREMAKERS AUSTRALIA PTY LTD
Civil Practice and Procedure - Dismissal for want of prosecution - Whether exercise of discretion of District Court Judge to strike out proceedings miscarried - Circumstances when appellate court will allow appeal against interlocutory judgment on practice and procedure - Where three District Court orders to file updated particulars were breached by plaintiff who failed to file the particulars by the dates specified in the orders - District Court Rules 1973 (NSW), Part 18 rule 3(1)
On 3 April 1989 the plaintiff (the appellant before the Court of Appeal) filed a Statement of Claim in the Common Law Division of the Supreme Court alleging that she suffered injuries as a result of her former employment with the defendants (the first and second respondents to the appeal). On 9 June 1995 a Registrar made directions requiring the plaintiff to file particulars by 14 July 1995. There was delay in compliance. On 2 and 24 June 1997 the first defendant’s solicitor complained by letter to the plaintiff’s solicitor about a lack of updated particulars and threatened to apply to have the proceedings struck out.
On 3 December 1997 the proceedings were transferred to the District Court. A District Court Registrar ordered the plaintiff to provide updated particulars within two months of 25 March 1998. She did not provide the particulars. On 25 August 1998 the defendants formally complained to an Assistant Registrar and the plaintiff was further ordered to provide updated particulars by 1 October 1998 and the matter was listed for hearing on 8 October 1998 for the plaintiff to show cause why the proceedings should not be dismissed for want of prosecution. The parties were given a “show cause information sheet” which stated that dismissal would be the subject of “serious consideration”. She did not provide the particulars. At the 8 October “show cause” hearing, the plaintiff was not asked to show cause, and the matter was fixed for arbitration on 1 February 1999.
On 20 November 1998 the first defendant moved a District Court Judge for vacation of the arbitration date on the basis of the plaintiff’s failure to provide particulars. The judge made orders that the arbitration date be vacated and that the plaintiff file particulars within twenty-eight days. The judge gave a warning that if orders were not complied with, the court would list the matter for dismissal for non-compliance. The particulars were not filed within the time specified in the orders.
The first defendant filed a Notice of Motion seeking dismissal of the proceedings for want of prosecution under Part 18 rule 3(1) of the District Court Rules. The proceedings were dismissed. Part 18 rule 3(1) provides:
“Want of Prosecution
Where a plaintiff makes a default in complying with any order ordirection as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any party or of its own motion, dismiss the proceedings or make such other order as the Court thinks fit”
Held by Heydon JA (Sheller JA and Studdert AJA concurring), dismissing the appeal:
A discretionary judgment on a matter of practice and procedure can only be overturned in five limited circumstances, none of which were demonstrated to exist in this case. These circumstances only exist
when it is demonstrated that the decision-maker:
a. made an error of legal principle;
b. made a material error of fact;
c. took into account some irrelevant matter;
d. failed to take into account or gave insufficient weight to, some
relevant matter; or
e. arrived at a result so unreasonable or unjust as to suggest that
one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
House v R (1936) 55 CLR 499;
Lovell v Lovell (1950) 81 CLR 513;
Australian Coal and Shale Employees’ Federation v TheCommonwealth (1953) 94 CLR 621, applied.
Stollznow v Calvert [1980] 2 NSWLR 749, discussed and applied.
It was not demonstrated that the judge made an error of legal
principle.
a. The judge did not dismiss the plaintiff’s case in order to deter
other lawyers from disobeying court orders in the future.
b.The judge could not have vicariously attributed wrongdoing of the plaintiff’s solicitors to the plaintiff, since no evidence was tendered on the subject of whether the plaintiff personally or her solicitors were at fault.
c. The English authorities relating to the exercise of a discretion to
dismiss proceedings for default do not form part of the law of New South Wales so far as they restrict the exercise of the discretion.
Birkett v James [1978] AC 297, not followed.
Stollznow v Calvert [1980] 2 NSWLR 749, discussed and applied.
It was not demonstrated that the primary judge made a material error of
fact that was operative and of sufficient substance to justify setting aside the exercise of discretion.
It was not demonstrated that the primary judge failed to take into
account or give sufficient weight to relevant matters.
“It is not legitimate to criticise a primary judge for not taking account of matters not drawn to his attention” (Heydon JA at [83]).
There was no unreasonable or unjust result.
a. The fact that the order led to the plaintiff’s case being dismissed
without ever being heard on the merits, does not necessarily mean that the order was unreasonable or unjust. Part 18, r 3(1) contemplates such a result.
b. There was no additional component in this case to create an
unreasonable or unjust result. Although the plaintiff eventually provided the ordered particulars, they were not provided within the times specified in the various orders. The defendants had voiced complaint on numerous occasions, the proceedings had been previously listed for a “show cause” hearing, the plaintiffs had been previously warned by a Judge of the possibility of dismissal if orders were breached, and there could be no assurance that all pre-trial procedural steps had reached finality.
Orders
Appeal No 40522/2000
The appeal is dismissed.
The appellant is to pay the respondents’ costs of the appeal.
Appeal No 40060/2000
The appeal is dismissed.
The appellant is to pay the respondents’ costs of the appeal.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40522/00
CA 40060/00
DC 10710/97SHELLER JA
HEYDON JA
STUDDERT AJAMonday, 27 August 2001
ELIZABETH MICALLEF v
ICI AUSTRALIA OPERATIONS PTY LTD and
FIBREMAKERS AUSTRALIA PTY LTDJUDGMENT
SHELLER JA: I agree with Heydon JA.
HEYDON JA:
These are two appeals against interlocutory judgments and orders of Garling DCJ. On 26 March 2001 the time within which to file Summonses seeking leave to appeal was extended, in one instance by well over a year. On the same day leave to appeal was granted.
One appeal is an appeal against the dismissal, on 12 March 1999, of the plaintiff’s proceedings pursuant to Part 18 rule 3(1) of the District Court Rules, with costs. Garling DCJ made those orders in response to a Notice of Motion filed by the first defendant and a Notice of Motion filed by the second defendant which were heard on 26 February 1999.
The second appeal is an appeal against the dismissal, on 16 December 1999, of a Notice of Motion filed by the plaintiff pursuant to Part 31 rule 12A(1) seeking to set aside the orders of 12 March 1999.
The two Notices of Appeal are in identical terms. However, counsel for the plaintiff in this appeal accepted in oral argument that if the plaintiff’s attack on the reasoning that led to the 12 March 1999 orders failed, she could not succeed in her challenge to the orders of 16 December 1999. Accordingly, it is only necessary to consider the reasons for judgment delivered on 12 March 1999.
Background
In evaluating the reasoning of Garling DCJ which led him to make the orders of 12 March 1999, it is necessary to consider the procedural background as it emerged from the court records and the materials before him. The materials before him consisted of the two Notices of Motion filed by the defendants; the court files relating to proceedings as they were in the Supreme Court (which appear to have become incomplete and disordered over the years and as they have been moved about); the court files relating to proceedings as they were in the District Court; an affidavit filed by the solicitor for the first defendant dated 15 February 1999; an affidavit filed by the solicitor for the second defendant which expressed concurrence with the affidavit of the solicitor for the first defendant; an earlier affidavit filed on behalf of the first defendant recording breach of an order by the plaintiff; and two statements dated 8 October 1998 and 25 February 1999. (These statements were filed pursuant to a standard direction by a District Court Registrar in the following form:
“If ANY PARTY is not ready to take a hearing date on the date it is listed before the List Judge then AT LEAST 5 DAYS PRIOR to that date you must file a statement setting out the reasons why the matter is not ready to obtain a hearing date.”)
The affidavits of the solicitors for the defendants were not contradicted or qualified by evidence filed on behalf of the plaintiff, and neither deponent was cross-examined.
The material revealed the following.
The plaintiff was born in 1950.
At some date which is unclear, the defendants, according to Defences they filed in the Supreme Court, began making workers’ compensation payments to the plaintiff.
On 3 April 1989 the plaintiff filed a Statement of Claim in the Common Law Division of the Supreme Court of New South Wales. It alleged that from 14 May 1984 to 30 September 1984 the first defendant employed the plaintiff and from 1 October 1984 to June 1987 the second defendant employed the plaintiff. It alleged that she was employed as a converting operator in the yarn recovery section of a factory. It alleged that in her employment she suffered injuries for two reasons. The first reason alleged was that she was required to work on a bobbin winder and bobbin stripper machine: that work involved excessive and repetitive strain to her arms, and required her to stand and squat repeatedly during the course of her working day. The second reason alleged was that she was required to walk through the laboratory section of the factory, and as she walked through it, she inhaled fumes that came from chemicals in the laboratory. It was alleged that the defendants were negligent, and twenty-eight particulars were given in the Statement of Claim. It was also alleged that the defendants had been in breach of statutory duty, and ten particulars of that were given in the Statement of Claim. Six particulars of injury were given. The Statement of Claim was filed nearly five years after the plaintiff’s employment in which the torts were alleged to have occurred commenced, and nearly two years after that employment ceased.
On 29 May 1989 the matter was listed for callover. The first defendant “objected to the matter proceeding as particulars had not been answered”.
On 27 July 1989 the second defendant filed a Notice of Appearance and requisitioned trial by jury.
On 12 September 1989 the plaintiff filed a Statement pursuant to Part 33 rule 8A of the Supreme Court Rules. The Statement alleged five particulars of injury, which were the same as those alleged in the Statement of Claim (with the exception of “breathing restrictions”). The Statement also alleged fourteen “disabilities”.
About eighteen months passed before the first defendant filed a Notice of Appearance and a Defence on 18 February 1991.
The proceedings were set down for trial on 25 February 1991.
The second defendant filed a Defence on 12 June 1991.
According to paragraph 9 of the affidavit of 15 February 1999:
“9.The matter came before the Court on 9 June 1995 when the Plaintiff was not ready to proceed. Directions were made in respect of service of medical reports and up-dated particulars pursuant to Part 33.”
A Registrar made the following directions:
“1. [Plaintiff] to serve all medical reports by 14/7/95.
2.[Plaintiff] to serve amended PT 33 by 14/7/95 together with all material in support including letter from employers and tax returns.
3. Defendant medical reports to be served by 11/8/95.
4. [Plaintiff] to serve any expert report on liability by 28/7/95.
5. [Defendants to] serve any expert report on liability by 24/8/95.
6. Schedules be exchanged by 24/8/95.
7. Subpoenas 5/7/95.
8. S/o 28/7/95 at 11.15.”
On 18 July 1995, four days after the day on which the amended Part 33 rule 8A particulars had been ordered to be filed, the solicitors for the plaintiff wrote to her seeking instructions about them.
On 24 July 1995 the solicitor for the first defendant wrote a letter to the solicitor for the plaintiff saying that the plaintiff had served no medical reports.
According to paragraph 10 of the affidavit of 15 February 1999:
“10.The matter came before the Court on 28 July 1995 for directions and the Plaintiff had not complied with the orders of 9 June 1995. The matter was stood over to the List Judge ...”
The Supreme Court file records that there was no appearance by the plaintiff on that day. A Registrar referred the matter to the List Judge on 7 August 1995, and directed the solicitor for the plaintiff to provide an affidavit pursuant to Practice Note 68. The Registrar noted a recommendation that the plaintiff’s solicitor should pay the costs of the mention that day. The orders, and this recommendation, were communicated to the plaintiff’s solicitors by telephone.
On 7 August 1995 Simpson J made the following orders:
“I note that the plaintiff informs me that all medical reports have now been served on each defendant.
I direct the second defendant to serve any medical reports by 11 August.
The 1st deft’s medical reports are to be served by 8 September.
I direct the plaintiff to serve any refresher medical reports on which it proposes to rely by 26 September.
Return the matter to the Registrar for further directions on referral for arbitration.
I direct the plaintiff to pay the defendant’s costs incurred … before the Registrar on 28 July.”
On 7 August 1995 the plaintiff filed an Amended Statement pursuant to Part 33 rule 8A of the Supreme Court Rules. (On 9 June 1995 she had been ordered to do so by 14 July 1995 - three weeks before she did.) The Amended Statement alleged a further injury and a large number of further “disabilities”. It annexed a Notice of Assessment directed to the plaintiff revealing a taxable income for the year ended 30 June 1992 of $9173, and Statements of Pension for the years 1993/94 and 1994/95 revealing receipt of taxable pensions of $8528 and $8390.10 respectively.
According to paragraph 10 of the affidavit of 15 February 1999:
“The matter came before the Court on 27 February 1997. The Plaintiff was not ready and needed further medical reports.”
The file records that the matter was stood over to the next arbitration callover.
On 29 May 1997 a solicitor acting on behalf of the plaintiff had a telephone conversation with the solicitor for the first defendant. The solicitor for the plaintiff then sent a letter to the solicitor for the first defendant in the following terms:
“We refer to our telephone discussion today and will mention your appearance tomorrow at the call-over.
We propose to seek Consent Orders as described below:-
1.The matter be stood-over to the next call-over.
2.The Plaintiff to provide amended part 33 particulars within 28 days.
3.The Plaintiff to provide re-fresher medical reports within 6 weeks.
We have contacted Ms Simone Herbert-Lowe who indicates that as the matter is an old matter her client does not consent to the Orders as described above and would like to press for a hearing date.
We are mindful that the matter is a jury trial and that a date may not be available.
We will apply to the Court tomorrow for the three above Orders and we would be pleased to mention your appearance.
We will notify you of the outcome as soon as possible.”
On 30 May 1997 the callover took place before a Supreme Court Registrar. There is no evidence, apart from the file, of what happened. The file bears a note that the case was not suitable for arbitration and should remain in the general list.
On 2 June 1997 the solicitor for the first defendant wrote to the solicitor for the plaintiff and said:
“We refer to recent communications in this matter, most particularly those between your Yvonne Williams and the writer of 29 May 1997.
This is a matter which has been around for some considerable time and one in which your client’s pleadings and particulars are both confusing and out of date.
It is our client’s instructions that in the event that this matter is not back on the rails very shortly, then we are to proceed by way of Notice of Motion to have the proceedings struck out for want of prosecution. We will refrain from taking that step until the expiry of forty two days from today’s date, giving you in effect time to put in place the steps indicated in your letter of 29 May 1977, ie:-
1. to provide amended Part 33 Particulars within twenty-eight days
and
2. to serve all expert reports, in particular medical reports within
six weeks.After we have received the above information, we will be in a position to assess whether or not the First Defendant will require further medical examinations or indeed require further and better particulars, noting that your last response is almost a decade old.
Additionally, and for the sake of more abundant clarity, we request that you provide your final pleadings and serve all experts reports of any type upon which you intend to rely.
Noting the circumstances of the matter, if we do not receive your co-operation, we will proceed with the Notice of Motion as instructed by our client.”
This was the first threat of the application eventually made to Garling DCJ which resulted in his orders of 12 March 1999.
There is no evidence of any response to that letter, but on 24 June 1997 the solicitor for the first defendant made a second threat of the same kind by letter to the solicitor for the plaintiff:
“We refer to previous communications in this matter, most particularly our letter of 2 June 1997 and also note the result of the call-over before Registrar Harrison on 30 May.
Should your client not comply with the proposed timetable, set out in our letter of 2 June 1997, we place you formally on notice that we will approach the Court by way of Notice of Motion to have the proceedings struck out for want of prosecution.
In reality, is this a matter which your client really intends to prosecute?”
On 3 December 1997 an order was made transferring the proceedings from the Supreme Court to the District Court. A Transfer Sheet on the Supreme Court file records that the matter was an Active Case Management matter; that the transfer was by consent; that the matter was not ready for allocation of a hearing date; that the matter was not in the process of case management; and that case management had not yet commenced but was ready to start.
On 23 February 1998 a Notice was sent by the District Court to the parties advising them of a callover on 25 March 1998.
On 25 March 1998 the matter came before a Registrar. The note on the file reveals that the Registrar ordered “Pt. 12 to be updated” within two months. The matter was adjourned to a callover on 25 August 1998. The reference to “Pt. 12” was a reference to the duty imposed by Part 12 rule 4A of the District Court Rules as they then stood to provide particulars: that rule performed a similar function to Part 33 rule 8A of the Supreme Court Rules, pursuant to which the plaintiff had filed a Statement on 12 September 1989 and an Amended Statement on 7 August 1995. Part 12 rule 4A was repealed with effect from 24 April 1998 and replaced by Part 9 rule 27. The Registrar’s order related to the matter about which the first defendant had complained in its solicitor’s letters of 2 and 24 June 1997.
On 25 August 1998, according to the affidavit of 15 February 1999, the matter came before an Assistant Registrar of the District Court. The affidavit said, a little obscurely:
“The Plaintiff was not ready requiring further medical examination. The Plaintiff was ordered to up-date Part 12 Particulars by 1 October, 1998.”
The file records the following:
“D2 - Pt 12s not UPD. Have medical 30-9-98.
D1 - Awaiting updated Pt 12s.
Orders:
(1) Listed for a show cause hearing on 8/10/98 - Pl to show cause
A ‘show cause information sheet’ was handed personally to the Pl and Defs.
(3) The following actions are to be taken prior to the show cause hearing date: Pf to update Pt 12s by 1/10/98.”
In short, it seems that the second defendant and then the first defendant complained of the plaintiff’s non-compliance with the order of 25 March 1998 to update the material supplied pursuant to Part 33 rule 8A of the Supreme Court Rules: the expression “Pt 12s” was used though the correct rule of the District Court Rules was Part 9 rule 27. The second defendant also apparently said that the plaintiff was to have a medical examination on 30 September 1998. The Assistant Registrar listed the matter for a hearing on 8 October 1998 to show cause why the proceedings should not be dismissed pursuant to Part 18 rule 3(1). The plaintiff was also ordered to update the “Pt 12s” by 1 October 1998. The “show cause information sheet” which the Assistant Registrar handed to the parties and which was tendered before this Court is an important document. It said:
“MATTERS NOT READY FOR HEARING
Having been advised at the call-over that this matter is not ready for hearing I am directed by the List Judge to:-
1.List this matter to show cause why it should not be dismissed for want of prosecution.
2.It is listed for that purpose on ………. at ………. AM.
[The details are illegible, but doubtless the day was 8 October 1998 and the hour was noon].
3.The List Judge has directed me to advise parties that serious consideration will be given to dismissing this matter.
4.If ANY PARTY is not ready to take a hearing date on the date it is listed before the List Judge then AT LEAST 5 DAYS PRIOR to that date you must file a statement setting out the reasons why the matter is not ready to obtain a hearing date.
5.All submissions or evidence you wish the List Judge to consider must be filed at least 5 days prior to the listing date. Documents will not usually be accepted or considered on the listing date.
6.You are required to serve a copy of this notice upon any party not in attendance at the call-over within 3 days of today.”
That document is important because its issue is evidence that the Assistant Registrar had been advised that the matter - which was now nearly ten years old - was not ready for hearing; paragraphs 1 and 2 clearly identified that it was listed to show cause why it should not be dismissed for want of prosecution; paragraph 3 made it plain that dismissal was not merely an abstract or remote possibility, but was to be the subject of “serious consideration”; the solemnity of the occasion was further stressed by the directions in paragraphs 4 and 5 about statements, submissions and evidence being filed five days in advance of the hearing, no doubt so that the parties and the court could give advance consideration to the merits of dismissal and of any other relevant course; and the direction in paragraph 6 about service on non-parties further highlighted the fact that the 8 October 1998 hearing was of central significance.
The other aspect of the events of 25 August 1998 which is of significance is that on that day the defendants made formal complaints that the plaintiff had contravened the 25 March 1998 order about particulars. The court noted that contravention, and made a second order about those particulars. The time allowed, more than five weeks, was not oppressively short in view of the existence of the 25 March 1998 order and the second defendant’s letters of 2 and 24 June 1997.
The day for compliance with the order of 25 August 1998, 1 October 1998, came and went without any particulars being supplied.
On 8 October 1998 the matter came before the List Judge, Garling DCJ. Contrary to what had been foreshadowed by the Assistant Registrar’s order of 25 August 1998, contrary to paragraphs 1-3 of the “show cause information sheet”, and contrary to the statement on the file that the purpose of the hearing was for the showing of cause why the matter should not be struck out for want of prosecution, Garling DCJ did not ask the plaintiff to show cause why the matter should not be dismissed. Rather he inquired whether the matter was suitable for arbitration (i.e. under the Arbitration (Civil Actions) Act 1983 and the District Court Act 1973 s 63A). The plaintiff and the first defendant said it was; the second defendant said it was not. Both defendants endeavoured to point out the plaintiff’s non-compliance with the orders of 25 August 1998. Garling DCJ declined to hear what they wanted to say on that subject, pointing out that paragraph 4 of the “show cause information sheet” required “any” party contending that a matter was not ready to file an appropriate statement, not just the plaintiff, and the defendants had not filed one. He fixed the matter for arbitration on 1 February 1999.
On 20 November 1998 the first defendant moved Ainslie-Wallace DCJ for an order vacating the arbitration date of 1 February 1999. The events of that day were important. In part the transcript attributes statements to the wrong speakers, but it is agreed that it should be read as follows. The solicitor for the first defendant based his application on the plaintiff’s failure to provide “final part 33 particulars”. He said:
“They have been outstanding in various orders of this court and of the Supreme Court for some years.”
He then identified the 25 August 1998 order, and said that the last particulars received were received in 1992. The representative of the plaintiff (who was not the representative who had appeared on 25 March 1998, 25 August 1998 or 8 October 1998, and who did not appear thereafter) said:
“I’ve come into this only this morning, but my instructions are that the plaintiff relies on the part 33 statement that was filed - “ …
Her Honour said “From 1992?” He said: “Indeed, your Honour. Those are my instructions.” In fact the last particulars filed had been filed on 7 August 1995, but that was obviously the document being referred to.
Ainslie-Wallace DCJ then said:
“In that case …, I will have the file note that the plaintiff relies on those part 12 particulars. I will note that there was a motion to vacate for failure to comply with the orders, and that no further particulars be accepted by the court until after the arbitration.”
The representative of the plaintiff then said:
“Could I say on that, your Honour, that as of today those particulars are suitable and appropriate.”
Her Honour then said:
“No …, it’s today or never. Do you want to get some instructions by phone? I’ll stand it in the list, otherwise I’m going to make the orders that - … “
Her Honour then stood the matter in the list while the representative for the plaintiff obtained instructions about particulars and costs. The instructions obtained led to a change of stance. The plaintiff’s representative said when the matter resumed:
“The plaintiff now undertakes to file an updated statement of particulars within twenty-eight days, and to serve all expert reports within forty-two days of today’s date.”
The solicitor for the first defendant then submitted that the period should be fourteen days in view of the court’s 25 August 1998 order. He said: “My concern is it’s been this situation with various undertakings over the history.” Her Honour then said:
“Why don’t I bring the matter back for directions, or give you leave to restore if the directions aren’t complied with? It’s a matter for you.”
The solicitor for the first defendant said: “If that suits the court. My real concern is to get this matter on and finished as soon as possible.” Her Honour then said:
“I used to think that what would suit the court was for people to comply with the directions that it made, but it seems to me sitting here that that’s simply the attitude of a Pollyanna.”
She then commenced to make orders. The representative for the plaintiff pointed out that the particulars were now required under Part 9, not Part 12. Her Honour then made the following orders by saying:
“I direct the plaintiff to file … part 9 particulars within twenty-eight days of today’s date. I direct the plaintiff to serve all medical and expert reports on which it proposes to rely on or before … 4pm, 16 January 1999. I vacate the arbitration date of 1 February 1999. I give leave to the defendant to restore the matter to the list on the giving of seven days’ notice. I note that this is a matter in which the court has previously directed the plaintiff to file part 12 particulars and that order has not been complied with. I order the plaintiff to pay the defendant’s costs thrown away by reason of the vacation of the arbitration date and of … the notice of motion.”
After an unsuccessful attempt by the representative of the plaintiff to have the costs of the Notice of Motion reserved, her Honour said:
“… you might pass on to those who are instructing you that if these orders aren’t complied with, the court will list this of its own motion to have it struck out for want of compliance with the directions. That might galvanise a bit of interest in the matter.”
That was an observation of considerable consequence. Her Honour concluded by listing the matter for further directions on 26 February 1999.
Twenty-eight days passed from the day when Ainslie-Wallace DCJ made her orders about Part 9 particulars without them being filed. They were only in fact filed on 25 February 1999, the day before the directions hearing. No further medical reports or expert reports were served on or before 16 January 1999; indeed none were served before 26 February 1999. Assuming for the moment that that latter inaction was not a breach of Ainslie-Wallace DCJ’s orders, the breach of her order about particulars certainly was. It was the third District Court order on that subject which the plaintiff had contravened.
The response of the first defendant to this inactivity on the plaintiff’s part was to file a Notice of Motion on 15 February 1999 returnable on 26 February 1999 seeking an order dismissing the plaintiff’s Statement of Claim pursuant to Part 18 rule 3(1). On 19 February 1999 the second defendant filed a like Notice of Motion.
The response of the District Court to the plaintiff’s inactivity was to list the matter on 26 February 1999 for the same purpose as that underlying the two Notices of Motion.
Garling DCJ’s Judgment
On 26 February 1999 before Garling DCJ argument took place which was recorded over thirteen pages of transcript. He reserved judgment until 12 March 1999. In view of the attacks made on it, it is necessary to set out the key parts of the reasons for judgment delivered by Garling DCJ on 12 March 1999.
“The matter was before the Supreme Court. There were numerous appearances before that Court which are documented on the file. The matter was transferred to the District Court. On 25 March 1998 it came before this Court. An order was made that Part 12 particulars were to be updated and documents in support filed within a period which is unclear on the face of it, but I think was two months. Certainly it was no longer than that. 25 August 1998, no updated Part 12 particulars filed. Listed to show cause why it should not be struck out for want of prosecution. Plaintiff to update Part 12s by 1 October 1998. 8 October 1998, listed before the list judge. Court advised ready for hearing, listed for arbitration 1 February 1999. 20 November 1998 back before the Court. Arbitration date vacated. Judge of this Court orders: ‘Direct the plaintiff to file Part 9 particulars within 28 days of today. Direct the plaintiff to serve medicals by 4pm on 6 February 1999.’ Note: ‘The plaintiff failed to comply with the previous directions to provide particulars. Plaintiff is to pay costs.’ Listed before this Court, 26 February 1999. On 25 February 1999, as happens the day before, the plaintiff suddenly files Part 12 particulars. Again in breach of a court order. That is, I think, now the third or fourth breach of court orders. They make new allegations. As I understand it the last particulars were filed in the Supreme Court, they being particulars pursuant to part 33 rule 8(a) on 7 August 1997, well over three years ago.
There were six categories of injuries in 1995. They had grown to eight by 1999. There were forty-nine allegations of disabilities in 1995. That had increased to fifty-eight by 1999. There were new allegations. In fact, one of the allegations is that the plaintiff has developed an alcohol problem as a result of the injuries in 1984 to 1987. Future out of pocket expenses are just set out as ‘to be particularised’. Loss of income, in 1995 there was one hundred dollars nett for a limited period, one thousand two hundred dollars, and then a continuing amount claimed. Now that has increased from three hundred and fifty to somewhere between three hundred and fifty and five hundred dollars per week. The plaintiff, in addition, now claims interest. Whilst the Court could probably deal with that, that interest goes back, I take it, to the eighties.
I am told there has been no updated medicals, experts report. It is a jury trial. The defendants say ‘we are prejudiced by these delays, we are prejudiced by the failure to comply with court orders’. Both defendants set out the various ways in which they say they are prejudiced. The first defendant, among other things, says ‘The factory was sold in 1990. Some of the allegations would be very hard to meet because of the sale of the factory. Some of those allegations are set out in the doctor’s report. We do not know anything else about them. There are numerous other doctors’ reports referred to in other doctors’ reports. We have not seen those. We do not know what case we have to meet or we did not know until 1999 and we are prejudiced by all these delays.’ The second defendant makes the same submissions and also points out that the Court has been told that the part 12 particulars had not changed from 1995 where indeed they had changed to a significant degree.
The plaintiff argues that in actual fact they have done nothing other than get this case prepared for hearing. Some of the substantial delays are caused by it being listed in the Supreme Court as a jury trial, and I accept that there would have been some delays there, however, I point out that certainly since it was before this Court we have been making every effort, since March 1998, about a year, to get the plaintiff to take a date. It is said on the plaintiff’s behalf: ‘We were always ready to proceed. We would have proceeded on what we had given the defendant, and it is only that the defendants are insisting on knowing what case they have to meet that this matter has been adjourned.’ I read, in part, what is put to me. ‘I note that [the solicitor] for the first defendant, brought an application on 20 November 1998 for the arbitration hearing to be adjourned on the basis the particulars had not been updated. In my respectful submission this was an artificial attempt to avoid the hearing date. The defendant was successful in its application and sought and obtained costs.’”
The material lastly appearing in quotation marks comprises paragraph 14 of the Statement dated 25 February 1999 filed by the solicitor for the plaintiff in response to the “show cause information sheet”.
“Indeed, the defendant was successful and a judge of this Court considered that application and granted the adjournment and granted the adjournment obviously because orders of this Court had been breached. ‘It is further submitted that this was an endeavour on the part of the first defendant to avoid a hearing date in a matter which has been languishing for some years as it has been marked for jury trial. The plaintiff is ready to proceed with her claim’, et cetera.”
The material in quotation marks comprises paragraph 15 of the Statement dated 25 February 1999.
“’In addition, on several occasions it has been pointed out to the defendants that the particulars already in the file encapsulate the plaintiff’s claim and any updated re-filing of particulars would simply contain a repetition of particulars already provided and medical reports already served.’”
The material in quotation marks comprises paragraph 17 of the Statement dated 25 February 1999.
“I point out that that statement is totally inaccurate. Those particulars change the case. In my view this case falls into the category of those cases which should be struck out for want of prosecution.”
This does not follow the language of Part 18 rule 3(1), but the plaintiff rightly made no point about that on this appeal: Garling DCJ had made it clear from the outset that he conceived himself to be dealing with the question of dismissal under Part 18 rule 3(1).
“It should be struck out for these reasons. The extremely long delay in bringing this case on for hearing. What appears to be a total lack of diligence on behalf of the plaintiff. A number of noncompliances with court orders. Prejudice suffered by the defendant. In addition to that I have given judgments in this Court relating to the management of this Court’s Lists and I have clearly indicated that this Court will take into account as one of the matters they would consider when assessing whether a matter should be struck out for want of prosecution as to whether or not they are able to manage a case in accordance with the rules of this Court. This case falls right into that category of cases which I have said are not being prepared and are obstructing this Court’s attempts to get cases on for hearing.
Accordingly, this case is dismissed pursuant to Part 18. The plaintiff is to pay the defendant’s costs.”
Notice of Appeal
The Notice of Appeal was as follows:
“1.His Honour’s discretion miscarried in that dismissal for want of prosecution is available only where the default of a Plaintiff has been intentional and contumelious, or where there has been an inordinate and inexcusable delay upon his or lawyer’s part giving rise [to] the substantial risk that a fair trial would not be possible resulting in serious prejudice to the Defendants; WHEREAS this case did not fall into that category.
2.His Honour erred in that there was no or insufficient evidence to show that the case fell into the category referred to in Paragraph 1 above.
3.His Honour erred in failing to consider and take into account the extent, if any, of blameworthiness or blamelessness of the Appellant personally.
4.His Honour erred in failing to consider properly or at all whether the Claimant’s alleged delay in conduct of the proceedings was inordinate and inexcusable.
5.His Honour erred in taking into account and/or giving undue weight to the question of the efficiency of the Court List in relation to this case.
6.His Honour erred in finding that there was any relevant evidence of prejudice to the Opponents.
7.His Honour erred in finding, and taking into consideration, that the Opponents were prejudiced by the filing of Amended Particulars pursuant to Part 27 Rule 9 of the District Court Rules.
8.His Honour erred in finding, and taking into consideration, that the Opponents were prejudiced by the closure of the Opponents factory in or about July 1990.
9.His Honour erred in finding, and taking into consideration, that the Opponents were prejudiced by reasons of not having seen various medical reports.
10.His Honour erred in failing to take into account the hardship occasioned to the Claimant if the proceedings were dismissed by reason of the Plaintiff’s cause of action then being statute barred by operation of the Limitation Act, 1969.
11.His Honour erred in failing to take into consideration the alternative remedy available to address prejudice to the Opponents arising out of the Amended Particulars, that being to refuse leave to the Claimant to rely on those particulars.
12.His Honour erred in failing to take into consideration the alternative remedy available to address prejudice to the Opponents arising out of any allegedly unseen medical reports, that being to refuse to allow the Claimant to tender those reports at the hearing.
13.In considering the issue of prejudice His Honour erred in failing to take into consideration the following matters:-
(a)The Claimant first notified the Second Opponent of her claim by way of Employee’s Workers’ Compensation Claim Forms dated 1 September 1996 and 20 May 1987.
(b)The Claimant provided the Opponents with numerous medical certificates as to her unfitness for work in the period August 1986 to September 1998.
(c)The Claimant and Opponents exchanged 5 requests and answers to particulars in the period 1988 to date. The Opponents never indicated by correspondence or otherwise that the particulars provided by the plaintiff were inadequate.
(d)The Claimant has been the subject of 25 medical consultations with 10 different medical practitioners qualified for the Opponents in the period 4 March 1987 to date. The reports comprise 95 pages in total. A schedule of those reports is included in the White Folder.
(e)As at 26 February 1999, the Claimant had served in support of her case 19 reports by 14 medical practitioners, the earliest dated 17 October 1988. The reports comprise 59 pages in total. A schedule of those reports is included in the White Folder.
14.The order dismissing the proceedings was made against good faith by reason of the conduct of the Opponents who moved the Court to make the Order.”
Neither of the counsel who appeared for the plaintiff in the appeal had appeared at any earlier stage, neither had drafted either the grounds of appeal or the plaintiff’s written submissions to this Court, and both came into the appeal at a very late stage. They faced a heavy burden in getting the appeal into a condition of order, and sought to shoulder it as conscientiously as possible in the circumstances. They indicated that while none of these grounds were abandoned, the primary grounds were 1, 3, 4, 6,10 and 11.
The Materials to be Considered
It is necessary, in considering the arguments advanced for the parties, to leave out of account references which they made to materials which were not before Garling DCJ. The correctness of the reasoning which led to the orders of 12 March 1999 must be assessed in the light of the materials before him on 26 February 1999. Though the appeal papers contain much matter that was not before Garling DCJ, and though after leave to appeal was granted on 26 March 2001 counsel then appearing for the plaintiff foreshadowed the filing of an affidavit or the tendering of correspondence in relation to the service of experts’ reports, no application was made to tender “further evidence” pursuant to s 75A(7) of the Supreme Court Act 1970. To this exclusion of material not before Garling DCJ there is one exception - the transcript of what was said to and by Ainslie-Wallace DCJ on 20 November 1998. First, the plaintiff herself relied on it in this appeal and did not oppose the defendants relying on it. Secondly, Ainslie-Wallace DCJ’s orders were given consideration by Garling DCJ, and what was said on the occasion on which those orders were made is not irrelevant. Thirdly, in her orders she expressly noted the non-compliance of the plaintiff with the previous directions - an action which often indicates that the court is experiencing the type of sentiments which Ainslie-Wallace DCJ expressed in oral argument recorded in the transcript. Fourthly, it was a matter of chance that her threat that the court would list the matter to have it struck out did not appear in the orders. Fifthly, it was also fortuitous that there was no transcript of what she said on the file by 26 February 1999, and that none became available until 18 April 2000. Sixthly, evidence of what happens in court in the presence of all parties which is recorded by the court is in a different category from evidence of what happens outside the court.
The Approach of An Appellate Court
It is necessary to bear in mind some submissions of the defendants to the effect that a discretionary judgment can only be overturned in limited circumstances. These submissions were trite, but they are true, and they are vitally important. Part 18 rule 3(1) provides:
“Want of prosecution
Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any party or of its own motion, dismiss the proceedings or make such other order as the Court thinks fit.”
The precondition for Garling DCJ’s exercise of power was that it could be said that there had been a making of default by the plaintiff in complying with any order or direction. The plaintiff’s posture in relation to this precondition wavered. On occasion it was hinted that since the particulars had eventually been filed on 25 February 1999 before the applications were called on before Garling DCJ on 26 February 1999, there was no default. That stand was taken in the written submissions. But the plaintiff eventually conceded that the precondition had been satisfied three times and that the default in relation to the particulars had not been “cured” by the filing of the 25 February 1999 document. The preconditions had been satisfied by the plaintiff’s default in relation to three distinct orders on 25 March 1998, 25 August 1998 and 20 November 1998. As a result, Garling DCJ had to make a discretionary decision on a matter of practice and procedure - an extremely important one, having potentially serious consequences for the plaintiff, but a discretionary decision on a matter of practice and procedure nonetheless. Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker:
(a)made an error of legal principle,
(b) made a material error of fact,
(c)took into account some irrelevant matter,
(d)failed to take into account, or gave insufficient weight to, some relevant matter, or
(e)arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
Even though this Court might conclude that it would have exercised the discretion differently if the discretion had been conferred on it in the first instance - might have adjourned the matter so as to permit the defendants to consider the late-supplied particulars, or might have held the plaintiff to the old particulars, or might have fixed one more “final” date for outstanding matters to be completed by - any such conclusion would be immaterial. The law committed the exercise of the discretion to Garling DCJ. The law permits interference with his exercise of the discretion in only the limited circumstances just described. See House v R (1936) 55 CLR 499 at 504-505; Lovell v Lovell (1950) 81 CLR 513 at 518-519 and 532-533; Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627. These principles are applied to a wide range of discretionary judgments, but their application to this specific field, dismissal for want of prosecution, was approved by this Court in Stollznow v Calvert [1980] 2 NSWLR 749 at 751.
It is convenient to take the five possibilities set out one by one, and, though the parties’ contentions were presented in a different order, to examine those contentions by reference to them.
Error of Legal Principle?
Did Garling DCJ commit any error in relation to the legal principles he applied or failed to apply?
Deterrence error?
The plaintiff referred to an error which Moffitt P warned against in Stollznow v Calvert [1980] 2 NSWLR 749 at 755, namely the error of dismissing the plaintiff’s case in order to deter lawyers for other plaintiffs from being dilatory in future. The plaintiff appeared to submit that Garling DCJ committed this error. No such error can be found in his reasoning. It was not directed in any respect to punishment or to the deterrence of others.
Vicarious attribution of blameworthiness
The plaintiff also referred to another error against which Moffitt P warned in Stollznow v Calvert [1980] 2 NSWLR 749 at 753, namely, the vicarious attribution of defaults by the plaintiff’s solicitor to the plaintiff. The plaintiff submitted that Garling DCJ had done this. This submission necessarily had to be advanced in a muted way, since a central theme of some parts of the plaintiff’s argument was that neither she nor her solicitors had done anything that was culpable or wanting in diligence, and that the primary judge had effectuated “a triumph of form over substance” in concluding to the contrary. However, to the extent that the commission of that error was suggested, the suggestion must be rejected. Indeed it would have been difficult for Garling DCJ to have committed that error, because he was not favoured with any evidentiary material from the plaintiff as to the reason for the non-compliances. There was a vacuum on the question whether the particulars had not been supplied because of delays on the part of the plaintiff’s solicitors in contacting the plaintiff or marshalling the reports which were to hand so as to bring the particulars into conformity with them, or whether the reason for non-supply had been the failure of the plaintiff to respond to requests from her solicitors seeking her instructions. The existence of that vacuum, though not referred to expressly by Garling DCJ, is highly significant. In Stollznow v Calvert at 751-752 the Court of Appeal quoted approvingly an observation of Walsh JA in an earlier decision of that court, Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412:
“It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory.”
In that case Asprey JA also spoke of the need, in the slightly different but related context of that case, for the plaintiff to furnish “to the court a credible explanation which satisfactorily accounts for and excuses the delay” (at 416). Herron CJ agreed with Asprey JA’s reasons. The plaintiff pointed to paragraph 16 of her solicitor’s Statement dated 25 February 1999 which said:
“A further Statement pursuant to Part 9 Rule 27 has now been filed, although filed on 25 February 1999 without any fault on the part of the Plaintiff personally.”
That does not explain the two earlier non-compliances. In any event the “show cause information sheet”, pursuant to which such Statements are filed, distinguishes between the “statements” in paragraph 4, and “evidence” in paragraph 5. If any explanation existed - and whether one existed was a matter which was peculiarly within the knowledge of the plaintiff and her legal advisers - it should have been provided in detailed form and on affidavit, so that the defendants could have tested it. The same applies to the following explanation offered by the plaintiff’s legal representative to Garling DCJ on 26 February 1999 for why the particulars had not been filed, as directed, within twenty-eight days of 20 November 1998:
“Now, that date in November, of course, led into the pre Christmas rush. That was overlooked, and therefore as a result of being overlooked they weren’t filed until 25 February. They were only filed as a precautionary measure and I would respectfully submit they do not alter the plaintiff’s case beyond the part 12s and the medical evidence previously served and that includes Dr Champion’s report.”
(That was a reference to a medical report dated 9 April 1998.)
Birkett v James
A third error of law for which the plaintiff appeared to contend appears most clearly in the language of paragraph 1 of the Notice of Appeal. The complaint is that Garling DCJ could not have made the orders unless the plaintiff’s default had been “intentional and contumelious”, or unless there had been “an inordinate and inexcusable delay” giving rise to “the substantial risk that a fair trial would not be possible resulting in serious prejudice to the Defendants”. The plaintiff submitted that neither of these tests had been met.
This contention may be answered at two levels. First, the tests propounded are not part of the law in New South Wales. The tests propounded are similar to, but not identical with, those formulated by Lord Diplock in Birkett v James [1978] AC 297 at 318:
“The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g., 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 is 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.”
Lords Simon of Glaisdale (at 325), Salmon (at 330), Edmund-Davies (at 331) and Russell of Killowen (at 336) agreed. However, though that case was cited to and considered by the Court of Appeal in Stollznow v Calvert, the principles stated in it were not adopted as part of the law of New South Wales. Rather, Moffitt P said at 751:
“While useful guidance is provided by the manner of exercise of the discretion in other cases, and by the factors considered in those cases to favour the exercise of the discretion in a particular way, each case must depend on its own facts. It would be contrary to what I understand to be the accepted law in this country, to confine the exercise of a judicial discretion by judge made rigid formulae.”
At 751-752 he approved the principles stated by Walsh JA in Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411-412. Moffitt P said:
“The view I have stated was well expressed by Walsh J when a member of this Court, in Witten v Lombard Australia Ltd. Having made reference to earlier local authority and to English authority, including the decision just then given in the Court of Appeal in Allen v Sir Alfred McAlpine & Sons Ltd [[1968] 2 QB 229], Walsh J said: ‘ … a balance must be struck as between the plaintiff and the defendant and, in the end, ‘the court must decide whether or not on balance justice demands that the action should be dismissed.’
He further said the exercise of the Court’s discretion should not be fettered ‘by rigid rules’, but required ‘a decision to be reached, upon a balance of the relevant circumstances’. It is of assistance to quote at length what he ultimately said: ‘Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.
‘I have made these observations because it appears to me that there are some statements in the recent judgments of the English Court of Appeal which tend to restrict to some degree the exercise of the discretion in cases of this kind, so that it becomes something less than the exercise of a full judicial discretion in accordance with what justice seems to require in the circumstances of the particular case. There is a tendency to propound rules which are to govern the exercise of the discretion in the sense that it will be fettered by them. It is entirely proper that, in the exercise of a judicial discretion, guidance should be sought and obtained from decided cases of a similar kind, but I think that care must be taken to ensure that a discretionary power is not trammelled by set rules, by means of which one conclusion is to be automatically reached, regardless of other factors in the case which may point to the opposite conclusion. Therefore, I do not wish to be taken as assenting without qualification to everything that has been said in the recent English cases.’”
The “recent judgments of the English Court of Appeal” to which Walsh JA referred were cases such as Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229, which were approved in Birkett v James. When Moffitt P, Hope JA and Mahoney JA approved Walsh JA’s rejection of the English cases so far as they restrict the discretion, they were rejecting the test stated in the English cases. No application was made by the plaintiff to reargue the correctness of the unanimous decision in Stollznow v Calvert. Accordingly Stollznow v Calvert must be applied. Quite apart from the status of that case as an authority, the force of what Walsh JA said is very great as a matter of principle. Part 18 rule 3(1) contains no limitation on the discretion. The English formulae would compel the exercise of the discretion one way unless particular circumstances were established, in which case the discretion would have to be exercised another way. A “discretion” which can only be exercised one way is not in truth a discretion at all. The English tests are thus inconsistent with Part 18 rule 3(1). Part 18 rule 3(1) is, after all, a statutory enactment in the sense that it was made by the Rule Committee in the exercise of the statutory power conferred by the District Court Act 1973, s 161. Restrictive words are not lightly to be read into it.
The second level of answers to the contention that Garling DCJ’s reasoning does not comply with the English tests, and that he did not consider their application properly (putting aside the fact that in argument to him it was never suggested that they were relevant or that he should consider them) has several aspects.
To start with, even if the House of Lords tests applied here, the tests stated in paragraph 1 of the Notice of Appeal differ from those stated by the House of Lords. Paragraph 1 requires only delay giving rise to a risk that a fair trial is not possible resulting in serious prejudice to the defendants. The House of Lords, on the other hand, said that it was enough if the delay either gave rise to a substantial risk of there not being a fair trial or was likely to cause or to have caused serious prejudice to the defendants. There is no authority for the tests stated in paragraph 1 of the Notice of Appeal.
Next, the first limb of the test propounded appears to be satisfied. It is to be inferred that each default was intentional and contumelious. That inference flows from the following circumstances. The plaintiff was legally represented on each of the occasions when the orders were made. She had engaged a firm of solicitors who had acted for her throughout the litigation, who have the reputation of conducting a great deal of personal injuries litigation, and who, according to the letterhead of the letters of 29 May and 23 October 1997, carry on practice in the central business district of Sydney and in no fewer than twelve suburban offices. The orders were apparently made either by consent or without serious opposition against a background of requests from the first defendant that the particulars three times ordered by the District Court be supplied as long ago as June 1997. On 25 August 1998 the Assistant Registrar, on the occasion when the second order not complied with was made, listed the matters for a show cause hearing and handed a “show cause information sheet” to the parties containing clear statements as to what might happen at that show cause hearing. Those circumstances must have operated to convey a stark warning to the plaintiff’s advisers; yet despite the fact that a show cause hearing was to take place on 8 October, the last day for compliance, 1 October passed without compliance. Though the plaintiff, perhaps fortunately for her, escaped from the show cause hearing of 8 October 1998 unscathed, on 20 November 1998 the third order was made at a time when Ainslie-Wallace DCJ solemnly warned the plaintiff of the consequences of breach. No sworn explanation was ever offered for any of the three instances of non-compliance, and no explanation at all for the first two instances of non-compliance. The third instance of non-compliance was explained by the plaintiff’s legal representative on 26 February 1999 as being the result of the Christmas rush; in the Statement of 25 February 1999 the delay was said to be not the fault of the plaintiff personally. But matters had reached a stage where a much more detailed explanation was called for, and where it was necessary that it be given on affidavit testable by cross-examination. A satisfactory explanation on affidavit might negate an inference that the plaintiff’s defaults were not intentional or contumelious. But the absence of any explanation permits that inference to be drawn.
In Birkett v James Lord Diplock gave two illustrations of intentional and contumelious default - conduct amounting to an abuse of process and disobedience to a “peremptory” order of the court. For a plaintiff who enlists the aid of the judicial arm of the State by invoking a particular legal process persistently to fail to comply with the conditions laid down for a favourable exercise of the judicial power may be said to abuse the process invoked. By “peremptory” order of the court Lord Diplock meant an order “providing for the dismissal of the action for non-compliance with its orders as to the time by which a particular step in the proceedings is to be taken” (at 321). No such order was made here. However, the circumstances pointed just as strongly to the fact that the willingness of the court to ignore further breaches was at an end. The third order made here was made at the second, not the first, of the series of hearings at which the plaintiff had to show cause why the action should not be dismissed under Part 18 rule 3(1) and after the plainest viva voce warnings of Ainslie-Wallace DCJ. The adjective “contumelious” conveys the sense of insolent, dishonourable, or opprobrious behaviour. It could be inferred that the plaintiff’s behaviour between March 1998 and February 1999 was contumelious in the absence of any testimonial explanation being proffered for it.
The question is whether the dismissal of the proceedings was so unreasonable or unjust a result as to indicate that some appellable error must have occurred in the process of reasoning which led to it, even though it is difficult or impossible to identify the error on the face of the reasons.
The fact, considered by itself, that the order had the effect of terminating the plaintiff’s whole case without its ever having been considered on the merits, is not necessarily unreasonable or unjust. Orders made under Part 18 rule 3(1) will often be made when the limitation period has expired. The rule contemplates that the result which has come to pass here will not infrequently come to pass. If the fact of terminating the whole case is to lead to the conclusion that the result was unjust or unreasonable, some additional ingredient must be found.
The additional ingredient cannot be found in the fact that on 25 February 1999 the plaintiff supplied the particulars. That circumstance did not alter the fact that she had, in breach of District Court orders, failed to do so for many months before that day. She had done so, it may be inferred, only because of the pressure brought to bear by the defendants’ Notices of Motion and the court’s indication that on 26 February 1999 she would have to show cause why an order under Part 18 rule 3(1) should not be made.
Nor can the additional ingredient be found in the fact that the defendants made no complaint about the particulars as such. The defendants had scarcely had any real opportunity to examine them before the hearing on 26 February 1999. And the gravamen of the difficulties which the primary judge saw was not the plaintiff’s capacity to carry out legal procedures correctly eventually, but her capacity to carry them out diligently and in conformity with the times specified in court orders in such a manner as not to obstruct the court’s attempts to get the proceedings ready for hearing.
Further, the additional ingredient cannot be found in the fact that 26 February 1999 was the first occasion on which the defendants had moved the court for dismissal. If that were a crucial factor in the eye of the law, there would be an encouragement of fruitless applications by defendants merely to lay the groundwork for a later successful application. The plaintiff referred to Stollznow v Calvert [1980] 2 NSWLR 749 at 753-754, but that passage does not support the proposition. Moffitt P said:
“in some cases inaction by a defendant in the face of impending prejudice to him if delay continues, may render a later claim of actual prejudice less creditworthy, and the prejudice, if established, a less weighty factor.”
The present case does not fall within that description. The first defendant made its position plain in the letters of 2 and 24 June 1997. Moffitt P at 754 said:
“I cannot accept … that a defendant, who has written complaining of the delay and warning that particular prejudice will occur to him if delay continues, is not, on a later application to dismiss the proceedings, in a position superior to that of a defendant who has lain silent and later claims for the first time that prejudice has occurred by reason of the delay.”
Further, both defendants had made their concern about the lack of particulars plain on 8 October and 20 November 1998.
The additional ingredient cannot be found in any contention that the defendants wrote no letter threatening the filing of the Notices of Motion before actually filing them. In Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 410 Herron CJ referred to an observation of Diplock LJ’s in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 258-259:
“that there is no rule that a plaintiff’s solicitor should be given prior warning of a defendant’s intention to apply to dismiss an action for want of prosecution and, if there is any tacit understanding to that effect, the sooner that is abandoned the better. These observations apply equally to the present case.”
In any event, the first defendant had threatened its Notice of Motion in June 1997, and both defendants had made their dissatisfaction plain at the hearings in the District Court in 1998. Further, the hearing on 26 February 1999 was not the first occasion on which the matter had been listed with a view to dismissal under Part 18 rule 3(1): that had occurred on 8 October 1998 by reason of the Assistant Registrar’s orders of 25 August 1998.
The additional ingredient cannot be found in the following submission by the plaintiff:
“Although the [defendants] brought their Motions based on Want of Prosecution the case could never be described as a Want of Prosecution case. It was set down for hearing without protest from either [defendant]. Their failure to make proper protest to the listing of the matter for hearing constitutes, it is submitted, a silent acquiescence in the appropriateness of such listing. It was ready to be heard when it was taken out of the list.”
This submission appears to be wanting in any factual foundation. On 8 October 1998 Garling DCJ listed the case for arbitration on 1 February 1999. The defendants did protest at that, but he rejected their protests. The defendants then successfully moved Ainslie-Wallace DCJ for that listing to be vacated because of the plaintiff’s breach of the second District Court order about particulars. There was no “silent acquiescence” on their part; there was vocal opposition. And whether the case was “ready to be heard” is unclear in view of the fact that the intention of the plaintiff to file a non-medical expert report on liability which appeared to exist on 20 November 1998 was never clearly disavowed.
Perhaps the case in favour of the plaintiff can be put at its highest, as it was put in argument to counsel for the first defendant, as follows:
“having got to [25 February 1999] with all the prejudice that had arisen as a result of delay and yet no complaint about it and the plaintiff finally having given the particulars the matter was ready to go and in those circumstances, bearing in … mind the consequence to the plaintiff of dismissing the proceedings a court would be very reluctant to dismiss proceedings.”
To this the first defendant replied that it had been complaining since June 1997 about the unreadiness of the plaintiff; that a new regime came into play when the matter moved to the District Court in December 1997; that the inevitable prejudice arising from the plant closure in 1990 increased the need to minimise it by speedy action, particularly in relation to any expert report on liability relating to conditions at the plant; that the delays in 1998-1999 occasioned by the plaintiff’s three defaults in relation to particular orders did not minimise prejudice, but increased it; and that the plaintiff appeared to be preserving a free hand in relation to an expert report on liability, while altering the damages particulars.
“The defendants could never be satisfied that that case against them was clearly enunciated and that was in our submission enough for Garling DCJ to say - look, it’s about time I closed this show down, this just cannot be tolerated, no matter what I do or my colleagues do nothing happens.”
Those contentions point forcibly against the conclusion that the result at which the primary judge arrived was so harsh and unreasonable as to suggest appellable error. To those matters may be added the fact that if the result at which Garling DCJ arrived on 12 March 1999 is to be criticised as harsh, unreasonable and appellably wrong, when Ainslie-Wallace DCJ had warned on 20 November 1998 that that was the very thing that would happen if her orders were not complied with, it is hard to see when the discretion for which Part 18 rule 3(1) provides will ever be exercised against a party so long as that party says it is ready and can point to “compliance”, however belated, with the last order made.
Even if all the circumstances are looked at in their totality, the result is not so harsh and unreasonable as to suggest error on the part of the primary judge. Other minds might have reached a different conclusion. That outcome is inevitable where the decision to be made is a discretionary decision. The fact that other minds might not have arrived at the primary judge’s conclusions is not by itself a ground for interfering with them. It can be seen even from the slight materials before Garling DCJ that at some stages the plaintiff’s camp had carried out a significant measure of preparation, as had the defendants’ camps. It is regrettable that a case of that character should never be tried on the merits. But the possible grounds of appellate interference with the primary judge’s conclusion that it should not are limited. The fact that individual members of an appellate court might consider firmly - even very strongly - that if appellable error were established, some conclusion other than that reached by the primary judge should be substituted for it, does not justify interference with it unless appellable error is established. It has not been.
Good Faith
Paragraph 14 of the Notice of Appeal alleged that the defendants acted in bad faith on 26 February 1999. There is no evidence that they did, and no argument was advanced in relation to the 12 March 1999 orders that they did. The allegation is rejected.
Orders
The appeal (No 40522/2000) against the orders of 12 March 1999 should be dismissed with costs for the reasons given above. The appeal (No 40060/2000) against the orders of 16 December 1999 should also be dismissed with costs, because the plaintiff put no additional argument in support of it.
Accordingly, the orders proposed are as follows.
Appeal No 40522/2000
1. The appeal is dismissed.
2. The appellant is to pay the respondents’ costs of the appeal.
Appeal No 40060/2000
1. The appeal is dismissed.
2. The appellant is to pay the respondents’ costs of the appeal.
STUDDERT AJA: I agree with Heydon JA.
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LAST UPDATED: 27/08/2001
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