Vanderweil v Noyce

[1999] NSWCA 304

CITATION:	Vanderweil v Noyce [1999] NSWCA 304
FILE NUMBER(S):	CA 40988/98
HEARING DATE(S):	12 August 1999
JUDGMENT DATE:	12 August 1999
PARTIES :	Hans Vanderweil v Dr Peter Noyce
JUDGMENT OF:	Priestley JA at 1; Meagher JA at 17; Fitzgerald AJA at 18

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 5373/93
LOWER COURT JUDICIAL OFFICER:	His Honour Judge Downs

COUNSEL:	Claimant - J.P. Deggins Opponent - C. Moore
SOLICITORS:	Segal Litton & Chilton Ebsworth & Ebsworth
CATCHWORDS:	Summons for leave to appeal
DECISION:	Summons dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40988/98

PRIESTLEY JA
MEAGHER JA
FITZGERALD JA

Thursday, 12 August 1999

VANDERWEIL v NOYCE

1 PRIESTLEY JA: Before the Court is a summons for leave to appeal. If leave were to be granted the Court would deal with the appeal immediately. The Court proposes to dismiss the application for leave so questions of appeal will not arise. 2 The application arises from the dismissal by Judge Downs of an application before him which was intended to cure the consequences of the operation of rule 4C of Part 12 of the District Court Rules. That rule applied to proceedings which had been begun by the claimant as plaintiff in the District Court on 22 October 1993. In those proceedings the claimant alleged negligence against the opponent here today, the defendant in the District Court, who was a doctor who had performed an operation which the claimant alleged had involved negligence which caused him damage. 3 The operation had taken place on 23 October 1987. The proceedings in the District Court were thus commenced almost exactly six years after the alleged negligence. Very little happened in the conduct of the proceedings on behalf of the claimant until 1998. Very late in May 1998 a new solicitor in the office of the firm of solicitors conducting the action on behalf of the claimant apparently set about getting matters in the case into order and getting the action ready for trial. However, it seems that in the solicitor's office, either the existence or the effect of rule 4C of Part 12 was unknown or overlooked. 4 Without reciting the details of the rule it had the effect that if a praecipe for trial were not filed in the action, or if an application to the Court were not made in regard to that filing of the praecipe before 1 July 1998, the action was to be deemed dismissed as from 1 January 1998. 5 The 1 July date passed without any action having been taken so that the action was deemed to be dismissed under the rule. 6 A motion was then filed in the District Court which came on for hearing before his Honour Judge Downs in November 1998. Before him there are argument about a number of possibly applicable rules pursuant to which the position about the deemed dismissal might be cured. He was of the view there was only…