Walshe v Prest (by her next friend Darren Prest)

[2004] NSWCA 94

CITATION:	Walshe v Prest (by her next friend Darren Prest) [2004] NSWCA 94
HEARING DATE(S):	20 November 2003
JUDGMENT DATE:	31 March 2004
JUDGMENT OF:	Sheller JA at 1; Santow JA at 2; McColl JA at 3
DECISION:	1. Grant leave to appeal. 2. Subject to filing the notice of appeal within 14 days, appeal allowed. 3. Declare that, subject to the appellant paying the prescribed fee for a rehearing within 14 days of this judgment, the appellant's application for rehearing is taken to have been lawfully filed on 7 January 2003. 4. Respondent to pay the costs of the appellant and have a certificate under the Suitors' Fund Act if otherwise qualified. 5. The costs of the application before Delaney DCJ are to be the appellant's costs in the District Court proceedings.
CATCHWORDS:	PRACTICE AND PROCEDURE - application for rehearing of arbitration - whether Pt 51A r 10 of the District Court Rules 1973 (NSW) imposes a duty on the Registrar to endorse the date of sending on the award - whether time commences to run for the purposes of Pt 51A r 10 and s 63A(5) of the District Court Act 1973 (NSW) where the Registrar fails to endorse the date of sending on the award - where appellant's solicitor under a misapprehension as to when time commenced to run - administration of justice.
LEGISLATION CITED:	Arbitration (Civil Actions) Act 1983 (NSW) s 16A, Pt 3, s 18, s 18(2), s 18A, s 18A(1), s 18B Court Legislation Amendment Bill 1998 District Court Act 1973 (NSW) s 63, s 63A(1), s 63A(5), s 81 District Court Regulation 2000 (NSW) cl 4, Schedule 1, item 15 District Court Rules 1973 (NSW) Pt 3 r 2, Pt 51 r 11, Pt 51A r 9, r 9(2), r 9(5), r 10, r 10(b), r 11 Interpretation Act 1987 (NSW) s 36, s 36(1), s 80
CASES CITED:	Anlaby v Praetorius (1888) 20 QBD 764 Cropper v Smith (1884) 26 Ch D 700 El Ali v Government Insurance Office of New South Wales (1988) 15 NSWLR 303 Falconer v Laird [2003] NSWCA 114 Gallo v Dawson (1990) 64 ALJR 458 Green Leisure Group Pty Ltd v Maguire [2001] NSWCA 384 Hamp-Adams v Hall [1911] 2 KB 942 House v The King (1936) 55 CLR 499 Howard v Bodington (1877) 2 PD 203 KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village v Chilcott (2001) 51 NSWLR 516 Lindner v Wright (1976) 14 ALR 105 Multicon Engineering Pty Limited v Federal Airports Corporation (1997) 47 NSWLR 631 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Sali v SPC Ltd (1993) 67 ALJR 841 Shepherd v Shepherd [2003] NSWCA 44; [2003] ANZ ConvR 401 State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Water Board v Moustakas (1988) 180 CLR 491
PARTIES :	Cheryl Walshe (Appellant) Tamara Prest (by her next friend Darren Prest)
FILE NUMBER(S):	CA 40213/03
COUNSEL:	Mr S G Campbell SC (Appellant) Mr M J Perry (Respondent)
SOLICITORS:	Curwood & Partners (Appellant) Taylor & Scott (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 31/2002
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

CA 40213/03
DC 31/2002

SHELLER JA
SANTOW JA
McCOLL JA

Wednesday, 31 March 2004

Cheryl WALSHE v Tamara PREST (by her next friend Darren Prest)

FACTS

An arbitrator’s award made pursuant to the Arbitration (Civil Actions) Act 1983 (NSW) was sent to the solicitors for the parties by the Registrar of the District Court. The date for sending was not endorsed on the award: Pt 51A r 9(5) District Court Rules 1973 (NSW). The appellant applied for a rehearing of the action: s 18 Arbitration (Civil Actions) Act 1983 (NSW). The application was not accompanied by the prescribed filing fee. The filing fee was forwarded when its absence was notified to the appellant’s solicitors. The Registrar refused to accept the application for rehearing.

The appellant filed a motion seeking leave to file the application for rehearing. Delaney DCJ declined to make the order. He dismissed the motion. The appellant sought leave to appeal Delaney DCJ’s decision. The appellant sought leave to rely on a point of law which had not been taken before Delaney DCJ, namely that time had never commenced to run for the purpose of Pt 51A r 10(b) of the District Court Rules , having regard to the fact that the Registrar had not endorsed the date of sending on the award. Alternatively, the appellant submitted that Delaney DCJ’s exercise of discretion had miscarried.

HELD per McColl JA (Sheller JA and Santow JA agreeing), granting leave to appeal and allowing the appeal:

1. Part 51A r 10 of the District Court Rules 1973 (NSW) imposes a duty on the Registrar to endorse the date of sending on the award: Howard v Bodington (1877) 2 PD 203; Anlaby v Praetorius (1888) 20 QBD 764; KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village v Chilcott (2001) 51 NSWLR 516; Hamp-Adams v Hall [1911] 2 KB 942 referred to.

2. Time did not commence to run for the purposes of s 63A(5) of the District Court Act 1973 (NSW) and Pt 51A r 10 of the District Court Rules 1973 (NSW) because the Registrar failed to endorse the date of sending on the award: El Ali v Government Insurance Office of New South Wales (1988) 15 NSWLR 303; Gallo v Dawson (1990) 64 ALJR 458 referred to.

3. The Registrar of the District Court erred in refusing to accept the rehearing application for filing when the filing fee was received on 7 January 2003.

4. Delaney DCJ erred in exercising his discretion. He misapprehended the facts and failed to have regard to the principle that Courts will in the interests of justice correct errors or mistakes which occur in the conduct of litigation: Cropper v Smith (1884) 26 Ch D 700; El Ali v Government Insurance Office of New South Wales (1988) 15 NSWLR 303; State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; Sali v SPC Ltd (1993) 67 ALJR 841; Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; Shepherd v Shepherd [2003] NSWCA 44; [2003] ANZ ConvR 401; Green Leisure Group Pty Ltd v Maguire [2001] NSWCA 384; Falconer v Laird [2003] NSWCA 114 referred to.

5. Circumstances in which it is expedient and in the interests of justice to grant the application for leave to argue the point of law discussed: Multicon Engineering Pty Limited v Federal Airports Corporation (1997) 47 NSWLR 631; Water Board v Moustakas (1988) 180 CLR 491 referred to.

ORDERS

1. Grant leave to appeal.

2. Subject to filing the notice of appeal within 14 days, appeal allowed.

3. Declare that, subject to the appellant paying the prescribed fee for a rehearing within 14 days of this judgment, the appellant’s application for rehearing is taken to have been lawfully filed on 7 January 2003.

4. Respondent to pay the costs of the appellant and have a certificate under the Suitors’ Fund Act if otherwise qualified.

5. The costs of the application before Delaney DCJ are to be the appellant’s costs in the District Court proceedings.

CA 40213/03
DC 31/2002

SHELLER JA
SANTOW JA
McCOLL JA

Wednesday, 31 March 2004

Cheryl WALSHE v Tamara PREST (by her next friend Darren Prest)

Judgment

1 SHELLER JA: I agree with the reasons for judgment of McColl JA and the orders her Honour proposes.

2 SANTOW JA: I agree with McColl JA.

3 McCOLL JA: This is an application for leave to appeal which was heard on full submissions so that, if leave was granted, the appeal could be determined without a further hearing. As I am of the view that leave to appeal should be granted, I shall refer to the respective parties as the appellant and the respondent throughout this judgment.

Statement of the case

4 These proceedings were commenced in 2002 in the District Court by the respondent, Darren Prest as tutor for Tamara Prest. They relate to an injury Tamara is alleged to have suffered in August 1998 at the hands of another child while both children were under the care of the appellant, who is a childcare worker.

5 Pursuant to s 63A(1) of the District Court Act 1973 (NSW) the proceedings were referred to arbitration under the Arbitration (Civil Actions) Act 1983 (NSW). The arbitrator made an award dated 2 December 2002 and transmitted it to the District Court in accordance with Pt 51A r 9(2) of the District Court Rules 1973.

6 The Registrar sent the arbitrator’s award to the solicitors for the parties under cover of a letter dated 3 December 2002. Part 51A r 9(5) required the Registrar to endorse on the award “the date of sending.” The Registrar did not do that.

7 The appellant’s solicitors received the arbitrator’s award on 4 December 2002.

8 On 2 January 2003 the appellant forwarded an application for rehearing to the District Court Registry at Parramatta by courier. The application was not accompanied by the filing fee of $396 prescribed by cl 4, Schedule 1, item 15 of the District Court Regulation 2000. On 7 January 2003 the appellant’s solicitor received a telephone call from the District Court Registry advising the rehearing application could not be filed because the filing fee had not been received. The omission was immediately rectified. The cheque was couriered to the Registry the same day. It had apparently been drawn on 23 December 2002 in anticipation of filing the rehearing application.

9 The Registrar refused to accept the application for a rehearing. The evidence did not disclose the basis for that refusal. The appellant said the only reason the Registrar gave for refusing to accept the document was the non-payment of the fee, presumably on 2 January 2003.

10 The appellant filed a motion seeking leave to file the application for rehearing. Delaney DCJ declined to make the order. He dismissed the motion with costs.

Legislative background

11 The Arbitration (Civil Actions) Act 1983 relevantly provides:

“16A Finality of award

Except to the extent that … Part 3 otherwise provide, an award of an arbitrator made under this Act is final and conclusive and not liable to be called in question.

Part 3 Rehearings

18 Application for rehearing

(1) A person aggrieved by an award of an arbitrator may apply for a rehearing of the action concerned.

(2) The applicant may (but need not) in the application request that the rehearing be a full or a limited rehearing.
18A Order for rehearing

(1) The court by which an action was referred to an arbitrator, or the registrar of that court, must order a rehearing of the action if an application for a rehearing of the action is made before the award becomes enforceable as a judgment or order of the court.

…
(4) The court or registrar may in an order for rehearing direct that the rehearing be a full or a limited rehearing as the court or registrar thinks appropriate….
18B Rehearing

(1) If an order is made for a full rehearing, the award ceases to have effect and the action is to be heard and determined in the court concerned as if it had never been referred to an arbitrator.

(2) If an order is made for a limited rehearing:

(a) the award is suspended and the aspects ordered to be dealt with at the limited rehearing are to be heard and determined in the court concerned as if they had not been dealt with in the arbitration, and

(b) the court may reinstate the award with such modifications (if any) as the court thinks appropriate after the rehearing.”

12 Section 63A(5) of the District Court Act 1973 provides:

“Except in the case of an action in respect of which an order for rehearing has been made under s 18 of the Arbitration (Civil Actions) Act the award of an arbitrator in relation to an action referred to him under subsection (1) shall, after the expiration of the time prescribed by the rules for the purposes of this subsection, be deemed to be a judgment or order of the Court."

13 Part 51A r 9(5) of the District Court Rules provides:

“(5) A registrar shall, forthwith after receiving the award of an arbitrator, send to each of the parties to the action to which the award relates, or to the representative of such a party, a copy of the award on which he has endorsed the date of sending and the registrar’s notice in the approved form.”

14 Part 51A r 10 provides:

"For the purposes of section 63A(5) of the Act, the time prescribed is -

(a) in relation to an award expressed to be made with the consent of all parties - the period ending on the date endorsed, under rule 9(5), on copies of the award as the date of sending the award; or

(b) in any other case - the period of 28 days immediately following the date so endorsed."

15 The form approved for the purposes of Pt 51A r 9(5) is Form 141, which provides for the inclusion of the following notice:

“Date of sending by the Court:
Notice by Registrar

Unless a party makes application to the Court for a rehearing before the Court, and pays the prescribed fee, within 28 days of the above date of sending by the Court, this award will be deemed to be the judgment of the Court in the action to which the award relates and enforceable as such.”

16 Part 3 r 2 of the District Court Rules provides that the Court may "on terms, by order extend or abridge any time fixed by the rules or by any judgment or order" and it may do so "as well after as before the time expires, whether or not an application for the extension is made before the time expires or at all."

17 The combined effect of the Arbitration (Civil Actions) Act 1983, the District Court Act 1973 and the District Court Rules, therefore, is that where a party desires a rehearing of the action following an award of the arbitrator, the application must be made within the twenty-eight day period specified in Part 51A r 10(b), subject to any extension of time granted pursuant to Pt 3 r 2.

18 The appellant applied for a rehearing on 2 January 2003, thirty days after 3 December 2002 and 2 days after the time limited for the application by Part 51A r 10(b), assuming, for present purposes, that time commenced to run on 3 December 2002. January 1 2003, being New Year’s Day, was a public holiday. Accordingly, if any relevant time had elapsed on that day, it was common ground that the act required could have been done on 2 January 2003: s 36 Interpretation Act 1987 (NSW).

19 The Arbitration (Civil Actions) Act 1983 was amended in 1998 by the Courts Legislation Amendment Bill 1998. Prior to the amendment, s 18(2) provided, in substance, that where an application for a rehearing of an action was made by a person aggrieved by the award of the arbitrator and was made before the award became enforceable as a judgment or order of the Court, the Court should order a rehearing of the action.

20 The 1998 Bill omitted s 18 and inserted Part 3 dealing with rehearings. The provision for the Court to order a rehearing now appears in s 18A(1). Section 63A(5) of the District Court Act has not been amended to reflect the fact that the order for rehearing is now made under s 18A(1) rather than s 18 as s 63A(5) provides. It is clear, however, that the reference in s 63A(5) to the order for rehearing should be read as a reference to an order made pursuant to s 18A of the Arbitration (CivilActions) Act 1983: see Lindner v Wright (1976) 14 ALR 105.

A sorry saga

21 The appellant’s motion sought an order “that leave be granted to the Defendant to file an Application for Re-Hearing (sic).” The appellant’s solicitor swore an affidavit dated 7 February 2003 in support of the motion (the “first affidavit”). It is apparent from that affidavit that the solicitor had formed the view that the rehearing application needed to be filed within “28 days of judgment being entered”. She calculated that time to have expired on 2 January 2003 “taking into consideration the Christmas public holidays.”

22 The motion came before Delaney DCJ in the District Court at Parramatta on 4 March 2003. The respondent opposed the orders sought. The appellant relied on the first affidavit. The opponent did not adduce any evidence.

23 His Honour read the first affidavit and then commented:

“It is a pretty lame excuse isn’t it?”

24 This appears to have been intended, and to have been understood, as a reference to the “late” payment of the filing fee.

25 Mr Stewart, who appeared for the appellant before Delaney DCJ, after observing that such lapses were not uncommon, informed his Honour that he had a cheque from the appellant’s solicitors dated “23 December”.

26 His Honour then observed that the affidavit did not state when the Notice of Arbitration was sent by the Court so that he was unaware when the time period expired. He then said he did not propose to grant the application “in the absence of proper evidence” and adjourned it, part heard, to 11 March, “when hopefully someone will actually address the issues that they are supposed to address.” He ordered the appellant to pay the costs of the day.

27 The appellant’s solicitor then swore another affidavit (the “second affidavit”). That affidavit gave some insight into the misapprehension under which the solicitor had been labouring in relation to the expiration of time to apply for a rehearing. It stated that a copy of the award was received on 4 December 2002. It explained that the appellant sought to have the arbitration award “set aside” pursuant to Part 51 r 11. As the heading of Part 51 makes plain, Part 51 r 11 deals with setting aside an award made after an arbitration pursuant to s 63 of the District Court Act 1973. It provides that a party who is dissatisfied with such an award can apply to have the determination set aside “within 28 days after service of the copy of the award”. It has nothing to do with a rehearing application in respect of an arbitration under the Arbitration (Civil Actions) Act 1983. Those applications are governed by Pt 51A rules 9, 10 and 11 as the heading of Part 51A makes plain.

28 The second affidavit, which was more in the nature of a submission than evidence, then stated that the rehearing application needed to be filed by 1 January 2003 but as the Registry was not open on that date being a public holiday, “the last day for filing was 2 January 2003.”

29 No attempt was made to explain why the filing fee had not been provided to the Court at the time the rehearing application was filed on 2 January 2003.

30 The matter came before Delaney DCJ again on 11 March 2003. The respondent’s counsel advised his Honour that it was an opposed application by the appellant for leave to extend the time for filing an application for rehearing. He drew his Honour’s attention to the Court of Appeal’s decision in El Ali v Government Insurance Office of New South Wales (1988) 15 NSWLR 303 and to the passage in Kirby P’s judgment where (at 310) his Honour referred to the necessity that “courts respect the finality of … judgments or orders” and that “substantial reasons need to be given to disturb that finality.”

31 Delaney DCJ commented that substantial reasons had not been given by the appellant and continued:

“All that I have got so far as I can tell is this, the matter was listed for arbitration on 2 December, an award was made … then it says, following consideration by the defendant instructions were received, well that’s just not enough. One has to know why it took so long, what was the problem and why – this is just, as I said on the last occasion … but the bald statement that the rehearing application was forwarded to the District Court by courier on 2 January and then it suggests that the Court was closed, is just nonsense and requires elucidation and expansion to a significant degree to have any reasonable prospect of the Court giving it full consideration. Now, I’m not going to just dismiss an application like this out of hand. I’m giving you one more – your side one more opportunity to provide the …necessary evidence to allow the Court to give proper and full consideration to the reasons for the delay, I’ll stand the matter over again for that purpose, but on the next occasion if such information is not available then … the prospects of success in this application would clearly be at the bottom of the range and that’s for the very reason that I am giving you the opportunity to rectify the problem.”

32 His Honour then enquired of the appellant’s representative whether that was regarded as “not unreasonable” and that representative (who was neither the appellant’s solicitor or counsel who appeared before the Court of Appeal) responded that his Honour’s proposed course was “more than reasonable”.

33 On 19 March 2003 the appellant’s solicitor swore a third affidavit. Its contents demonstrated the author was still labouring under the misapprehension that the rehearing application was being made pursuant to Part 51 r 11. In essence, the affidavit reiterated the matters set out in the second affidavit. It then contained some further matters which again were in the nature of submissions rather than evidence. The affidavit asserted that no extension of time was sought as the 28 day period the deponent clearly understood to have commenced to run on 4 December 2002 would have expired on 1 January 2003 so that filing the application on 2 January 2003 was within the time provided in Part 51 r 11. Subsequent paragraphs sought to advance criticisms of the arbitrator’s award, no doubt in an attempt to attract discretionary relief.

34 On the next occasion the matter came before Delaney DCJ, on 20 March 2003, counsel appeared for the respondent and the appellant’s solicitor, the deponent of the three affidavits, appeared.

35 On this occasion his Honour finally addressed the question when the last day for filing the application for a rehearing was. Counsel for the respondent submitted that it was 31 December 2002 on the basis that the arbitration hearing took place on 2 December and that time commenced to run on 3 December. The transcript does not disclose why he selected that date. As far as the transcript discloses, nobody looked at the award itself.

36 The respondent’s counsel then submitted that the appellant had not addressed the question why nothing was done leading up to 2 January 2003.

37 The appellant’s solicitor submitted orally that time commenced on 4 December 2002 when the award was received. Delaney DCJ observed that the time commenced from the date that the award was “published by the Registrar”. The appellant’s solicitor submitted that his Honour should take into consideration the public holidays. His Honour did not respond to that submission.

38 Delaney DCJ delivered a short judgment. He set out almost the entirety of the first affidavit. He noted, in substance, that on two prior occasions he had asked the appellant to set out a “reason why the application was not made at a time that would have allowed it to have been filed in time”. He then said:

“The matter was stood over to today for that purpose and no further information about that matter is given other than Ms Leary stating that they had 28 days, and at the end of 28 days she considered it was appropriate to do so, and did so at a time when it was not able to be filed in time.”

39 He refused the application and ordered the appellant to pay the respondent’s cost of the motion.

40 At the appellant’s solicitor’s request, his Honour granted a stay, presumably of the arbitrator’s award.

Issues on the appeal

41 The appellant raised two issues, one a point of law and the other relating to the manner in which Delaney DCJ exercised his discretion.

42 Mr Campbell SC, who appeared for the appellant, sought leave to rely upon a point of law which had not been taken before Delaney DCJ. The point of law he relied upon was that time had never commenced to run for the purposes of s 63A(5) and Pt 51A r 10(b), having regard to the fact that the Registrar had not endorsed the date of sending on the arbitrator’s award as required by Pt 51A r 9(5) of the District Court Rules.

43 Secondly, the appellant submitted that Delaney DCJ’s exercise of discretion pursuant to the District Court Rules had miscarried in the House v The King (1936) 55 CLR 499 sense because he had misapprehended the facts and acted on a wrong principle. Mr Campbell SC submitted that Delaney DCJ had erred in treating the proffering of a satisfactory explanation for the late filing of the application as decisive of a favourable exercise of his discretion. He submitted that the material before Delaney DCJ demonstrated that the failure to file the application in time resulted from inadvertence.

44 In the appellant’s summary of argument which was first filed in support of the application for leave to appeal and prepared by the appellant’s solicitors, it is manifest that those solicitors continued to labour under the misapprehension that the time limited for filing the rehearing application was that prescribed by Part 51 r 11 of the District Court Rules.

45 The respondent’s written summary of argument, also apparently prepared by the respondent’s solicitors, correctly stated that Part 51 r 11 had no application for the present proceedings and presumed that the appellant’s summary of argument was intended to refer to Part 51A r 11 of the District Court Rules which deals with applications for rehearing. This was the first occasion as far as the written record discloses that the respondent’s solicitors had drawn the court’s attention specifically to their appreciation of the misapprehension under which the appellant’s solicitors had been proceeding.

46 The respondent’s summary of argument asserted that the Registrar had endorsed the award on 3 December 2002. This was not correct. Mr Perry, who appeared for the respondent for the first time in the Court of Appeal, stated that the copy of the award which had been forwarded to the respondent was not endorsed as required by Part 51A r 9(5). The respondent’s summary of argument then submitted, apparently on the premise that the submission concerning the date of endorsement was correct, that the time for making the application for rehearing expired on 1 January 2003 so that, as that date was a public holiday, the time was extended to 2 January 2003.

47 That submission was also incorrect. Again, on the assumption that time had commenced to run on 3 December 2002, the 28 days within which the application for a rehearing could be made expired on 31 December 2002: s 36(1) Interpretation Act 1987 (NSW).

48 The respondent’s summary of argument relied upon the fact that the application had been forwarded on 2 January 2003 albeit without the filing fee and submitted that the Registrar had acted within power in not accepting the application on that day. When the filing fee was provided on 7 January 2003, the summary of argument continued, it was out of time and the Registrar correctly refused to file it without leave.

49 Having drawn attention to the proposition that the appellant’s case had always been that neither leave or a motion was required, the respondent submitted that Delaney DCJ had turned his mind to the relevant factors to consider the application with which he was dealing. The respondent submitted that Delaney DCJ had properly exercised his discretion because the appellant had failed to provide an explanation which was “both satisfactory and pertinent to a conclusion that justice would be best served by granting the application.”

50 In response to Mr Campbell SC’s application to rely upon a point of law, Mr Perry referred to Multicon Engineering Pty Limited v Federal Airports Corporation (1997) 47 NSWLR 631 in which Mason P (with whom Gleeson CJ and Priestley JA agreed on this point) observed:

“A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional. This is because it remains a question of whether the appellate court ‘may find it expedient and in the interests of justice to entertain the point’.” (at 645)

51 Mr Perry submitted that it was not expedient for this Court to consider the point of law. He did not elaborate on that submission.

The point of law: leave to argue

52 In Water Board v Moustakas (1988) 180 CLR 491 at 497 Mason CJ, Wilson, Brennan and Dawson JJ said that where a new point was raised on appeal, a court of appeal “may find it expedient and in the interests of justice to entertain the point”.

53 In Multicon Mason P found (at 646) that it would not be “in the interest of justice” to permit Multicon to argue a new point on appeal because that would:

“… permit Multicon Engineering to repudiate on appeal the stance it adopted at all stages of the trial.”

His Honour’s remarks were made in the context of Multicon’s appeal from Rolfe J’s decision to adopt a referee’s report prepared after a hearing of 205 sitting days during which 12,500 pages of transcript and 6,590 pages of final submissions had been advanced. The adoption hearing itself had taken 9 sitting days.

54 All things are relative. In this case consideration must be given to the fact that the appellant’s motion proceeded over 3 separate days before Delaney DCJ before ultimately failing. A reading of the transcript, however, demonstrates that each of the 3 “hearings” was brief – the longest possibly taking 15 to 20 minutes of Court time on the last day. While the point in issue involves a matter of practice and procedure, its resolution effectively involves the final determination of the case.

55 Further, the point of law sought to be argued should have been as apparent to the respondent’s legal representatives and the trial judge as it was to the appellant once senior counsel came into the matter, and as it was to this Court upon a perusal of the Arbitrator’s Award and the District Court Rules.

56 Finally, the proposition that time did not commence to run unless the date of sending was endorsed on the Arbitrator’s Award, raised by the proposed point of law, was fundamental to each step which has been taken in this case since 2 January 2003. There is no evidence before the Court as to what influenced the Registrar of the District Court in determining when, in that officer’s view, time for filing the rehearing application had elapsed. It might safely be assumed, however, that that determination was made by reference to the date the award was sent (3 December 2002) albeit that that date had not been endorsed on the Arbitrator’s Award. If that officer had paid due regard to Part 51A r 9(5) it would, one might have hoped, have been immediately apparent that time had never commenced to run.

57 The point of law goes to the heart of these proceedings. Having regard to its fundamental nature, it is in my view both expedient and in the interests of justice that it be considered.

The point of law: determination

58 The question, therefore, is whether time commenced to run for the purposes of s 63A(5) and Pt 51A r 10 if the Registrar failed to endorse the date of sending on the award?

59 Mr Campbell SC submitted that when regard was had to the legislative purpose enshrined in Part 51A r 9(5) of the District Court Rules, it was apparent that time could not commence to run for the purpose of the filing of an application for rehearing unless there had been strict compliance with the requirement that the date of sending be endorsed on the Arbitrator’s Award.

60 Mr Perry submitted that it was sufficient for the purposes of Part 51A r 9(5) that there was substantial compliance with the rule. He submitted there had been substantial compliance because the Arbitrator’s Award had been sent under cover of a letter dated 3 December 2002.

61 In order to determine the true nature of the direction to the Registrar in Part 51A r 9(5) it is essential to determine whether it was the purpose of the legislation that the Registrar was under a duty or was obliged to endorse the date of sending on the award, or whether the Registrar had a discretion whether the date was so endorsed or could substantially comply with the rule by attaching the award to a dated letter.

62 In order to determine the point of law it is necessary to look at the subject matter of the legislation and the importance of the provision that has been disregarded having regard to the object of the Act: Howard v Bodington (1877) 2 PD 203 at 211.

63 The language of the rule in my view indicates that it imposes a duty on the Registrar to endorse the date of sending on the award. It says the Registrar “shall” send the award to the parties on which “he has endorsed the date of sending and the Registrar’s notice in the approved form.” The mandatory “shall” is equally apt to extend to the act of endorsement as well as the act of sending.

64 The approved form provides for the insertion of the “date of sending” and gives notice of when the award will become an enforceable judgment by reference to “28 days of the above date of sending by the court.”

65 The notion of substantial compliance is referred to in s 80 of the Interpretation Act 1987 (NSW) which provides:

“(1) If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.
(2) If a form prescribed by, or approved under, an Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information.”

66 In my view these provisions do not assist the respondent however because it was rule 9(5) which required the date of sending to be endorsed on the award, rather than Form 141.

67 Endorsing the date of sending on the award is of great significance. The date signals the commencement of the period of grace at the conclusion of which, failing a rehearing application, the award will be deemed, by virtue of s 63A(5), to be a judgment or order of the Court: Part 51A r 10. Section 18A(1) of the Arbitration (Civil Actions) Act 1983 makes plain that an application for a rehearing must be made before the award becomes enforceable as a judgment or order of the Court: see El Ali v Government Insurance Office of New South Wales per Kirby P (at 308G). Once the award becomes a judgment it determines the rights of the parties. As Kirby P pointed out in El Ali v Government Insurance Office of New South Wales (at 308G) such a judgment may only be set aside in the limited circumstances provided by the District Court Rules.

68 The expiration of the period of grace for the making of a rehearing application is analogous to the expiration of the time to appeal against a judgment. The consequence of the expiration of that time, in this case, is that the respondent would have a “vested right to retain the judgment” unless an application to extend the time within which the rehearing application may be lodged was granted: Gallo v Dawson (1990) 64 ALJR 458 at 459 per McHugh J.

69 The importance of requiring the date of sending to be endorsed on the award is plain. The endorsement notifies the beneficiary of a favourable award of the precise time by which, subject to any rehearing application, that award will be deemed to be and be enforceable as, a judgment. On the other hand, the endorsement notifies the party aggrieved by the award of the period within which an application for a rehearing must be made to avoid suffering a final judgment or order: s 81 District Court Act. Finally the endorsement on a copy of the award presumably retained by the Registrar provides the information required as a reference point to calculate when the award becomes a judgment or order of the Court: s 63A(5), Pt 51A r 10.

70 In my view, a judgment obtained where the Registrar had failed to endorse the date of sending on the award would fall within the class of judgments which had been irregularly obtained, which the court would be bound to set aside: Anlaby v Praetorius (1888) 20 QBD 764 at 769; KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village v Chilcott (2001) 51 NSWLR 516 at 521 – 523.

71 In the latter case, Sheller JA (with whom Ipp and Grove A-JJA agreed) referred approvingly to Hamp-Adams v Hall [1911] 2 KB 942 in the following terms:

“In Hamp-Adams v Hall, referred to in Daniell, the writ was served but the date of service was not endorsed on it within three days as required by the rules. The plaintiff signed judgment in default of appearance and a verdict for damages was given by a Sheriff's jury. It was held that non-compliance with the rules which required due endorsement of the date of service was not an irregularity which could be waived and that the plaintiff not having complied with the rule was not entitled to proceed by default and the verdict and judgment must be set aside. Vaughan-Williams LJ said at 943 that the result of the non-compliance with the rule was that there was no writ on which the plaintiff was entitled to proceed. Lindley LJ said at 398 that the question was ‘whether the order for substituted service was a nullity, rendering all that was done afterwards void or whether it was only an irregularity.’ "

72 Failing to comply with the time limited to make a rehearing application imposes the severe consequence of a final judgment on the party aggrieved by the award. It was essential, therefore, that there be strict compliance with the rule requiring that the date of sending be endorsed on the award.

73 I conclude, therefore, that the consequence of the Registrar not endorsing the date of sending on the award was that the period of 28 days contemplated by Part 51A r 10 did not commence to run. Accordingly, the Registrar of the District Court erred in refusing to accept the rehearing application for filing when on 7 January 2003 the filing fee was finally received. Delaney DCJ also erred in not determining that the time for the rehearing application had not expired. That would have been apparent had his Honour examined the award.

74 In the event that he succeeded on the point of law, Mr Campbell SC asked the Court to declare that the application for rehearing should be taken to have been lawfully filed on 7 January 2003. In my view that declaration should be made.

75 What I have said is sufficient to dispose of the proceedings. I would, however, make the following further observations having regard to the manner in which the matter was conducted below.

Exercise of discretionary powers

76 In Cropper v Smith (1884) 26 Ch D 700 at 710, Bowen LJ said:

"…[I]t is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy…."

77 In El Ali v Government Insurance Office of New South Wales (1988) 15 NSWLR 303 the Court of Appeal held that Part 3 r 2 of the District Court Rules 1973 empowers the District Court to extend the time pursuant to which a person aggrieved by the award of an arbitrator may apply for a rehearing under the Arbitration (Civil Actions) Act 1983.

78 Both Kirby P and Mahoney JA emphasised that the Part 3 r 2 power is intended to remedy the injustice which would flow if, by virtue of human frailties, time periods were overlooked. Thus, Kirby P said (at 309):

“Every judge and practitioner knows that mistakes can occur which are no fault of the hapless litigants. Staff can fall ill. They can misfile or mislay documents. Messages as to time limits can become confused or misunderstood. The intervention of holiday periods, as in the present case, can lead to an unintended failure to comply with a time limit which is generally enforced. Time limits must be respected and enforced. But the administration of justice has come a long way since, in the nineteenth century, such rigidity, inflexibly applied, frequently caused substantial injustice.”

79 Mahoney JA observed (at 312):

“It is common experience that, notwithstanding that proper care is taken, time limits are overlooked or cannot in the instant circumstances be complied with; and it is equally common experience that, through lack of common care they are not observed. From either of these injustice may flow. And it would be understandable if the legislature intended that there should be available a means by which, used with appropriate care, such justice could be avoided.”

80 The continuing relevance of these remarks was emphasised by the High Court in State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154. Dawson, Gaudron and McHugh JJ observed that nothing the High Court said in Sali v SPC Ltd (1993) 67 ALJR 841 sanctioned any departure from the principles established in Cropper v Smith, commenting:

“… The ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

81 These principles should have been adverted to in the present case. It should have been apparent to anybody who gave it a moment’s thought that the appellant’s solicitor was proceeding on the mistaken belief that the time period in which the rehearing application had to be filed was governed by Pt 51 r 11 of the District Court Rules rather than Pt 51A r 10. Even if that had not dawned upon the respondent’s legal representatives or Delaney DCJ, both should in my view have had at the forefront of their consideration of the matter, once they appreciated that the rehearing application had first been filed on 2 January 2003 and then followed up with a filing fee on 7 January 2003, that the appellant’s solicitors had made a mistake concerning the time of filing of the rehearing application. This mistake, at worst, translated into a slip of 1 working day to 2 January 2003 when the application was filed and 6 days to 7 January 2003 when the oversight concerning the filing fee was realised.

82 The respondent never sought to point to any prejudice flowing from the time the rehearing application was filed. It must have been obvious there had been a comparatively minor slippage during a holiday period. In those circumstances, in my view, even if they had not identified the point of law or appreciated the appellant was proceeding under a mistaken belief as to the applicable rule, the respondent’s solicitors should have had the principles of Cropper v Smith at the forefront of their consciousness. They should have advised their client that it was probable that a Court would, having regard to the interests of justice, grant relief which would correct the appellant’s mistake.

83 Equally, too, Delaney DCJ should have apprehended the misapprehension of the rules under which the appellant’s solicitor was labouring from the repeated references to Part 51 r 11. He may then have understood that the appellant’s solicitor was making a genuine, albeit misguided, attempt to explain the timing issues.

84 Instead, like ships passing in the night, Delaney DCJ continued to insist on an explanation for a “delay” which the appellant’s solicitor, mistakenly but transparently, believed had not occurred.

85 Delaney DCJ’s reasons were brief. They did not demonstrate any familiarity with Cropper v Smith. They do not examine the history of the matter or undertake any examination of the interests of justice. As I have already observed, the award was never inspected, leading to the matter proceeding on a false premise that time had commenced to run. Even then, it is not clear Delaney DCJ ever knew precisely when that time had started, let alone expired. He clearly never understood the appellant’s solicitor’s mistaken belief. He seems to have decided that no adequate explanation had been given because he concluded the appellant’s solicitor had left it until the twenty-eighth day to decide to file the application. It is apparent Delaney DCJ never came to grips with the case with which he was dealing. While the pressures of a busy applications list in the District Court must be appreciated, complete and careful consideration of findings are important to the decision-making process.

86 In my view, Mr Campbell SC’s submission that Delaney DCJ misapprehended the facts and acted on a wrong principle is correct. The delay was explained: the appellant’s solicitor had mistaken the time within which the rehearing application had to be filed because of her mistaken belief about the relevant rule.

87 Mr Perry submitted that Delaney DCJ correctly applied El Ali, in requiring substantial reasons to disturb the judgment deemed entered pursuant to s 63A(5).

88 In El Ali Kirby P was not laying down a rule of law or, in my view, intending to impose any limits on the availability of discretionary relief in a case where mistakes have been made.

89 In any event, on one view, Delaney DCJ had before him “substantial” reasons to explain the problem with which he was dealing. True it was those reasons demonstrated a complete misapprehension of the rules on the part of the appellant’s solicitors, but as Bowen LJ said as long ago as 1884:

“The object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases …”.

Conclusion

90 This case reflects poorly on the administration of justice in this State.

91 No one doubts that cases may turn on fine legal points. Parties are entitled to engage in legitimate forensic tactics to advance their clients’ interests. The legitimacy of these manoeuvres must, however, be placed in proper context, which includes the fundamental principle enunciated in Cropper v Smith that Courts will in the interests of justice correct any kind of error or mistake. Practitioners would do well, too, to recall the lucid criticisms by Heydon JA and Young CJ in Eq in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at [20] – [32] and [40] – [46] concerning the culture of litigation by ambush. Although those remarks were made in the context of an application to extend a limitation period, in my view they have general application. Of particular significance in the present context is Young CJ in Eq’s observation (at [42]):

“In the District Court, which is supposed to provide justice in smaller cases with less technicality, there is little room for people gaining for themselves forensic advantages.”

92 The starting point is that the appellant’s solicitor failed, from the outset, to refer to the correct District Court rule. Thereafter the respondent’s solicitors capitalised on that mistake. No case has ever been advanced on behalf of the respondent that the time when the rehearing application was filed had, in any way, prejudiced her, or that any extension of the time within which the rehearing application could be filed (assuming for present purposes that the point of law was not open) would have that effect.

93 It is true that if leave was required, the burden of securing the benefit of such an order lay on the appellant. It is extraordinary, however, having regard to the brevity of time which had apparently elapsed before the rehearing application was in fact filed, that common sense did not prevail so that the orders sought in the appellant’s original Notice of Motion were made by consent.

94 Furthermore, the Registrar of the District Court erred twice: first in failing to endorse the date of sending on the Arbitrator’s Award and, secondly, when considering whether to accept the rehearing application for filing, in not realising that that endorsement had not been made so that the time to file the rehearing application had never started to run. The Registrar wrongly refused to accept the rehearing application.

95 Finally, it is of concern that although the matter was before Delaney DCJ on three separate occasions, the correct District Court rule was never drawn to his Honour’s attention and his Honour apparently overlooked it. Further it does not appear that his Honour examined the award. Had he done so he should have realised the date of sending had not been endorsed on it. Secondly, he did not, in reading the three affidavits, discern the manifest error under which the appellant’s solicitor was labouring in seeking to persuade him that, in truth, the rehearing application was not out of time. A check of the District Court Rules would have revealed the reference to Part 51 r 11 in those affidavits to have been an error.

96 In Shepherd v Shepherd [2003] ANZ ConvR 401; [2003] NSWCA 44 at [37] Sheller and Beazley JJA criticised the manner in which the hearing in that case had taken place before Delaney DCJ on the basis that the transcript suggested that there had not been a proper hearing. This, their Honours stated, led to his Honour being denied both the benefit of the evidence being advanced in an orderly fashion and the benefit of argument about important issues. The consequence was that the parties had incurred considerable costs. Their Honours stated:

“Parties who take matters to the District Court should expect a proper hearing and a considered judgment. Anecdotally, it is said that District Court lists are heavy and there is pressure on the judges to get through the cases. However, these considerations must never be allowed to deny parties the opportunity for a full and fair hearing of their grievances. If they are denied that opportunity, the rule of law is seriously undermined.”

97 See also Green Leisure Group Pty Ltd v Maguire [2001] NSWCA 384 at [32]; Falconer v Laird [2003] NSWCA 114 at [67].

98 Shepherd v Shepherd was delivered three weeks after Delaney DCJ’s judgment in this case. Their Honours’ remarks are equally apposite to the manner in which Delaney DCJ dealt with the appellant’s application. While efficiency in the administration of justice should be encouraged at all stages, its pursuit is frustrated if, as appears to have occurred in this case, haste obscures the real issues.

Costs

99 These remarks provide little solace to the litigants themselves. The outcome of this case is that costs, probably in substantial amounts, have been run up which should, in my view, never have been incurred.

100 In my view, the appropriate order for costs is that the respondent should bear the costs of the appeal, including the application for leave to appeal, but have a certificate under the Suitors’ Fund Act if otherwise qualified.

101 In the event that the respondent does not qualify for such a certificate or that reimbursement from that Fund is insufficient, then in my view it would be intolerable, absent special circumstances, that the respondent should bear the costs which have flowed from her solicitor’s attitude to the appellant’s motion.

102 The “special circumstances” I contemplate are that the respondent’s solicitors had fully explained to the respondent the probable success of the appellant’s application and had received express instructions, nevertheless, to oppose the appellant’s motion.

103 In my view, in the event the respondent’s solicitors seek to recover any of the costs of this application from the respondent personally, they should provide the respondent with a complete copy of this judgment and explain to the respondent the significance of these remarks.

Law reform

104 Finally I note that s 63A(5) of the District Court Act should be amended to refer to s 18A of the Arbitration (Civil Actions) Act 1983.

Orders

105 I propose the following orders:

1. Grant leave to appeal.

2. Subject to filing the notice of appeal within 14 days, appeal allowed.

3. Declare that, subject to the appellant paying the prescribed fee for a rehearing within 14 days of this judgment, the appellant’s application for rehearing is taken to have been lawfully filed on 7 January 2003.

4. Respondent to pay the costs of the appellant and have a certificate under the Suitors’ Fund Act if otherwise qualified.

5. The costs of the application before Delaney DCJ are to be the appellant’s costs in the District Court proceedings.

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Last Modified: 03/31/2004