MILENA UGRENOVIC v SINISA JOVANOVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS JA 18 September 1989 [1989] NSWCA 217 Samuels JA This is a notice of motion in which the plaintiff in the proceedings in the District Court seeks an extension of time in which to lodge an appeal against orders made by his Honour Judge Urquhart in the District Court at Parramatta. The facts, shortly, are these: The solicitor for the plaintiff (as I will call her) attended a pre-trial conference on 3 December 1987 at which the matter was set down for hearing on 19 October 1988. Following that pre-trial conference the solicitor sent letters both to the plaintiff and to the defendant informing them of the hearing date. There is evidence before me that the plaintiff had been involved in previous legal proceedings in which apparently she sustained an adverse result, so that it cannot be said that she was entirely a stranger to the forensic arena. The solicitor says - and I have no reason to reject his evidence which was accepted by the learned judge - that unfortunately, although he noted the date of hearing on the file, he did not put it in his diary. Time went by and, in the ordinary course, pre-trial medical examinations were arranged and took place. Hence during September 1988, not long before the date fixed for hearing, there was the usual degree of medico-legal activity. By letters of 12 and 21 September 1988 the Government Insurance Office on the defendant's behalf served on the solicitor medical reports of doctors whom the plaintiff had seen, and, under cover of a letter of 12 September, the solicitor sent to the defendant medical reports upon which the plaintiff intended to rely. On 26 September 1988 a follow-up medical examination took place and the report of that doctor was sent to the defendant under cover of a letter of 6 October. However, this activity apparently completely failed to jog the solicitor's memory and, despite the presumption that the file was constantly under attention, the date which is said to have been put on that file was never noticed. On 19 October 1988 the solicitor did not appear at court, and, of course, counsel did not appear, since counsel had not been briefed. No doctors appeared because no doctors had been subpoenaed. What is perhaps more mysterious is that the plaintiff did not appear. The plaintiff, as I have said, had been informed of the hearing date. There is no evidence of any kind from the plaintiff and no material which enables me to know or to infer why it was that the plaintiff did not appear at court. Moreover, it seems strange to me that during the flurry of medico-legal activity before the hearing date there was no contact between the plaintiff and the solicitor. One would have thought that the plaintiff, particularly as she had some experience of litigation, would have been in contact with the solicitor to ascertain arrangements for the trial, perhaps indeed to enquire who had been briefed and whether she was to see the barrister. It turns out that it was not until April 1989 that the solicitor found out that the matter had been listed and struck out on 19 October 1988. 2 UNREPORTED JUDGMENTS Thereafter the solicitor moved under Pt26 r5B(2) for an order reinstating the action. This came before his Honour Judge Urquhart on 31 July 1989 and his Honour dismissed the application. There is an affidavit filed on behalf of the defendant which contains a note of his Honour Judge Urquhart's judgment, the accuracy of which is not in contest. It appears from that that the learned judge was aware that an order dismissing the action might very well have serious consequences, bearing in mind the running of the statute of limitations, but he was of the view that the plaintiff nonetheless would not be left without a remedy. The notice of appeal was filed on 27 August 1989 and, of course, although within time so far as the order of 31 July is concerned, it was quite out of time so far as the earlier order is concerned. The defendant cannot point to any prejudice save on two grounds. One concerns a question of costs which can be compensated for. The other is that this incident which gave rise to the action took place in, I think, 1982. If the matter is reinstated and comes again for trial a further period will have gone by. I think that is prejudice which the defendant is entitled to raise. But what concerns me most of all is that I simply do not know why it was that the plaintiff did not appear at the trial, a matter left quite unexplained. That leaves me unsatisfied as to the circumstances under which this alleged error occurred, and I do not consider that the claimant has established any title to relief. In all the circumstances, I do not think that this is a case in which I should extend the time and the motion for that purpose is dismissed with costs.