NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v WILLIAMS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 5 July 1996, 5 July 1996 [1996] NSWCA 396 APPLICATION FOR LEAVE TO FILE STATEMENT OF CLAIM — FAILURE OF JUDGE TO EXERCISE DISCRETION — ERRONEOUS REASONS FOR DECISION Clarke JA This appeal is brought from a decision of his Honour Justice Dunford given on 15 December 1994 in which his Honour extended the time for filing a statement of claim to 1 February 1995. The facts are complex, mainly because of the extraordinary history of the development of the Motor Accidents Act and its predecessor in New South Wales. It is sufficient for present purposes to observe that it was necessary for the respondent to seek the leave of the Court to commence proceedings pursuant to s52(4) of the Motor Accidents Act 1988. His application was heard initially by Master Malpass. In a careful reserved judgment, the learned Master ordered that the summons be dismissed, having refused the application for leave. He made a consequential costs order. The respondent then appealed to the Common Law Division and his appeal was heard by Justice Dunford. The matter first came before his Honour on 16 September 1994 when his Honour adjourned the case to 2 December because, broadly, of the unsatisfactory nature of the material upon which he was asked to consider the appeal. His Honour then heard the appeal on 2 December 1994 and at the end of the hearing dismissed it and confirmed the Master's decision. His Honour took the view that there was no proper basis upon which the appeal could be allowed. It would seem that his Honour had second thoughts about the matter, for he had it listed before him again on 15 December 1994 and on that occasion it was said: "T remained unhappy as I was concerned that the plaintiff's case had not been fully presented and I accordingly listed the matter again for today. The same situation prevails. There has been no proper argument on any occasion on behalf of the plaintiff as to whether the defendant that is left in the proceedings can be sued by the plaintiff in respect of this accident." His Honour then referred to helpful written submissions given by the present appellant and said there were no detailed submissions on behalf of the respondent and went on to say: "Tn these circumstances I am reluctant to shut the plaintiff out if he does have a claim which he genuinely wishes to pursue. There is some explanation for his failure to commence the proceedings earlier, which was referred to in the Master's judgment. Some indication from an officer of the defendant, which lulled him into a sense of lack of urgency in the matter, but at the end of the day Iam not sure whether he really wants to pursue this action. I therefore make an order that will preserve his rights but will ensure that the matter is not entitled to drag on indefinitely." 2 UNREPORTED JUDGMENTS Accordingly his Honour withdrew his previous order and allowed the appeal from the Master and made the order which had originally been sought by the respondent. It is plain that his Honour did not exercise the discretion which he was required to exercise under the relevant statutory provision and that the reasons for his order are erroneous. When the case was called on for hearing the Court asked counsel for the respondent whether he could support the order in the light of the reasons given and counsel indicated that he could not. He was asked then whether there was any other basis upon which this Court could properly decline to uphold the appeal and again he was unable to proffer any submissions. The reality of the position is that while counsel did not consent to the appeal being allowed he could, for reasons well understood, offer no opposition to that course being taken. It is clear to me, as I have said, that his Honour failed to exercise his discretion, that his judgment was erroneous and that he was in error in setting aside his earlier order given after a proper consideration of the factual material and arguments addressed to him. In the circumstances I propose that the appeal be allowed, the order of Justice Dunford of 15 December 1994 be set aside, and that the order of the Master be re-instated. The respondent should pay the appellant's costs of the appeal and of the proceedings before Justice Dunford and the learned Master. The respondent should have a certificate under the Suitors Fund Act in respect of the costs of the appeal to this Court. Meagher JA Yes, I agree. Handley JA I also agree. Clarke JA: The orders of the Court will be as I have indicated. Appeal allowed, the order of Justice Dunford of 15 December 1994 set aside, and that the order of the Master re-instated. The respondent to pay the appellant's costs of the appeal and of the proceedings before Justice Dunford and the learned Master. The respondent should have a certificate under the Suitors Fund Act in respect of the costs of the appeal to this Court. Counsel for the appellant: K Andrews Solicitors for the appellant: Turner Whelan Counsel for the respondent: P Mansfield Solicitors for the respondent: Dennis and Co