DR BRUCE HARDING v GWEN BOURKE [2000] NSWCA 60

Reported Decision : [2000] 48 NSWLR 598

New South Wales Court of Appeal

CITATION : DR BRUCE HARDING v GWEN BOURKE [2000] NSWCA 60 FILE NUMBER(S) : CA 40424/99 HEARING DATE(S) : 3 March 2000 JUDGMENT DATE : 23 March 2000

PARTIES : DR BRUCE HARDING v GWEN BOURKE JUDGMENT OF : Mason P at 1; Meagher JA at 31; Heydon JA at 32

LOWER COURT JURISDICTION : District Court LOWER COURT DC 8440/95 FILE NUMBER(S) : LOWER COURT Naughton DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: C G Gee QC/D J Hooke Respondent: K Pryde SOLICITORS : Appellant: Colin Biggers & Paisley Respondent: Schrader & Associates CATCHWORDS : District Court - deemed dismissal of action for non-filing of a praecipe for trial - validity of Pt 12 r4C District Court Rules - Court discretion to dispense with District Court Rules - discretion to extend time conferred by Pt 3 r2 District Court Rules - D DECISION : Appeal allowed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40424/99 DC 8440/95

MASON P MEAGHER JA HEYDON JA Thursday 23 March 2000 DR BRUCE HARDING v GWEN BOURKE In November 1995 the respondent commenced an action in the District Court claiming damages for medical negligence. A notice of grounds of defence was filed by the appellant in February 1997. Neither party thereafter filed a praecipe for trial or took any other step to set the action down for trial. Under the recently amended r4C in Part 12 of the District Court Rules, failure to file a praecipe by 1 January 1998 deemed the respondent's action dismissed. No application to rescind the dismissal was filed by 1 July 1998, the deadline specified in r4C(4). In May 1999, the respondent moved the District Court for leave to file a praecipe for trial and for other relief against the deemed dismissal of the action.