New South Wales Court of Appeal 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 one relevant rule in the end which was Part 3 rule 2 of the District Court Rules which gave the Court a general discretion to extend or abridge any time fixed by the rules. He considered the claimant's position and application in the light of that rule. His conclusion was that he should not grant any indulgence to the claimant and he dismissed the claimant's motion. The result was that the deemed dismissal of the action remained in place. 7 The summons for leave in this Court sought leave so that an appeal could be brought against his Honour's decision. The basis of the application for leave was three-fold, that is, there were three reasons advanced in argument today in support of the application. I think it is fair to say that only one of these was relied upon by counsel for the claimant as being substantial. That was that his Honour had failed to exercise his discretion properly in refusing to grant the application for extension of time for filing the praecipe. 8 When the Court asked questions designed to find out what it was that his Honour was supposed to have got wrong in his reasoning reliance was placed on the fact that his Honour referred to a proposal on behalf of the claimant to amend the statement of claim, the proposed amended statement of claim containing additional allegations of negligence and many additional particulars of negligence. His Honour, in his reasons, said that the opponent was prejudiced because he had not had notice of the additional allegations until recently and we were told in argument those allegations were not brought to the notice of the opponent until some time after 1 July 1998, and his Honour went on to say that this matter, coupled with the unexplained delay, had resulted in the opponent being deprived of an opportunity to consider and investigate the additional allegations so he might be in a position to answer them. 9 The submission was his Honour had been wrong in taking this matter into account because it had not been put to him on behalf of the opponent that such a consideration should be taken into account in considering the prejudice to the opponent which would be caused if the application for extension of time were granted. 10 The Court is of the view that there was nothing incorrect in his Honour taking the particular matter into account. It had been raised, indirectly perhaps, but nevertheless clearly enough, in an affidavit filed on behalf of the opponent in which reference had been made to the eleven years that had then passed since the surgery the subject of the proceedings and the contention of the opponent that his recollection of the events the subject of the proceedings had diminished by reason of the passage of time. It seems to me quite plain that in the circumstances his Honour was entitled to take that aspect of prejudice into account. 11 This was the only matter of any substance pointed to on behalf of the claimant today as indicating error by the trial Judge in the exercise of his discretion. Since there is, in my opinion, nothing in that complaint and since nothing further was submitted as indicating any discernible miscarriage of the exercise of discretion by the trial Judge, the conclusion necessarily follows that the challenge to the exercise of discretion must fail. 12 As I said earlier, that was the substantial matter relied upon on behalf of the claimant. 13 The two other matters were, first, a submission that his Honour had not given proper reasons for his decision. The Court's view is that the reasons given were, in the circumstances of the case, quite sufficient and the submission on behalf of the claimant today to the contrary effect cannot be accepted. 14 The other matter mentioned as a ground of appeal if leave were granted was what was said to be an ultra vires argument. It was said that rule 4C of Part 12 was inconsistent with the Limitation Act in such a way as to make the making of the rules ultra vires, the rule making body in the District Court. 15 There does not seem to me to be any inconsistency between the parts of the Limitation Act which were referred to in argument, and the rule in question. The rule in question does not, of itself, put an end to the claimant's cause of action. The rule leaves it open for actions which became deemed to be dismissed pursuant to it to be revived in appropriate circumstances. 16 There was also a submission that there was some inconsistency between rule 4C and other rules of the District Court. Even if this were so, and I am not able to see that it is, that would not make the rule ultra vires. It would raise the question of construction, perhaps, of a number of rules which was not open today and which, it seems to me in any event, would be unlikely to lead to rule 4C being construed as meaning anything other than what it plainly says, so, in my opinion, each of the grounds relied upon by the claimant today fails and the summons for leave should be dismissed with costs. 17 MEAGHER JA: The claimant seeks to challenge the decision of his Honour Judge Downs in a discretionary judgment refusing to extend the time allowed by Part 12 rule 4C. This challenge must be rejected. Counsel for the claimant was unable to point to a single mistake either of fact or law in his Honour's judgment. I agree with the orders proposed by Priestley JA. 18 FITZGERALD JA: I also agree. 19 PRIESTLEY JA: The order of the Court will be summons dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.