New South Wales Court of Appeal CITATION : Weston v Howell [1999] NSWCA 411 FILE NUMBER(S) : CA 40328/99 HEARING DATE(S) : 2 November 1999 JUDGMENT DATE : 2 November 1999 PARTIES : William Weston v Paul Roch Howell JUDGMENT OF : Meagher JA at 26; Stein JA at 1; Fitzgerald JA at 27 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 7767/97 LOWER COURT JUDICIAL OFFICER : Garling DCJ COUNSEL : G A Sirtes (Appellant) B Slowgrove (Respondent) SOLICITORS : Deacons Graham & James (Appellant) Dennis & Company (Respondent) CATCHWORDS : DISTRICT COURT - proceedings dismissed then re-instated - powers under District Court Rules to re-instate proceedings - Pt 18 r 3 - concurrent leave application ACTS CITED : District Court Rules; Pt 18 r 3, Pt 26 r 5B CASES CITED: n/a DECISION : Leave to appeal granted. Appeal upheld and order made by Garling DCJ on 9 April 1999 set aside IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40328/99 MEAGHER JA STEIN JA FITZGERALD JA Tuesday, 2 November 1999 William WESTON v Paul Roch HOWELL JUDGMENT 1 STEIN JA: This is an application for leave to appeal against a decision given by Garling DCJ in the District Court on 9 April 1999. As I understand it, if leave is granted, it is agreed that the appeal should be heard instanter. 2 The application relates to proceedings which appear to have been commenced in the Supreme Court in 1990, thereby indicating a matter of some antiquity. There appears to have been a record of some dilatoriness whilst the matter was within the Supreme Court, but that is neither here nor there for the purposes of the current application before the Court. 3 It seems that the matter was transferred from the Supreme Court to the District Court some time in late 1997 or early 1998, although the material before us is not entirely clear as to when this occurred. It also appears that subsequent to the transfer, the plaintiff changed his solicitor and this caused some difficulties in the prosecution of his case. 4 The next thing to occur was, as his Honour noted in the judgment under attack, that the defendant, who is the claimant before us, and who had according to his Honour been rather patient, moved the District Court by notice of motion dated 7 July 1998, filed on the next day and supported by an affidavit, for an order that the proceedings be dismissed for want of prosecution pursuant to Part 18 Rule 3 of the District Court Rules. That rule provides, so far as is material, that where the plaintiff makes default in complying with any order or direction as to the conduct of proceedings or does not prosecute the proceedings with due dispatch, the court may, on the application of any party or of its own motion (and I emphasise those last words to which I will return later) dismiss the proceedings. 5 Subrule 4 of Rule 3 of Part 18 provides that the court may, on application of any party, set aside an order that is made on the court's own motion under subrule 1. It is common ground that there is no provision for the reinstatement of proceedings dismissed for want of prosecution other than in the circumstances of the court acting on its own motion under Rule 3. 6 For completeness, it may be convenient to mention that there is another procedure under Part 26 of the Rules whereby the court has power under Rule 5B to strike out actions. This is a different procedure from the one in Part 18 which concerns dismissal of proceedings for want of prosecution. The strike-out of an action under Rule 5B of Part 26 is an order which there is room for the District Court to reverse or reinstate. 7 I mentioned that a motion had been taken out by the defendant in the proceedings (the claimant) to dismiss the proceedings under Part 18 Rule 3. That motion came before the court on 16 July 1998, before Garling DCJ. There was an appearance for both parties but the legal practitioner representing the plaintiff was clearly, from what he put to his Honour, in some difficulties in the proceedings. These seemed to relate to the provision of documents by way of discovery or an affidavit indicating why those documents were not able to be discovered. Mr Dennis, who then appeared for the plaintiff, asked for an adjournment of the notice of motion to dismiss for want of prosecution brought by the defendant. 8 The legal practitioner appearing for the defendant did not agree to this application and sought that the motion, which his side had brought, be heard. It seems that at this point of time the matter was stood down in the list, I assume because it could not be heard immediately. However, the transcript of 16 July then shows that the matter came back before the court, whereupon Mr Dennis said that it was now agreed that the motion be stood over for 14 days. Mr Dennis said that he had sought some instructions and he and the other side had come to an agreement that provided that the plaintiff would either provide the further discovery requested within 14 days or file and serve an affidavit about those documents. 9 His Honour then said, and I will quote it in full because it becomes of some significance to what his Honour did later: I am not standing it over for fourteen days, the matter can go over till 6 October at 11am and it's listed to show cause why the statement of claim of the defences shouldn't be struck out and we hand you a notice which must be very strictly complied with, please. 10 It seems that a notice was then handed to the parties. The notice provided, according to his Honour, the following, and I quote from the bottom of page 1 of his Honour's judgment of 9 April 1999: This matter is listed to show cause as to why the statement of claim, third party notice, cross-claims or any defence thereto should not be dismissed for want of prosecution. Should any party wish the court to consider any submissions, they should be placed in writing and filed and served at least five days prior to the directions hearing date. All parties are reminded that this is now a very serious matter and the orders of the court must be complied with. 11 Pausing at this point, it is important to understand what it was that was adjourned to 6 October 1998. Clearly the defendant's motion to dismiss the proceedings for want of prosecution was adjourned to 6 October 1998. It was a live motion, it had not been heard and the parties had by consent asked for it to be adjourned. Query whether also returnable on 6 October 1998 was his Honour's show cause directions hearing. 12 Be that as it may, it is then convenient to refer to what happened on 6 October 1998. 13 The transcript of that day is short and I will read it onto the record, because it is fairly crucial to this application. The transcript shows that there was no appearance for the plaintiff but Ms Raymond appeared for the defendant. His Honour said, 'Do you seek to have it struck out?', a question obviously directed to Ms Raymond since nobody else was present. It seems agreed that whether both the notice of motion and his Honour's directions were before the court on 6 October 1998, what was not before the court was any application under Part 26 Rule 5B to strike out. If we are to make sense of what his Honour's question was, we should read 'dismissed' for 'struck out'. This is acknowledged by the parties before us and was obviously the way in which Ms Raymond understood it because it is recorded that she said to his Honour 'Yes I do your Honour and I move on a notice of motion that was filed but it was returned on 16 July and has been stood over until today'. 14 If I may interpolate, this was completely right. It was obvious that there was before the court on that day the defendant's motion that the proceedings be dismissed for want of prosecution. It was also apparent, indeed crystal clear, that Ms Raymond was moving for a dismissal of the proceedings on that motion. 15 His Honour then said 'The matter is struck out pursuant to part A(2)'. It is agreed by both sides that his Honour actually said 'pursuant to part 18' and it was erroneously reproduced in the transcript. Ms Raymond replied 'yes', and his Honour said 'Rule 3'. It will be recalled from my reference to the rules that rule 3 provides that proceedings may be dismissed for want of prosecution either on the application of a party or on the court's own motion. His Honour then said 'Do you seek costs?'. Ms Raymond said 'Yes I do, your Honour'. His Honour said 'Plaintiff to pay defendant's costs'. Ms Raymond said 'Your Honour, are those orders made pursuant to the notice of motion or are they just costs of today?'. His Honour said 'No, no, they are costs of the case'. Ms Raymond said 'Thank you, if the Court pleases' and his Honour added 'In toto. It's actually - it is not struck out, it is dismissed. Dismissed'. 16 This was clearly correct, his Honour was dismissing the matter for want of prosecution, he was not striking the proceedings out under the other part of the rules to which I have referred. But it is also clear from the exchange about costs that in dismissing the proceedings for want of prosecution, his Honour was awarding the costs of the proceedings to the applicant on the motion, the defendant in the proceedings. 17 That was not the end of the matter of course, because there was then a motion by the plaintiff to reinstate the proceedings. As I have said, it is common ground that the proceedings could only be reinstated if they had been dismissed for want of prosecution on the motion of the court and not on the motion of a party. 18 His Honour gave judgment on 9 April 1999 and the important portions of it, so far as this application is concerned, are as follows. His Honour said that when the matter came before him on 16 July 1998 he stood the matter over for directions before him on 6 October 1998 and, at the same time, handed to the parties a notice entitled 'Matters Listed to Show Cause'. I have read onto the record the contents of that document taken from his Honour's judgment. His Honour went on to say that on 6 October 1998 when the matter came back before him, there was no appearance for the plaintiff and his Honour referred to the transcript which I have just referred to in some detail. His Honour observed that if it was an order made on the court's own motion, then he had power to review it. His Honour said: It seems quite clear to me that this was on the court's own motion. The reason I say that is this. On 16 July it was recorded that the defendant agreed not to pursue the notice of motion providing something was done. Now I know it was not done, however nothing further happens. I do not stand that notice of motion over until 6 October, in fact I take it into my own hands to direct that the court will consider whether or not the matter should be dismissed by handing out the notice. Therefore what I believe came before me on 6 October was the court's own motion. 19 With great respect to his Honour, I think that he was seeking to pull himself up by his own bootstraps, if I may use that expression, because what we must concentrate on is what was before the court on 6 October 1998 and what the record shows as to how the matter was dealt with. 20 It is apparent that what was before the court, and indeed drawn directly to his Honour's attention, was the defendant's motion. There is no mention whatsoever, in that very short transcript, of his Honour's directions being before the court, or of his Honour purporting in any way to act upon his own motion or directions to dismiss the proceedings for want of prosecution. Quite to the contrary. It seems that a fair reading of what happened on 6 October 1998 is that his Honour was proceeding on the notice of motion of the defendant and dismissed the proceedings pursuant to that notice of motion and no other motion, particularly one initiated by the court. 21 That being so, there is no means (as I understand it under Part 18) whereby the court can reinstate a proceeding dismissed under Rule 3. It follows subject to one other matter which I will mention, that his Honour was wrong to make the orders that he did on 9 April 1999. Leave should be granted to appeal from that order and the appeal should be upheld and the order set-aside. 22 The other matter I mention is that it was submitted by counsel for the opponent that the claimant was precluded from filing the summons in the Court of Appeal for leave to appeal because of the position it had taken before Fisher ADCJ. This is because the motion was then, as I understand it, heard by Fisher ADCJ on 23 April and 7 May 1999. His Honour refused to dismiss the proceedings for want of prosecution and made certain directions about the conduct of the proceedings. 23 It is submitted that the claimant has sought to approbate and reprobate and indeed made an election to pursue the District Court proceedings. Accordingly, it is submitted that he cannot now seek to pursue an application for leave to appeal. In other words, the claimant has sought to treat the order of Garling DCJ of 9 April 1999 as a valid order and it cannot turn around and purport to do the opposite. 24 For my part, I do not see that the claimant is precluded from pursuing this application for leave to appeal. I do not understand how it can be said that if the order made by Garling DCJ was a nullity and made without jurisdiction, as I find it was, that the claimant can ratify such an order. It seems to me that it was not unreasonable for the claimant to seek to have the motion dealt with by the District Court in the circumstances which had arisen, because if it had succeeded, it would be unnecessary to pursue the application for leave to appeal. That it seems to me, with respect, to make good sense and I do not see that the law dictates that the action taken by the claimant before Fisher ADCJ preclude the summons for leave to appeal. 25 In my opinion, leave to appeal should be granted and the appeal should be upheld and the order made by Garling DCJ on 9 April 1999 be set aside. 26 MEAGHER JA: I agree. 27 FITZGERALD JA: I agree that the order made dismissing the opponent's proceeding was made on the claimant's motion for dismissal for want of prosecution and with the reasons given by Stein JA for that conclusion. I add something briefly only on the last matter referred to by his Honour. 28 In my opinion the steps taken by the claimant subsequent to the order of which it now complains did not constitute a binding and irrevocable election not to appeal. Such steps might in some circumstances support a discretionary refusal of leave to appeal. It is unnecessary on this occasion to decide whether election or estoppel could ever operate to preclude a challenge to an order which was made without power by the District Court by the party against which the order was made. In this matter, given that the order was beyond power, the Court should not refuse leave to appeal or dismiss the appeal by reference to matters which are at most discretionary considerations. I agree with the orders proposed. 29 MEAGHER JA: Mr Sirtes, do you want any further orders than those proposed? 30 SIRTES: Your Honour, order 2 in the notice of appeal is the respondent to pay the appellant's costs of the appeal and the proceedings. I'd seek those orders in relation to costs. 31 STEIN JA: Do you also seek a specific order that the order made by his Honour on 9 April 1999 reinstating the proceedings be set aside? 32 SIRTES: Yes I do your Honour, I seek that order together with the order for costs. 33 FITZGERALD JA: Why should you have the costs of the proceedings before Fisher ADCJ? 34 SIRTES: Your Honour, for this reason. It's adverted to in the affidavit of my instructing solicitor, Mr Warton. It was entirely reasonable with respect to pursue that course for these reasons. 35 FITZGERALD JA: But you lost it and you haven't appealed from it. 36 SIRTES: We did, that's right your Honour, I can't cavil with that. In my submission in the circumstances it was an appropriate course to adopt for these reasons. 37 FITZGERALD JA: It doesn't matter, you lost it. 38 SIRTES: Yes but if we hadn't pursued the application, there was a possibility of course we would have won which would have obviated this appeal. It was lost, his Honour made no order, that's a discretionary matter for his Honour. In the circumstances, if your Honours are against me, in my submission there should be no order made in respect of what occurred before his Honour. 39 MEAGHER JA: I concede you're entitled to the costs of the proceedings before Garling DCJ. I find it very difficult to see how you should get the costs of the proceedings before Fisher ADCJ. 40 SIRTES: The highest I can put it is what was put to Fitzgerald JA, I can't take it any higher than that. 41 FITZGERALD JA: Apart from anything else, as you've just pointed out, Fisher ADCJ made no order as to the costs of those proceedings. You haven't appealed from that and you couldn't do so as I understand it without leave and yet you're effectively asking us to overturn it. 42 SIRTES: Your Honour, I can't put it any higher than I already have. 43 MEAGHER JA: The orders of the Court will be in addition to those proposed by Stein JA also an order setting aside the orders made by Garling DCJ on 9 April and an order that the opponent pay the costs of the appeal and of the proceedings before Garling DCJ. oOo 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.