William Weston v Paul Roch Howell [1999] NSWCA 414

New South Wales Court of Appeal CITATION : William Weston v Paul Roch Howell [1999] NSWCA 414 FILE NUMBER(S) : CA 040328/99 HEARING DATE(S) : Tuesday 2 November 1999 JUDGMENT DATE : 2 November 1999

PARTIES : A: William Weston R: Paul Roch Howell JUDGMENT OF : Stein JA at 1; Meagher JA at 25; Fitzgerald JA at 26

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 7767/97 LOWER COURT JUDICIAL OFFICER : Garling DCJ

COUNSEL : A: Mr GA Sirtes R: Mr B Slowgrove SOLICITORS : A: Deacons Graham & James R: Demmis & Company CATCHWORDS : dismissal of proceedings; whether dismissal granted on motion of parties or of the court; order made outside jurisdiction; court cannot ratify a nullity ACTS CITED : District Court Rules (1973) (NSW) DECISION : Appeal upheld; Order setting aside the orders made by Garling DCJ on 9th April and an order that the opponent pay the costs of the appeal and of the proceedings before Garling DCJ

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

040328/99

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 accepted that the appeal should be heard instanter. 2 The application relates to proceedings which appear to have been commenced in the Supreme Court in around 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, the material before us is not entirely clear as to when this occurred. It also appears that subsequent to the transfer, the plaintiff in the proceedings changed his solicitor and that caused some difficulties in the prosecution of his case. 4 The next thing to occur was, as his Honour notes in the judgment which is being attacked, that the defendant, who is the claimant before us, 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 material, that where the plaintiff makes default in compiling 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, the court may 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. There is no provision for the reinstatement of proceedings dismissed for want of prosecution as I understand it 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 before us, 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 and they 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 appeared for the plaintiff, asked on 16 July 1998 for an adjournment of the notice of motion to strike out for want of prosecution brought by the defendant. 8 The legal practitioner appearing for the defendant would not agree with this and sought that the motion, which his side had brought, be heard. It seems at that point of time the matter was stood down in the list, I assume because it couldn't be heard immediately but later in the day and one may reasonably assume that there were other matters in the list and the list was quite busy. The transcript of 16 July then shows that the matter came back before the court on that day, whereupon Mr Dennis said that it was now agreed that the motion be stood over for fourteen 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 fourteen 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 for what his Honour did later. He said: "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."