New South Wales Court of Appeal CITATION : Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 FILE NUMBER(S) : CA 40522/00; 40060/00 HEARING DATE(S) : 8 August 2001 JUDGMENT DATE : 27 August 2001 Elizabeth Micallef (Appellant) PARTIES : ICI Australia Operations Pty Ltd (First Respondent) Fibremakers Australia Pty Ltd (Second Respondent) JUDGMENT OF : Sheller JA at 1; Heydon JA at 2; Studdert AJA at 96 LOWER COURT JURISDICTION : District Court LOWER COURT DC 10710/97 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER : G T W Miller QC/M G McHugh (Appellant) COUNSEL : J N West QC/G B Evans (First Respondent) P J Deakin QC/N Newton (Second Respondent) G H Healey & Co - Glebe (Appellant) SOLICITORS : N W Aussel (First Respondent) Pricewaterhousecoopers Legal (Second Respondent) CATCHWORDS : Civil Practice and Procedure - Dismissal for want of prosecution - Whether exercise of discretion of District Court Judge to strike out proceedings miscarried - Circumstances when appellate court will allow appeal against interlocutory judgment on practice and procedure - Where three District Court orders to file updated particulars were breached by plaintiff who failed to file the particulars by the dates specified in the orders - District Court Rules 1973 (NSW), Part 18 rule 3(1) - D Arbitration (Civil Actions) Act 1983 LEGISLATION CITED : District Court Act 1973 Supreme Court Act 1970 Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 Australian Iron and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Birkett v James [1978] AC 297 House v R (1936) 55 CLR 499 Jackamarra v Krakouer (1998) 195 CLR 516 CASES CITED: Lovell v Lovell (1950) 81 CLR 513 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Sali v SPC Ltd (1993) 67 ALJR 841 Stollznow v Calvert [1980] 2 NSWLR 749 Wentworth v Rogers (No 3) (1968) 6 NSWLR 642 Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 DECISION : See paras 94 and 95 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40522/00 CA 40060/00 DC 10710/97 SHELLER JA HEYDON JA STUDDERT AJA Monday, 27 August 2001 ELIZABETH MICALLEF v ICI AUSTRALIA OPERATIONS PTY LTD and FIBREMAKERS AUSTRALIA PTY LTD Civil Practice and Procedure - Dismissal for want of prosecution - Whether exercise of discretion of District Court Judge to strike out proceedings miscarried - Circumstances when appellate court will allow appeal against interlocutory judgment on practice and procedure - Where three District Court orders to file updated particulars were breached by plaintiff who failed to file the particulars by the dates specified in the orders - District Court Rules 1973 (NSW), Part 18 rule 3(1) On 3 April 1989 the plaintiff (the appellant before the Court of Appeal) filed a Statement of Claim in the Common Law Division of the Supreme Court alleging that she suffered injuries as a result of her former employment with the defendants (the first and second respondents to the appeal). On 9 June 1995 a Registrar made directions requiring the plaintiff to file particulars by 14 July 1995. There was delay in compliance. On 2 and 24 June 1997 the first defendant's solicitor complained by letter to the plaintiff's solicitor about a lack of updated particulars and threatened to apply to have the proceedings struck out. On 3 December 1997 the proceedings were transferred to the District Court. A District Court Registrar ordered the plaintiff to provide updated particulars within two months of 25 March 1998. She did not provide the particulars. On 25 August 1998 the defendants formally complained to an Assistant Registrar and the plaintiff was further ordered to provide updated particulars by 1 October 1998 and the matter was listed for hearing on 8 October 1998 for the plaintiff to show cause why the proceedings should not be dismissed for want of prosecution. The parties were given a "show cause information sheet" which stated that dismissal would be the subject of "serious consideration". She did not provide the particulars. At the 8 October "show cause" hearing, the plaintiff was not asked to show cause, and the matter was fixed for arbitration on 1 February 1999. On 20 November 1998 the first defendant moved a District Court Judge for vacation of the arbitration date on the basis of the plaintiff's failure to provide particulars. The judge made orders that the arbitration date be vacated and that the plaintiff file particulars within twenty-eight days. The judge gave a warning that if orders were not complied with, the court would list the matter for dismissal for non-compliance. The particulars were not filed within the time specified in the orders. The first defendant filed a Notice of Motion seeking dismissal of the proceedings for want of prosecution under Part 18 rule 3(1) of the District Court Rules. The proceedings were dismissed. Part 18 rule 3(1) provides: "Want of Prosecution Where a plaintiff makes a default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any party or of its own motion, dismiss the proceedings or make such other order as the Court thinks fit" Held by Heydon JA (Sheller JA and Studdert AJA concurring), dismissing the appeal: 1. A discretionary judgment on a matter of practice and procedure can only be overturned in five limited circumstances, none of which were demonstrated to exist in this case. These circumstances only exist when it is demonstrated that the decision-maker: a. made an error of legal principle; b. made a material error of fact; c. took into account some irrelevant matter; d. failed to take into account or gave insufficient weight to, some relevant matter; or e. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. House v R (1936) 55 CLR 499; Lovell v Lovell (1950) 81 CLR 513; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, applied. Stollznow v Calvert [1980] 2 NSWLR 749, discussed and applied. 2. It was not demonstrated that the judge made an error of legal principle. a. The judge did not dismiss the plaintiff's case in order to deter other lawyers from disobeying court orders in the future. b. The judge could not have vicariously attributed wrongdoing of the plaintiff's solicitors to the plaintiff, since no evidence was tendered on the subject of whether the plaintiff personally or her solicitors were at fault. c. The English authorities relating to the exercise of a discretion to dismiss proceedings for default do not form part of the law of New South Wales so far as they restrict the exercise of the discretion. Birkett v James [1978] AC 297, not followed. Stollznow v Calvert [1980] 2 NSWLR 749, discussed and applied. 3. It was not demonstrated that the primary judge made a material error of fact that was operative and of sufficient substance to justify setting aside the exercise of discretion. 4. It was not demonstrated that the primary judge failed to take into account or give sufficient weight to relevant matters. "It is not legitimate to criticise a primary judge for not taking account of matters not drawn to his attention" (Heydon JA at [83]). 5. There was no unreasonable or unjust result. a. The fact that the order led to the plaintiff's case being dismissed without ever being heard on the merits, does not necessarily mean that the order was unreasonable or unjust. Part 18, r 3(1) contemplates such a result. b. There was no additional component in this case to create an unreasonable or unjust result. Although the plaintiff eventually provided the ordered particulars, they were not provided within the times specified in the various orders. The defendants had voiced complaint on numerous occasions, the proceedings had been previously listed for a "show cause" hearing, the plaintiffs had been previously warned by a Judge of the possibility of dismissal if orders were breached, and there could be no assurance that all pre-trial procedural steps had reached finality. Orders Appeal No 40522/2000 1. The appeal is dismissed. 2. The appellant is to pay the respondents' costs of the appeal. Appeal No 40060/2000 1. The appeal is dismissed. 2. The appellant is to pay the respondents' costs of the appeal. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40522/00 CA 40060/00 DC 10710/97 SHELLER JA HEYDON JA STUDDERT AJA Monday, 27 August 2001 ELIZABETH MICALLEF v ICI AUSTRALIA OPERATIONS PTY LTD and FIBREMAKERS AUSTRALIA PTY LTD JUDGMENT 1 SHELLER JA: I agree with Heydon JA. 2 HEYDON JA: These are two appeals against interlocutory judgments and orders of Garling DCJ. On 26 March 2001 the time within which to file Summonses seeking leave to appeal was extended, in one instance by well over a year. On the same day leave to appeal was granted. 3 One appeal is an appeal against the dismissal, on 12 March 1999, of the plaintiff's proceedings pursuant to Part 18 rule 3(1) of the District Court Rules, with costs. Garling DCJ made those orders in response to a Notice of Motion filed by the first defendant and a Notice of Motion filed by the second defendant which were heard on 26 February 1999. 4 The second appeal is an appeal against the dismissal, on 16 December 1999, of a Notice of Motion filed by the plaintiff pursuant to Part 31 rule 12A(1) seeking to set aside the orders of 12 March 1999. 5 The two Notices of Appeal are in identical terms. However, counsel for the plaintiff in this appeal accepted in oral argument that if the plaintiff's attack on the reasoning that led to the 12 March 1999 orders failed, she could not succeed in her challenge to the orders of 16 December 1999. Accordingly, it is only necessary to consider the reasons for judgment delivered on 12 March 1999. Background 6 In evaluating the reasoning of Garling DCJ which led him to make the orders of 12 March 1999, it is necessary to consider the procedural background as it emerged from the court records and the materials before him. The materials before him consisted of the two Notices of Motion filed by the defendants; the court files relating to proceedings as they were in the Supreme Court (which appear to have become incomplete and disordered over the years and as they have been moved about); the court files relating to proceedings as they were in the District Court; an affidavit filed by the solicitor for the first defendant dated 15 February 1999; an affidavit filed by the solicitor for the second defendant which expressed concurrence with the affidavit of the solicitor for the first defendant; an earlier affidavit filed on behalf of the first defendant recording breach of an order by the plaintiff; and two statements dated 8 October 1998 and 25 February 1999. (These statements were filed pursuant to a standard direction by a District Court Registrar in the following form: "If ANY PARTY is not ready to take a hearing date on the date it is listed before the List Judge then AT LEAST 5 DAYS PRIOR to that date you must file a statement setting out the reasons why the matter is not ready to obtain a hearing date.") The affidavits of the solicitors for the defendants were not contradicted or qualified by evidence filed on behalf of the plaintiff, and neither deponent was cross-examined. 7 The material revealed the following. 8 The plaintiff was born in 1950. 9 At some date which is unclear, the defendants, according to Defences they filed in the Supreme Court, began making workers' compensation payments to the plaintiff. 10 On 3 April 1989 the plaintiff filed a Statement of Claim in the Common Law Division of the Supreme Court of New South Wales. It alleged that from 14 May 1984 to 30 September 1984 the first defendant employed the plaintiff and from 1 October 1984 to June 1987 the second defendant employed the plaintiff. It alleged that she was employed as a converting operator in the yarn recovery section of a factory. It alleged that in her employment she suffered injuries for two reasons. The first reason alleged was that she was required to work on a bobbin winder and bobbin stripper machine: that work involved excessive and repetitive strain to her arms, and required her to stand and squat repeatedly during the course of her working day. The second reason alleged was that she was required to walk through the laboratory section of the factory, and as she walked through it, she inhaled fumes that came from chemicals in the laboratory. It was alleged that the defendants were negligent, and twenty-eight particulars were given in the Statement of Claim. It was also alleged that the defendants had been in breach of statutory duty, and ten particulars of that were given in the Statement of Claim. Six particulars of injury were given. The Statement of Claim was filed nearly five years after the plaintiff's employment in which the torts were alleged to have occurred commenced, and nearly two years after that employment ceased. 11 On 29 May 1989 the matter was listed for callover. The first defendant "objected to the matter proceeding as particulars had not been answered". 12 On 27 July 1989 the second defendant filed a Notice of Appearance and requisitioned trial by jury. 13 On 12 September 1989 the plaintiff filed a Statement pursuant to Part 33 rule 8A of the Supreme Court Rules. The Statement alleged five particulars of injury, which were the same as those alleged in the Statement of Claim (with the exception of "breathing restrictions"). The Statement also alleged fourteen "disabilities". 14 About eighteen months passed before the first defendant filed a Notice of Appearance and a Defence on 18 February 1991. 15 The proceedings were set down for trial on 25 February 1991. 16 The second defendant filed a Defence on 12 June 1991. 17 According to paragraph 9 of the affidavit of 15 February 1999: "9. The matter came before the Court on 9 June 1995 when the Plaintiff was not ready to proceed. Directions were made in respect of service of medical reports and up-dated particulars pursuant to Part 33." A Registrar made the following directions: "1. [Plaintiff] to serve all medical reports by 14/7/95. 2. [Plaintiff] to serve amended PT 33 by 14/7/95 together with all material in support including letter from employers and tax returns. 3. Defendant medical reports to be served by 11/8/95. 4. [Plaintiff] to serve any expert report on liability by 28/7/95. 5. [Defendants to] serve any expert report on liability by 24/8/95. 6. Schedules be exchanged by 24/8/95. 7. Subpoenas 5/7/95. 8. S/o 28/7/95 at 11.15." 18 On 18 July 1995, four days after the day on which the amended Part 33 rule 8A particulars had been ordered to be filed, the solicitors for the plaintiff wrote to her seeking instructions about them. 19 On 24 July 1995 the solicitor for the first defendant wrote a letter to the solicitor for the plaintiff saying that the plaintiff had served no medical reports. 20 According to paragraph 10 of the affidavit of 15 February 1999: "10. The matter came before the Court on 28 July 1995 for directions and the Plaintiff had not complied with the orders of 9 June 1995. The matter was stood over to the List Judge ..." The Supreme Court file records that there was no appearance by the plaintiff on that day. A Registrar referred the matter to the List Judge on 7 August 1995, and directed the solicitor for the plaintiff to provide an affidavit pursuant to Practice Note 68. The Registrar noted a recommendation that the plaintiff's solicitor should pay the costs of the mention that day. The orders, and this recommendation, were communicated to the plaintiff's solicitors by telephone. 21 On 7 August 1995 Simpson J made the following orders: "I note that the plaintiff informs me that all medical reports have now been served on each defendant. I direct the second defendant to serve any medical reports by 11 August. The 1st deft's medical reports are to be served by 8 September. I direct the plaintiff to serve any refresher medical reports on which it proposes to rely by 26 September. Return the matter to the Registrar for further directions on referral for arbitration. I direct the plaintiff to pay the defendant's costs incurred … before the Registrar on 28 July." 22 On 7 August 1995 the plaintiff filed an Amended Statement pursuant to Part 33 rule 8A of the Supreme Court Rules. (On 9 June 1995 she had been ordered to do so by 14 July 1995 - three weeks before she did.) The Amended Statement alleged a further injury and a large number of further "disabilities". It annexed a Notice of Assessment directed to the plaintiff revealing a taxable income for the year ended 30 June 1992 of $9173, and Statements of Pension for the years 1993/94 and 1994/95 revealing receipt of taxable pensions of $8528 and $8390.10 respectively. 23 According to paragraph 10 of the affidavit of 15 February 1999: "The matter came before the Court on 27 February 1997. The Plaintiff was not ready and needed further medical reports." The file records that the matter was stood over to the next arbitration callover. 24 On 29 May 1997 a solicitor acting on behalf of the plaintiff had a telephone conversation with the solicitor for the first defendant. The solicitor for the plaintiff then sent a letter to the solicitor for the first defendant in the following terms: "We refer to our telephone discussion today and will mention your appearance tomorrow at the call-over. We propose to seek Consent Orders as described below:- 1. The matter be stood-over to the next call-over. 2. The Plaintiff to provide amended part 33 particulars within 28 days. 3. The Plaintiff to provide re-fresher medical reports within 6 weeks. We have contacted Ms Simone Herbert-Lowe who indicates that as the matter is an old matter her client does not consent to the Orders as described above and would like to press for a hearing date. We are mindful that the matter is a jury trial and that a date may not be available. We will apply to the Court tomorrow for the three above Orders and we would be pleased to mention your appearance. We will notify you of the outcome as soon as possible." 25 On 30 May 1997 the callover took place before a Supreme Court Registrar. There is no evidence, apart from the file, of what happened. The file bears a note that the case was not suitable for arbitration and should remain in the general list. 26 On 2 June 1997 the solicitor for the first defendant wrote to the solicitor for the plaintiff and said: "We refer to recent communications in this matter, most particularly those between your Yvonne Williams and the writer of 29 May 1997. This is a matter which has been around for some considerable time and one in which your client's pleadings and particulars are both confusing and out of date. It is our client's instructions that in the event that this matter is not back on the rails very shortly, then we are to proceed by way of Notice of Motion to have the proceedings struck out for want of prosecution. We will refrain from taking that step until the expiry of forty two days from today's date, giving you in effect time to put in place the steps indicated in your letter of 29 May 1977, ie:- 1. to provide amended Part 33 Particulars within twenty-eight days and 2. to serve all expert reports, in particular medical reports within six weeks. After we have received the above information, we will be in a position to assess whether or not the First Defendant will require further medical examinations or indeed require further and better particulars, noting that your last response is almost a decade old. Additionally, and for the sake of more abundant clarity, we request that you provide your final pleadings and serve all experts reports of any type upon which you intend to rely. Noting the circumstances of the matter, if we do not receive your co-operation, we will proceed with the Notice of Motion as instructed by our client." This was the first threat of the application eventually made to Garling DCJ which resulted in his orders of 12 March 1999. 27 There is no evidence of any response to that letter, but on 24 June 1997 the solicitor for the first defendant made a second threat of the same kind by letter to the solicitor for the plaintiff: "We refer to previous communications in this matter, most particularly our letter of 2 June 1997 and also note the result of the call-over before Registrar Harrison on 30 May. Should your client not comply with the proposed timetable, set out in our letter of 2 June 1997, we place you formally on notice that we will approach the Court by way of Notice of Motion to have the proceedings struck out for want of prosecution. In reality, is this a matter which your client really intends to prosecute?" 28 On 3 December 1997 an order was made transferring the proceedings from the Supreme Court to the District Court. A Transfer Sheet on the Supreme Court file records that the matter was an Active Case Management matter; that the transfer was by consent; that the matter was not ready for allocation of a hearing date; that the matter was not in the process of case management; and that case management had not yet commenced but was ready to start. 29 On 23 February 1998 a Notice was sent by the District Court to the parties advising them of a callover on 25 March 1998. 30 On 25 March 1998 the matter came before a Registrar. The note on the file reveals that the Registrar ordered "Pt. 12 to be updated" within two months. The matter was adjourned to a callover on 25 August 1998. The reference to "Pt. 12" was a reference to the duty imposed by Part 12 rule 4A of the District Court Rules as they then stood to provide particulars: that rule performed a similar function to Part 33 rule 8A of the Supreme Court Rules, pursuant to which the plaintiff had filed a Statement on 12 September 1989 and an Amended Statement on 7 August 1995. Part 12 rule 4A was repealed with effect from 24 April 1998 and replaced by Part 9 rule 27. The Registrar's order related to the matter about which the first defendant had complained in its solicitor's letters of 2 and 24 June 1997. 31 On 25 August 1998, according to the affidavit of 15 February 1999, the matter came before an Assistant Registrar of the District Court. The affidavit said, a little obscurely: "The Plaintiff was not ready requiring further medical examination. The Plaintiff was ordered to up-date Part 12 Particulars by 1 October, 1998." The file records the following: "D2 - Pt 12s not UPD. Have medical 30-9-98. D1 - Awaiting updated Pt 12s. Orders: (1) Listed for a show cause hearing on 8/10/98 - Pl to show cause A 'show cause information sheet' was handed personally to the Pl and Defs. (3) The following actions are to be taken prior to the show cause hearing date: Pf to update Pt 12s by 1/10/98." In short, it seems that the second defendant and then the first defendant complained of the plaintiff's non-compliance with the order of 25 March 1998 to update the material supplied pursuant to Part 33 rule 8A of the Supreme Court Rules: the expression "Pt 12s" was used though the correct rule of the District Court Rules was Part 9 rule 27. The second defendant also apparently said that the plaintiff was to have a medical examination on 30 September 1998. The Assistant Registrar listed the matter for a hearing on 8 October 1998 to show cause why the proceedings should not be dismissed pursuant to Part 18 rule 3(1). The plaintiff was also ordered to update the "Pt 12s" by 1 October 1998. The "show cause information sheet" which the Assistant Registrar handed to the parties and which was tendered before this Court is an important document. It said: " MATTERS NOT READY FOR HEARING Having been advised at the call-over that this matter is not ready for hearing I am directed by the List Judge to:- 1. List this matter to show cause why it should not be dismissed for want of prosecution. 2. It is listed for that purpose on ………. at ………. AM. [The details are illegible, but doubtless the day was 8 October 1998 and the hour was noon]. 3. The List Judge has directed me to advise parties that serious consideration will be given to dismissing this matter . 4. If ANY PARTY is not ready to take a hearing date on the date it is listed before the List Judge then AT LEAST 5 DAYS PRIOR to that date you must file a statement setting out the reasons why the matter is not ready to obtain a hearing date. 5. All submissions or evidence you wish the List Judge to consider must be filed at least 5 days prior to the listing date. Documents will not usually be accepted or considered on the listing date. 6. You are required to serve a copy of this notice upon any party not in attendance at the call-over within 3 days of today." 32 That document is important because its issue is evidence that the Assistant Registrar had been advised that the matter - which was now nearly ten years old - was not ready for hearing; paragraphs 1 and 2 clearly identified that it was listed to show cause why it should not be dismissed for want of prosecution; paragraph 3 made it plain that dismissal was not merely an abstract or remote possibility, but was to be the subject of "serious consideration"; the solemnity of the occasion was further stressed by the directions in paragraphs 4 and 5 about statements, submissions and evidence being filed five days in advance of the hearing, no doubt so that the parties and the court could give advance consideration to the merits of dismissal and of any other relevant course; and the direction in paragraph 6 about service on non-parties further highlighted the fact that the 8 October 1998 hearing was of central significance. 33 The other aspect of the events of 25 August 1998 which is of significance is that on that day the defendants made formal complaints that the plaintiff had contravened the 25 March 1998 order about particulars. The court noted that contravention, and made a second order about those particulars. The time allowed, more than five weeks, was not oppressively short in view of the existence of the 25 March 1998 order and the second defendant's letters of 2 and 24 June 1997. 34 The day for compliance with the order of 25 August 1998, 1 October 1998, came and went without any particulars being supplied. 35 On 8 October 1998 the matter came before the List Judge, Garling DCJ. Contrary to what had been foreshadowed by the Assistant Registrar's order of 25 August 1998, contrary to paragraphs 1-3 of the "show cause information sheet", and contrary to the statement on the file that the purpose of the hearing was for the showing of cause why the matter should not be struck out for want of prosecution, Garling DCJ did not ask the plaintiff to show cause why the matter should not be dismissed. Rather he inquired whether the matter was suitable for arbitration (i.e. under the Arbitration (Civil Actions) Act 1983 and the District Court Act 1973 s 63A). The plaintiff and the first defendant said it was; the second defendant said it was not. Both defendants endeavoured to point out the plaintiff's non-compliance with the orders of 25 August 1998. Garling DCJ declined to hear what they wanted to say on that subject, pointing out that paragraph 4 of the "show cause information sheet" required "any" party contending that a matter was not ready to file an appropriate statement, not just the plaintiff, and the defendants had not filed one. He fixed the matter for arbitration on 1 February 1999. 36 On 20 November 1998 the first defendant moved Ainslie-Wallace DCJ for an order vacating the arbitration date of 1 February 1999. The events of that day were important. In part the transcript attributes statements to the wrong speakers, but it is agreed that it should be read as follows. The solicitor for the first defendant based his application on the plaintiff's failure to provide "final part 33 particulars". He said: "They have been outstanding in various orders of this court and of the Supreme Court for some years." He then identified the 25 August 1998 order, and said that the last particulars received were received in 1992. The representative of the plaintiff (who was not the representative who had appeared on 25 March 1998, 25 August 1998 or 8 October 1998, and who did not appear thereafter) said: "I've come into this only this morning, but my instructions are that the plaintiff relies on the part 33 statement that was filed - " … Her Honour said "From 1992?" He said: "Indeed, your Honour. Those are my instructions." In fact the last particulars filed had been filed on 7 August 1995, but that was obviously the document being referred to. 37 Ainslie-Wallace DCJ then said: "In that case …, I will have the file note that the plaintiff relies on those part 12 particulars. I will note that there was a motion to vacate for failure to comply with the orders, and that no further particulars be accepted by the court until after the arbitration." The representative of the plaintiff then said: "Could I say on that, your Honour, that as of today those particulars are suitable and appropriate." Her Honour then said: "No …, it's today or never. Do you want to get some instructions by phone? I'll stand it in the list, otherwise I'm going to make the orders that - … " Her Honour then stood the matter in the list while the representative for the plaintiff obtained instructions about particulars and costs. The instructions obtained led to a change of stance. The plaintiff's representative said when the matter resumed: "The plaintiff now undertakes to file an updated statement of particulars within twenty-eight days, and to serve all expert reports within forty-two days of today's date." The solicitor for the first defendant then submitted that the period should be fourteen days in view of the court's 25 August 1998 order. He said: "My concern is it's been this situation with various undertakings over the history." Her Honour then said: "Why don't I bring the matter back for directions, or give you leave to restore if the directions aren't complied with? It's a matter for you." The solicitor for the first defendant said: "If that suits the court. My real concern is to get this matter on and finished as soon as possible." Her Honour then said: "I used to think that what would suit the court was for people to comply with the directions that it made, but it seems to me sitting here that that's simply the attitude of a Pollyanna." She then commenced to make orders. The representative for the plaintiff pointed out that the particulars were now required under Part 9, not Part 12. Her Honour then made the following orders by saying: "I direct the plaintiff to file … part 9 particulars within twenty-eight days of today's date. I direct the plaintiff to serve all medical and expert reports on which it proposes to rely on or before … 4pm, 16 January 1999. I vacate the arbitration date of 1 February 1999. I give leave to the defendant to restore the matter to the list on the giving of seven days' notice. I note that this is a matter in which the court has previously directed the plaintiff to file part 12 particulars and that order has not been complied with. I order the plaintiff to pay the defendant's costs thrown away by reason of the vacation of the arbitration date and of … the notice of motion." After an unsuccessful attempt by the representative of the plaintiff to have the costs of the Notice of Motion reserved, her Honour said: "… you might pass on to those who are instructing you that if these orders aren't complied with, the court will list this of its own motion to have it struck out for want of compliance with the directions. That might galvanise a bit of interest in the matter." That was an observation of considerable consequence. Her Honour concluded by listing the matter for further directions on 26 February 1999. 38 Twenty-eight days passed from the day when Ainslie-Wallace DCJ made her orders about Part 9 particulars without them being filed. They were only in fact filed on 25 February 1999, the day before the directions hearing. No further medical reports or expert reports were served on or before 16 January 1999; indeed none were served before 26 February 1999. Assuming for the moment that that latter inaction was not a breach of Ainslie-Wallace DCJ's orders, the breach of her order about particulars certainly was. It was the third District Court order on that subject which the plaintiff had contravened. 39 The response of the first defendant to this inactivity on the plaintiff's part was to file a Notice of Motion on 15 February 1999 returnable on 26 February 1999 seeking an order dismissing the plaintiff's Statement of Claim pursuant to Part 18 rule 3(1). On 19 February 1999 the second defendant filed a like Notice of Motion. 40 The response of the District Court to the plaintiff's inactivity was to list the matter on 26 February 1999 for the same purpose as that underlying the two Notices of Motion. Garling DCJ's Judgment 41 On 26 February 1999 before Garling DCJ argument took place which was recorded over thirteen pages of transcript. He reserved judgment until 12 March 1999. In view of the attacks made on it, it is necessary to set out the key parts of the reasons for judgment delivered by Garling DCJ on 12 March 1999. "The matter was before the Supreme Court. There were numerous appearances before that Court which are documented on the file. The matter was transferred to the District Court. On 25 March 1998 it came before this Court. An order was made that Part 12 particulars were to be updated and documents in support filed within a period which is unclear on the face of it, but I think was two months. Certainly it was no longer than that. 25 August 1998, no updated Part 12 particulars filed. Listed to show cause why it should not be struck out for want of prosecution. Plaintiff to update Part 12s by 1 October 1998. 8 October 1998, listed before the list judge. Court advised ready for hearing, listed for arbitration 1 February 1999. 20 November 1998 back before the Court. Arbitration date vacated. Judge of this Court orders: 'Direct the plaintiff to file Part 9 particulars within 28 days of today. Direct the plaintiff to serve medicals by 4pm on 6 February 1999.' Note: 'The plaintiff failed to comply with the previous directions to provide particulars. Plaintiff is to pay costs.' Listed before this Court, 26 February 1999. On 25 February 1999, as happens the day before, the plaintiff suddenly files Part 12 particulars. Again in breach of a court order. That is, I think, now the third or fourth breach of court orders. They make new allegations. As I understand it the last particulars were filed in the Supreme Court, they being particulars pursuant to part 33 rule 8(a) on 7 August 1997, well over three years ago. There were six categories of injuries in 1995. They had grown to eight by 1999. There were forty-nine allegations of disabilities in 1995. That had increased to fifty-eight by 1999. There were new allegations. In fact, one of the allegations is that the plaintiff has developed an alcohol problem as a result of the injuries in 1984 to 1987. Future out of pocket expenses are just set out as 'to be particularised'. Loss of income, in 1995 there was one hundred dollars nett for a limited period, one thousand two hundred dollars, and then a continuing amount claimed. Now that has increased from three hundred and fifty to somewhere between three hundred and fifty and five hundred dollars per week. The plaintiff, in addition, now claims interest. Whilst the Court could probably deal with that, that interest goes back, I take it, to the eighties. I am told there has been no updated medicals, experts report. It is a jury trial. The defendants say 'we are prejudiced by these delays, we are prejudiced by the failure to comply with court orders'. Both defendants set out the various ways in which they say they are prejudiced. The first defendant, among other things, says 'The factory was sold in 1990. Some of the allegations would be very hard to meet because of the sale of the factory. Some of those allegations are set out in the doctor's report. We do not know anything else about them. There are numerous other doctors' reports referred to in other doctors' reports. We have not seen those. We do not know what case we have to meet or we did not know until 1999 and we are prejudiced by all these delays.' The second defendant makes the same submissions and also points out that the Court has been told that the part 12 particulars had not changed from 1995 where indeed they had changed to a significant degree. The plaintiff argues that in actual fact they have done nothing other than get this case prepared for hearing. Some of the substantial delays are caused by it being listed in the Supreme Court as a jury trial, and I accept that there would have been some delays there, however, I point out that certainly since it was before this Court we have been making every effort, since March 1998, about a year, to get the plaintiff to take a date. It is said on the plaintiff's behalf: 'We were always ready to proceed. We would have proceeded on what we had given the defendant, and it is only that the defendants are insisting on knowing what case they have to meet that this matter has been adjourned.' I read, in part, what is put to me. 'I note that [the solicitor] for the first defendant, brought an application on 20 November 1998 for the arbitration hearing to be adjourned on the basis the particulars had not been updated. In my respectful submission this was an artificial attempt to avoid the hearing date. The defendant was successful in its application and sought and obtained costs.'" The material lastly appearing in quotation marks comprises paragraph 14 of the Statement dated 25 February 1999 filed by the solicitor for the plaintiff in response to the "show cause information sheet". "Indeed, the defendant was successful and a judge of this Court considered that application and granted the adjournment and granted the adjournment obviously because orders of this Court had been breached. 'It is further submitted that this was an endeavour on the part of the first defendant to avoid a hearing date in a matter which has been languishing for some years as it has been marked for jury trial. The plaintiff is ready to proceed with her claim', et cetera." The material in quotation marks comprises paragraph 15 of the Statement dated 25 February 1999. "'In addition, on several occasions it has been pointed out to the defendants that the particulars already in the file encapsulate the plaintiff's claim and any updated re-filing of particulars would simply contain a repetition of particulars already provided and medical reports already served.'" The material in quotation marks comprises paragraph 17 of the Statement dated 25 February 1999. "I point out that that statement is totally inaccurate. Those particulars change the case. In my view this case falls into the category of those cases which should be struck out for want of prosecution." This does not follow the language of Part 18 rule 3(1), but the plaintiff rightly made no point about that on this appeal: Garling DCJ had made it clear from the outset that he conceived himself to be dealing with the question of dismissal under Part 18 rule 3(1). "It should be struck out for these reasons. The extremely long delay in bringing this case on for hearing. What appears to be a total lack of diligence on behalf of the plaintiff. A number of noncompliances with court orders. Prejudice suffered by the defendant. In addition to that I have given judgments in this Court relating to the management of this Court's Lists and I have clearly indicated that this Court will take into account as one of the matters they would consider when assessing whether a matter should be struck out for want of prosecution as to whether or not they are able to manage a case in accordance with the rules of this Court. This case falls right into that category of cases which I have said are not being prepared and are obstructing this Court's attempts to get cases on for hearing. Accordingly, this case is dismissed pursuant to Part 18. The plaintiff is to pay the defendant's costs." Notice of Appeal 42 The Notice of Appeal was as follows: "1. His Honour's discretion miscarried in that dismissal for want of prosecution is available only where the default of a Plaintiff has been intentional and contumelious, or where there has been an inordinate and inexcusable delay upon his or lawyer's part giving rise [to] the substantial risk that a fair trial would not be possible resulting in serious prejudice to the Defendants; WHEREAS this case did not fall into that category. 2. His Honour erred in that there was no or insufficient evidence to show that the case fell into the category referred to in Paragraph 1 above. 3. His Honour erred in failing to consider and take into account the extent, if any, of blameworthiness or blamelessness of the Appellant personally. 4. His Honour erred in failing to consider properly or at all whether the Claimant's alleged delay in conduct of the proceedings was inordinate and inexcusable. 5. His Honour erred in taking into account and/or giving undue weight to the question of the efficiency of the Court List in relation to this case. 6. His Honour erred in finding that there was any relevant evidence of prejudice to the Opponents. 7. His Honour erred in finding, and taking into consideration, that the Opponents were prejudiced by the filing of Amended Particulars pursuant to Part 27 Rule 9 of the District Court Rules. 8. His Honour erred in finding, and taking into consideration, that the Opponents were prejudiced by the closure of the Opponents factory in or about July 1990. 9. His Honour erred in finding, and taking into consideration, that the Opponents were prejudiced by reasons of not having seen various medical reports. 10. His Honour erred in failing to take into account the hardship occasioned to the Claimant if the proceedings were dismissed by reason of the Plaintiff's cause of action then being statute barred by operation of the Limitation Act, 1969 . 11. His Honour erred in failing to take into consideration the alternative remedy available to address prejudice to the Opponents arising out of the Amended Particulars, that being to refuse leave to the Claimant to rely on those particulars. 12. His Honour erred in failing to take into consideration the alternative remedy available to address prejudice to the Opponents arising out of any allegedly unseen medical reports, that being to refuse to allow the Claimant to tender those reports at the hearing. 13. In considering the issue of prejudice His Honour erred in failing to take into consideration the following matters:- (a) The Claimant first notified the Second Opponent of her claim by way of Employee's Workers' Compensation Claim Forms dated 1 September 1996 and 20 May 1987. (b) The Claimant provided the Opponents with numerous medical certificates as to her unfitness for work in the period August 1986 to September 1998. (c) The Claimant and Opponents exchanged 5 requests and answers to particulars in the period 1988 to date. The Opponents never indicated by correspondence or otherwise that the particulars provided by the plaintiff were inadequate. (d) The Claimant has been the subject of 25 medical consultations with 10 different medical practitioners qualified for the Opponents in the period 4 March 1987 to date. The reports comprise 95 pages in total. A schedule of those reports is included in the White Folder. (e) As at 26 February 1999, the Claimant had served in support of her case 19 reports by 14 medical practitioners, the earliest dated 17 October 1988. The reports comprise 59 pages in total. A schedule of those reports is included in the White Folder. 14. The order dismissing the proceedings was made against good faith by reason of the conduct of the Opponents who moved the Court to make the Order." 43 Neither of the counsel who appeared for the plaintiff in the appeal had appeared at any earlier stage, neither had drafted either the grounds of appeal or the plaintiff's written submissions to this Court, and both came into the appeal at a very late stage. They faced a heavy burden in getting the appeal into a condition of order, and sought to shoulder it as conscientiously as possible in the circumstances. They indicated that while none of these grounds were abandoned, the primary grounds were 1, 3, 4, 6,10 and 11. The Materials to be Considered 44 It is necessary, in considering the arguments advanced for the parties, to leave out of account references which they made to materials which were not before Garling DCJ. The correctness of the reasoning which led to the orders of 12 March 1999 must be assessed in the light of the materials before him on 26 February 1999. Though the appeal papers contain much matter that was not before Garling DCJ, and though after leave to appeal was granted on 26 March 2001 counsel then appearing for the plaintiff foreshadowed the filing of an affidavit or the tendering of correspondence in relation to the service of experts' reports, no application was made to tender "further evidence" pursuant to s 75A(7) of the Supreme Court Act 1970. To this exclusion of material not before Garling DCJ there is one exception - the transcript of what was said to and by Ainslie-Wallace DCJ on 20 November 1998. First, the plaintiff herself relied on it in this appeal and did not oppose the defendants relying on it. Secondly, Ainslie-Wallace DCJ's orders were given consideration by Garling DCJ, and what was said on the occasion on which those orders were made is not irrelevant. Thirdly, in her orders she expressly noted the non-compliance of the plaintiff with the previous directions - an action which often indicates that the court is experiencing the type of sentiments which Ainslie-Wallace DCJ expressed in oral argument recorded in the transcript. Fourthly, it was a matter of chance that her threat that the court would list the matter to have it struck out did not appear in the orders. Fifthly, it was also fortuitous that there was no transcript of what she said on the file by 26 February 1999, and that none became available until 18 April 2000. Sixthly, evidence of what happens in court in the presence of all parties which is recorded by the court is in a different category from evidence of what happens outside the court. The Approach of An Appellate Court 45 It is necessary to bear in mind some submissions of the defendants to the effect that a discretionary judgment can only be overturned in limited circumstances. These submissions were trite, but they are true, and they are vitally important. Part 18 rule 3(1) provides: " Want of prosecution Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any party or of its own motion, dismiss the proceedings or make such other order as the Court thinks fit." The precondition for Garling DCJ's exercise of power was that it could be said that there had been a making of default by the plaintiff in complying with any order or direction. The plaintiff's posture in relation to this precondition wavered. On occasion it was hinted that since the particulars had eventually been filed on 25 February 1999 before the applications were called on before Garling DCJ on 26 February 1999, there was no default. That stand was taken in the written submissions. But the plaintiff eventually conceded that the precondition had been satisfied three times and that the default in relation to the particulars had not been "cured" by the filing of the 25 February 1999 document. The preconditions had been satisfied by the plaintiff's default in relation to three distinct orders on 25 March 1998, 25 August 1998 and 20 November 1998. As a result, Garling DCJ had to make a discretionary decision on a matter of practice and procedure - an extremely important one, having potentially serious consequences for the plaintiff, but a discretionary decision on a matter of practice and procedure nonetheless. Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. Even though this Court might conclude that it would have exercised the discretion differently if the discretion had been conferred on it in the first instance - might have adjourned the matter so as to permit the defendants to consider the late-supplied particulars, or might have held the plaintiff to the old particulars, or might have fixed one more "final" date for outstanding matters to be completed by - any such conclusion would be immaterial. The law committed the exercise of the discretion to Garling DCJ. The law permits interference with his exercise of the discretion in only the limited circumstances just described. See House v R (1936) 55 CLR 499 at 504-505; Lovell v Lovell (1950) 81 CLR 513 at 518-519 and 532-533; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 627. These principles are applied to a wide range of discretionary judgments, but their application to this specific field, dismissal for want of prosecution, was approved by this Court in Stollznow v Calvert [1980] 2 NSWLR 749 at 751. 46 It is convenient to take the five possibilities set out one by one, and, though the parties' contentions were presented in a different order, to examine those contentions by reference to them. Error of Legal Principle? 47 Did Garling DCJ commit any error in relation to the legal principles he applied or failed to apply? Deterrence error? 48 The plaintiff referred to an error which Moffitt P warned against in Stollznow v Calvert [1980] 2 NSWLR 749 at 755, namely the error of dismissing the plaintiff's case in order to deter lawyers for other plaintiffs from being dilatory in future. The plaintiff appeared to submit that Garling DCJ committed this error. No such error can be found in his reasoning. It was not directed in any respect to punishment or to the deterrence of others. Vicarious attribution of blameworthiness 49 The plaintiff also referred to another error against which Moffitt P warned in Stollznow v Calvert [1980] 2 NSWLR 749 at 753, namely, the vicarious attribution of defaults by the plaintiff's solicitor to the plaintiff. The plaintiff submitted that Garling DCJ had done this. This submission necessarily had to be advanced in a muted way, since a central theme of some parts of the plaintiff's argument was that neither she nor her solicitors had done anything that was culpable or wanting in diligence, and that the primary judge had effectuated "a triumph of form over substance" in concluding to the contrary. However, to the extent that the commission of that error was suggested, the suggestion must be rejected. Indeed it would have been difficult for Garling DCJ to have committed that error, because he was not favoured with any evidentiary material from the plaintiff as to the reason for the non-compliances. There was a vacuum on the question whether the particulars had not been supplied because of delays on the part of the plaintiff's solicitors in contacting the plaintiff or marshalling the reports which were to hand so as to bring the particulars into conformity with them, or whether the reason for non-supply had been the failure of the plaintiff to respond to requests from her solicitors seeking her instructions. The existence of that vacuum, though not referred to expressly by Garling DCJ, is highly significant. In Stollznow v Calvert at 751-752 the Court of Appeal quoted approvingly an observation of Walsh JA in an earlier decision of that court, Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412: "It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory." In that case Asprey JA also spoke of the need, in the slightly different but related context of that case, for the plaintiff to furnish "to the court a credible explanation which satisfactorily accounts for and excuses the delay" (at 416). Herron CJ agreed with Asprey JA's reasons. The plaintiff pointed to paragraph 16 of her solicitor's Statement dated 25 February 1999 which said: "A further Statement pursuant to Part 9 Rule 27 has now been filed, although filed on 25 February 1999 without any fault on the part of the Plaintiff personally." That does not explain the two earlier non-compliances. In any event the "show cause information sheet", pursuant to which such Statements are filed, distinguishes between the "statements" in paragraph 4, and "evidence" in paragraph 5. If any explanation existed - and whether one existed was a matter which was peculiarly within the knowledge of the plaintiff and her legal advisers - it should have been provided in detailed form and on affidavit, so that the defendants could have tested it. The same applies to the following explanation offered by the plaintiff's legal representative to Garling DCJ on 26 February 1999 for why the particulars had not been filed, as directed, within twenty-eight days of 20 November 1998: "Now, that date in November, of course, led into the pre Christmas rush. That was overlooked, and therefore as a result of being overlooked they weren't filed until 25 February. They were only filed as a precautionary measure and I would respectfully submit they do not alter the plaintiff's case beyond the part 12s and the medical evidence previously served and that includes Dr Champion's report." (That was a reference to a medical report dated 9 April 1998.) Birkett v James 50 A third error of law for which the plaintiff appeared to contend appears most clearly in the language of paragraph 1 of the Notice of Appeal. The complaint is that Garling DCJ could not have made the orders unless the plaintiff's default had been "intentional and contumelious", or unless there had been "an inordinate and inexcusable delay" giving rise to "the substantial risk that a fair trial would not be possible resulting in serious prejudice to the Defendants". The plaintiff submitted that neither of these tests had been met. 51 This contention may be answered at two levels. First, the tests propounded are not part of the law in New South Wales. The tests propounded are similar to, but not identical with, those formulated by Lord Diplock in Birkett v James [1978] AC 297 at 318: "The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party." Lords Simon of Glaisdale (at 325), Salmon (at 330), Edmund-Davies (at 331) and Russell of Killowen (at 336) agreed. However, though that case was cited to and considered by the Court of Appeal in Stollznow v Calvert , the principles stated in it were not adopted as part of the law of New South Wales. Rather, Moffitt P said at 751: "While useful guidance is provided by the manner of exercise of the discretion in other cases, and by the factors considered in those cases to favour the exercise of the discretion in a particular way, each case must depend on its own facts. It would be contrary to what I understand to be the accepted law in this country, to confine the exercise of a judicial discretion by judge made rigid formulae." At 751-752 he approved the principles stated by Walsh JA in Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411-412. Moffitt P said: "The view I have stated was well expressed by Walsh J when a member of this Court, in Witten v Lombard Australia Ltd . Having made reference to earlier local authority and to English authority, including the decision just then given in the Court of Appeal in Allen v Sir Alfred McAlpine & Sons Ltd [[1968] 2 QB 229], Walsh J said: ' … a balance must be struck as between the plaintiff and the defendant and, in the end, 'the court must decide whether or not on balance justice demands that the action should be dismissed.' He further said the exercise of the Court's discretion should not be fettered 'by rigid rules', but required 'a decision to be reached, upon a balance of the relevant circumstances'. It is of assistance to quote at length what he ultimately said: 'Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised. 'I have made these observations because it appears to me that there are some statements in the recent judgments of the English Court of Appeal which tend to restrict to some degree the exercise of the discretion in cases of this kind, so that it becomes something less than the exercise of a full judicial discretion in accordance with what justice seems to require in the circumstances of the particular case. There is a tendency to propound rules which are to govern the exercise of the discretion in the sense that it will be fettered by them. It is entirely proper that, in the exercise of a judicial discretion, guidance should be sought and obtained from decided cases of a similar kind, but I think that care must be taken to ensure that a discretionary power is not trammelled by set rules, by means of which one conclusion is to be automatically reached, regardless of other factors in the case which may point to the opposite conclusion. Therefore, I do not wish to be taken as assenting without qualification to everything that has been said in the recent English cases.'" The "recent judgments of the English Court of Appeal" to which Walsh JA referred were cases such as Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229, which were approved in Birkett v James . When Moffitt P, Hope JA and Mahoney JA approved Walsh JA's rejection of the English cases so far as they restrict the discretion, they were rejecting the test stated in the English cases. No application was made by the plaintiff to reargue the correctness of the unanimous decision in Stollznow v Calvert . Accordingly Stollznow v Calvert must be applied. Quite apart from the status of that case as an authority, the force of what Walsh JA said is very great as a matter of principle. Part 18 rule 3(1) contains no limitation on the discretion. The English formulae would compel the exercise of the discretion one way unless particular circumstances were established, in which case the discretion would have to be exercised another way. A "discretion" which can only be exercised one way is not in truth a discretion at all. The English tests are thus inconsistent with Part 18 rule 3(1). Part 18 rule 3(1) is, after all, a statutory enactment in the sense that it was made by the Rule Committee in the exercise of the statutory power conferred by the District Court Act 1973, s 161. Restrictive words are not lightly to be read into it. 52 The second level of answers to the contention that Garling DCJ's reasoning does not comply with the English tests, and that he did not consider their application properly (putting aside the fact that in argument to him it was never suggested that they were relevant or that he should consider them) has several aspects. 53 To start with, even if the House of Lords tests applied here, the tests stated in paragraph 1 of the Notice of Appeal differ from those stated by the House of Lords. Paragraph 1 requires only delay giving rise to a risk that a fair trial is not possible resulting in serious prejudice to the defendants. The House of Lords, on the other hand, said that it was enough if the delay either gave rise to a substantial risk of there not being a fair trial or was likely to cause or to have caused serious prejudice to the defendants. There is no authority for the tests stated in paragraph 1 of the Notice of Appeal. 54 Next, the first limb of the test propounded appears to be satisfied. It is to be inferred that each default was intentional and contumelious. That inference flows from the following circumstances. The plaintiff was legally represented on each of the occasions when the orders were made. She had engaged a firm of solicitors who had acted for her throughout the litigation, who have the reputation of conducting a great deal of personal injuries litigation, and who, according to the letterhead of the letters of 29 May and 23 October 1997, carry on practice in the central business district of Sydney and in no fewer than twelve suburban offices. The orders were apparently made either by consent or without serious opposition against a background of requests from the first defendant that the particulars three times ordered by the District Court be supplied as long ago as June 1997. On 25 August 1998 the Assistant Registrar, on the occasion when the second order not complied with was made, listed the matters for a show cause hearing and handed a "show cause information sheet" to the parties containing clear statements as to what might happen at that show cause hearing. Those circumstances must have operated to convey a stark warning to the plaintiff's advisers; yet despite the fact that a show cause hearing was to take place on 8 October, the last day for compliance, 1 October passed without compliance. Though the plaintiff, perhaps fortunately for her, escaped from the show cause hearing of 8 October 1998 unscathed, on 20 November 1998 the third order was made at a time when Ainslie-Wallace DCJ solemnly warned the plaintiff of the consequences of breach. No sworn explanation was ever offered for any of the three instances of non-compliance, and no explanation at all for the first two instances of non-compliance. The third instance of non-compliance was explained by the plaintiff's legal representative on 26 February 1999 as being the result of the Christmas rush; in the Statement of 25 February 1999 the delay was said to be not the fault of the plaintiff personally. But matters had reached a stage where a much more detailed explanation was called for, and where it was necessary that it be given on affidavit testable by cross-examination. A satisfactory explanation on affidavit might negate an inference that the plaintiff's defaults were not intentional or contumelious. But the absence of any explanation permits that inference to be drawn. 55 In Birkett v James Lord Diplock gave two illustrations of intentional and contumelious default - conduct amounting to an abuse of process and disobedience to a "peremptory" order of the court. For a plaintiff who enlists the aid of the judicial arm of the State by invoking a particular legal process persistently to fail to comply with the conditions laid down for a favourable exercise of the judicial power may be said to abuse the process invoked. By "peremptory" order of the court Lord Diplock meant an order "providing for the dismissal of the action for non-compliance with its orders as to the time by which a particular step in the proceedings is to be taken" (at 321). No such order was made here. However, the circumstances pointed just as strongly to the fact that the willingness of the court to ignore further breaches was at an end. The third order made here was made at the second, not the first, of the series of hearings at which the plaintiff had to show cause why the action should not be dismissed under Part 18 rule 3(1) and after the plainest viva voce warnings of Ainslie-Wallace DCJ. The adjective "contumelious" conveys the sense of insolent, dishonourable, or opprobrious behaviour. It could be inferred that the plaintiff's behaviour between March 1998 and February 1999 was contumelious in the absence of any testimonial explanation being proffered for it. 56 Another aspect is whether there had been an inordinate and inexcusable delay. By 1998 the plaintiff's proceedings had been on foot but not heard for nine years. She was complaining of conduct taking place in the years 1984-1987. According to the affidavit of 15 February 1999 filed by the solicitor for the first defendant, there were several occasions in the Supreme Court where the plaintiff was not ready to proceed, but the evidence is silent on whether this want of readiness delayed the holding of a trial. The plaintiff was ordered to file particulars on 23 March 1998 by a court which, unlike the Supreme Court, offered every prospect of a speedy trial. Yet she failed to file those particulars until 25 February 1999, and then only did so after two further orders to do so, the fixing of one hearing to show cause why the proceedings should not be struck out, the warnings of Ainslie-Wallace DCJ on 20 November 1998, and the receipt of two Notices of Motion seeking an order to that effect to be heard the day after the date on which the particulars were supplied. The delays by the plaintiff, in the District Court alone, can fairly be described as inordinate and inexcusable. If the plaintiff was personally responsible, she showed a complete lack of regard for her own interests, the rights and legitimate expectations of the defendants and the interests of the court. If the plaintiff's legal advisers were responsible, they showed a complete lack of regard for the position of the plaintiff, the defendants and the court, and their behaviour was unethical. The delay was inordinate and inexcusable unless it were explained, and neither the plaintiff nor her legal advisers ever did this either to Garling DCJ or to this Court. Rather, the initial posture of the plaintiff before this Court was that nothing wrong had been done. 57 But did the delay render a fair trial impossible? Though it is not necessary to decide the question, it is debatable whether in this case a trial in 1999 or 2000 arising out of events which took place in 1984-1987 at a factory which closed in 1990, being conduct carried out by two defendants, one of whom left the relevant site in 1984, would have been a fair trial. By reason of the delay, the memories of every relevant witness would have faded a little more. The chances of witnesses, particularly elderly medical witnesses, retiring, moving, becoming unfit to testify, or dying would increase. However, the delay between March 1998 and February 1999, or even between June 1997 and February 1999, by itself was not a major factor tending to make a fair trial impossible. The departure of the first defendant and the closing of the factory were not events which were brought about by the plaintiff's delay in the District Court in 1998-1999. 58 Can it be said that the delay was likely to cause or to have caused serious prejudice to the defendants? The plaintiff's submissions that the defendants had not established any prejudice by evidence had considerable force. The affidavit of 15 February 1999 filed on behalf of the first defendant, apart from referring to the sale of its business by the first defendant and the closure of the factory, said: "The Plaintiff has after commencing these proceedings and setting them down for trial as set out above, failed to prosecute same with due despatch, and thus caused prejudice to the First Defendant." The second defendant's affidavit said: "The Plaintiff has failed to prosecute the proceedings within a reasonable time, and thus has caused prejudice to the Second Defendant." These paragraphs were not objected to. If they had been, there would have been a very grave risk of their rejection as inadmissible. Their admission without objection does not cause them to carry any weight. They are totally lacking in any specificity. 59 However, can serious prejudice be found from the general circumstances of the case? As just noted, the delay in 1998-1999 was likely to have created a risk of increasing impairment of memories and an increased risk of witnesses ceasing to be available. There is also a form of prejudice which arises from the fact that the defendants had to remain active in litigation that was apparently never being brought to finality. According to Garling DCJ, there were "numerous appearances" before the Supreme Court. That is a proposition which the plaintiff did not deny and they almost certainly exceeded in number those described above. Before each appearance, some preparation would have taken place and executives would have been spoken to. At each appearance the time of lawyers would be consumed. Even if none of that wasted effort was the fault of the plaintiff or her advisers, much of the forensic activity in the District Court was. One costs order was made against the plaintiff in the Supreme Court on 7 August 1995. Only one costs order was made against the plaintiff in the District Court before 12 March 1999. But it would have been futile to make costs orders to control the plaintiff and it would have been wholly unrealistic to regard costs orders as a means of compensating the defendants: the plaintiff had not worked for many years and lacked the means to meet them. Had Garling DCJ allowed the plaintiff to go to arbitration on the old particulars and without an expert's report, the defendants would have been compelled to prepare for a full hearing; had the plaintiff lost, as was a real possibility in the absence of the expert's report contemplated, the defendants would have been faced with a significant costs bill which the plaintiff could not pay. 60 The plaintiff's attitude in the District Court alone gave no reason to suppose that she would move with minimum delay and minimum waste of resources to trial. A reasonable observer would anticipate that whatever Garling DCJ did on 26 February 1999 - whatever limitation he imposed, or indulgence he granted, or self-executing order he made, or other technique he adopted - the plaintiff would probably not take proper advantage of it. If the plaintiff had been allowed to proceed to hearing or to arbitration on the old particulars, or on the reports filed and no others, it may be inferred that she would later have sought to proceed on the new particulars, or on additional reports. That inference flows from two matters in combination. The fact is that if the plaintiff had a desire to have her case heard quickly she would, after the extreme delays in the Supreme Court, have leapt at the chance of a speedy District Court hearing. The second is that not only did the plaintiff not seize that chance, she positively obstructed it. By February 1999 the case was no nearer readiness for trial in the District Court than it had been when it was transferred on 3 December 1997. Each aborted hearing, each fruitless step, and each month that passed without the day of decision being fixed added to the prejudice suffered by the defendants. The future held a significant prospect that there would be more of the same. Apart from the irrecoverable costs thrown away, the defendants' executives faced a future of wasted opportunity costs in dealing with their lawyers and, if they were insured, with their insurers. If there was insurance, the insurer or insurers faced a future of changing and uncertain provisioning. (For example, the 7 August 1995 Part 33 rule 8A particulars claimed $1,200 for wage loss in the period June 1984-November 1987; the 25 February 1999 Part 9 rule 27 particulars claimed $16,500 for that period. The 7 August 1995 particulars claimed $350 per week from November 1987; the 25 February 1999 particulars claimed $350-500 per week from November 1987.) Each aborted hearing, whether it had happened or was likely to happen in future, by itself might not cause much prejudice. Each month that had passed or that was likely to pass by itself might not cause much prejudice. But taken together what happened and what was likely to happen added up to serious prejudice to the defendants. By 1997 the chance of a fair trial taking place had been substantially diminished by the passing of time. The delays caused by the plaintiff before February 1999 reduced that chance further to the prejudice of the defendants, and presaged the risk of further delays. 61 Accordingly, even if the English test were the law in this State, it would not have assisted the plaintiff. Is Stollznow v Calvert still good law? 62 There is a further issue about the relevant legal test. The second defendant in particular contended that the test propounded in Stollznow v Calvert was too generous to the plaintiff, and had been modified over the years since that case. The second defendant contended that the changes in the law are evidenced by the third and fourth sentences in the following observation of Kirby P in Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 644: "The principles which require leave of the Court to appeal from interlocutory decisions apply with special force where the decision in question is one that may be categorised as one of practice and procedure. The reason for this restraint, accepted by appeal courts is partly described in the oft quoted language of Jordan CJ in Re the Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323; 63 WN 176 at 179. I say that the reasons are there stated 'in part' because, since 1946, there has been an increasing realisation of the public costs which are involved in litigation and the public interest that necessitates, particularly in the multitude of practice decisions that must daily be made in courts, a high respect for finality. Without this, other litigants will be delayed and the burden on judges and the appellate process will be unacceptably increased, with consequent public expense." The second defendant also relied on Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 153, 164 and 170-171 and Sali v SPC Ltd (1993) 67 ALJR 841; 116 ALR 625. One difficulty with this argument is that while Wentworth v Rogers (No 3) certainly draws attention to the importance of finality in practice decisions and the public interest in efficient case management, cases like Queensland v J L Holdings Pty Ltd stand against the exaltation of these considerations to the point where they are always decisive. Kirby J's own judgment in Queensland v J L Holdings Pty Ltd , for example, can be read as an extended analysis of the huge variety of factors which a court may have to take into account in arriving at a discretionary decision on a matter of practice and procedure having an impact on substantive rights. A further difficulty with the submission is that, as the first two sentences in the passage quoted above from Kirby P in Wentworth v Rogers (No 3) reveal, he was dealing with the need for appellate courts to exercise restraint in granting leave to appeal from interlocutory decisions. Here leave has already been granted. Kirby P was also speaking of practice decisions not having an impact on substantive rights, not, as here, practice decisions which do. At all events, if anything the trend of authority since the time of Stollznow v Calvert affirms the width of the discretions recognised by Walsh JA and approved by Stollznow v Calvert . That case is a considered authority of the judges of this Court which their successors are obliged to follow until it is explicitly overruled either by this Court or by the High Court. Neither this Court nor the High Court has ever been invited to do so, and neither court has done so. Paramount interests of justice 63 The plaintiff referred to the following passage in the reasons for judgment of Dawson, Gaudron and McHugh JJ in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 155: "Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion." It cannot be said here that the primary judge was seeking to punish the plaintiff for mistakes or delays. Their Honours had earlier referred to the adequacy of costs orders to cure prejudice to the other party: that was not a practical possibility here. Case management was not the only matter which the primary judge here took into account. More fundamentally, the passage does not support the proposition that in every case complete justice to the party in default is the paramount consideration. Their Honours were speaking of applications for leave to amend in a case concerning the refusal of a late amendment to a defence which, if allowed, would have caused vacation of a fixture for the trial. It is questionable whether they were intending to create an absolute rule even in that field, for that would be antithetical to the idea of a discretion. But their Honours were certainly not speaking of applications under an equivalent to Part 18 rule 3(1). That rule contemplates the possibility that on occasion it will be right to terminate proceedings without determination of an issue between the parties on its merits. 64 The plaintiff also referred to the following passage in Kirby J's reasons for judgment in Jackamarra v Krakouer (1998) 195 CLR 516 at 541-542: "In the cyclical way of these tendencies, the close of the century has seen something of a revival of insistence upon a stricter adherence to rules and practices. The source of the strictness is a larger judicial concern to ensure the efficient despatch of court business. Such an objective was never completely overlooked by the courts [See, eg, Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935; Revici v Prentice Hall Inc [1969] 1 WLR 157 at 159-160; [1969] 1 All ER 772 at 774.] Lord Denning MR, for example, in Allen v Sir Alfred McAlpine & Sons Ltd [[1968] 2 QB 229 at 245] countered the applicant's submission that to strike out an action without trial for time default would contravene Magna Carta, with this retort: 'To this there is a short answer. The delay of justice is a denial of justice. Magna Carta will have none of it. 'To no one will we deny or delay right or justice' [Magna Carta, ch 40]. All through the years men have protested at the law's delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time [Hamlet, Act III, sc 1]. Dickens tells how it exhausts finances, patience, courage, hope [Bleak House, ch 1]. To put right this wrong, we will in this court do all in our power to enforce expedition: and, if need be, we will strike out actions when there has been excessive delay. This is a stern measure. But it is within the inherent justice of the court. And the Rules of Court expressly permit it.' More recently, this rhetoric has been converted into action in Australia as courts have come to appreciate that they have their own interest in ensuring compliance with time limits [ Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 153-154]. Court lists are typically more congested today. This fact and a growing awareness about the needs for efficiency in judicial administration help to explain a somewhat diminished inclination, recently, to extend procedural indulgences. Yet even today, rules and efficient case management must not be seen as ends in themselves. The ultimate obligation of a court is the attainment of justice as the law requires [ Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154, 172]." It cannot be said that Garling DCJ's reasoning suffers from the vice of treating rules and efficient case management as ends in themselves: the plaintiff rightly conceded that his concern with case management considerations was relevant. And while the ultimate obligation of a court is to seek to attain justice, the justice that is to be striven for is justice between the parties. Where the defaults, and the consequent delays, of one party prejudice the chances of justice being achieved for others, it may be appropriate to make an order under Part 18 rule 3(1). Whether it was appropriate in this case must turn on other and more specific criticisms advanced by the plaintiff going to matters other than legal principle: for there was no error of legal principle in Garling DCJ's judgment. Material Error of Fact? 65 The plaintiff alleged five material errors of fact. Delay 66 First, it was said that Garling DCJ erred in concluding that there "was an extremely long delay in bringing this case on for hearing". So far as that statement relates to the lapse of time from 1989, it is obviously true. Some of it was the plaintiff's fault. Thus, for example, the plaintiff was directed on 9 June 1995 to serve Amended Particulars pursuant to Part 33 rule 8A by 14 July 1995. She did not do so until 7 August 1995. The plaintiff failed to appear at a hearing before the Registrar on 28 July 1995, and Simpson J ordered her to pay the defendants' costs in relation to that non-appearance on 7 August 1995. No party filed evidence on the question whether an eight year delay in the Supreme Court was abnormal, or resulted from the court's difficulties, or resulted from the defaults or inertia of the plaintiff. It seems an extraordinarily long period, and a plaintiff prepared for trial would, it might have been thought, have been able to have a trial fixed and heard in a significantly shorter time. The second defendant criticised the plaintiff for not dealing with these issues in evidence on the basis that she had the onus of explaining delay. But let it be assumed that the delay in the Supreme Court was not the plaintiff's fault (and the defendants did not demonstrate decisively that any substantial part of it was), and let it be assumed that the only relevance of the delay in the Supreme Court is that it is a circumstance giving context and significance to the delay in the District Court. The fact remains that the delay in the District Court was extremely long compared to the possibilities that existed had the plaintiff complied properly with the order of 25 March 1998: see [56] above. The plaintiff went so far as to contend that it was not even open to the primary judge to conclude that there was an extremely long delay. That submission must be rejected. Lack of diligence 67 Secondly, it was said that Garling DCJ erred in finding that there was a total lack of diligence by the plaintiff. Even if attention is limited to proceedings in the District Court, there was a total lack of diligence: see [54]-[55] above. Again, the plaintiff went so far as to submit that it was not even open to the primary judge to make a finding of a total lack of diligence. That submission too must be rejected. Prejudice 68 A third error, it was said, lay in Garling DCJ's conclusion that the defendants suffered prejudice. The items of prejudice claimed by the defendants which were supported by specific evidence (the sale of the business and the closure of the factory) were not caused by the plaintiff's delay in the District Court. And the defendants' items of prejudice which were supported by general evidence were not established by it. However, even the delays in the District Court caused prejudice: see [58] above. There were already prejudicial factors operating against the defendants for which the plaintiff was not responsible: the delays in the District Court for which the plaintiff was responsible increased the prejudice flowing from those factors. Non-compliance with orders about expert reports 69 Fourthly, the plaintiff contended that Garling DCJ mistakenly assumed that the plaintiff was not only in breach of Ainslie-Wallace DCJ's order about particulars, but was also in breach of her order to file medical reports or expert reports by 16 January 1999. The plaintiff argued that she was only obliged to file by that date those on which she wished to rely; if she chose not to rely on further reports, she was not in breach of the order. In the Statement of 8 October 1998 which was before Garling DCJ on that day, it was said on behalf of the plaintiff that a non-medical expert opinion was being sought. That is not surprising, since it might have been difficult for the plaintiff to succeed on the issue of liability without material of that character in view of the fact that the Statement of Claim alleged that the nature and conditions of the plaintiff's employment involved excessive and repetitive strain and chemical fume inhalation. As long ago as 9 June 1995 a Supreme Court Registrar had directed the plaintiff to file any expert's report on liability by 28 July 1995. Though on 7 August 1995 Simpson J noted that she was informed that the plaintiff had served all its medical reports, she noted nothing about the service of any expert report on liability. The plaintiff had been directed to file an affidavit pursuant to the then Practice Note 68 on 28 July 1995. That affidavit, sworn on 4 August 1995, dealt with particulars and medical reports, but not expert reports on liability. Evidently the plaintiff's camp apprehended both in 1995 and in 1998 that whatever material in the nature of an expert's report on liability already existed (and the plaintiff submitted that a report dated August 1990 had been served), it might not be sufficient. In the meantime the first defendant's solicitor's letter of 2 June 1997 had stressed the importance of early service of "all experts reports of any type". The plaintiff's solicitors did not reply denying that there would be any. That the plaintiff had the intention of filing a non-medical expert report is further supported by the fact that on 20 November 1998 the plaintiff's representative, after the adjournment to take instructions, said that the "plaintiff undertakes … to serve all expert reports within forty-two days … ." The offer of an undertaking after taking instructions evidences a significant probability that there will be an expert report, not just a remote possibility. This is particularly so where nothing was said to Ainslie-Wallace DCJ about expert reports before the instructions were taken. The plaintiff never said that her intention to rely on a non-medical expert report had changed. Garling DCJ was told on 26 February 1999 at the end of the hearing that all medical reports and documents in support of economic loss had been served, but the possible non-medical expert report was not mentioned. Earlier he had been told that "All reports have been served", but that was in a context in which the Part 9 rule 27 particulars, relating to damages and not liability, were under discussion and it was said that the Part 9 rule 27 particulars did not go beyond "the medical evidence previously served". Hence it was not clear whether the plaintiff had abandoned the possibility flagged in the 8 October 1998 Statement of a further non-medical expert report. The possibility of a further non-medical expert report thus remained in existence, and if the possibility had come to pass, it would have been seen that the order of Ainslie-Wallace DCJ had been breached and that the matter had never been ready for trial. However, this possibility does not appear to have been part of Garling DCJ's process of decision. He said in the first part of his judgment "I am told there has been no updated medicals, expert report". But he did not refer to that as a breach of orders earlier when he was describing the history. And he did not set that matter out as one of the reasons for dismissing the proceedings for want of prosecution when he came to that part of his judgment. His reasons centre on the particulars under Part 9 rule 27, which relate to damages, not liability, and the possibility of a non-medical expert report related to liability in relation to the location of the machines at the factory. Finally, even if the primary judge did incorporate into his reasoning a belief that the plaintiff was in breach of the order about expert statements because of an intention to rely on a non-medical expert report, it was not a belief that the plaintiff's representative explicitly disabused the primary judge of or argued against. The fact that this did not happen supports an inference that the plaintiff was seeking to preserve a free hand in that respect despite the terms of Ainslie-Wallace DCJ's orders of 20 November 1998. New allegations 70 Finally, the plaintiff said that Garling DCJ erred in concluding that the 25 February 1999 particulars contained "new allegations" and effected a "change" in the case, even though the plaintiff had submitted on 26 February 1999 that they did not. To this there are five answers. 71 One is that the position of the plaintiff before Garling DCJ on 26 February 1999 was ambivalent and fluid. The plaintiff's representative submitted that the particulars were only filed as a "precautionary measure", whatever that meant. He said: "I would respectfully submit they do not alter the plaintiff's case beyond the part 12s and the medical evidence previously served and that includes Dr Champion's report." Garling DCJ said: "So it would not concern the plaintiff if I merely struck out the amended particulars pursuant to part 9 on the basis that the matter would proceed on the earlier particulars?" The plaintiff's representative replied: "It wouldn't really, but I would ask your Honour not to do that in the light - … " Garling DCJ said: "Well, it couldn't, could it? Because if you say they're the same, it is not going to worry us, is it?" The plaintiff's representative then said: "Correct. But in light of the fact there was a specific order made and we've since complied with them and they do incorporate the material contained in Dr Champion's report it would be more practical, with respect, for them to remain there rather than strike those out." Either Dr Champion's report of 9 April 1998 contained material proving new allegations or it did not. If it did, the new particulars went beyond the old. If it did not, there was nothing in Dr Champion's report which had to be incorporated. The above passages suggest that at least the material contained in Dr Champion's report of 9 April 1998 was new, and also shows the plaintiff's representative perhaps understandably seeking to keep all possibilities alive. 72 A second answer is that the plaintiff's case in the particulars, apart from Dr Champion's material, was on the face of it new in some respects. The particulars alleged alcoholism, which was new. The plaintiff submitted this was not a new case but the taking up of an item of evidence already filed, and in this respect corresponded to other particulars which the defendants said were new. The plaintiff's submissions said: "It is conceded this was not previously particularised. It is submitted that it is a consequence of the depression and other disabilities alleged previously and is, like so many of the new particulars, really a matter for evidence." In argument the primary judge pointed out that deficiencies in particulars could not be cured by the filing of evidence, and in particular that the function of particulars in putting the defendants on notice of the plaintiff's case could not be fulfilled by the earlier filing of evidence. Further, the new particulars appear to go beyond the old even in respects which the plaintiff said on the appeal merely gave more detail about existing allegations. This can be illustrated by one group of allegations in the Part 33 rule 8A particulars which were as follows: "l. Depression; … n. The Plaintiff is significantly restricted in her leisure time activities with her son and in particular cannot involve herself in any activities which require vigorous or arduous exertion of her arms and legs; o. Significant impairment of the Plaintiff's ability to lead a normal life; … gg. The Plaintiff has contemplated suicide because of her ongoing disabilities … ." The plaintiff said of one new particular, "Irritability" and another, "Impairment of marital relationship leading to divorce," that each was merely an "explanation" of the disabilities already particularised. Each of these newly particularised conditions may be causally related to the matters earlier particularised, but they are in truth different from and additional to them. The same point can be illustrated by another group of allegations in the Part 33 rule 8A particulars which were as follows: "a. Pain, aching and limitation of movement in the both arms; b. Pain in her arm is exacerbated on carrying out of moderately heavy household work such as vacuuming, washing, cooking and pegging out clothing; … r. Radiation of pain up the forearm as far as the upper arm and shoulder; … dd. Inability to raise right arm to shoulder height." The plaintiff said of one new particular, "Wasting of musculature over right shoulder", that is was "consistent" with these disabilities, and pointed to another as being already illustrated by the old disabilities, namely "Severe pain right shoulder". Yet each appears to add to what has gone before. 73 A third answer is that whether or not the new particulars advanced a radically new or even a slightly new case in substance, they certainly had a very different form. The task of working out how new the case in truth was was a task which imposed a new burden on the defendants. The defendants only received the particulars the day before the hearing taking place before Garling DCJ on 26 February 1999 - two months after they would have got them if Ainslie-Wallace DCJ's order had been complied with. The great difference in form between the old and the new particulars, if not explained, was highly suggestive of novelty in substance. If the new particulars did not change the case in substance, why was it necessary so extensively to change their form? The plaintiff put the following submission at the start of a document seeking to demonstrate that a document prepared by the second defendant and purporting to demonstrate the magnitude of the changes was invalid: "It is submitted that many of the new particulars include matters that relate to the anatomical and/or physiological explanation(s) of disabilities which have otherwise been particularised e.g. 'Osteoarthritis of the small finger joints' at 12(s) below is really the diagnosis of 'Continuing pain in hands with small painful lumps on either side of the Plaintiff's index fingertip joints' at B(ii) of the Part 33 particulars." It is certainly true that the new particulars employed technical medical language to a much greater extent than the old. For example, in relation to a new particular, "Bilateral patello femoral clicking, cracking and crepitation upon full squat", the following old particulars are referred to by the plaintiff: "h. Pain, aching and limitation of movement in both knees; i. The Plaintiff has difficulty in carrying out any activities requiring squatting … ." The increased use of technical medical language increases the likelihood of there being differences and the likelihood of medical aid having to be invoked in order to work out what the differences are. 74 Fourthly, at some stages of the argument in this Court the plaintiff conceded that the new particulars did change the case to some degree, but said that in that event the primary judge should have refused to permit the plaintiff to proceed on the changed case rather than dismissing the proceedings. This submission is dealt with at [80]. 75 Finally, the novelty of the case, though mentioned by Garling DCJ just before he stated his conclusion that the proceedings should be dismissed for want of prosecution, did not in terms appear among the reasons which the trial judge gave for that conclusion. The primary judge appears to have regarded it rather as an ingredient in the prejudice which he found that the defendants suffered. While minds may differ about the degree of prejudice, the contention that the primary judge was wrong to find any prejudice was rejected at [58] above. In short, the plaintiff has not demonstrated that if there was an error as to the novelty of the case, it was an operative error of sufficient substance to justify the primary judge's exercise of discretion being set aside. Taking Into Account Irrelevant Matters 76 At some stages the submissions of the plaintiff suggested that Garling DCJ's remarks about case management were irrelevant. Paragraph 5 in the Notice of Appeal certainly did. However, in oral argument counsel said: "We accept, as indeed we must, that considerable importance would attach to the need for a list judge, particularly in the District Court where it has received so many cases from the Supreme Court, to ensure that matters proceed promptly through the court list. The … order [that] was made … has the result of the striking out of a cause of action so that it becomes, and it is, effectively statute barred, and that is an order which we submit is extreme and warrants review. There were other alternatives open to his Honour … ." Thus the plaintiff accepted that Garling DCJ's concerns about matters before the court proceeding in accordance with its rules were proper, and apparently abandoned this contention as an independent ground of appeal. 77 The plaintiff also suggested in the Notice of Appeal that Garling DCJ erred in taking into consideration the prejudice to the defendants caused by the closure of the factory and the lack of opportunity to see various medical reports. While the defendants referred to the closure of the factory, there is nothing to suggest that the trial judge took it into account as prejudice beyond its role as a background to the prejudice caused by the delay in the District Court. The complaint in relation to the medical reports was not developed in argument and must be rejected. Failing To Take Into Account Or Give Sufficient Weight To Relevant Matters 78 The plaintiff first submitted that the "blamelessness of a plaintiff personally" for delay was a relevant matter: Stollznow v Calvert [1980] 2 NSWLR 749 at 753. She submitted that there was a lack of personal blameworthiness on the part of the plaintiff in this case and that the primary judge failed to take it into account. However, as indicated at [49] above, the plaintiff did not tender evidence casting any light on that question, and it was therefore not possible for the primary judge to take it into account. This may be compared with what happened in Stollznow v Calvert [1980] 2 NSWLR 749 at 755-756, where the plaintiff filed an affidavit leading to a finding of fact that she was "totally innocent of any fault", which in turn led to a rejection of the application to dismiss for want of prosecution. 79 Another matter which the plaintiff said was not considered was the hardship which dismissal of the proceedings would cause to her. Neither the legal representative of the plaintiff before Garling DCJ, nor Garling DCJ himself, referred to this, but it is a point which goes without saying and it cannot be doubted that he would have taken it into account. 80 Thirdly, the plaintiff said that the primary judge failed to give consideration to the proposition that dismissal of the proceedings was too extreme a remedy for any prejudice suffered by the defendants and said that he ought to have taken into consideration some "alternative remedy". The main "alternative remedy" relied on was refusing the plaintiff leave to rely on the new particulars. It is true that Garling DCJ did not mention that "alternative remedy" in his reasons for judgment. But he raised it in argument, in the passages quoted in [68] above. In those passages the representative for the plaintiff opposed that course. He said: "I would ask your Honour not to do that". He also said: "it would be more practical, with respect, for them to remain there rather than strike those out". Sometimes the plaintiff's submissions moved close to assuming that in these and related passages the plaintiff's representative before Garling DCJ refused his invitation to proceed on the old particulars; sometimes it was said that the invitation had not been refused. It seems clear that it was refused. The complaint which the plaintiff now makes is wholly baseless. It is not logically possible to criticise a District Court Judge who is obliged to make a discretionary decision about whether or not to dismiss proceedings for failing to consider the alternative of striking out particulars when that alternative was actually suggested and proffered by him but rejected by the plaintiff. He cannot be criticised for not considering or adopting the alternative remedy when the plaintiff herself refused it. Two other "alternative remedies" referred to in the appeal were for Garling DCJ "to refuse to set the matter down for hearing" or "to bring the matter back to him on short notice". These "alternative remedies" were not suggested on 26 February 1999 by the plaintiff to Garling DCJ. Instead the plaintiff sought "a date for hearing before a judge or an arbitrator". The plaintiff's representative said: "We'd take a date today". The primary judge cannot be criticised for not devising alternative remedies when they were inconsistent with the course which the plaintiff was urging on him. Further, to refuse to set the matter down for hearing would increase the delays; to have it brought back after a period on short notice carried the risk that something to be done during that period would remain undone. 81 Fourthly, according to paragraph 12 of the Notice of Appeal, Garling DCJ "erred in failing to take into consideration the alternative remedy available to address prejudice to the [defendants] arising out of any allegedly unseen medical reports, that being to refuse to allow the [plaintiff] to tender those reports at the hearing." However, no argument was addressed to the court in support of this ground. Further, the representative for the plaintiff did not suggest to Garling DCJ that he should take the course which, the plaintiff now says in this appeal, he should have taken. The representative for the plaintiff before Garling DCJ could not suggest that, since the plaintiff's stand there, communicated at least three times, was that "All reports have been served." It is impermissibly contradictory to rebuke the primary judge for not adopting a course which he was not asked to adopt and which is inconsistent with what he was told. 82 Fifthly, paragraph 13 of the Notice of Appeal alleged that Garling DCJ had failed to take into consideration various matters relevant to prejudice. No argument was advanced in support of this ground. No argument was advanced to the primary judge that he should take those matters into consideration. Some of the matters are not supported by evidence. This contention must be rejected. 83 Sixthly, at various stages the plaintiff submitted that the primary judge had not "been fully appraised of the background and of the competing interests between the parties". Little particularity was advanced in support of the submission. It was said that the hearing on 8 October 1998 had not been drawn to his attention by the affidavit of the solicitor for the first respondent: yet the hearing had taken place before him, and he was reminded of that fact by the representative for the plaintiff. It was submitted that mistaken things were said to Ainslie-Wallace DCJ, such as the date of the Amended Particulars supplied under Part 33 rule 8A (1992, not 1995): this detail is not important. But the fundamental problem is that while it is legitimate to criticise a primary judge considering a discretionary judgment for not understanding matters of which he had been informed, it is not legitimate to criticise a primary judge for not taking account of matters not drawn to his attention. If there was some inadequacy in the primary judge's understanding because of what he had not been informed of by the plaintiff's representative, it was not an inadequacy of which the plaintiff can complain on appeal. Unreasonable Or Unjust Result? 84 The question is whether the dismissal of the proceedings was so unreasonable or unjust a result as to indicate that some appellable error must have occurred in the process of reasoning which led to it, even though it is difficult or impossible to identify the error on the face of the reasons. 85 The fact, considered by itself, that the order had the effect of terminating the plaintiff's whole case without its ever having been considered on the merits, is not necessarily unreasonable or unjust. Orders made under Part 18 rule 3(1) will often be made when the limitation period has expired. The rule contemplates that the result which has come to pass here will not infrequently come to pass. If the fact of terminating the whole case is to lead to the conclusion that the result was unjust or unreasonable, some additional ingredient must be found. 86 The additional ingredient cannot be found in the fact that on 25 February 1999 the plaintiff supplied the particulars. That circumstance did not alter the fact that she had, in breach of District Court orders, failed to do so for many months before that day. She had done so, it may be inferred, only because of the pressure brought to bear by the defendants' Notices of Motion and the court's indication that on 26 February 1999 she would have to show cause why an order under Part 18 rule 3(1) should not be made. 87 Nor can the additional ingredient be found in the fact that the defendants made no complaint about the particulars as such. The defendants had scarcely had any real opportunity to examine them before the hearing on 26 February 1999. And the gravamen of the difficulties which the primary judge saw was not the plaintiff's capacity to carry out legal procedures correctly eventually, but her capacity to carry them out diligently and in conformity with the times specified in court orders in such a manner as not to obstruct the court's attempts to get the proceedings ready for hearing. 88 Further, the additional ingredient cannot be found in the fact that 26 February 1999 was the first occasion on which the defendants had moved the court for dismissal. If that were a crucial factor in the eye of the law, there would be an encouragement of fruitless applications by defendants merely to lay the groundwork for a later successful application. The plaintiff referred to Stollznow v Calvert [1980] 2 NSWLR 749 at 753-754, but that passage does not support the proposition. Moffitt P said: "in some cases inaction by a defendant in the face of impending prejudice to him if delay continues, may render a later claim of actual prejudice less creditworthy, and the prejudice, if established, a less weighty factor." The present case does not fall within that description. The first defendant made its position plain in the letters of 2 and 24 June 1997. Moffitt P at 754 said: "I cannot accept … that a defendant, who has written complaining of the delay and warning that particular prejudice will occur to him if delay continues, is not, on a later application to dismiss the proceedings, in a position superior to that of a defendant who has lain silent and later claims for the first time that prejudice has occurred by reason of the delay." Further, both defendants had made their concern about the lack of particulars plain on 8 October and 20 November 1998. 89 The additional ingredient cannot be found in any contention that the defendants wrote no letter threatening the filing of the Notices of Motion before actually filing them. In Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 410 Herron CJ referred to an observation of Diplock LJ's in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 258-259: "that there is no rule that a plaintiff's solicitor should be given prior warning of a defendant's intention to apply to dismiss an action for want of prosecution and, if there is any tacit understanding to that effect, the sooner that is abandoned the better. These observations apply equally to the present case." In any event, the first defendant had threatened its Notice of Motion in June 1997, and both defendants had made their dissatisfaction plain at the hearings in the District Court in 1998. Further, the hearing on 26 February 1999 was not the first occasion on which the matter had been listed with a view to dismissal under Part 18 rule 3(1): that had occurred on 8 October 1998 by reason of the Assistant Registrar's orders of 25 August 1998. 90 The additional ingredient cannot be found in the following submission by the plaintiff: "Although the [defendants] brought their Motions based on Want of Prosecution the case could never be described as a Want of Prosecution case. It was set down for hearing without protest from either [defendant]. Their failure to make proper protest to the listing of the matter for hearing constitutes, it is submitted, a silent acquiescence in the appropriateness of such listing. It was ready to be heard when it was taken out of the list." This submission appears to be wanting in any factual foundation. On 8 October 1998 Garling DCJ listed the case for arbitration on 1 February 1999. The defendants did protest at that, but he rejected their protests. The defendants then successfully moved Ainslie-Wallace DCJ for that listing to be vacated because of the plaintiff's breach of the second District Court order about particulars. There was no "silent acquiescence" on their part; there was vocal opposition. And whether the case was "ready to be heard" is unclear in view of the fact that the intention of the plaintiff to file a non-medical expert report on liability which appeared to exist on 20 November 1998 was never clearly disavowed. 91 Perhaps the case in favour of the plaintiff can be put at its highest, as it was put in argument to counsel for the first defendant, as follows: "having got to [25 February 1999] with all the prejudice that had arisen as a result of delay and yet no complaint about it and the plaintiff finally having given the particulars the matter was ready to go and in those circumstances, bearing in … mind the consequence to the plaintiff of dismissing the proceedings a court would be very reluctant to dismiss proceedings." To this the first defendant replied that it had been complaining since June 1997 about the unreadiness of the plaintiff; that a new regime came into play when the matter moved to the District Court in December 1997; that the inevitable prejudice arising from the plant closure in 1990 increased the need to minimise it by speedy action, particularly in relation to any expert report on liability relating to conditions at the plant; that the delays in 1998-1999 occasioned by the plaintiff's three defaults in relation to particular orders did not minimise prejudice, but increased it; and that the plaintiff appeared to be preserving a free hand in relation to an expert report on liability, while altering the damages particulars. "The defendants could never be satisfied that that case against them was clearly enunciated and that was in our submission enough for Garling DCJ to say - look, it's about time I closed this show down, this just cannot be tolerated, no matter what I do or my colleagues do nothing happens." Those contentions point forcibly against the conclusion that the result at which the primary judge arrived was so harsh and unreasonable as to suggest appellable error. To those matters may be added the fact that if the result at which Garling DCJ arrived on 12 March 1999 is to be criticised as harsh, unreasonable and appellably wrong, when Ainslie-Wallace DCJ had warned on 20 November 1998 that that was the very thing that would happen if her orders were not complied with, it is hard to see when the discretion for which Part 18 rule 3(1) provides will ever be exercised against a party so long as that party says it is ready and can point to "compliance", however belated, with the last order made. 92 Even if all the circumstances are looked at in their totality, the result is not so harsh and unreasonable as to suggest error on the part of the primary judge. Other minds might have reached a different conclusion. That outcome is inevitable where the decision to be made is a discretionary decision. The fact that other minds might not have arrived at the primary judge's conclusions is not by itself a ground for interfering with them. It can be seen even from the slight materials before Garling DCJ that at some stages the plaintiff's camp had carried out a significant measure of preparation, as had the defendants' camps. It is regrettable that a case of that character should never be tried on the merits. But the possible grounds of appellate interference with the primary judge's conclusion that it should not are limited. The fact that individual members of an appellate court might consider firmly - even very strongly - that if appellable error were established, some conclusion other than that reached by the primary judge should be substituted for it, does not justify interference with it unless appellable error is established. It has not been. Good Faith 93 Paragraph 14 of the Notice of Appeal alleged that the defendants acted in bad faith on 26 February 1999. There is no evidence that they did, and no argument was advanced in relation to the 12 March 1999 orders that they did. The allegation is rejected. Orders 94 The appeal (No 40522/2000) against the orders of 12 March 1999 should be dismissed with costs for the reasons given above. The appeal (No 40060/2000) against the orders of 16 December 1999 should also be dismissed with costs, because the plaintiff put no additional argument in support of it. 95 Accordingly, the orders proposed are as follows. Appeal No 40522/2000 1. The appeal is dismissed. 2. The appellant is to pay the respondents' costs of the appeal. Appeal No 40060/2000 1. The appeal is dismissed. 2. The appellant is to pay the respondents' costs of the appeal. 96 STUDDERT AJA: I agree with Heydon JA. ********** 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. 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