New South Wales Court of Appeal CITATION : Falconer v Laird [2003] NSWCA 114 HEARING DATE(S) : 11 April 2003 JUDGMENT DATE : 15 May 2003 JUDGMENT OF : Handley JA at 1; Beazley JA at 2; Giles JA at 3 DECISION : In Court of Appeal proceedings 40309/02: (1) Grant leave to appeal; (2) Subject to filing the notice of apepal within 14 days, appeal allowed; (3) Set aside the orders made by Delaney DCJ on 25 March 2002 extending the time for applying to rescind the deemed dismissal and rescinding the deemed dismissal and in lieu thereof order that the notice of motion filed on 15 February 2002 be dismissed with costs so far as it claimed those orders; (4) Opponent/respondent pay the costs of the claimant/appellant and have a certificate under the Suitors Fund Act if otherwise qualified. In each of Court of Appeal proceedings 40979/02 and 40980/02 the summons is dismissed with costs. CATCHWORDS : Actions for personal injuries brought in District Court - one defendant not properly named - statements of claim found not to have been served on defendants - actions not prosecuted in timely manner - no praecipes for trial filed - deemed dismissals under Pt 12 r 4C of the District Court Rules - applications to rectify position as to parties and service and rescind dismissals - whether statements of claim had been served - whether validity of statements of claim for service should be extended - whether dismissals should be rescinded - test of whether fair and just - overwhelming prejudice to defendants in defending plaintiff's claims - applications should be dismissed. D Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541; Harding v Bourke (2000) 48 NSWLR 59; Itek Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207; CASES CITED : Kessey v Golledge (1999) 40 MVR 95; Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359; Rust v Barnes (1980) 2 NSWLR 726; Salido v The Nominal Defendant 32 NSWLR 524; Williams v The Minister Aboriginal Land Rights Act 1983 (2000) Aust Torts Reports 81-578. Irene Falconer v Alexander Laird PARTIES : Alexander Laird v Mark Lemming Alexander Laird v Robert Raciti and Leslie Green FILE NUMBER(S) : CA 40309/02; 40979/02; 40980/02 COUNSEL : M R Aldridge SC & J Thompson - Laird C R R Hoeben SC & J P Sewell - Falconer, Lemming, Raciti and Green SOLICITORS : Maxwell Berghouse & Ives, Smithfield - Laird Nevill & Edwards - Falconer, Lemming, Raciti and Green LOWER COURT District Court JURISDICTION : LOWER COURT DC 356/86; 357/86; 358/86 (Campbelltown) FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40309/02 CA 40979/02 CA 40980/02 DC 356/86 (Campbelltown) DC 357/86 (Campbelltown) DC 358/86 (Campbelltown) HANDLEY JA BEAZLEY JA GILES JA Thursday 15 May 2003 FALCONER v LAIRD & ANOR LAIRD v LEMMING LAIRD v RACITI & ANOR Judgment 1 HANDLEY JA: I agree with Giles JA. 2 BEAZLEY JA: I agree with Giles JA. 3 GILES JA: These are related applications for leave to appeal, heard together and on full submissions so that, if leave be granted, the appeals can be determined without a further hearing. Three actions brought by the same plaintiff against different defendants in the District Court were not prosecuted in a timely manner. The plaintiff applied variously for extensions of the time within which statements of claim might be served and for orders rescinding deemed dismissals under the District Court Rules, and for orders granting extensions of time for making his applications. Orders were made in one action, but were declined in the other two actions. The applications for leave to appeal are made by a defendant in the one action and by the plaintiff in the other two actions. The course of events 4 The evidence in the applications in the District Court, which were also heard together with the evidence in each being evidence in the others, was incomplete and confusingly presented. An understanding of what occurred, to the extent it can be achieved, is essential. 5 Alexander Laird was injured or claimed to have been injured in three motor vehicle accidents, on 31 March 1982, 20 September 1983 and 17 November 1983. 6 On 31 March 1982 a motor bike carrying Laird, then aged 17, and Wayne Sevil, then aged 16, came into collision with a car driven by Irene Falconer. The motor bike was not registered and neither Laird nor Sevil was licensed. Neither of them wore a helmet. Both were badly injured. Sevil died from his injuries on 3 April 1982. Laird was in hospital for some months. 7 A coronial inquest into the death of Sevil was held in October-November 1982. Laird's parents retained Paul Mulally of Breen, Mulally, Mylott & Meehan to represent Laird at the inquest. Significantly at issue were which of Laird and Sevil was the rider of the motor bike and which the pillion passenger, and whether Falconer had made a right-hand turn into the path of the motor bike as it travelled along the road or whether the motor bike had come from the footpath into collision with the car as Falconer turned appropriately. From the Coroner's reasons, Mulally cross-examined and called evidence with a view to establishing that Sevil was the rider of the motor bike and Laird the pillion passenger and that the collision was the fault of Falconer. The Coroner was satisfied that Laird was the rider of the motor bike and Sevil the pillion passenger, but made no finding as to fault in the collision. 8 On 20 September 1983 Laird was a passenger in a car driven by Robert Raciti which came into collision with a car driven by Leslie Green. On 17 November 1983 Laird was a passenger in a car driving by Mark Lemming which went off the road. There was much less evidence about the circumstances of these accidents, and the injuries Laird claimed to have suffered were apparently relatively minor in comparison with the injuries suffered in the first accident. 9 Shortly after the accident of 20 September 1983 Laird retained Mulally to claim compensation in relation to that accident, and after the accident of 17 November 1983 he consulted Mulally about that accident. There was no direct evidence of retainer to claim compensation in relation to the accident of 31 March 1982, but it must have occurred. 10 Mulally wrote to the Government Insurance Office of New South Wales ("the GIO") on 7 March 1984. (The GIO's name and status changed over the years and a different body now relevantly stands in its place. I will continue to refer to the GIO.) Mulally gave notice of a claim arising from the accident of 20 September 1983. There was no evidence of a similar letter or letters in relation to the other accidents. 11 Mulally wrote again to the GIO on 9 November 1984. The letter was headed, "Third Party Claim by Alexander Laird arising out of motor vehicle accident which occurred on 31st March, 1982", and began, "We refer to correspondence forwarded by you to our client and confirm that we act on his behalf in connection with the above accident". From this it seems that, in circumstances unknown, the GIO had notice of (or at least anticipated) a claim by Laird otherwise than through Mulally. The letter went on to say that Laird's medical condition had not yet stabilised, that in connection with who was the rider of the motor bike charges against Laird had been "dismissed … there being no prima facie case", and that the GIO might care to obtain the depositions. The two later accidents were mentioned, in terms suggesting that the GIO was already aware of them, and it was said that it was desired to resolve by negotiation claims arising out of all three accidents when final medical reports were available. 12 Mulally wrote again to the GIO on 14 January 1985, referring to his earlier letter and "a subsequent telephone conversation with a member of your office". The telephone conversation must have been a request for documents, since the letter then enclosed transcript and exhibits from the coronial inquest, returnable on demand, and copies of medical reports. It concluded - "We note that our Mr Mulally will be in Sydney, Tuesday, 29th January, next. We would welcome the opportunity of calling at your office to discuss Mr Laird's various claims. We have written to you separately enclosing details of the other claims." 13 There was no evidence of these other letters, or of a meeting. Mulally did not give evidence. 14 Laird, who gave evidence by affidavit but was not cross-examined, said that he saw his solicitor regularly, but gave no detail. He also said that he remembered "attending a number of doctors on behalf of the GIO and my own solicitor arranged some medico-legal doctors for me to see". The evidence included reference to a number of medical reports apparently obtained on behalf of Laird in 1982-84, but Laird is probably confused as to time since the GIO medical reports in evidence were of examinations in 1989 and did not refer to earlier examinations 15 At some time John Meehan of the firm took over from Mulally. Meehan did not give evidence 16 On 7 March 1986 Meehan commenced the three actions by filing statements of claim on behalf of Laird. 17 Action 356 of 1986 was brought against Sevil and Falconer, the former being named as "Wayne Derick Sevil (Deceased)". It was alleged that Sevil was the rider of the motor bike and Laird the pillion passenger. Since the motor bike was unregistered, any action against its rider had to be brought against the Nominal Defendant. So far as purportedly brought against Sevil, the action was a nullity. Even if action could have been brought against the rider of the motor bike, Sevil was dead and it would have been necessary to bring the action against an executor or administrator: it was wrong to name "Wayne Derick Sevil (Deceased)". 18 The car driven by Falconer was owned by her husband and insured for third party cover with the GIO. Although a filed copy could not be found, from reference in correspondence to an undated defence and a foreshadowed amended defence it was accepted in the applications that the GIO had caused a defence to be filed on behalf of Falconer, and so must have entered an appearance on her behalf. 19 Action 358 of 1986 was brought against Raciti and Green and action 357 of 1986 was brought against Lemming. The cars driven by Raciti and Green were also insured for third party cover with the GIO. Third party cover in relation to the car driven by Lemming was less clear, although from the early correspondence with the GIO it may be inferred that he was insured for third party cover with the GIO. There was nothing similarly to indicate that the GIO had taken up the defence of the proceedings brought against these defendants. 20 There was mention in the evidence of a letter from the GIO dated 21 May 1986 "offering to settle all matters for $24,000.00", and of a letter presumably from Laird's solicitors dated 17 June 1986 "of offer of settlement (all matters for $186,000.00)". 21 The evidence included a letter to the GIO from Mulally Mylott Meehan, as the firm had become, dated 30 July 1986, headed with reference to all three accidents and reading - "We refer to our telephone conversation with your Mrs Irene Vougdis on the 25th July, 1986 and now enclose herewith as requested the following: a) copy of our letter to you dated 17 June, 1986; b) copy of Statement of Claims [sic] in respect of each accident. Your earliest attention to this matter would be appreciated." 22 The letter of 17 June 1986 was not in evidence. We were informed, without dissent, that it was a detailed settlement offer. From the letter, it seems that the statements of claim had not reached the GIO. 23 According to Laird, in 1986 or 1987 he saw a barrister. In 1996 there was in existence a brief to John Carr of counsel, and the evidence included a memorandum of fees from Carr referring to work in 1987, but nothing more was revealed of the 1986-7 occasion. 24 The evidence included in each of the actions copies of the statements of particulars required under the then Pt 12 r 4A of the District Court Rules. All were signed and dated 2 February 1988 and bore the filing stamp of the District Court. The judge noted that "there is a doubt as to when they were filed". 25 On 23 May 1988 the GIO wrote to Mullally Mylott Meehan, with a heading referring to all three accidents, asking for "filed copies of the Statements of Claim … showing dates filed and plaint numbers, together with Affidavits of Service". The copies of the statements of claim provided in July 1986 must have been of apparently unfiled documents; service of the statements of claim was put in question. There was no evidence of a reply, and from the letter of 31 October 1997 later mentioned there was no reply. 26 Putting service of the statements of claim in question should have caused Meehan concern. Under the then Pt 5 r 5 of the District Court Rules, the statements of claim were valid for the purposes of service for two years from 7 March 1986. If they had not been served on the defendants (and of course the statement of claim in action 356 of 1986 could not have been served on Sevil), but copies had simply been provided to the GIO, in the absence of appearances the District Court's jurisdiction over the defendants had not been enlivened. 27 Someone in Mulally Mylott Meehan wrote to the GIO on 30 May 1988. The letter's heading referred to all three actions, with apparent GIO claim file numbers. It enclosed copies of medical reports, clinical notes, police reports and Pt 12 r 4A particulars, set out a basis for assessing damages, and offered to "finalise all three claims" for $230,000. $200,000 was attributed to the accident of 31 March 1982 and the balance was attributed $15,000 each to the other two accidents. There was no evidence of a response. 28 Laird said that every two or three months he telephoned the solicitors to see how the case was going, and was told that it was going well and that he would receive a large sum of money in due course. After 1990 the telephone calls tailed off to about every six months, and according to Laird he was often told that the case was waiting for a hearing date. 29 The evidence included a letter dated 7 May 1992 to the GIO from Meehan, then practising on his own account, headed "Re: Alexander Laird v Irene Falconer" and stating - "Please note that we are currently attending to filing a Notice of Listing in this matter and request that you review your file. We would be happy to hear from you concerning an offer of settlement." 30 There was no evidence of a similar letter in the other two actions. It being common ground that a praecipe for trial had not been filed, see later in these reasons, it is unlikely that a notice of listing was filed. 31 Laird said that in 1993 "all letters from the solicitors stopped", although there was otherwise no evidence of letters from the solicitors to Laird. Laird went to the solicitors' offices and found that they had moved. He tracked Meehan down to his practice on his own account. Still according to Laird, he was told by Meehan that the case was progressing and that he could in due course expect a large sum of money. 32 If Laird's evidence is correct, and it was in the most general terms and not the subject of cross-examination, the responses to his occasional enquiries of his solicitors was misleading. His actions were not properly progressed, and in particular the steps to set them down for trial and thus obtain a hearing date were not taken. 33 As a result of some advice from Meehan about repayment of social security benefits and "the trouble that I had been having in getting a result in my compensation cases", Laird changed his solicitors. In July 1996 he instructed Ron Dunbier then of Dunbiers The Law Practice, later of Baird & Associates. Dunbier gave evidence by affidavit, but was not cross-examined. 34 Dunbier had great difficulty obtaining the file from Meehan. He wrote many times, and received no replies or prevaricating replies. He sought to enlist the help of the Legal Services Commissioner and the Law Society, but obtained no satisfaction. In January 1997 the file was purportedly sent by Meehan to Dunbier through, but lost in, the DX. Dunbier was, however, able to obtain the Carr brief and undertake a reconstruction. 35 Under the then Pt 12 r 2 of the District Court Rules the actions could not be set down for trial until a praecipe for trial and, at the same time, a notice of listing had been filed. On 6 December 1996 there was gazetted a new Rule 4C in Pt 12 of the District Court Rules, relevantly providing - "4C.(1) This rule applies to actions which were commenced before 1 January 1996: (a) by the lodging of an ordinary statement of claim; or (b) by the lodging of a statement of liquidated claim and in which notice of grounds of defence has been filed; which have not been disposed of by judgment or final order. (2) If in an action to which this rule applies no praecipe for trial has been filed before 1 January 1998, the action is on that date deemed to be dismissed. … (4) The Court may if it thinks fit by order rescind a dismissal which is deemed to have occurred through the operation of this rule if application for the order is made before 1 July 1998, and where such an order is made the Court shall give directions as to the future conduct of the action." 36 Whatever the status of the actions so far as brought against Sevil and so far as service was concerned, it was common ground that in none of the three actions was a praecipe for trial filed. Although the new Rule had a long lead time, and was extensively publicised in the profession, it seems to have escaped Dunbier's attention. 37 On 4 August 1997 Dunbier wrote to the GIO referring to all three actions, setting out a précis of the documents he had been able to obtain from the Carr brief, and asking for the GIO's assistance "to place Mr Laird's files in order and either resolve the matters through settlement or prepare them for hearing". A particular question asked was "Dates of service of the plaintiff's documents". 38 A reply dated 31 October 1997 came from solicitors now instructed by the GIO. As to the accident of 31 March 1982, they pointed out that Sevil had been improperly joined, but they accepted that a defence had been filed for Falconer and sought consent to filing an amended defence. As to the accident of 20 September 1983, they said that no defence had been filed, that the only response to the request for proof of service of 23 May 1988 appeared to have been a letter dated 10 January 1989 purporting to serve the statement of claim on the solicitor for the GIO (this letter was not in evidence), and that unless personal service could be proved the action could not be maintained. As to the accident of 17 November 1983, they said that the GIO had only an unsealed copy of a statement of claim, that there had been no response to the request of 23 May 1988, and that again unless personal service could be proved the action could not be maintained. 39 As has been seen, service of the statements of claim had earlier been put in question. Dunbier can not have been confident of service, since he asked the GIO for dates of service. It was not inevitable that, if the statements of claim in actions 357 and 358 had not been served, the actions could not be maintained, since service outside the two years was probably an irregularity within s 159 of the District Court Act and the service could be confirmed or set aside, see Rust v Barnes (1980) 2 NSWLR 726. Alternatively, the time for which the statements of claim were valid for service could be extended. But something had to be done. 40 By another letter dated 31 October 1997 the solicitors for the GIO requested conventional particulars of the claims in all three actions. 41 Dunbier did nothing in relation to service of the statements of claim, and there was no reply to the request for particulars. 1 January 1998 passed without the filing of praecipes for trial. 42 By a letter dated 21 January 1998 the GIO's solicitors advised of arrangements for medical examination of Laird. By a letter dated 29 January 1998 they alerted Dunbier to the operation of Pt 12 r 4C and said that it seemed that action 356 of 1986 had been deemed to be dismissed. Dunbier's response was that he would apply for a rescinding order. There was further correspondence, to no effect. In mid-February 1998 the GIO's solicitors cancelled the arrangements for medical examinations and informed Dunbier that the GIO "will suspend any further investigation into the matter". 43 On inspection of the District Court files by both the GIO's solicitors and Dunbier, the actions had been dismissed in accordance with the Rules. It seems that actions 357 and 358 of 1986 were the subject of deemed dismissal as well as action 356 of 1986. By the time the applications in the District Court were heard, according to the judge's reasons "the original court papers appear to have vanished and were not all available. The court papers which I was given did have some documents but not all". 44 Dunbier did not apply for a rescinding order, and did little in relation to service of the statements of claim. He wrote to Meehan asking for proof of service of the statements of claim, but received no reply. He gave evidence that he then "put the matter aside to do the required work, later", but did not do so because of "a number of professional and personal circumstances confronting me over the following three years". These were explained up to a point. They did not justify or excuse the lack of attention to the actions. 45 Dunbier wrote to Laird on 24 February 1998 saying, amongst other things, that the actions could not be set down for hearing unless service could be proved and that, if Meehan did not provide proof of service, applications would be filed "seeking a number of orders". This was inaccurate and less than frank as to the difficulties, and in particular said nothing about the deemed dismissals, but it clearly conveyed to Laird that his claims were in trouble. 46 Dunbier gave evidence that he acted for Laird's father over the period 1998-2000 on a workers compensation matter, and that when he had a conference with the father Laird "about always" accompanied his father and they "discuss[ed] his matter". He gave no more detail. Laird gave evidence of contact with Dunbier "every few months", apparently because of his father's matter, and that Dunbier would from time to time say that he was waiting for more documents from Meehan or waiting for further medical reports and on one occasion said, "If we do not have success against the insurer GIO then we will take action against Mr Meehan". There was no evidence from Laird of the concern which one would have expected, or of his trying to get more activity from Dunbier. 47 In December 2000 Baird & Associates ceased to do personal injury work and Laird was told that they would no longer act for him. Laird instructed Peter Ives of Maxwell Berghouse & Ives. Ives immediately saw the difficulties. He wrote to the GIO's solicitors asking for consent to the three actions "being reinstated and for this litigation to be conducted in the normal way". The request was promptly declined. Apparently after an ineffective attempt to file notices of motion in April 2001, some time in early August 2001 Ives filed on Laird's behalf applications in all three actions to rescind the deemed dismissals. Even now progress was slow. 48 The applications did not address the need for extensions of time within which to apply to rescind the deemed dismissals. Nor did they address the status of action 356 of 1986 so far as brought against Sevil or the questions of service of the statements of claim in actions 357 and 358 of 1986. 49 The hearing of the applications began on 25 October 2001. There must have been some discussion which alerted Laird's lawyers to further matters requiring attention, and the applications were adjourned part-heard. 50 The hearing was resumed on 15 February 2002. By that time it had been ascertained that Falconer had died some time in 2001 (now known to be 18 November 2000). The police report held by Laird's solicitors showed that she had been aged 55 at the time of the 1982 accident. 51 On 15 February 2002 amended applications were filed in court. 52 The application in action 356 of 1986 sought orders substituting the Nominal Defendant for Sevil, substituting the (un-named) legal personal representative of Falconer for Falconer, and rescinding the deemed dismissal. There was no direct application for an extension of time within which to apply to rescind the deemed dismissal, but it was indirectly sought by the curiously worded claim "That, pursuant to DCR Part 3 r 2, the rescission which is deemed to have occurred through the operation of DCR Part 12 r 4C be rescinded". Nor was there an application for an order extending the time within which the statement of claim might be served on the Nominal Defendant. 53 The applications in actions 357 and 358 of 1986 sought orders that, in the event that it was determined that the defendants had been served, the deemed dismissals be rescinded, and in the event that it was determined that the defendants had not been served, the time within which they might be served be extended to 15 March 2002. In the former case, again no direct application was made for extension of the time within which to apply to rescind the deemed dismissal, but there was the same reference to Pt 3 r 2. In the latter case, the extension was claimed "pursuant to DCR Pt 3 r 2". The position as at February 2000 54 The GIO had been on notice of the three accidents, and of claims by Laird, since at least late 1984. 55 At the inquest Laird had said that he had no recollection of the accident. A number of statements had been tendered before the Coroner, apart from Laird's statement. There were statements of Constables Hardie and Debakker, the attending police officer and a vehicle examiner respectively. There was a statement of Falconer. There were statements, sometimes more than one, of Hughes, Boyd, List, Roache, Vitagliano and Schofield, all eyewitnesses. Oral evidence was given by all these persons except Schofield, and by Pirie, another eyewitness. 56 As to the accident of 31 March 1982, the GIO had been provided with copies of the transcript of evidence and exhibits before the Coroner. It still had these documents, although we do not know what the documents said because they were not tendered before the judge. Otherwise in evidence were some of the statements of Laird, Falconer, Hughes, Boyd and Hardie, but not the rest of the statements. There was no evidence, beyond Laird's allegations, of the information the GIO had as to the circumstances of the two later accidents. 57 As to all three accidents, the GIO had been provided with copies of a number of medical reports obtained by Laird's solicitors and had itself obtained medical reports in 1989. It still had these documents. Arrangements had been made for further GIO medical examinations in early 1998, but had been cancelled consequent on the deemed dismissals. 58 Service of all three statements of claim had been questioned, and the request for proof of service had not been satisfied. Whatever the position as to service, in unknown circumstances the GIO had filed a defence on behalf of Falconer. Its solicitors asserted that no defences had been filed in the other two actions, the Carr brief had a copy of the Falconer defence but no other defence, and if on Dunbier's inspection of the files there had been defences there would probably have been evidence of that: the proper conclusion is that no defences had been filed. 59 The GIO had apparently considered itself in a position to make an offer of settlement of all three claims in May 1986. It would be wrong to see much in the making of the offer, because its amount probably reflected only getting rid of the claims. Settlement was very different from running contested actions, since in settlement discussions the GIO could make much play of the difficulties confronting Laird in the major claim, as to his being the rider of the motor bike and the person at fault in the accident. 60 If it came to running contested actions, for action 356 of 1986 the passage of time had had a marked effect. Falconer had died in November 2000. The GIO's solicitor gave evidence that he had been "unable to confirm whether [Hardie or Debakker] are still in the police force", and of unsuccessful attempts to locate Hughes, Boyd, List, Roache and Pirie through the telephone book. A solicitor on the Laird side gave further evidence of telephone book entries for some of these surnames, but not usefully: the existence of (for example) thirty-eight entries for Boyd with at least one initial W was of little assistance. There was an entry for List at the address of the 1982 List, which the GIO's solicitor had telephoned but received no answer, and the Laird solicitor gave no evidence of trying again. The task of locating the 1982 witnesses would be very difficult, and would probably meet with little success; Laird's side made no real effort to show that they or some of them could be located. 61 There was a dearth of evidence as to witnesses in relation to the other two accidents. It could not safely be concluded that even Raciti, Green and Leeming were available, since the GIO was exercising its right as insurer to take over the conduct of the actions. It would not much matter if one or other of Raciti and Green was likely to have been at fault and if the car driven by Leeming ran off the road. 62 Laird's evidence was that his injuries in both the first and the second accidents included injuries to the right ankle and the left forearm and that his injuries in both the first and the third accident included injuries to his head/neck and knees. The Pt 12 r 4A particulars, however, did not fully reflect this. Although the various medical reports to which I have referred were held, there was little evidence that their authors were available. Some probably were, others probably not. The GIO's solicitor gave evidence of inquiries showing that the records of the 1982 hospitalisation had been retained but that the records of Laird's 1982-3 general practitioner had been destroyed in 1989. There was otherwise no evidence of availability of medical records. There was likely to be real difficulty in distinguishing between the consequences of the accidents. Other matters in the application in proceedings 356 of 1986 63 Before going to the judge's reasons for the decisions under challenge in the applications for leave to appeal, something should be said of other aspects of the application in action 356 of 1986. 64 The judge determined that he should extend the time to apply for an order rescinding the deemed dismissal and should rescind the deemed dismissal. After he had given judgment, his Honour's attention was drawn to the other orders sought in the action. He said that "those proceedings were only restored against Miss Falconer", and that he gave leave "to substitute the Executor/Administrator of the Estate of the second defendant as to second defendant [sic]". He said that he did not think it necessary to make the order substituting the Nominal Defendant for Sevil, and that he stood over the application in that respect for mention at the next sittings of the District Court at Campbelltown. 65 There was no evidence or information before his Honour as to the identity of Falconer's legal personal representative, and no investigation of how counsel appearing in her name on the instructions of the GIO was entitled so to appear. Nothing was done prior to the hearing of the application in this Court to regularise the representation in the name of Falconer, whether by taking up the leave granted by the judge or otherwise. We required that the identity of the legal personal representative be ascertained, and sought to make the investigations. We made orders with a view to correcting the record while recognising any interest of the legal personal representative in the conduct of the application by the GIO. All that should have been attended to in the District Court. 66 Assuming that the claim against Falconer, as I will continue to refer to that defendant, and the claim purportedly against Sevil were separate actions, such that there could be rescission of the deemed dismissal as to one only, it is inexplicable that the action purportedly against Sevil should have been left up in the air. Indeed, on one view whether there was an action on foot against the Nominal Defendant was material to whether the action against Falconer should be reinstated. We were informed that nothing more had been done. The judge gave no reason for the course he took. I say no more about the assumption, and say nothing about whether there was any action on foot against Sevil or a deemed dismissal of the action purportedly against Sevil, or about the consequences of any deemed dismissal if the Nominal Defendant were substituted for Sevil, since I consider it plain that the judge's extension of time and rescission of the deemed dismissal as to Falconer should be set aside and, in those circumstances, the prospect of Laird proceeding against the Nominal Defendant may be put aside. The judge's reasons 67 The judge's reasons are somewhat discursive. They do not go into the course of events to the extent I have done, although that does not mean that his Honour was not alive to relevant matters. While the pressures of a busy applications list in the District Court must be appreciated, complete and careful findings are important to the decision-making process. 68 Early in the reasons, and apparently as to each of application for extension of the time for applying for rescission of the deemed dismissals, application for rescission of the deemed dismissals and application for extension of the time for service of the statements of claim, the judge said that the relevant principles "included the type of principles referred to by the court in Salido v The Nominal Defendant 32 NSWLR p 524, particularly in the judgment of Gleeson CJ, as he then was". 69 Salido v The Nominal Defendant was concerned with leave to commence proceedings out of time under s 52(4) of the Motor Accidents Act 1988. Gleeson CJ said (at 532-3) - "To take up the words of Glass JA in McGee v Yeomans , it is not possible by judicial decision to establish in advance categories of case in which it would be fair and just to grant leave to commence proceedings out of time under s 52(4). However the following guidelines may be of assistance in obtaining consistency of decision-making: 1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence. 2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted. 3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it. 4. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance. 5. Leave under s 52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material." 70 From time to time in his reasons the judge asked whether it would be fair and just to grant the applications and whether there could be a fair trial of the actions, referring in particular to the discussion of actual and presumptive prejudice in the judgment of McHugh J in Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-2. As is apparent from Itek Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207, especially at [86]-[87], whether there can be a fair trial of an action is not the same question as whether it is fair and just to grant the application. Whether there can be a fair trial of an action is, of course, a material and perhaps decisive consideration in answering the former question. It is apparent from the reasons that the judge did not treat it as the sole consideration, and in this Court the parties accepted that his Honour had applied the test of whether it was fair and just to grant the applications and had been guided by what had been said in Salido v The Nominal Defendant. 71 The judge said - "I state that I accept Mr Laird as being a truthful man who sought to explain the facts and circumstances of his history of accidents in connection with various legal practitioners as best he could. So far as any matters to which I now propose to refer he, in my view, is, in accepting the views of his various legal advisers over time and relying upon their skill and experience, relatively blameless for all of this history and for the position which has been reached needing the application in respect of which I give Judgment today." 72 The judge then referred to the evidence before him, with respect in a rather unstructured way. The focus of his account was on whether there could be a fair trial of action 356 of 1986. His Honour's findings as to this were less than full. At one point, however, he said that there was "actual prejudice shown by the death of Mrs Falconer" and also "a presumptive prejudice based on the fact that there is no evidence of the availability of the witnesses who provided statements as to the facts and circumstances of the accident". 73 The judge then posed as the question "whether in respect of any of these applications a fair trial could be had". His Honour said that "the question of delay has been a matter which has concerned the courts", and referred to authority. The then culmination of his Honour's reasoning appears to have been - "The seriousness of delay whilst not of itself decisive, when taken with other factors, namely the proved prejudice created by delay is to be considered as the most important factor in deciding whether a fair trial could be had. In my view the period of the delay in this case seeking to have the matter restored is a significant one, however in plaint 356 of 1986 Defences [sic] have been filed, the matter was I find still on foot and entitled to be on foot until the application of Part 12 Rule 4C. The matter was deemed dismissed pursuant to that piece of legislation and no application was made within the six months from 1 January 1998 leading to a restoration of it. No application was made by the applicant to strike out the proceedings before that date. True it is that after the date when, in accordance with the rules an application could have been made to restore the proceedings, no such application was made. However, when one sees the Affidavit of Mr Dunbear [sic] it is obvious why this was so. As I say, Mr Laird did seek to have his solicitors take steps but was quite frankly misled about what they had done or in fact had not done. … The case is not easy, it is for that reason that the matter was adjourned part-heard to enable appropriate additional evidence to be led to indicate what was fair and just and how in all the circumstances a fair trial could be had. I have reached the conclusion that on the basis of the fact that the proceedings could have continued had it not been for Part 12 Rule 4C and notwithstanding the extensive delay that has taken place since then to when the application was apparently prepared in February 2001, that nevertheless there is an explanation for that delay that I should accept namely that the lawyers led the applicant down. He changed solicitors and sought to avoid that risk. However, when there was a change of solicitors the fact was that there was a great delay in the preparation and handing over of court files and the plaintiff's case was lost in what appeared to be a failure of Mr Dunbear [sic] in particular, for not progressing the claims during a time when Part 12 Rule 4C applied. True it is that there is prejudice caused by this delay, but that prejudice was present before Part 12 Rule 4C came into effect, and although it is true that Miss [sic] Falconer has now died and that must create a greater prejudice, I have reached the conclusion that in respect of plaint number 356 of 1986 I should grant the application to extend time to apply to revoke the deemed dismissal pursuant to Part 12 Rule 4C. I grant an extension of time to apply to revoke that dismissal and I revoke it. The action 356 of 1986 is restored to the list. So far as 357 and 358 are concerned, for the reasons that I have outlined in detail that related to this case and to the fact that nothing really had been done about the service of the Statements of Claim I have reached the conclusion that too long a time has gone by since those proceedings should have been served and proceeded with, and in respect of both of those actions I decline to grant the application to extend time to serve the Statements of Claim out of time. I do so because it is clear that no real attempts were ever made to serve them and they were just overlooked. They are not failures on behalf of the applicant, but failures on the part of those who were then representing him. Accordingly the formal orders I make are that in respect of Plaint number 356 of 1986 the proceedings be restored to the list and listed for mention at the next sittings of the Campbelltown District Court to determine their readiness for hearing. In respect of application 357 and 358 of 1986 I dismiss those applications." Proceedings 356 of 1986 74 The requirement imposed in Pt 12 r 4C(4) by the words "if application for the order is made before 1 July 1998" is a time which may be extended pursuant to the power in Pt 3 r 2 to extend any time fixed by the rules: Harding v Bourke (2000) 48 NSWLR 59. Extension of time to apply for rescission of the deemed dismissal is not the same question as, and not necessarily governed by the same considerations as, rescission of the deemed dismissal. The two were rather run together in the District Court and in this Court; they certainly were not clearly distinguished. I think it sufficient to concentrate on rescission of the deemed dismissal. 75 It was common ground that, where the discretion conferred by Pt 12 r 4C(4) was not given content by criteria to be taken into account, the question was what was fair and just. The judge asked himself the right question, and the submissions in this Court took up what was said as to such a broad discretion in Itek Graphix Pty Ltd v Elliott, decided shortly before the judge's decision. 76 The prejudice to Falconer, such that there could not be a fair trial, is overwhelming. There were significant issues over whether Laird was the rider of or the pillion passenger on the motor bike, going at the least to contributory negligence, and over who was at fault in the accident, going to liability at all and at the least to contributory negligence. I refer back to the summary of the position as at February 2002. Falconer was dead. None of the eyewitnesses to the accident had been located, and it had not been 12shown that they or any of them were available. Even if witnesses were available, after twenty years their recollections would be hopelessly compromised. The availability of medical witnesses was unclear. At least some medical records were not available, and after many years medical evidence would also be compromised. 77 The GIO had dipped a toe into settlement waters, although the judge does not seem to have relied on that in Laird's favour. For reasons earlier given, I do not think much can be made of it as an indicator that the GIO was equipped to defend Laird's claim. Substantial prejudice in the defence of Laird's claim by Falconer's insurer stands out. 78 The judge was influenced in his assessment of fairness and justice by his view that Laird was misled by his solicitors and that "the lawyers let the applicant down". There is no doubt that Laird was not well served by his solicitors, but nor was he anything like attentive to his own interests. Enquiries and assurances at intervals of many months must pale as the years go by, and on Laird's own evidence of his understanding that "these claims took 5 to 10 years" he came to have cause to question the lack of progress. The evidence of diligence from early 1998, notwithstanding knowledge that the actions were in difficulty, was particularly unsatisfactory. Even accepting that Laird was misled and let down, I do not think that diligence by Laird has been shown. 79 What seems to have been determinative for the judge was that the proceedings were "still on foot and entitled to be on foot until the application of Part 12 Rule 4C" and "the proceedings could have continued had it not been for Part 12 Rule 4C". In my opinion, in this his Honour fell into error. The deemed dismissal is necessarily of a current action, and neither the fact that it is a current action that is deemed to be dismissed nor the fact that the action could have continued but for Pt 12 r 4C can be a passport to rescission of the deemed dismissal. 80 Related to this, the judge appears to have regarded the prejudice to Falconer as less to the extent that "that prejudice was present before Part 12 Rule 4C came into effect". It may be that at this point his Honour had in mind the extension of time as distinct from rescission of the deemed dismissal, since he immediately referred to extension of time, but he began with and then went straight on to rescission of the deemed dismissal. If his Honour had in mind rescission of the deemed dismissal, in my opinion again he fell into error. As with the extension of a limitation period (see Brisbane South Regional Health Authority v Taylor at 554-6 per McHugh J), the whole period of delay must be considered, and it is erroneous to put aside prejudice prior to Pt 12 r 4C coming into effect. 81 In my opinion, notwithstanding that Laird was misled and let down by his solicitors and that the GIO had earlier notice of and gave some attention to his claims, the long period of delay made it impossible for there to be a fair trial, and Laird went nowhere near discharging his burden of showing that it was fair and just that the deemed dismissal should be rescinded. The judge's determination was flawed in reasoning, and on the facts I have recounted was manifestly unreasonable so that in any event his exercise of discretion can not stand. 82 It would be wholly unjust for the action to be reinstated, and it is appropriate to intervene now (see Kessey v Golledge (1999) 40 MVR 95 at [40]–[43]). Falconer's application for leave to appeal should be granted, subject to the filing of a notice of appeal the appeal should be allowed, and the orders extending time and rescinding the deemed dismissal should be set aside. Proceedings 357 and 358 of 1986 83 Laird submitted that the judge was in error in finding that the statements of claim in proceedings 357 and 358 of 1986 had not been served. Even if the statements of claim had been served, I do not think that would avail Laird. Instead of applications to extend the time within which the statements of claim could be served, he would have applications to overcome the deemed dismissals of the actions. It follows from what I have said about rescission of the deemed dismissal in action 356 of 1986 that he would not succeed. But I do not think that the judge has been shown to be in error. 84 The judge determined that "more likely than not" the statements of claim had not been served, noting that this was "fairly conceded in the end" by counsel for Laird. The concession recorded by the judge does not seem to have been a formal concession precluding complaint on appeal, although it does not make the task of showing error any easier. 85 Laird submitted that service of the statements of claim should be inferred from the existence of the Pt 12 r 4A particulars in all three actions and from the fact that the GIO engaged in settlement discussions as to the claims in all three actions, saying that it was unlikely that Pt 12 r 4A particulars would have been filed in actions 357 and 358 of 1986 and the GIO would have contemplated settlement of the claims in those actions unless the statements of claim had been served. As against this, in the manner I have described the GIO put service of the statements of claim in question in 1986 and more plainly in 1988, and Laird's solicitors failed to provide proof of service when requested; on the probabilities in the early times the GIO was responding to provision of copies of the statements of claim, so that an inference of service is not appropriate; and for the reasons I have earlier given such interest as the GIO showed in settlement does not count for much. Any inference of due service from an expectation of the actions being regularly conducted by Meehan is weak. 86 In my opinion, the judge's finding on the balance of probabilities was well open to him. It must be shown that he was in error, and it is not enough that there were competing inferences and that we might not have made the same inference: see Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369; Williams v The Minister Aboriginal Land Rights Act 1983 (2000) Aust Torts Reports 81-578 at [60]-[61]. If both inferences are reasonably open, error in making one is not shown by pointing to the other. As it happens, I would make the same finding. 87 Much less attention was given to the applications in this Court relating to proceedings 357 and 358 of 1986 in the event that judge's finding that the statements of claim had not been served was upheld. 88 The applications in the District Court in that event were for orders "that pursuant to DCR Part 3 r 2 the time within which the Defendant may be served be extended to 5.00 pm on 15 March 2002". Part 3 r 2 of the District Court Rules relevantly refers to "extension of any time fixed by the rules". Part 5 r 5(1) relevantly provided that for the purposes of service an originating process "shall be valid … for two years from the date on which it is filed or such further period as the Court may direct". Any extension of would strictly not be an extension of time for service pursuant to Pt 3 r 2, but would be an extension of validity for service pursuant to Pt 5 r 5. 89 Counsel for Laird frankly acknowledged in this Court that, if the judge's finding that the statements of claim had not been served was upheld, he was not in a good position. There was not the same positive evidence of overwhelming prejudice through delay, but that was because there was little evidence as to actions 357 and 358 of 1986. After nearly twenty years, however, it is hard to see that there could have been a fair trial, and the difficulty earlier mentioned of distinguishing between the consequences of the accidents would particularly apply. While he did not expressly say so, it is plain that the judge was not satisfied that Laird had discharged his burden of showing that it was fair and just that the time for service of the statements of claim should be extended. No error has been shown in that conclusion. 90 The applications for leave to appeal relating to actions 357 and 358 of 1986 should be refused. Addendum 91 Solicitors are officers of the Court, and the Court can not ignore conduct by solicitors which appears to evidence unsatisfactory professional conduct, or conduct which casts doubt on their fitness to be on the roll of solicitors. Failure to exercise due care and skill may, but does not necessarily, point to unfitness to be on the roll. When coupled with deception and disdain, of the client or the client's later solicitors, it certainly may. The information before the Court is incomplete, but the conduct of Meehan and Dunbier so far as disclosed seems at the very least to be unsatisfactory professional conduct and to cast doubt on their fitness to be on the roll. In my opinion, the Registrar should be directed to forward copies of these reasons and a full set of the appeal papers to the Legal Services Commissioner and to the Law Society for their consideration. Orders 92 I propose the following orders - In Court of Appeal proceedings 40309/02 - 1. Grant leave to appeal. 2. Subject to filing the notice of appeal within 14 days, appeal allowed. 3. Set aside the orders made by Delaney DCJ on 25 March 2002 extending the time for applying to rescind the deemed dismissal and rescinding the deemed dismissal and in lieu thereof order that the notice of motion filed on 15 February 2002 be dismissed with costs so far as it claimed those orders. 4. Opponent/respondent pay the costs of the claimant/appellant and have a certificate under the Suitors Fund Act if otherwise qualified. In each of Court of Appeal proceedings 40979/02 and 40980/02 the summons is dismissed with costs. ********** Last Modified: 05/16/2003 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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