DIB by her tutor HABIB DIB v REGTOP [2006] NSWCA 380

New South Wales Court of Appeal

CITATION: DIB by her tutor HABIB DIB v REGTOP [2006] NSWCA 380 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 6 December 2006

JUDGMENT DATE: 20 December 2006

JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; McColl JA at 3

DECISION: 1.Grant leave to appeal. 2.Notice of Appeal to be filed within fourteen days. 3. Appeal allowed. 4.Orders of Balla DCJ of 10 February 2006 set aside. 5.Extend the time for the appellant's application under Pt 12 r 4C(4) of the District Court Rules to seek an order rescinding the deemed dismissal of her action to 3 August 2005. 6. Pursuant to District Court Rules Pt 12 r 4C(4) rescind the deemed dismissal order of 1 January 1998. 7.Set aside McLachlan DCJ's orders of 18 July 1996. 8.Direct that the action be listed for direction in the District Court on a date convenient to that Court and notified to the parties. 9.Respondent to pay the appellant's costs of the application in the District Court from 30 August 2005. 10.Respondent to pay the appellant's costs of the appeal and application for leave to appeal and have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.

CATCHWORDS: PROCEDURE - appellant's motor accident proceedings deemed dismissed on 1 January 1998 by virtue of Pt 12 r 4C District Court Rules 1973 - application in August 2005 for extension of limitation period to apply to rescind deemed dismissal and if successful, to rescind deemed dismissal - HELD - whether to rescind deemed dismissal turns on what is fair and just as between parties - - principles applicable in applications to extend limitation periods must be applied cautiously in an application focusing on what is appropriate to do justice between the parties - prejudice to both parties relevant - no actual prejudice to respondent - MENTAL HEALTH - uncontradicted expert evidence before the primary judge that since at least September 1994 appellant incapable of managing her own affairs because afflicted by a form of schizophrenia - respondent concedes no personal responsibility for delay could be attributed to appellant - matter handled by inexperienced solicitors - primary judge concluded appellant had not demonstrated her mental disability explained delay HELD - primary judge's exercise of discretion miscarried because she gave no, or insufficient, weight to appellant's mental disability - appellant's ability to pursue her proceedings with the diligence the law attributes to the reasonable person must have been gravely compromised by her mental disability - PROCEDURE - Pt 12 r 4C omitted from District Court Rules as part of civil procedure reforms effected in August 2005 - motion to extend time to apply to rescind deemed dismissal filed before omission but heard after - consideration of jurisdiction to grant relief HELD - substantive right in existence at time Pt 12 r 4C(4) omitted to have deemed dismissal order reconsidered and determined by the District Court protected by s 30 of the Interpretation Act 1987 - consideration of transitional provisions in Schedule 6 to Civil Procedure Act 2005 - COSTS - costs of application before primary judge - whether to be borne by appellant HELD - costs should follow the event - respondent's opposition to application to rescind deemed dismissal "wholly unreasonable". (D)