Abbott v O'Donnell

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20996/94 - Deborah Anne ABBOTT v Kerry Ann O'DONNELL 20997/94 - Sylvia ABBOTT v Kerry Ann O'DONNELL

1 HER HONOUR: By Notice of Motion filed on 24 November 1999 the plaintiffs in each of these proceedings claim orders in like terms including that self executing orders made by Master Greenwood on 28 February 1996 be set aside and/or that the time for the provision of particulars specified by Master Greenwood in orders made on that date be extended. 2 Proceedings were commenced in each case by Statement of Claim, filed on 19 December 1994, seeking damages pursuant to the provisions of the Motor Accident Act 1988 arising out of a motor vehicle collision which is said to have occurred on 16 January 1992. 3 On 28 February 1996 both proceedings were before Master Greenwood who made a number of orders for their future conduct. Those orders included (in each case) the following: 3(a) Plaintiff to file DCM document on or before 4 PM on 21/8/96 together with particulars requested in correspondence of 9/2/95. 9. If above orders are not complied with Statement of Claim is dismissed with costs by force of this order. 4 It would appear that the plaintiffs failed to supply particulars on or before the date specified in the Master's order. 5 Mr Santisi, who appears on behalf of both plaintiffs, contends that the Master's order, 3(a) above, is ambiguous and should be set aside on that account. Alternatively, he seeks an extension of time for complying with order 3(a), pursuant to Pt 2 r 3 of the Supreme Court Rules 1970 ("the SCR"). Notwithstanding the long delay since the date limited by the Master's order prior to the filing of the present motion, Mr Santisi submitted that the court had power to make the orders sought; FAI General Insurance Co Limited v Southern Cross Exploration N.L. (1988) 165 CLR 268. 6 In FAI General Insurance Wilson J (in a judgment with which Brennan, Deane and Dawson JJ agreed) noted that the decision in Bailey dealt only with the inherent power of a court and that no statutory rule was involved. Turning to the terms of Pt 2 r 3 of the SCR, his Honour observed at p 283:

"The plain meaning of these words is very wide. The Court may extend "any time" fixed by "any … order" and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired. … It is a remedial provision which confers on a Court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a Court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance."

The submission that Pt 40 r 9 of the SCR stood in the way of the making of an order under Pt 2 r 3 having the effect of reviving a proceeding which stood dismissed was rejected by his Honour at p.284. 7 Mr Fitzsimmons, who appears on behalf of the defendant, contended that the proceedings were to be distinguished from those in FAI General Insurance for the reason that orders, in each case dismissing the proceedings, had been duly entered as the final orders of the Court. It was Mr Fitzsimmons' submission that I had no jurisdiction to make the orders sought. 8 It appears that after the time specified in the Master's self executing orders had passed the defendant, by Notice of Motion filed on 25 September 1996 in the proceedings commenced by Deborah Anne Abbott and on 27 September 1996 in the proceedings commenced by Sylivia Abbott sought orders that the plaintiff reply to the request for further and better particulars of 9 February 1995 within fourteen days and that in the alternative, the Statement of Claim be struck out. I was informed by Mr Fitzsimmons, who appeared on behalf of the defendant on the return of the motions, that the Prothonotary expressed the view that the matter was out of his hands since the Master's self executing orders had taken effect. The plaintiffs were represented by solicitor and counsel on that occasion. The defendant promptly arranged for a form of order, purporting to dismiss the proceedings in accordance with the Master's self executing order, to be made and entered by the Deputy Registrar in each proceeding. 9 I note that, at the request of counsel for the plaintiffs, the matter was referred to the Duty Judge, Smart J. On that date his Honour is recorded as noting:

"I decline to entertain any application at this stage, without prejudice to the rights of the plaintiff to make such an application."

10 The orders entered on 28 October 1996 were in these terms:

1. In accordance with the orders of Master Greenwood made on 28 February 1996, and upon the court finding the plaintiff has failed to comply with the said orders, the proceedings are dismissed. 2. The plaintiff is to pay the defendant's costs of the proceedings."

11 Mr Fitzsimmons contended that FAI General Insurance does not avail the plaintiff in a case such as the present when an order dismissing the proceedings has been regularly made and entered. He referred me to the majority judgment in DJL v Central Authority [2000] HCA 17; 74 ALJR 706. That case was concerned with the power of the Full Court of the Family Court to re-open a final order dismissing an appeal which had been duly entered. However, Mr Fitzsimmons noted that their Honours reviewed the position with respect to final orders made after trials in common law courts at Westminster (paragraphs 32 and following). After dealing with a number of recognised exceptions by which a superior court might vary a perfected order their Honours went on to state at paragraph 38:

"These qualifications apart, the rule was that restated by Barwick CJ in Bailey v Marinov (1965) 113 CLR 529 at 532-533 with respect to the New South Wales Court of Appeal: "Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that Court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed."" 12 In FAI General Insurance Wilson J observed that the decision in Bailey was concerned the inherent power of the Court of Appeal. Gaudron J, after noting that Bailey was concerned with conditional orders for the dismissal of appeals and, accordingly, was technically distinguishable from the facts of that case went on to comment that the observations of Barwick CJ and Menzies J in Bailey appeared "to have relied on considerations applicable to all proceedings". Support for that view is evident in the judgment of the majority in DJL. 13 The passages in the majority judgment in DJL upon which the defendant relies relate to the status of perfected orders of a superior court of record made after trial. 14 The order upon which the defendant relies in each case before me is not the order of the Master, or of a Judge, dismissing the proceedings. It is an order purporting to be made in accordance with the self executing order earlier made by the Master. 15 In FAI General Insurance Gaudron J observed at p 289:

"Although it has been common to speak of a conditional order for dismissal as self executing or of a proceeding upon which such an order has operated as "dead", that seems to me to obscure the fact that a conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time. Where such an issue remains to be determined in relation to a proceeding it cannot be said that the Court is functus officio. That being so, there seems to me no relevant distinction between a proceeding in which a conditional order for dismissal has been entered and a proceeding in which an order has been made but not entered, notwithstanding the decisions in Goodwin (Goodwin v Southern Tablelands Finance Co Pty Ltd (1968) 42 ALJR 309) and Bailey. However, it is neither necessary nor appropriate to pursue that issue, the respondents having made their case without direct challenge to the actual decisions in those case." 16 The terms of the orders made on 28 October 1996 embody an assertion of the Court's satisfaction that in each case the plaintiff had failed to comply with the Master's orders of 28 February 1996. That satisfaction is not that of the Master nor of a Judge. I do not consider that the principles referred to in DJL governing the finality of perfected orders made by a superior court of record after trial have application in the present case. 17 In accordance with the reasoning of the Court in FAI General Insurance I am of the opinion that Pt 2 r 3 of the SCR confers power to enable this Court to extend the time fixed by the Master's order of 28 February 1996 notwithstanding the entry of an order by the Deputy Registrar on 28 October 1996 purportedly dismissing the proceedings. In so holding I express no opinion on the merits of the plaintiffs' application. 18 I am concerned in these reasons to deal only with what was identified as a preliminary jurisdictional issue. In the way the matter proceeded I was informed that the defendant requires a number of the deponents to affidavits filed on the plaintiffs' behalf to attend for cross-examination. One of those persons was not present on the last occasion. It was expected that the hearing of the plaintiffs' motion would take in excess of the day that had been set aside for it. In those circumstances it was agreed that the convenient course would be for me to rule on the jurisdictional issue without embarking on hearing the evidence upon which the plaintiffs propose to rely in support of the motions. 19 I hold that I have jurisdiction to entertain the Motions filed in each of the proceedings. I give leave to the parties to approach my Associate with a view to obtaining a date for the hearing of the same before me.

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