His evidence presents a picture of relative stability in that he continues to consult Dr Hardy for treatment of injuries and continuing disabilities which he claimed resulted from his accident and injuries, continues with his drug rehabilitation and methadone programs, and resides at Rathmines, now with his daughter, where he intends to reside for the foreseeable future.
88 The appellant tendered no evidence before Boyd-Boland ADCJ and was not able to maintain any claim based on evidence that it had incurred any particular prejudice due to the respondent's delay, whether by evidence of some identifiable witness becoming unavailable, by loss of opportunity to pursue some line of inquiry, or otherwise. Boyd-Boland ADCJ adverted to the influence of delay and the underlying reasons for enacting limitation periods referred to by McHugh J in Brisbane South Regional Health Authority v. Taylor. The proceedings were brought shortly before the expiry of the limitation period of three years; so far as appears, the bringing of the proceedings was the first signal to the appellant that an allegation of negligence or a claim was made against it. This might have imposed some prejudice or difficulty upon the appellant arising from the elapse of time, but any such prejudice or difficulty was to be borne by the appellant without remedy, as the law authorised that delay. On the other hand when the application for an extension was made and proceedings came before Boyd-Boland ADCJ, more than six years had passed, and the appellant should reasonably have believed, from March 2001 onwards, that the proceedings had been concluded by an order of dismissal. If it was to be shown that the appellant had some earlier indication or opportunity to inquire into the facts, the burden of proving these circumstances lay on the respondent when applying for an extension of time. Commencement of the proceedings had given the appellant an indication that it must investigate its position and inquire into the facts; dismissal of the proceedings had given an indication that it no longer needed to concern itself with the claim. Extension of time would revive after more than six years a claim for which the statutory period of limitation is three years.
89 The delay for which explanation was called was the delay in making the application to set aside the Preliminary Dismissal Order, not the delay and inattention which led to the Preliminary Dismissal Order. This was explained in Bamforth v. Betcke & Ors [2003] NSWCA 116 by Giles JA at [34]; Boyd-Boland ADCJ referred to and correctly directed himself as to the law there explained.
90 An application to set aside the Preliminary Dismissal Order could hardly have failed if it had been made within the 28 days for which Pt 1 r7A(5) of the District Court Rules 1973 now provides. For a few months thereafter, a decision to extend time would have been well within the range of available discretionary outcomes if a litigant lost touch with his solicitors for a few months through distress or disordered circumstances in personal life, but then returned to the reasonable conduct of legal business. The prejudice occasioned by an extension of time of several months would be unlikely to be great; but of course, it would be necessary to consider any specific prejudice which was demonstrated by evidence.
91 The present case is very different. The respondent was out of contact with the first solicitors who were conducting his legal business from August 2000 onwards. He did not take any useful step to conduct his lawsuit from August 2000 on, and in particular did not do so between March 2001 when the proceedings were dismissed and March 2003 when he consulted his new solicitors. If he had thought about it, it should have seemed obvious to him that inattention like this might well lead to dismissal of the proceedings and to the appellant's being told that it no longer needed to concern itself with the claim; as in fact happened. Two years is a long time in a District Court action. It is also a long time for a defendant summoned to answer a claim and make a defence by a Court exercising the power of the State to be left believing that the proceedings had been dismissed. It is unjust for a defendant left for so long to understand that a claim against it had been dismissed and it did not need to give any more attention to it to be told that the claim had been revived, and that it must defend the claim. The respondent was at all times aware that he had a pending claim; he chose to give his attention to other matters. Some of those other matters indeed had a strong claim on his attention; restoration of his personal relationship and his own rehabilitation must attract sympathy; drug addiction does not. None of these claims on his attention has much weight when balanced against the indication given to the appellant, for years, that the case was all over.
92 The appellant's counsel made much of the illegality of the respondent's drug taking activity. In my opinion the fact that drug taking is illegal is not itself an important aspect. It certainly does not engage sympathy, but it is not a function of the discretion to extend time under the District Court Rules 1973 to repress illegal drug taking; that can be left to be dealt with in other ways. What appears to me to be important overall is that the respondent was never unaware that he had brought a claim against the appellant, and, I would say, was never unaware that he should be attending to it, but that he chose to direct his attention to other purposes to the exclusion of attending to his claim.
93 A litigant has a responsibility to the Court, to the public, to the opponent and to himself, to attend to litigation and conduct it with a reasonable degree of attention and promptness. This responsibility bears more heavily on a plaintiff, who has engaged the power of the State to compel the defendant to give attention to the claim: it is oppressive and unjust to extend the time of this attention and compulsion unnecessarily. A defendant may be compelled and given an opportunity to answer a claim: but in fairness it should not be oppressed by prolonging or magnifying the attention required.
94 It falls to the Court of Appeal to come to a discretionary decision on whether time to apply to set aside the Preliminary Dismissal Order should be extended after reviewing and attempting to weigh and balance the various factors favouring and adverse to granting an extension. The factors on one side and the other of the weighing process are extremely unlike each other. The overall effect of the events, in my assessment, is that the respondent, for reasons of his own which have nothing to do with the appellant, and nothing to do with his claim, neglected his claim, while remaining aware of it, and gave his attention to other matters; and this continued for more than two years. Time continued to pass, and the prejudice to the appellant imputed to delay continued to accrue after the appellant had been told by the District Court that the case had been dismissed. In my judgment the discretion to extend time should not be exercised in favour of the respondent. It would be a small tyranny to tell the appellant, more than two years after the proceedings were dismissed, that the appellant should have stood waiting while the respondent devoted his attention to his drugs and his complex private life, and that now that the respondent's attention has returned to the matter in hand the appellant must attend to it too. In my judgment this is not the right way to use public power.
95 For these reasons the appeal should be allowed. The following orders should be made:
(1) Appeal allowed with costs.
(2) Order of Boyd-Boland ADCJ of 24 October 2003 be set aside.
(3) In lieu thereof order that the Notice of Motion of 19 August 2000 be dismissed with costs.
(4) The respondent is to have a certificate under the Suitors Fund Act.
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