13 There is, in my view, an element of circularity in this reasoning because it supposes a more draconian effect in r4C than it truly has, given the definition of "dismissed" in Pt 1 r4 and the fact that r4C is subject to other rules to which reference will be made below.
14 The respondent exercised her right of access to justice when she commenced proceedings in the District Court. That right was at all times subject to obligations to comply with the rules of practice and procedure in the Court and to prosecute the action with proper diligence. Delay increases cost and will frequently interfere with the interests of justice. Many rules seek to encourage the just, quick and cheap disposition of litigation and r4C is no exception.
15 Judge Goldring suggests in one part of his judgment that the situation is worse because r4C was made by the Rule Committee without individual notice to every party whose action would be terminated. That, of course, is an aspect of all rule amendments touching procedure and it in no way casts a cloud over the validity of r4C. When made in 1996, r4C operated in relation to a closed group of pending actions but its sting was still prospective because the deemed dismissal would not occur until 1 January 1998, and only then if a praecipe had not been filed.
16 Rule 4C does not purport to affect the substantive rights of litigants in the District Court. At its highest, it regulates the pursuit of those rights by the dismissed action in that Court. That is because dismissal is without prejudice to any right to commence fresh proceedings seeking the same, or substantially the same, relief (see Pt 1 r4 and Vanderweil v Noyce [1999] NSWCA 304 at [15]).
17 Rule 4C being valid, the order directing that the matter be listed for directions with a view to listing for hearing should be set aside.
18 The appellant submits that the balance of the motion before the District Court should be dismissed because the action itself is deemed to be dismissed (r4C(2)). Remitter for further hearing is opposed as a futility.
19 The respondent presses for the determination of the balance of the relief sought in her notice of motion.
20 The power to rescind the deemed dismissal of the action which is conferred by r4C(4) is unavailable, according to the tenor of that subrule, because the respondent's application for such rescission was not made before 1 July 1998. The respondent counters by invoking the powers of the District Court to relieve against noncompliance with the rules or to dispense with the rules in the interests of justice (Pt 3 r2, Pt 1 r5(2) of the Rules and s 159 of the Act).
21 Part 3 r2 permits the Court, by order, to extend or abridge any time fixed by the rules or by any judgment or order. Subrule (2) stipulates that this power may be exercised after as well as before the time expires, whether or not an application for the extension is made before the time expires or at all. The broad, remedial scope of the rule is discussed and illustrated in FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 and El Ali v Government Insurance Office of New South Wales (1988) 15 NSWLR 303.
22 I reject as untenable the appellant's submission that "time" in this rule does not include a period of time expressed by reference to a date.
23 The appellant further submits that this rule is unavailable because Pt 12 r4C(4) operates as a specific provision, which was available if and only if application for the rescission order was made before 1 July 1998. Pt 12 r4C is said to be a particular provision containing a time condition that is expressed in such a way that it excludes the operation of the general provision found in Pt 3 r2.
24 The appellant cited David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 in which a general provision of the Corporations Law permitting the Court to extend the period for doing any act under the Law (s 1322) was held inapplicable to the power to apply to the Court to set aside a statutory demand. The latter power is conferred by a section (s 459G), subsec (2) of which states that "An application may only be made within 21 days after the demand is so served" (emphasis added). David Grant illustrates the general principle of statutory interpretation invoked by the appellant. But the legislation considered in that case is significantly different from the District Court Rules. The provision containing the relevant power (s1322) stipulated that an application "may only" be made within a fixed 21 day period. And the legislative intention to establish a self-contained code for the resolution of disputes involving statutory demands was spelt out in the Explanatory Memorandum (see David Grant at 270).
25 Both of these factors are absent from r4C. The Court's overriding concern to avoid injustice indicates to me that it was unlikely that Pt 12 r4C(4) was intended to stand alone and to exclude altogether the well-recognised power to extend time nunc pro tunc that is conferred in Pt 3 r2. In my view, the time limit in r4C(4) is capable of extension by resort to Pt 3 r2. One can readily envisage circumstances where, through no fault of a litigant, application to rescind the deemed dismissal of an action was not made during the six months window of opportunity (cf El Ali at 309, 312). These could include circumstances where both the party and the lawyer were ignorant of the making of r4C. I am not suggesting that such oversight, or any other oversight, would lead inevitably to a favourable exercise of the extraordinary discretion conferred by Pt 3 r2.
26 Let it be assumed that this is wrong. It would still not follow that r4C(4) is an impenetrable barrier to the exercise of the discretion to extend time in a proper case. There are two reasons why that is so. First, Pt 3 r2 could be applied directly to r4C(2) with the result that the deemed dismissal of the action will not occur if an extended period is given for the filing of a praecipe and if the praecipe is filed in that period. Secondly, it would be open to resort to Pt 1 r5 which permits the Court if it thinks fit to dispense with compliance with any of the requirements of the rules, either before or after the occasion for the compliance arises. Such a dispensing power is commonly encountered in rules of court and it serves to remind that rules are the servants of justice, not their masters (see Campbell, Rules of Court 1985 pp 106-7). Obviously one circumstance which might engage the dispensing rule is where a party has failed to comply with a time limit stipulated elsewhere in the Rules. By this means the requirement in r4C(4) could itself be lifted. Once again, I emphasise that I am expressing no view about the merits of the instant case.
27 It is unnecessary to consider whether s159 of the Act offers a third basis for the respondent to seek relief against the operation of Pt 12 r4C. Nevertheless, I doubt whether s159 applies, because there is no step in the proceedings needing to be rescued from asserted nullification.
28 Because of his view about the validity of r4C, the learned judge found it unnecessary to address the prayers for relief in the respondent's notice of motion which would have thrown up for consideration the alternative, discretionary bases for annulling the deemed dismissal of the respondent's action that I have discussed. The motion should be remitted to the District Court so that it can be determined on its merits in accordance with the reasons of this Court.
29 The appellant submitted that dismissal on the merits was inevitable, given that the affidavit material before Judge Naughton QC did not seek to explain the respondent's failure to file a timely praecipe for trial beyond stating that any default was not her own, but (by inference) that of her former solicitors. The material advanced in support of the favourable exercise of the Court's discretion was thin, but the application was not doomed to failure. Remitter will give the parties the opportunity to throw more evidentiary light upon the circumstances leading to the failure of both of them to file a praecipe for trial, the prejudice (if any) suffered by the appellant and any other relevant matter.
30 I propose the following orders:
1. Appeal allowed.