EMMETT v HORNSBY SHIRE COUNCIL & ANOR

17 In Ms Muc's affidavit of 4 February 2002 she referred to Mr Costa's affidavit and said she was aware that the Registrar had indicated he had concern as to ascertaining the principals of GH Healey & Co. She deposed: "6. It is further noted that the Registrar directed me as the principal of GH Healey & Co - Sydney, to personally attend certain mentions, and I ensured that I did, to comply with the Registrar's directions in this specific regard. 7. Since suffering injuries to my spine in 1992, I have had to undergo a series of treatments, the most recent of which was a laminectomy in the year 2000. 8. It became impossible for me to conduct a practice full-time on my own account as I could not sit for the hours required and I needed the assistance of staff. 9. Accordingly, I became the principal in other small firms, so that I could afford to employ staff as I now am only able to work part-time. 10. It was not my intention, nor that of my firm in any way to impede the proper administration of the court system but initially there were logistical difficulties totally outside the control of myself or my firm. 11. I believe that all steps that could be taken by me and my staff were taken in an effort to obtain the transcript of judgment in what is essentially an administrative matter for the Court Reporting Service or the Attorney General's Department and totally outside a solicitor's control. 12. I am alarmed that notwithstanding my advice to the Registrar of these difficulties, a cost order against the Appellant was foreshadowed, even when the Registrar indicated that he could not assist internally from within the Court system. … 14. I do note, that whilst all steps were being taken by myself and my staff, as to obtaining the transcript of judgment, I had been endeavouring to have a meeting with the Respondent's solicitors as to certain areas of appeal that appeared non-contentious. 15. No doubt, the Respondent's position was reflective of my own and as I was informed by the Respondent's solicitor that they could not take the matter further as their senior counsel was unavailable to advise. 16. The matter was not without independent administrative difficulty to me and this firm, in that I had taken conduct of the matter when the previous solicitor could no longer fund it and on the same retainer terms and we had difficulty in finding counsel who was prepared to accept the appeal brief on a speculative basis. 17. Eventually, having obtained the transcript and a certified copy of judgment, and being in a position to retain counsel, an agreement had to be made as to this firm guaranteeing a specific payment to counsel, regardless of outcome. 18. The logistical difficulties thereafter are referred to by Mr Costa in his affidavit sworn today and filed herein. 19. I have also read the affidavit of John Rafferty sworn 3 February, 2002 and filed herein. 20. I confirm I had no knowledge that self-executing orders had been made." 18 Ms Muc enclosed the appellant's submissions to be included in the orange appeal book. The chronology prepared by Mr Costa was set out in his affidavit of 11 March 2002. In particular, Mr Costa swore: "35. On or about 15 October 2001 a letter was forwarded by GH Healey & Co - Sydney to Senior Counsel advising Appellant's Submissions were to be filed within 21 days on 25 October 2001, that the matter had been set down for hearing on 7 February 2002, and requesting Submissions be prepared prior to 25 October 2001. 36. On or about 31 October 2001 a letter was received from Senior Counsel to G H Healey & Co - Sydney in relation to preparation of Submissions. 37. On or about 5 November 2001 I provided a file note to Ms Muc enclosing a copy of Senior Counsel's letter dated 31 October 2000. 38. Ms Muc was on leave for the period 29 November 2001 to 17 December 2001. 39. On or about 4 December 2001 a letter from Phillips Fox addressed to Mr Rafferty was received enclosing an offer of settlement which was to remain open until 4 January 2001. 40. On or about 20 December 2001 a letter from Senior Counsel dated 18 December 2001 was received by this practice advising that he could not complete the submissions and that he was not available to appear at the hearing on 7 February 2002. 41. The firm was closed for the Christmas break from 20 December 2001 to 14 January 2002. 42. A letter from the Court of Appeal Registry was sent on 21 December 2001 advising that the outstanding Appeal books must be lodged. It appears this letter was received on or about 14 January 2002. 43. I was absent, on leave, for the period 21 January 2002 to 28 January 2002. 44. On or about 22 January 2002 my secretary, Ms Nurmi received a telephone call from 'Stephanie' at the Court of Appeal. Stephanie told Ms Nurmi that Mr Justice Mason had requested the Black and Blue books be provided by the end of the week, three more copies of the Red Book, and the Orange books to be 'on their way', otherwise he would list the matter before himself the next week. The hearing date of 7 February 2002 was confirmed. 45. On or about 25 January 2002 a letter from GH Healey & Co - Sydney addressed to the Court of Appeal Registry enclosing the Appellant's Black and Blue Appeal Books and three more copies of the Red Book was hand delivered to the Registry, together with enclosures. 46. On or about 25 January 2002 a letter from G H Healey & Co - Sydney addressed to Phillips Fox serving the Appellant's Black and Blue Appeal Books was hand delivered to Phillip Fox, together with enclosures. 47. On or about 29 January 2002 a letter from Mr Matthew Conn of Messrs Phillips Fox addressed to Katarina Muc, GH Healey & Co - Sydney advised that the matter had been dismissed for want of prosecution that it had been removed from the hearing list. 48. On or about 31 January 2002 a letter from Mr Matthew Conn of Messrs Phillips Fox addressed to John Rafferty purportedly enclosed a sealed copy of Minute of Judgment. 49. On or about 1 February 2002 I received a telephone call from Registrar Irwin. 50. On or about 1 February 2002 a letter was received from the Supreme Court providing written confirmation that the matter had been listed for mention on 4 February 2002." 19 On 20 February 2002 Matthew Terrence Conn, a solicitor in the employ of Phillips Fox, the solicitors for the respondents, deposed as follows: "2. I refer to paragraph 14 of the Affidavit of Katarina Muc dated 4 February 2002. I am not aware of any endeavours the Appellant's solicitors have taken to settle any non contentious areas of the appeal. 3. I refer to paragraph 15 of the Affidavit of Katarina Muc dated 4 February 2002. This is incorrect. We received advice from Senior Counsel in relation to the appeal and made an offer accordingly by facsimile dated 4 December 2001. Annexed hereto and marked 'A' is a true copy of that facsimile. 4. I refer to paragraph 22 of the Affidavit of Katarina Muc dated 4 February 2002. At all times I viewed the order of Registrar Irwin as self executing. 5. I refer to paragraph 27 of the Affidavit of Katarina Muc dated 4 February 2002. This is incorrect. Settlement monies in full were paid to the Claimant's solicitors by letter dated 18 December 2000 . Letters were also sent dated 18 December 2000 to GIO Workers Compensation and Health Insurance Commission enclosing the relevant payback amounts. Annexed hereto and marked 'B', 'C' and 'D' are true copies of those letters." 20 On 20 February 2002 Christine Forostenko, also in the employ of Phillips Fox, filed an affidavit annexing a contemporaneous note of her attendance at the mention on 4 October 2001. Part of that is: "They say can file submissions within 21 days. Registrar directs to be filed within 21 days and if not, then appeal will dismissed [sic] for want of prosecution (by 25 October 2001)" 21 To my mind the history of this matter and the cost and delay of having to bring it before a single Judge of the Court demonstrates that self executing orders dismissing appeals for want of prosecution should only be made in the most exceptional circumstances. In accordance with Pt 51 r24(b)(ii) of the Rules, such an order can only be made "in special circumstances". A judicial officer who makes such an order dismissing an appeal is, in my opinion, required to give his or her reasons for doing so (compare the careful detailed reasons of Mason P in Fairey v Fairey when considering whether to dismiss an appeal for want of prosecution) and must if ordering that in the event of non-compliance the appeal will be dismissed identify the special circumstances and explain why they are special. 22 The vice of self executing orders is that the order takes effect without any account being taken of what may have happened since it was made. There is no reason on the material before me not to accept that for good reason or bad the appellant's solicitors failed to appreciate that the order made on 4 October 2001 if not complied with resulted in a self executing order for dismissal of the appeal. 23 In the present case, no attention has been directed to the prospects of the appeal. If one assumes that the appellant had some prospect of success that prospect has been lost without any fault of hers. It is notable that so far as I can make out, at no stage was the respondent pressing for any urgent hearing of the appeal. There is no contest that the delay until some time after 22 August 2001 resulted from the unavailability of the judgment at first instance. On 13 September 2001 the Registrar ordered the appellant to file submissions on or before 4 October 2001. The appellant failed to do so and that failure on the material before me can in large measure be held to the account of the appellant's legal advisers. On 4 October the failure to comply with the Registrar's order for the filing of submissions seems to have been dealt with by the appellant's advisers in a cavalier manner. As a matter of courtesy and in the interests of their client the appellant's solicitors should have filed affidavits or other evidence explaining the delay and apologising for it. There was nothing. Again, the order made on 4 October was not complied with and again, no material was put before the Registrar explaining or apologising for this further delay and seeking an extension of time. This is quite inexcusable. Apparently unaware that the order for dismissal was self executing, the appellant's solicitors were content not to comply with the order and do nothing more. 24 It would have been quite appropriate for the Registrar on 4 October to have advised the appellant's solicitors that if the submissions were not filed within 21 days he would require the solicitors to show cause by affidavit explaining the delay and putting any material before the Registrar to demonstrate why he should not dismiss the appeal for want of prosecution. With due respect, in my opinion, that was the far preferable course. The Registrar may have been minded to require the appellant's solicitors to serve a copy of that order upon their client. 25 Instead of that material coming before the Registrar on a further mention day to consider whether or not the appeal should be dismissed for want of prosecution, it has now been placed before me on review. In dismissing the appeal the Registrar is exercising the power of the Court. The order is a final one which disposes of the appeal. The power of the Court to set aside such an order raises difficult questions of jurisdiction particularly if the order is entered, which I am told in this case it was not. See FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268. 26 In my opinion, the Registrar erred in not giving reasons and in not making any finding of special circumstances before he made the order he did. Furthermore, in my opinion, there was an error of discretion. In this case there was no prejudice shown to the respondents beyond the delay in receiving the appellant's submissions. The only substantial reason for making the order was the failure to comply with the order for filing submissions made on 13 September 2001. As I have said, the appellant's solicitors showed discourtesy to the Court in failing to explain that. But in such situations, the Court is concerned with doing justice between the parties and not with punishing parties for their delays or failure to comply with orders. In this case, against the background of difficulty in obtaining transcript, which is not a novel experience, and the difficulty at short notice of obtaining the services of counsel, again an experience which is not novel, a very important consideration was the position of the client. Both she and any fair-minded objective observer would come to the conclusion that she has lost a valuable right at fairly short notice due to the failures of the legal profession and a lack of sympathy from the Court notable by the fact that she does not have the benefit of any reasoned judgment for the dismissal of her appeal. 27 In my opinion, the order made by the Registrar on 4 October 2001 should be set aside and the time extended for the filing of submissions by the appellant until 21 days from the date of this judgment. 28 Costs presents a difficult problem. I have heard no submissions as to who should pay the costs of this application. The need for it flowed from the failure by the appellant's solicitors to comply with the orders the Registrar made. Thus it seems appropriate that the appellant should pay the respondent's costs of the application. 29 Pursuant to s76C(1) of the Act the Court may at any stage of any proceedings make orders therein referred to "in respect of a solicitor whose serious neglect, serious incompetence or serious misconduct delays, or contributes to delaying those proceedings". This section was discussed by the Court in Leicester v Walton (unreported) Court of Appeal 22 November 1995. Undoubtedly, there was an element of neglect in the solicitor's failure to comply with the Registrar's orders. After some hesitation I have come to the conclusion on the facts presented to me that an order under that section should not be made. 30 The orders of the Court will be as follows: 1. Set aside the order made by the Registrar on 4 October 2001; 2. Extend the time for the filing of submissions by the appellant until twenty-one days from the date of this judgment; 3. The appellant to pay the respondent's costs of this application; 4. Otherwise remit the appeal to the Registrar. ********

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