The interests of justice
53 The two judgments of Bowden ADCJ, read together, lack congruity. The first concludes by saying that the plaintiff's application to set aside McLachlan ADCJ's order was premature. The second concludes by saying that the second application was too late, and should have been made by December 2000. While in one sense it is understandable why Bowden ADCJ formed the first view, in another sense it is difficult to understand. By the time of the first judgment, Dr Haertsch's report had not been obtained, let alone served; the possibility of the report of a psychiatrist being served remained alive; and full particulars of damage had not been supplied. On the other hand, one sympathises with the desire of the plaintiff and her advisers to mend her hand as soon as and as far as possible and return to the position she was in just before McLachlan ADCJ pronounced the 23 May 2000 order. Normally where parties are in default of procedural obligations they are expected to cure the default speedily. The new rule (Part 1 rule 7A) requires, for example, an application of the type which was heard on 7 July 2000 to be made within twenty-eight days. From these points of view it is difficult fairly to call the application premature, even though success in it might necessarily have caused the plaintiff to be placed on stringent terms with a view to readying the matter for trial. But by the time of the second judgment, Dr Haertsch's report had been served; the possibility of there being a psychiatric report had been negatived; and full particulars of damage had been served. It is true that there had been delays, not fully explained, in relation to why Dr Haertsch's report had not been served earlier and why the particulars had not been supplied earlier. A question thus arose: as a matter of justice, should the interests of the District Court and the defendant in the efficient operation of the Court's case management procedures, coupled with delays of which the plaintiff's solicitor or the plaintiff had been guilty even after Dr Haertsch's report was obtained and even after the file from the former solicitors for the plaintiff had been received, have prevailed over the interests of the plaintiff in having her claim against the defendant determined on the merits?
54 In State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154 and 155, Dawson, Gaudron and McHugh JJ said:
"Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. …
… Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion."
55 That case concerned a refusal to permit an amendment to the Defence before a date was fixed for hearing, and more than six months before the date for hearing which was fixed in due course. While the circumstances are different, they have underlying similarity. Each set of circumstances calls for a consideration of what the relationship is between considerations of case management and the claims of a party seeking to have a substantive hearing of the matter in issue. Just as the High Court saw as a central inquiry the question whether as a matter of justice the defendant should have been permitted to argue a defence which might be a substantial, if not complete, answer to the plaintiff's claim, so here the question whether as a matter of justice the plaintiff should have been permitted to have her case tried once she had, after the obstacles created by her first solicitors, by Dr Haertsch's slowness and insistence on payment, and by her second solicitor's delays, got her house in order.
56 That question is not one which Bowden ADCJ posed or answered.
57 The defendant submitted that in the context of Part 18 rule 3, complete justice to the party in default is not the paramount consideration; that the rule contemplates that on occasion it will be right to terminate proceedings without determining the issues before the parties on the merits; that Part 18 rule 3 orders are often made, as here, when the limitation period has expired and it may be difficult to have it extended; and that the result of Bowden ADCJ's decisions was not so harsh and unjust as in itself to exhibit error. The defendant referred to Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [63], [85] and [92].
58 Even if each of these submissions is accepted for the purposes of the present argument, it does not follow from them that the plaintiff's arguments fail. The majority said in State of Queensland v J L Holdings Pty Ltd that justice was the paramount consideration in applications to amend pleadings well before the trial. Even if it is assumed, as the defendant's argument contends, that complete justice to the party in default may not necessarily be the paramount consideration, justice to the party in default is at least a relevant consideration even in Part 18 rule 3 cases. Micallef's case is a case where the appellant did not demonstrate any error in approach on the part of the primary judge. Here the plaintiff has demonstrated errors, including the error under examination, namely, an absence of attention to the relevance of the demands of justice in the circumstances presented. One argument in Micallef's case was that even if no specific error of law or fact could be identified in the reasoning of the primary judge in that case, and even if all relevant matters, and no irrelevant matters, had been considered, the result was so unreasonable or unjust as to suggest that some error of one of those kinds must have underlain the primary judge's reasoning. Among the unreasonable or unjust aspects pointed to was the fact that the order had the effect of terminating the plaintiff's whole case without its ever having been considered on the merits. The court held that Part 18 rule 3(1) contemplates that that result will sometimes occur. Its occurrence did not of itself demonstrate so unreasonable or unjust a result as to suggest error. The present problem is different. The plaintiff in this case does not argue that the result was so unreasonable or unjust as to suggest error. She argues that error is plain without having to resort to that type of reasoning. She argues that Bowden ADCJ failed to take into account, in making an order having the result of preventing any trial of the plaintiff's claim (subject to a possible application to commence fresh proceedings and apply for an extension of the limitation period, which was fraught with peril), the demands of justice when weighed against the state of readiness of the plaintiff, the explanations and lack of explanations for her delays and the absence of actual prejudice to the defendant.
59 The general circumstances of the two cases are very different. In Micallef's case, there had been very lengthy delays; there had been a total lack of diligence on the part of the plaintiff or her advisers; an order to supply particulars had been contravened three times; an arbitration date had been fixed and vacated; when the particulars were supplied, they substantially widened the case; and there was actual prejudice to the defendants. Here the delays are much less; the plaintiff and her advisers have been, if not wholly diligent, at least much more diligent; there were explanations for why the orders were contravened; no hearing date has been vacated; the particulars supplied were within the pleaded case; and there was no actual prejudice to the defendant. More fundamentally, while in Micallef's case, in view of the prejudice to the defendants, the demands of justice between the parties supported the dismissal order and the refusal to set it aside, in this case the demands of justice between the parties favour the setting aside of the dismissal order in view of the injury it causes to the plaintiff and in view of the want of prejudice to the defendant which would flow from setting it aside.