51 HODGSON JA: The circumstances of this case are set out in the judgment of Powell JA. I agree with Powell JA that, for reasons he has given, the circumstances of this case, at the time it came before Garling DCJ on 8th October 1998, were such that his Honour would have been entitled to conclude that there was a continuing failure of the appellant to prosecute such as would justify an order dismissing the proceedings, and that the order actually made on that day by Garling DCJ was neither unreasonable or plainly unjust.
52 However, my opinion is that these findings are not sufficient to determine this appeal in the respondent's favour.
53 Although, as Powell JA says, Garling DCJ was not on 8th October 1998 called upon to determine any disputed question of fact or any question of law, he was required to make a decision which could have the practical effect of finally determining the rights of the parties. It is true that a dismissal for want of prosecution is classed as an interlocutory decision, is not a conclusive determination of the legal rights of the parties, and does not prevent the bringing of further proceedings on the same cause of action; but such a dismissal does, in cases where the cause of action would be statute-barred, effectively conclude the matter. That was the position in this case.
54 In those circumstances, in my opinion, the obligation to give reasons was engaged, unless such reasons were apparent without needing to be stated. The content of the obligation to give reasons varies with circumstances; and even if the reasons for an order are not entirely apparent without being stated, there can be circumstances in which a minimal statement of reasons is sufficient. In my opinion, it is necessary in this case to consider whether the primary judge's reasons were apparent without being stated, or whether there was a statement of reasons which was sufficient in the circumstances.
55 My reading of the transcript of what happened on 8th October 1998, together with the Court file as it existed at the time, leaves me uncertain as to the following matters: (1) Garling DCJ's subjective belief as to the question posed for his decision; (2) the evidence or other factual material on the basis of which he acted; (3) whether or not he took into account the effective finality of his decision; (4) whether or not he based his decision on delays generally, or on default in discovery, or on the non-appearance of the appellant on that day, or on some combination of these factors.
56 In relation to the first matter, Garling DCJ subsequently asserted that he was acting, not on the respondent's Notice of Motion, but on the Court's own motion. The importance of that distinction is that the District Court does not have power to set aside a dismissal for want of prosecution made on the motion of a party, even if that order for dismissal is made in the absence of the other party, but does have the power to set aside such a dismissal if made on the Court's own motion. However, the Court of Appeal in Weston v. Howell [1999] NSWCA 411 found that the court record demonstrated that the orders made on 8th October 1998 were made on the respondent's Notice of Motion and thus could not be set aside by the District Court.
57 Powell JA is of the view that the possibility that Garling DCJ misapprehended what he was asked to do on that day is excluded by that decision of the Court of Appeal. With respect, I do not agree. As shown by paragraphs 19 and 20 of the Court of Appeal's judgment, the Court of Appeal proceeded on the basis of the intention manifested by the court record, not on the basis of Garling DCJ's subjective intention. Although the Court of Appeal decision is conclusive as to the intention manifested by the record, it is not conclusive as to Garling DCJ's subjective intention. Even disregarding Garling DCJ's later assertion as to his understanding, in the absence of reasons given by Garling DCJ I am uncertain as to his subjective intention and in particular his subjective understanding as to whether he was acting on the respondent's Notice of Motion or on the Court's motion, and accordingly as to his subjective understanding as to whether the order he was making was final and could not be set aside. One reason for my uncertainty is that the absence of stated reasons would have been entirely appropriate if the order could have been set aside, but arguably inappropriate if it could not be.
58 As regards the second matter, there was no formal reading or noting of evidence, so I do not know whether Garling DCJ took into account that the applicant had filed affidavits which dealt specifically with all the respondent's complaints about discovery, and which could possibly be regarded, in substance if not in form, as fulfilling any obligation of the appellant in relation to discovery that was still outstanding. Those affidavits were filed in Court before Garling DCJ on a previous occasion, but in my opinion that does not show that he took them into account. If he had dealt formally with the respondent's Notice of Motion on 8th October 1998, and was referred only to evidence read by the respondent and notations on the court file, it may well have been proper for him to have had no regard at all to the content of affidavits on the file which were not read, although I think he should then have had regard at least to the fact that affidavits had been filed. However, since he dealt with the matter informally, presumably on the basis of his own reading of the court file, it could at least arguably have been unfair if he had had regard to material in the file from one side but not material in the file from the other side.
59 As regards the third and fourth matters, I have already indicated my uncertainty as to whether Garling DCJ understood that his order of dismissal could not be set aside. The manner in which he dealt with the case, without submissions and without reasons, to all appearances largely on the basis of the appellant's non-appearance, leads me to suspect either that he did not take into account the finality of the order or that he did not have regard to the possibility of a reasonable explanation for the non-appearance of the appellant. I am also left to speculate as to whether he relied on earlier delays in the matter, or on defaults in discovery, or on a failure to provide written submissions as required by the document which he had given to the parties on the previous occasion, or on some combination of these factors.
60 As explained by Powell JA, there were powerful considerations in support of the order made by Garling DCJ. However, I do not consider that such order was the only order that could reasonably have been made, and for reasons I have given I find myself speculating as to the basis on which Garling DCJ decided to make the order. In those circumstances, I think the error of deficiency of reasons is made out, so that it becomes necessary to consider whether any different order should now be made.
61 In approaching this question, I do not believe that the Court should decline to act on the ground that another two and a half years have passed by, and that the appellant did not take the opportunity, at the time of the earlier appeal, to put on a defensive challenge to the order which is the subject of the present appeal. Those considerations were certainly relevant to the granting of leave in this case, but leave has already been granted.
62 In my opinion, I should first consider what order should have been made on 8th October 1998. If the conclusion is that no different order should have been made, that would be the end of the matter. If the conclusion is that a different order should have been made, then it becomes necessary to consider what order is now appropriate, having regard both to what should have happened on 8th October 1998 and to what has happened since that time.
63 Dealing with the first question, it was submitted for the appellant that there was a denial of natural justice in proceeding in the absence of the appellant or his legal adviser. In my opinion, there was no denial of natural justice, in circumstances where the appellant was clearly on notice that an application for dismissal was going to be dealt with on that day. However, having regard to the finality of a dismissal and the possibility of a reasonable explanation for the non-appearance of the appellant, I think that, even in a busy list, it would have been appropriate first to ask the appellant's solicitor to make a telephone call to the office of the respondent's solicitor to find out why there was no appearance. If that did not produce any explanation or appearance, then I think it would have been entirely appropriate for the Court to proceed to deal with the matter in the absence of the appellant. In my opinion, it would have been appropriate to ascertain from the respondent's solicitor whether there was any objection to the judge reading the affidavit material that had been put on by the appellant, and if there was no such objection to read and take account of that material. If there was objection taken, then I think the appropriate course would have been not to read the appellant's affidavit material, but to take note of the fact that affidavits which were not being read had been filed by the appellant.
64 In making a decision, it would certainly have been appropriate to have regard to the long previous delays, the non-compliance with a direction as to the provision of written submissions, the apparent non-compliance with orders for discovery, and the non-appearance on that day. Having regard to those considerations, I do not think it would have been appropriate for the Court either to have adjourned the matter further, or simply to have made an order concerning discovery. I think the true alternatives facing the Court in that situation would have been to make the order that was made, or alternatively to give the appellant one last chance by means of a self-executing order. On balance, having regard to the circumstance that affidavits had been filed by the appellant and having regard to the possibility that there may have been a reasonable explanation for non-appearance on that day, I think the appropriate order would have been a self-executing order rather than immediate outright dismissal. I think the appropriate order would have been an order that the appellant pay the respondent's costs of the Notice of Motion, and that the proceedings should be dismissed with costs unless, within fourteen days of notification of the orders to the appellant's solicitors, the appellant filed and served a supplementary affidavit of discovery and paid to the respondent's solicitor $500.00 on account of the respondent's costs of the motion.
65 On the assumption that that was the appropriate order two and a half years ago, what should this Court do now? There is a greater potentiality for injustice, particularly to the respondent, by reason of the passage of a further two and a half years, and this is partially the fault of the appellant, because the appellant did not take the reasonable step of a defensive appeal which could have been determined in November 1999. On the other hand, until November 1999 the appellant had the benefit of two discretionary decisions of District Court judges supporting the continuance of the proceedings, made over the opposition of the respondent, and including the expressed view of Garling DCJ of his understanding that he had acted on his own motion on 8th October 1998. The Court of Appeal has shown that that understanding was wrong, but that expression of understanding has some relevance to the Court's exercise of discretion now.
66 On the whole, I think the appropriate order is that the appeal be allowed and that Garling DCJ's order should be set aside. In lieu thereof, there should be an order that the appellant pay the respondent's costs of the Notice of Motion dealt with by Garling DCJ, and pay $500.00 on account of those costs within fourteen days. It appears that there is no outstanding question concerning discovery, so that the Notice of Motion should otherwise be dismissed.. To a considerable extent, all of the costs involved since October 1998 have been caused by the appellant's default in failing to attend the hearing before Garling DCJ. I do not think the appellant should receive the costs of the appeal. In my opinion, the appropriate order for costs of the appeal is that each side pay its own costs, and that the respondent have a suitors' fund certificate in respect of the respondent's costs of the appeal.
*********