and in paragraph 46 of that judgment:
46. From what has already been said, it is obvious the extent of the delay is a delay dating from the operation of Part 12 Rule 4C. The effect of Part 12 Rule 4C(1) was to deem the Statement of Claim dismissed for failure to file a Praecipe for Trial on 1 January 1998. The opportunity to retain [sic] a recision [sic] of this dismissal pursuant to subrule (4) of 4C was lost by 1 July 1998. That does not mean the slow pace of the prosecution of this matter prior to its deemed dismissal is irrelevant but its relevance goes to the worthiness of the Applicant for consideration of an indulgence by the Court and as some possible indicator of the Applicant's potential conduct in future if the application be granted.
13 In Falconer v Laird [2003] NSWCA 114 this Court in considering a claim for rescission of a deemed dismissal said at paragraph 80:
[80] …As with the extension of a limitation period (see Brisbane South Regional Health Authority v Taylor at 554-6 per McHugh J), the whole period of delay must be considered, and it is erroneous to put aside prejudice prior to Pt12 r4C coming into effect.
14 Delay during the earlier period would be relevant on two matters. First a significant delay during that period might prejudice the chance of a fair trial at a later stage, and secondly the plaintiff's claim for an indulgence should be considered bearing in mind the warnings which the plaintiff must have had by having the matter struck out of the call-over list on two occasions.
15 Counsel for the appellant argued there must be some presumptive prejudice in a case where it is clear there would be a question as to the extent to which the respondent's problems and complaints were caused by the motor vehicle accident rather than by the nature of his work before and after the accident. His Honour addressed this position in paragraph 35 of his judgment, but in a manner which failed to address properly the question of total delay and the difficulties of conducting a trial twelve years after the event.
16 I turn now to the explanation as to whether or not there was a proper explanation for delay. Counsel for the respondent argued that as there was no statutory requirement for an explanation, no explanation was required. That is not correct. It is always a question bearing upon the exercise of discretion in a claim for extension of time: Salido v Nominal Defendant (1993) 32 NSWLR 524 at 533, 539 and 541; Holt v Wynter (2000) 49 NSWLR 128 at 136. That is because it goes to the question of whether it is just and fair to grant the indulgence sought, namely an extension of time to apply to rescind the dismissal. It cannot just be a question of prejudice and ability to have a fair trial. If that were the position and everything else could be sorted out by appropriate costs orders then the accepted requirements for case management would go out the window. Hence the principles of case management assume that the parties will comply with rules or give proper reasons for failure to do so.
17 As far as can be gleaned from the evidence the delays in this matter appear to have been caused by the inability of the plaintiff to provide the details of financial loss. Even if he were wrong in not considering total delay, His Honour considered, correctly I think, that the important times to look at delay were failure to file a praecipe prior to 1 January 1998 and the failure to seek a rescission of the dismissal order prior to 1 July 1998. His Honour referred to the changing places of employment of the respondent and went on to say that there was no evidence of any difficulties caused by this. He said that there was nothing in the evidence to suggest any warnings were sent to the respondent by his solicitors and he appears to have come to a conclusion on the basis of that statement that there was a failure to contact the respondent while he was in country New South Wales and in Victoria, which showed inefficiency on the part of the respondent's solicitors in 1997 and early 1998. As there was no evidence to show any such failure it is clear that this is a matter where His Honour's discretion may have miscarried being based on an unproved state of affairs. In paragraph 50 of his judgment in commenting that the evidence failed to address the requirements for action before 1 January 1998 and 1 July 1998, His Honour said "On the material before me I can only infer there was an oversight by the applicant's solicitors, firstly to warn him of the requirements of Pt12 r4C; next to advise him of the opportunity provided by Pt12 r4C(4)". There was no basis or foundation for this inference of His Honour. Nor was there any basis for the statement in paragraph 51 of the judgment that His Honour was satisfied that during the relevant period there was some, but little activity on the applicant's file by his solicitors. This seems to have been arrived at by dates of various medical reports in 1997. Upon drawing the inferences to which I have referred His Honour at paragraph 58 came to the conclusion that the respondent was less at fault than his solicitors, whose function it was to advise him and seek his instructions, and that the fact that the respondent was one of the parties whose rights would be affected by the outcome of the application before him, was something which must be kept in mind. In coming to these conclusions His Honour said at paragraph 61:
Bearing in mind the findings I have made as to the absence of any unfair impact prejudice to the Respondent upon the fairness of a trial on quantum of damages, and bearing in mind that I have also found the principle fault in failing to file a Praecipe for Trial, rests with the Applicant's solicitors, and bearing in mind that I have found the principle fault in failing to seek a rescission of the deemed dismissal of this matter rests with the plaintiff's solicitors, I am of a view it is fair and just to both parties to grant the application (as amended if necessary).
18 The evidence given in the affidavit of the respondent's solicitor sworn 15 May 2003 is, I should state, contrary to the inference drawn by the judge. That evidence is to the effect that the plaintiff's claim included one for economic loss and it was not possible to get the matter back into the Motor Vehicle List or to file a praecipe or to apply for an extension of time until the claim could be got into order. It is clear from the evidence that there were difficulties in obtaining relevant taxation returns and that the respondent's taxation affairs were somewhat complicated. It is also clear on this evidence the respondent was made well aware by his solicitors that this material was necessary for the proper presentation of his claim and that only he could obtain it. It does not seem to have been considered that if the written material was not available from any source then the claim would have to proceed without it. That may or may not have been the fault of the solicitor, but it is clear that the plaintiff was intending to include a claim for economic loss as part of his damages.
19 It follows from this that in placing the blame for the most part on the solicitor, the learned District Court Judge was drawing inferences not available on the evidence and in fact contrary to the evidence. It follows from this I am of the view that the exercise of his discretion miscarried. This Court should therefore exercise the discretion itself.
20 While I would not necessarily conclude as His Honour did that there was not such prejudice to the appellant, by reason of the delay as would prevent a fair trial from taking place, I have come to the conclusion that as no proper explanation has been given for the delay apart from the problems of obtaining taxation returns and really no explanation has been given at all for the lack of action between 1999 and 2002, this is a case where in exercise of discretion an extension of time ought not to be granted as it would not be fair and just to do so.
21 The orders I propose are as follows: