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[2025] NSWCA 246
procedural. The Court ordered the proceedings expedited under UCPR r 51.60; otherwise dismissed the respondent’s notice of motion; ordered that the motion’s costs be the respondent’s costs in the proceeding;...
The applicant had repeatedly not filed the documents required to progress her proposed appeal. The judge considered that this would ordinarily justify dismissal, and recognised the serious effect of delay on the 101-year-old respondent. But the applicant had provided explanations for the delay and had recently obtained legal assistance. The judge therefore gave her one final filing opportunity rather than dismissing the case immediately. The proceedings were also expedited, and the respondent was allowed to bring the dismissal request back before the Registrar on 17 November 2025.
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2,205 words · generated 06/10/2026
This was an interlocutory procedural decision by McHugh JA in the NSW Court of Appeal. It did not decide the applicant’s proposed appeal, or the merits of the underlying dispute about the proceeds of a house sale. It concerned whether the applicant’s summons for leave to appeal should be dismissed because she had not progressed it in accordance with procedural requirements, and whether the matter should be expedited.
4 cited instruments linked from this judgment.
The applicant, Traci Haelli Jones, is the respondent’s granddaughter. The respondent, Gladys Carol Jones, was 101 years old and living in residential aged care at the time of the decision ([1]). The applicant had been self-represented in the Court until shortly before the hearing and was then represented by a firm of solicitors ([1], [19]).
The underlying proceedings concerned money from the sale of the respondent’s former home. In December 2023, the respondent began proceedings seeking, among other things, an account of the net sale proceeds. Hammerschlag CJ in Eq decided those proceedings on 8 May 2025. The Court of Appeal judgment records that the proceeds, $588,969.33, had been paid into the applicant’s bank account, and that the trial judge gave judgment to the respondent for $223,178.24, with interest, and made costs orders ([7]–[9]). Those details are background to the procedural application, not issues decided afresh by McHugh JA.
The applicant filed a summons for leave to appeal on 12 August 2025 ([1], [12]). UCPR r 51.12 required her to file and serve a White Folder containing specified appeal materials with the summons. She did not do so. The respondent’s solicitors sought the summons and White Folder during September, without success ([12]). The Court then made orders requiring filing by 8 October and 17 October 2025. The applicant missed both deadlines ([13]–[15]).
The respondent’s notice of motion, filed on 21 October 2025, sought dismissal for want of due despatch under UCPR rr 12.7(1) and 51.1(3), or alternatively expedition, as well as costs ([2]). The applicant relied on medical certificates and other circumstances to explain the delay. These included significant psychological and physical conditions, recovery from skin-cancer chemotherapy, caring for a terminally ill partner and two infant grandchildren, living in a remote area, disruption following flood and storm events, and difficulties using the court registry’s online portal ([17]). She also submitted that she had obtained legal representation and assistance preparing the White Folder ([19]).
McHugh JA did not dismiss the proceedings at this hearing. Instead, the orders required the applicant to file an amended summons and White Folder by 4pm on 14 November 2025. The matter was listed before the Registrar on 17 November 2025, and the respondent was permitted to renew the dismissal application orally on that date ([22]).
The judgment records a balance between two sets of considerations. On one side were repeated failures to comply with filing requirements and court orders. The White Folder had not been filed with the summons as required by r 51.12, and the applicant then missed two further dates fixed by the Court ([12]–[15]). The judge stated that this history “would ordinarily be a sufficient basis” to dismiss the proceedings for failure to prosecute them with due despatch ([16]).
The respondent’s circumstances made delay particularly important. She was 101, the proceedings were causing her anxiety, and she was being kept out of funds and had taken out a reverse mortgage to finance her commitments ([16]). The judgment also records that little of the $223,178.24 judgment debt had been paid and that the costs ordered below were substantial and unpaid ([9]). McHugh JA described the case for dismissal as “very powerful” ([16]). He expressly rejected the applicant’s submission that a further extension would not prejudice the respondent ([20]).
On the other side, the applicant provided explanations for her delay. The medical material included a certificate stating that she was unfit to meet strict court timetabling or prepare extensive legal documents and that requiring compliance then could risk serious deterioration in her health ([17]). The judgment also describes her caring responsibilities, remoteness, disruption to communications and transport, and difficulties with the online portal ([17]). These were the applicant’s explanations as recorded and considered by the Court; the judgment does not separately determine the accuracy or legal effect of each one.
A material change was that the applicant had recently obtained professional assistance. She said she had retained solicitors, was to meet appellate counsel and had engaged a commercial provider to assist with the White Folder; she was represented at the motion hearing ([19]). Taking that development into account, McHugh JA concluded that “on balance” the interests of justice favoured one final opportunity to put the appeal materials in order ([20]).
The Court also addressed how to manage any further non-compliance. The judge declined to make a self-executing order dismissing the proceeding automatically if the applicant missed the new deadline. The stated concern was that such an order could lead to a further dispute about whether the other orders had been complied with. The preferred course was to return the matter to the Registrar immediately after the deadline ([21]). The judge warned that the proceeding should be expected to be dismissed unless the applicant’s “house is in order” at that point ([21]). That warning was not itself an order dismissing the proceeding.
Expedition was a separate component of the result. Both parties submitted that expedition was appropriate, and the judge ordered it under UCPR r 51.60 ([22]). The judgment’s order also gave the respondent liberty to renew her dismissal application orally before the Registrar without filing another motion or giving prior notice, and referred that question to the Registrar under the delegation described in the order ([22]).
The judgment is a short procedural ruling applying existing rules to the filing history before the Court. It identifies UCPR rr 12.7(1) and 51.1(3) as the provisions under which dismissal for want of due despatch was sought ([2]). It records the requirement in UCPR r 51.12 to file and serve a White Folder with the summons for leave to appeal ([12]). It also relies on r 51.60 for expedition ([22]).
The decision does not announce a new general test for dismissal, alter the text of those rules, or decide that particular explanations will always excuse missed deadlines. Rather, it illustrates a discretionary assessment on this record: multiple failures ordinarily supported dismissal, while the applicant’s explanations and newly obtained legal assistance supported allowing one final opportunity. The respondent’s advanced age and the practical effects of delay remained substantial countervailing considerations ([16]–[21]).
The judgment cites one other case, Gladys Carol Jones v Traci Haelli Jones [2025] NSWSC 448, as the decision from which leave to appeal was sought ([6]). McHugh JA recounts its background and orders, but this Court of Appeal ruling does not review or determine the correctness of that decision. The judgment therefore supplies no new appellate ruling on the accounting dispute or the legal principles applied by the Supreme Court in the earlier proceeding.
The operative “after” state in this case was procedural, not a change in the law. The proceeding remained on foot, was ordered to be expedited, and was subject to a final filing date and a return before the Registrar. The respondent retained the ability to renew the dismissal application at that return date ([22]). The decision did not determine whether the applicant would ultimately obtain leave to appeal.
At [15], the judge noted that the applicant had failed to file the White Folder on three occasions: the original date required by the rules and two dates set by court orders. In plain English, the delay was not treated as a single missed deadline. The Court considered a continuing pattern of non-compliance.
At [16], McHugh JA said that the failures would “ordinarily” be sufficient for dismissal, and that the respondent had a “very powerful case” for dismissal because of her age, anxiety and financial position. This passage explains the seriousness of the respondent’s application. It also shows that the judge did not treat the applicant’s filing history as a minor administrative lapse.
At [17], the judgment sets out the applicant’s explanations, including medical conditions, caring duties, isolation and disrupted communications. These are recorded as circumstances she relied on to explain her delay. The Court did not say that any one of them automatically excused non-compliance.
At [20], the judge said it was in the interests of justice to give the applicant “one final opportunity”, given that she now had professional assistance. In plain English, the decision rested in part on a change in the applicant’s circumstances by the hearing date. It was not an open-ended extension or a finding that the earlier missed deadlines did not matter.
At [21], the judge said the matter should return to the Registrar rather than be subject to automatic dismissal if the new order was not met. The judge anticipated that continued non-compliance could result in dismissal, but left the matter to be dealt with at the listed return.
At [22], the orders made the procedural consequences concrete: expedition, filing by 4pm on 14 November 2025, a Registrar listing on 17 November 2025, and permission for the respondent to renew her dismissal application orally. Those orders, rather than the judge’s warning in [21], define the operative disposition.
The decision is relevant to a procedural situation involving repeated failures to file documents required to progress an appeal or application for leave to appeal, particularly where the court has already made orders setting replacement filing dates. Here, the applicant missed the requirement under r 51.12 and two later court-ordered deadlines ([12]–[15]).
It may also be relevant where a court is asked to dismiss for want of due despatch but the party in default presents an explanation based on health, caring responsibilities, remoteness or practical access difficulties, and has obtained professional assistance by the time the motion is heard ([17]–[20]). The judgment shows that those circumstances were considered together. It does not establish that they will necessarily prevent dismissal in another case.
The respondent’s circumstances were also prominent: advanced age, litigation-related anxiety, and financial consequences associated with being kept out of funds ([16]). The judgment therefore illustrates that delay may have particular practical significance for an opposing party, and that a court may expressly weigh those effects against the explanation for non-compliance.
The fact pattern should not be reduced to a rule that a represented party will always receive a final extension, or that a self-represented party’s difficulties will always excuse delay. McHugh JA’s reasoning was expressly based on the balance of the circumstances in this matter, including the applicant’s recent access to professional help and the respondent’s particular vulnerability ([16]–[21]).
The supplied judgment contains no discussion of later cases applying, distinguishing or criticising this decision. It is an ex tempore procedural ruling revised on 13 November 2025, and the text does not identify any subsequent judicial treatment.
The only case cited is Gladys Carol Jones v Traci Haelli Jones [2025] NSWSC 448, which was the earlier Supreme Court decision the applicant sought leave to appeal from ([6]). That case is described as procedural background. The present judgment does not identify it as a precedent for the due-despatch ruling, nor does it analyse or approve the reasoning in that earlier decision.
Accordingly, the source provided supports describing the decision’s reasoning and orders, but not making claims about how later courts have treated it. The subsequent conduct of the proceedings, including what occurred before the Registrar on 17 November 2025, is not set out in this judgment.
The judgment leaves the merits of the proposed appeal unresolved. The summons sought leave to appeal from the 8 May 2025 Supreme Court decision, but the Court of Appeal did not determine whether leave should be granted, what grounds might be advanced, or whether the underlying judgment should be altered ([1], [9], [22]).
The judgment also does not state what happened after the final filing date. It directed the applicant to file and serve the amended summons and White Folder by 4pm on 14 November 2025 and listed the matter before the Registrar on 17 November 2025 ([22]). The source does not say whether the materials were filed, whether the respondent renewed the dismissal application, or what order the Registrar made.
Nor does the judgment prescribe a general threshold for when health, caring responsibilities, remoteness or technology problems will justify an extension or avert dismissal. It records and weighs those explanations in this case, but does not formulate a general test beyond referring to the interests of justice and the balance of circumstances ([17]–[20]).
Finally, the judgment makes no broader ruling about the enforceability or merits of the underlying accounting judgment, the unpaid debt or the costs orders. Those matters explain why the proceedings were significant to the parties, but they were not determined by McHugh JA on this motion ([8]–[10]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Jones v Jones (bht Shaw) [2025] NSWCA 246
Hearing dates: 27 October 2025
Date of orders: 27 October 2025
Decision date: 27 October 2025
Before: McHugh JA
Decision: (1) Order pursuant to Uniform Civil Procedure Rules, r 51.60, that the proceedings be expedited.
(2) The respondent's notice of motion filed 21 October 2025 otherwise be dismissed.
(3) The costs of that notice of motion be the respondent's costs in the proceeding.
(4) Direct the applicant to file and serve an amended summons for leave to appeal and the White Folder in accordance with UCPR 51.12 by 4pm on 14 November 2025.
(5) The Proceedings be listed before the Registrar of the Court of Appeal on 17 November 2025.
(6) Grant liberty to the respondent orally to renew her application on 17 November 2025 that the summons filed on 12 August 2025 be dismissed, without need to file any notice of motion or otherwise to give prior notice to the applicant.
(7) Order pursuant to item 7 of Part 3 of the Schedule to the Delegation to Registrars under section 13 of the Civil Procedure Act 2005 (NSW) made by the Chief Justice on 28 November 2022 that there be referred to the Registrar of the Court of Appeal the matter referred to in order 6 above, including the power to dismiss the proceedings or make such other order as the court thinks fit conferred by UCPR 12.7 and 51.1.
Catchwords: CIVIL PROCEDURE — Dismissal of proceedings — Want of due despatch — Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 51.5 — Where applicant failed to file White Folder — Where applicant has explanation of delay and is now legally represented
CIVIL PROCEDURE — Expedition of proceedings — Where respondent of advanced age — Where respondent suffers anxiety and is kept out of funds
Legislation Cited: Civil Procedure Act 2005 (NSW), s 13
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 51.1, 51.5, 51.12, 51.60
Cases Cited: Gladys Carol Jones v Traci Haelli Jones [2025] NSWSC 448
Category: Procedural rulings
Parties: Traci Haelli Jones (Applicant)
Gladys Carol Jones (bht Raymond Douglas Shaw) (Respondent)
Representation: Counsel:
A Jones (solicitor) (Applicant)
KJ Young; DB Cordeschi (Respondent)
Solicitors:
Jones Hardy Law (Appellant)
MJM Lawyers (Respondent)
File Number(s): 2025/221178
Publication restriction: N/A
The respondent is 101 years old. She resides at a residential aged care facility in Lane Cove. The applicant, who until very recently was self-represented in this Court, is her granddaughter. The applicant is now represented by a firm of solicitors. On 12 August 2025, the applicant filed a summons seeking leave to appeal from a decision of Hammerschlag CJ in Eq given on 8 May 2025 to which I will return below.
By notice of motion filed on 21 October 2025, the respondent seeks an order that the summons filed on 12 August 2025 be dismissed. There is power to do so pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 12.7(1) and 51.1(3), on the ground that the applicant has not prosecuted the proceedings with due despatch. Alternatively, the respondent seeks an order that the appeal be expedited. The respondent also seeks her costs.
The material before me on the notice of motion is largely contained in an affidavit of the respondent's solicitor, Ms Sewell, made on 23 October 2025. Annexure I to that affidavit consists of the applicant's written submissions dated 20 October 2025, which itself attaches a number of documents including medical certificates from the applicant's doctor. The material discloses the following matters of background to the present application.
In 2022, the respondent commenced proceedings in the Supreme Court against the applicant seeking, amongst other things, the removal of a caveat that the applicant had caused to be lodged on the respondent's unit at Burns Bay Road in Lane Cove. Those proceedings were settled in December 2022 on the basis of agreed orders that provided for the removal of the caveat. The applicant also gave an undertaking to provide various documents regarding the proceeds of sale of the respondent's sale of her home in Lane Cove.
The respondent then commenced some form of proceeding in 2023, alleging that the applicant was guilty of contempt on the ground that she had not complied with her undertaking. In April 2024, the contempt proceedings were resolved on the basis that the applicant was ordered to pay the respondent's costs.
In December 2023, the respondent commenced a further set of proceedings against the applicant seeking, amongst other things, an order that the applicant give an account of the net proceeds of sale of her prior home at Elizabeth Parade, Lane Cove. Those were the proceedings that came on for hearing before Hammerschlag CJ in Eq on 8 May 2025: Gladys Carol Jones v Traci Haelli Jones [2025] NSWSC 448. By the morning of the hearing, the parties had agreed to resolve all issues other than the account. His Honour said at [3]:
"Because of the plaintiff's very advanced age and what, in absolute terms might be regarded as not a particularly large sum of money in dispute (in the context of the jurisdiction of this Court), I brought the proceedings on for hearing quickly and conducted the accounting myself, with the cooperation of Counsel on both sides who agreed to a summary procedure which I implemented to get the hearing done expeditiously."
His Honour gave reasons ex tempore, stating at [2] that the respondent had sold the house, which yielded net proceeds of $588,969.33, which had been paid into the applicant's bank account. His Honour noted at [6] that it was not disputed that the money was beneficially owned by the respondent, and said that at least an evidentiary burden rested on the applicant to establish that she had spent the money lawfully, within authority or for the benefit of the respondent. His Honour said at [11] that a disturbing feature of the case was that a significant portion of what had been spent could not conceivably have been for the benefit of the respondent, such as the applicant’s overseas travel expenses and a number of other items.
Hammerschlag CJ in Eq conducted the accounting by reference to a schedule of payments that had been created by the applicant (see at [8] and [14]). His Honour awarded various amounts to the respondent, the result of which was to be seen in the annexure to his Honour's reasons. His Honour concluded that the respondent was entitled to judgment for $223,178.24 (at [14]), with interest from 9 December 2022, being the date of certain orders made by Kunc J in the related proceedings about the caveat (see at [15]-[16]). His Honour also ordered the applicant pay the respondent's costs on the ordinary basis until 19 December 2023 and thereafter on the indemnity basis.
I have been informed this morning, without objection, that very little of the judgment debt of $223,178.24 has been paid to date, and that the costs the subject of the costs order are in a very substantial amount, running into the hundreds of thousands of dollars, and that those costs have not been paid. It is to those orders that the summons for leave to appeal, which plainly requires amendment, is apparently directed.
In about May 2025, the respondent obtained garnishee orders against the applicant. The applicant sought a stay of the garnishee orders. The application came before Richmond J as Duty Judge on 4 July 2025. On 11 July 2025 the applicant's notice of motion seeking a stay was dismissed and the Court ordered that if the applicant had not filed an appeal from the decision of Hammerschlag CJ in Eq on or before 8 August 2025 the applicant was to pay the respondent's costs of the notice of motion.
The applicant apparently filed a notice of intention to appeal, but did not serve it on the respondent within 28 days of the date of Hammerschlag CJ in Eq's judgment.
The applicant filed the summons for leave to appeal on 12 August 2025. By UCPR, r 51.12, the applicant was required to file and serve a White Folder containing various documents, such as a summary of the applicant's argument, together with the summons for leave to appeal. The applicant did not do so. Nor did she separately file the documents required by the rule. On several occasions throughout September 2025, the solicitors for the respondent sought service of the summons and the White Folder, to no avail.
"is presently medically unfit to meet strict Court timetabling, prepare extensive legal documents, or travel long distances (the journey from her residence to Sydney being approximately seven and a half hours each way). Compelling compliance at this stage would risk serious deterioration of her mental and physical health."
The applicant is the sole carer of her partner, who is terminally ill.
The applicant is the full-time carer for two infant grandchildren at least one of whom has a significant medical condition.
The applicant lives in a remote and isolated location with limited access to support. The availability of communications, including Internet access and transport have been affected by the aftermath of a major flood and storm event in the area in which she lives in May and July 2025.
The applicant has experienced a number of difficulties with the registry online portal, apparently arising out of misspellings of her name and the history of the various proceedings to which she has been a party.
In her written submissions dated 20 October 2025, the applicant sought a further 28 day extension until 14 November 2025 to file an amended summons and the accompanying appeal materials, that is, the White Folder. Given the applicant's various impediments referred to above, there would be serious reason to doubt her capacity to comply with that timeframe.
However, the applicant submitted that she had now retained legal representation, that she was scheduled to meet with appellate counsel on 21 October 2025 to review and settle the materials, and that she had obtained the assistance of a commercial service provider, Law in Order, to assist with preparation of the White Folder. In addition, she was represented at the hearing of the notice of motion today by a solicitor in the firm which has recently commenced acting for her.
I do not accept the applicant's submission that granting the extension will not prejudice the respondent, particularly given her advanced age and the anxiety of the litigation. However, given that the applicant now has the benefit of professional assistance, on balance I consider that it is in the interests of justice to give the applicant one final opportunity to put her house in order.
I have considered whether to make a self-executing order that the proceedings be dismissed if the applicant does not comply with the orders I propose to make. However, it seems to me likely that such an order would only give rise to a debate about whether my other orders had been complied with. The better course is to stand the matter over to the Registrar to deal with it immediately after 14 November 2025. The applicant should expect that unless her house is in order at that point, the proceeding will be dismissed.
Both parties before me today submitted that it was appropriate that the matter be expedited, and in the circumstances, I will make such an order. Accordingly, I make the following orders:
Order pursuant to Uniform Civil Procedure Rules, r 51.60, that the proceedings be expedited.
The respondent's notice of motion filed 21 October 2025 otherwise be dismissed.
**********
Jones
Jones
The Court ordered the proceedings expedited under UCPR r 51.60; otherwise dismissed the respondent’s notice of motion; ordered that the motion’s costs be the respondent’s costs in the proceeding; directed the applicant to file and serve an amended summons for leave to appeal and the White Folder by 4pm on 14 November 2025; listed the matter before the Registrar on 17 November 2025; granted the respondent liberty to renew orally her dismissal application on that date without prior notice or a further notice of motion; and referred that matter to the Registrar with the powers described in order 7 ([22]).
On 19 September 2025, the applicant was ordered to file and serve an amended summons seeking leave to appeal and the White Folder by 4pm on 8 October 2025. The applicant failed to do so.
On 13 October 2025, the applicant was ordered to file the amended summons seeking leave to appeal and the White Folder by 4pm on 17 October 2025. The applicant again failed to do so.
There have thus been three occasions so far on which the applicant was required to file the White Folder but failed to do so: on 12 August (as required by the rules), and on 19 September and 13 October (as required by orders of the Court).
That would ordinarily be a sufficient basis for dismissal of the proceedings for failure to prosecute them with due dispatch. Having regard to the respondent's very advanced age, and the evidence in Ms Sewell's affidavit that the proceedings have caused anxiety for the respondent and that the respondent is being kept out of funds and has taken out a reverse mortgage to finance her commitments, there is a very powerful case for exercising the discretion to dismiss the proceedings.
However, the applicant explains her delay by reference to the following matters.
There are before the Court several medical certificates dated in the period from 18 August 2025 until 17 October 2025. These disclose that the applicant suffers from significant psychological and physiological conditions and has been recovering from skin-cancer chemotherapy. The most recent of these states that in the opinion of her medical practitioner, Dr Allen, the applicant:
The costs of that notice of motion be the respondent's costs in the proceeding.
Direct the applicant to file and serve an amended summons for leave to appeal and the White Folder in accordance with UCPR 51.12 by 4pm on 14 November 2025.
The Proceedings be listed before the Registrar of the Court of Appeal on 17 November 2025.
Grant liberty to the respondent orally to renew her application on 17 November 2025 that the summons filed on 12 August 2025 be dismissed, without need to file any notice of motion or otherwise to give prior notice to the applicant.
Order pursuant to item 7 of Part 3 of the Schedule to the Delegation to Registrars under section 13 of the Civil Procedure Act 2005 (NSW) made by the Chief Justice on 28 November 2022 that there be referred to the Registrar of the Court of Appeal the matter referred to in order 6 above, including the power to dismiss the proceedings or make such other order as the court thinks fit conferred by UCPR 12.7 and 51.1.