Micallef v ICI Australia Operations Pty Ltd & Anor - [2001] NSWCA 274 - NSWCA 2001 case summary — Zoe

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Micallef v ICI Australia Operations Pty Ltd & Anor

[2001] NSWCA 274

Court of Appeal (NSW)|2001-08-08|Before: Sheller JA, Heydon JA

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Source facts

Court

Court of Appeal (NSW)

Decision date

2001-08-08

Before

Sheller JA, Heydon JA

Source

Original judgment source is linked above.

Judgment (82 paragraphs)

[1]

Background 6 In evaluating the reasoning of Garling DCJ which led him to make the orders of 12 March 1999, it is necessary to consider the procedural background as it emerged from the court records and the materials before him. The materials before him consisted of the two Notices of Motion filed by the defendants; the court files relating to proceedings as they were in the Supreme Court (which appear to have become incomplete and disordered over the years and as they have been moved about); the court files relating to proceedings as they were in the District Court; an affidavit filed by the solicitor for the first defendant dated 15 February 1999; an affidavit filed by the solicitor for the second defendant which expressed concurrence with the affidavit of the solicitor for the first defendant; an earlier affidavit filed on behalf of the first defendant recording breach of an order by the plaintiff; and two statements dated 8 October 1998 and 25 February 1999. (These statements were filed pursuant to a standard direction by a District Court Registrar in the following form: "If ANY PARTY is not ready to take a hearing date on the date it is listed before the List Judge then AT LEAST 5 DAYS PRIOR to that date you must file a statement setting out the reasons why the matter is not ready to obtain a hearing date.")

[2]

The affidavits of the solicitors for the defendants were not contradicted or qualified by evidence filed on behalf of the plaintiff, and neither deponent was cross-examined. 7 The material revealed the following. 8 The plaintiff was born in 1950. 9 At some date which is unclear, the defendants, according to Defences they filed in the Supreme Court, began making workers' compensation payments to the plaintiff. 10 On 3 April 1989 the plaintiff filed a Statement of Claim in the Common Law Division of the Supreme Court of New South Wales. It alleged that from 14 May 1984 to 30 September 1984 the first defendant employed the plaintiff and from 1 October 1984 to June 1987 the second defendant employed the plaintiff. It alleged that she was employed as a converting operator in the yarn recovery section of a factory. It alleged that in her employment she suffered injuries for two reasons. The first reason alleged was that she was required to work on a bobbin winder and bobbin stripper machine: that work involved excessive and repetitive strain to her arms, and required her to stand and squat repeatedly during the course of her working day. The second reason alleged was that she was required to walk through the laboratory section of the factory, and as she walked through it, she inhaled fumes that came from chemicals in the laboratory. It was alleged that the defendants were negligent, and twenty-eight particulars were given in the Statement of Claim. It was also alleged that the defendants had been in breach of statutory duty, and ten particulars of that were given in the Statement of Claim. Six particulars of injury were given. The Statement of Claim was filed nearly five years after the plaintiff's employment in which the torts were alleged to have occurred commenced, and nearly two years after that employment ceased. 11 On 29 May 1989 the matter was listed for callover. The first defendant "objected to the matter proceeding as particulars had not been answered". 12 On 27 July 1989 the second defendant filed a Notice of Appearance and requisitioned trial by jury. 13 On 12 September 1989 the plaintiff filed a Statement pursuant to Part 33 rule 8A of the Supreme Court Rules. The Statement alleged five particulars of injury, which were the same as those alleged in the Statement of Claim (with the exception of "breathing restrictions"). The Statement also alleged fourteen "disabilities". 14 About eighteen months passed before the first defendant filed a Notice of Appearance and a Defence on 18 February 1991. 15 The proceedings were set down for trial on 25 February 1991. 16 The second defendant filed a Defence on 12 June 1991. 17 According to paragraph 9 of the affidavit of 15 February 1999: "9. The matter came before the Court on 9 June 1995 when the Plaintiff was not ready to proceed. Directions were made in respect of service of medical reports and up-dated particulars pursuant to Part 33."

[6]

The file records that the matter was stood over to the next arbitration callover. 24 On 29 May 1997 a solicitor acting on behalf of the plaintiff had a telephone conversation with the solicitor for the first defendant. The solicitor for the plaintiff then sent a letter to the solicitor for the first defendant in the following terms: "We refer to our telephone discussion today and will mention your appearance tomorrow at the call-over. We propose to seek Consent Orders as described below:- 1. The matter be stood-over to the next call-over. 2. The Plaintiff to provide amended part 33 particulars within 28 days. 3. The Plaintiff to provide re-fresher medical reports within 6 weeks. We have contacted Ms Simone Herbert-Lowe who indicates that as the matter is an old matter her client does not consent to the Orders as described above and would like to press for a hearing date. We are mindful that the matter is a jury trial and that a date may not be available. We will apply to the Court tomorrow for the three above Orders and we would be pleased to mention your appearance. We will notify you of the outcome as soon as possible." 25 On 30 May 1997 the callover took place before a Supreme Court Registrar. There is no evidence, apart from the file, of what happened. The file bears a note that the case was not suitable for arbitration and should remain in the general list. 26 On 2 June 1997 the solicitor for the first defendant wrote to the solicitor for the plaintiff and said: "We refer to recent communications in this matter, most particularly those between your Yvonne Williams and the writer of 29 May 1997. This is a matter which has been around for some considerable time and one in which your client's pleadings and particulars are both confusing and out of date. It is our client's instructions that in the event that this matter is not back on the rails very shortly, then we are to proceed by way of Notice of Motion to have the proceedings struck out for want of prosecution. We will refrain from taking that step until the expiry of forty two days from today's date, giving you in effect time to put in place the steps indicated in your letter of 29 May 1977, ie:- 1. to provide amended Part 33 Particulars within twenty-eight days and

[14]

In short, it seems that the second defendant and then the first defendant complained of the plaintiff's non-compliance with the order of 25 March 1998 to update the material supplied pursuant to Part 33 rule 8A of the Supreme Court Rules: the expression "Pt 12s" was used though the correct rule of the District Court Rules was Part 9 rule 27. The second defendant also apparently said that the plaintiff was to have a medical examination on 30 September 1998. The Assistant Registrar listed the matter for a hearing on 8 October 1998 to show cause why the proceedings should not be dismissed pursuant to Part 18 rule 3(1). The plaintiff was also ordered to update the "Pt 12s" by 1 October 1998. The "show cause information sheet" which the Assistant Registrar handed to the parties and which was tendered before this Court is an important document. It said: " MATTERS NOT READY FOR HEARING Having been advised at the call-over that this matter is not ready for hearing I am directed by the List Judge to:- 1. List this matter to show cause why it should not be dismissed for want of prosecution. 2. It is listed for that purpose on ………. at ………. AM. [The details are illegible, but doubtless the day was 8 October 1998 and the hour was noon]. 3. The List Judge has directed me to advise parties that serious consideration will be given to dismissing this matter . 4. If ANY PARTY is not ready to take a hearing date on the date it is listed before the List Judge then AT LEAST 5 DAYS PRIOR to that date you must file a statement setting out the reasons why the matter is not ready to obtain a hearing date. 5. All submissions or evidence you wish the List Judge to consider must be filed at least 5 days prior to the listing date. Documents will not usually be accepted or considered on the listing date. 6. You are required to serve a copy of this notice upon any party not in attendance at the call-over within 3 days of today." 32 That document is important because its issue is evidence that the Assistant Registrar had been advised that the matter - which was now nearly ten years old - was not ready for hearing; paragraphs 1 and 2 clearly identified that it was listed to show cause why it should not be dismissed for want of prosecution; paragraph 3 made it plain that dismissal was not merely an abstract or remote possibility, but was to be the subject of "serious consideration"; the solemnity of the occasion was further stressed by the directions in paragraphs 4 and 5 about statements, submissions and evidence being filed five days in advance of the hearing, no doubt so that the parties and the court could give advance consideration to the merits of dismissal and of any other relevant course; and the direction in paragraph 6 about service on non-parties further highlighted the fact that the 8 October 1998 hearing was of central significance. 33 The other aspect of the events of 25 August 1998 which is of significance is that on that day the defendants made formal complaints that the plaintiff had contravened the 25 March 1998 order about particulars. The court noted that contravention, and made a second order about those particulars. The time allowed, more than five weeks, was not oppressively short in view of the existence of the 25 March 1998 order and the second defendant's letters of 2 and 24 June 1997. 34 The day for compliance with the order of 25 August 1998, 1 October 1998, came and went without any particulars being supplied. 35 On 8 October 1998 the matter came before the List Judge, Garling DCJ. Contrary to what had been foreshadowed by the Assistant Registrar's order of 25 August 1998, contrary to paragraphs 1-3 of the "show cause information sheet", and contrary to the statement on the file that the purpose of the hearing was for the showing of cause why the matter should not be struck out for want of prosecution, Garling DCJ did not ask the plaintiff to show cause why the matter should not be dismissed. Rather he inquired whether the matter was suitable for arbitration (i.e. under the Arbitration (Civil Actions) Act 1983 and the District Court Act 1973 s 63A). The plaintiff and the first defendant said it was; the second defendant said it was not. Both defendants endeavoured to point out the plaintiff's non-compliance with the orders of 25 August 1998. Garling DCJ declined to hear what they wanted to say on that subject, pointing out that paragraph 4 of the "show cause information sheet" required "any" party contending that a matter was not ready to file an appropriate statement, not just the plaintiff, and the defendants had not filed one. He fixed the matter for arbitration on 1 February 1999. 36 On 20 November 1998 the first defendant moved Ainslie-Wallace DCJ for an order vacating the arbitration date of 1 February 1999. The events of that day were important. In part the transcript attributes statements to the wrong speakers, but it is agreed that it should be read as follows. The solicitor for the first defendant based his application on the plaintiff's failure to provide "final part 33 particulars". He said: "They have been outstanding in various orders of this court and of the Supreme Court for some years."

[25]

Garling DCJ's Judgment 41 On 26 February 1999 before Garling DCJ argument took place which was recorded over thirteen pages of transcript. He reserved judgment until 12 March 1999. In view of the attacks made on it, it is necessary to set out the key parts of the reasons for judgment delivered by Garling DCJ on 12 March 1999. "The matter was before the Supreme Court. There were numerous appearances before that Court which are documented on the file. The matter was transferred to the District Court. On 25 March 1998 it came before this Court. An order was made that Part 12 particulars were to be updated and documents in support filed within a period which is unclear on the face of it, but I think was two months. Certainly it was no longer than that. 25 August 1998, no updated Part 12 particulars filed. Listed to show cause why it should not be struck out for want of prosecution. Plaintiff to update Part 12s by 1 October 1998. 8 October 1998, listed before the list judge. Court advised ready for hearing, listed for arbitration 1 February 1999. 20 November 1998 back before the Court. Arbitration date vacated. Judge of this Court orders: 'Direct the plaintiff to file Part 9 particulars within 28 days of today. Direct the plaintiff to serve medicals by 4pm on 6 February 1999.' Note: 'The plaintiff failed to comply with the previous directions to provide particulars. Plaintiff is to pay costs.' Listed before this Court, 26 February 1999. On 25 February 1999, as happens the day before, the plaintiff suddenly files Part 12 particulars. Again in breach of a court order. That is, I think, now the third or fourth breach of court orders. They make new allegations. As I understand it the last particulars were filed in the Supreme Court, they being particulars pursuant to part 33 rule 8(a) on 7 August 1997, well over three years ago. There were six categories of injuries in 1995. They had grown to eight by 1999. There were forty-nine allegations of disabilities in 1995. That had increased to fifty-eight by 1999. There were new allegations. In fact, one of the allegations is that the plaintiff has developed an alcohol problem as a result of the injuries in 1984 to 1987. Future out of pocket expenses are just set out as 'to be particularised'. Loss of income, in 1995 there was one hundred dollars nett for a limited period, one thousand two hundred dollars, and then a continuing amount claimed. Now that has increased from three hundred and fifty to somewhere between three hundred and fifty and five hundred dollars per week. The plaintiff, in addition, now claims interest. Whilst the Court could probably deal with that, that interest goes back, I take it, to the eighties. I am told there has been no updated medicals, experts report. It is a jury trial. The defendants say 'we are prejudiced by these delays, we are prejudiced by the failure to comply with court orders'. Both defendants set out the various ways in which they say they are prejudiced. The first defendant, among other things, says 'The factory was sold in 1990. Some of the allegations would be very hard to meet because of the sale of the factory. Some of those allegations are set out in the doctor's report. We do not know anything else about them. There are numerous other doctors' reports referred to in other doctors' reports. We have not seen those. We do not know what case we have to meet or we did not know until 1999 and we are prejudiced by all these delays.' The second defendant makes the same submissions and also points out that the Court has been told that the part 12 particulars had not changed from 1995 where indeed they had changed to a significant degree. The plaintiff argues that in actual fact they have done nothing other than get this case prepared for hearing. Some of the substantial delays are caused by it being listed in the Supreme Court as a jury trial, and I accept that there would have been some delays there, however, I point out that certainly since it was before this Court we have been making every effort, since March 1998, about a year, to get the plaintiff to take a date. It is said on the plaintiff's behalf: 'We were always ready to proceed. We would have proceeded on what we had given the defendant, and it is only that the defendants are insisting on knowing what case they have to meet that this matter has been adjourned.' I read, in part, what is put to me. 'I note that [the solicitor] for the first defendant, brought an application on 20 November 1998 for the arbitration hearing to be adjourned on the basis the particulars had not been updated. In my respectful submission this was an artificial attempt to avoid the hearing date. The defendant was successful in its application and sought and obtained costs.'"

[30]

Notice of Appeal 42 The Notice of Appeal was as follows: "1. His Honour's discretion miscarried in that dismissal for want of prosecution is available only where the default of a Plaintiff has been intentional and contumelious, or where there has been an inordinate and inexcusable delay upon his or lawyer's part giving rise [to] the substantial risk that a fair trial would not be possible resulting in serious prejudice to the Defendants; WHEREAS this case did not fall into that category. 2. His Honour erred in that there was no or insufficient evidence to show that the case fell into the category referred to in Paragraph 1 above. 3. His Honour erred in failing to consider and take into account the extent, if any, of blameworthiness or blamelessness of the Appellant personally. 4. His Honour erred in failing to consider properly or at all whether the Claimant's alleged delay in conduct of the proceedings was inordinate and inexcusable. 5. His Honour erred in taking into account and/or giving undue weight to the question of the efficiency of the Court List in relation to this case. 6. His Honour erred in finding that there was any relevant evidence of prejudice to the Opponents. 7. His Honour erred in finding, and taking into consideration, that the Opponents were prejudiced by the filing of Amended Particulars pursuant to Part 27 Rule 9 of the District Court Rules. 8. His Honour erred in finding, and taking into consideration, that the Opponents were prejudiced by the closure of the Opponents factory in or about July 1990. 9. His Honour erred in finding, and taking into consideration, that the Opponents were prejudiced by reasons of not having seen various medical reports. 10. His Honour erred in failing to take into account the hardship occasioned to the Claimant if the proceedings were dismissed by reason of the Plaintiff's cause of action then being statute barred by operation of the Limitation Act, 1969 . 11. His Honour erred in failing to take into consideration the alternative remedy available to address prejudice to the Opponents arising out of the Amended Particulars, that being to refuse leave to the Claimant to rely on those particulars. 12. His Honour erred in failing to take into consideration the alternative remedy available to address prejudice to the Opponents arising out of any allegedly unseen medical reports, that being to refuse to allow the Claimant to tender those reports at the hearing. 13. In considering the issue of prejudice His Honour erred in failing to take into consideration the following matters:- (a) The Claimant first notified the Second Opponent of her claim by way of Employee's Workers' Compensation Claim Forms dated 1 September 1996 and 20 May 1987. (b) The Claimant provided the Opponents with numerous medical certificates as to her unfitness for work in the period August 1986 to September 1998. (c) The Claimant and Opponents exchanged 5 requests and answers to particulars in the period 1988 to date. The Opponents never indicated by correspondence or otherwise that the particulars provided by the plaintiff were inadequate. (d) The Claimant has been the subject of 25 medical consultations with 10 different medical practitioners qualified for the Opponents in the period 4 March 1987 to date. The reports comprise 95 pages in total. A schedule of those reports is included in the White Folder. (e) As at 26 February 1999, the Claimant had served in support of her case 19 reports by 14 medical practitioners, the earliest dated 17 October 1988. The reports comprise 59 pages in total. A schedule of those reports is included in the White Folder. 14. The order dismissing the proceedings was made against good faith by reason of the conduct of the Opponents who moved the Court to make the Order." 43 Neither of the counsel who appeared for the plaintiff in the appeal had appeared at any earlier stage, neither had drafted either the grounds of appeal or the plaintiff's written submissions to this Court, and both came into the appeal at a very late stage. They faced a heavy burden in getting the appeal into a condition of order, and sought to shoulder it as conscientiously as possible in the circumstances. They indicated that while none of these grounds were abandoned, the primary grounds were 1, 3, 4, 6,10 and 11.

[47]

The "recent judgments of the English Court of Appeal" to which Walsh JA referred were cases such as Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229, which were approved in Birkett v James . When Moffitt P, Hope JA and Mahoney JA approved Walsh JA's rejection of the English cases so far as they restrict the discretion, they were rejecting the test stated in the English cases. No application was made by the plaintiff to reargue the correctness of the unanimous decision in Stollznow v Calvert . Accordingly Stollznow v Calvert must be applied. Quite apart from the status of that case as an authority, the force of what Walsh JA said is very great as a matter of principle. Part 18 rule 3(1) contains no limitation on the discretion. The English formulae would compel the exercise of the discretion one way unless particular circumstances were established, in which case the discretion would have to be exercised another way. A "discretion" which can only be exercised one way is not in truth a discretion at all. The English tests are thus inconsistent with Part 18 rule 3(1). Part 18 rule 3(1) is, after all, a statutory enactment in the sense that it was made by the Rule Committee in the exercise of the statutory power conferred by the District Court Act 1973, s 161. Restrictive words are not lightly to be read into it. 52 The second level of answers to the contention that Garling DCJ's reasoning does not comply with the English tests, and that he did not consider their application properly (putting aside the fact that in argument to him it was never suggested that they were relevant or that he should consider them) has several aspects. 53 To start with, even if the House of Lords tests applied here, the tests stated in paragraph 1 of the Notice of Appeal differ from those stated by the House of Lords. Paragraph 1 requires only delay giving rise to a risk that a fair trial is not possible resulting in serious prejudice to the defendants. The House of Lords, on the other hand, said that it was enough if the delay either gave rise to a substantial risk of there not being a fair trial or was likely to cause or to have caused serious prejudice to the defendants. There is no authority for the tests stated in paragraph 1 of the Notice of Appeal. 54 Next, the first limb of the test propounded appears to be satisfied. It is to be inferred that each default was intentional and contumelious. That inference flows from the following circumstances. The plaintiff was legally represented on each of the occasions when the orders were made. She had engaged a firm of solicitors who had acted for her throughout the litigation, who have the reputation of conducting a great deal of personal injuries litigation, and who, according to the letterhead of the letters of 29 May and 23 October 1997, carry on practice in the central business district of Sydney and in no fewer than twelve suburban offices. The orders were apparently made either by consent or without serious opposition against a background of requests from the first defendant that the particulars three times ordered by the District Court be supplied as long ago as June 1997. On 25 August 1998 the Assistant Registrar, on the occasion when the second order not complied with was made, listed the matters for a show cause hearing and handed a "show cause information sheet" to the parties containing clear statements as to what might happen at that show cause hearing. Those circumstances must have operated to convey a stark warning to the plaintiff's advisers; yet despite the fact that a show cause hearing was to take place on 8 October, the last day for compliance, 1 October passed without compliance. Though the plaintiff, perhaps fortunately for her, escaped from the show cause hearing of 8 October 1998 unscathed, on 20 November 1998 the third order was made at a time when Ainslie-Wallace DCJ solemnly warned the plaintiff of the consequences of breach. No sworn explanation was ever offered for any of the three instances of non-compliance, and no explanation at all for the first two instances of non-compliance. The third instance of non-compliance was explained by the plaintiff's legal representative on 26 February 1999 as being the result of the Christmas rush; in the Statement of 25 February 1999 the delay was said to be not the fault of the plaintiff personally. But matters had reached a stage where a much more detailed explanation was called for, and where it was necessary that it be given on affidavit testable by cross-examination. A satisfactory explanation on affidavit might negate an inference that the plaintiff's defaults were not intentional or contumelious. But the absence of any explanation permits that inference to be drawn. 55 In Birkett v James Lord Diplock gave two illustrations of intentional and contumelious default - conduct amounting to an abuse of process and disobedience to a "peremptory" order of the court. For a plaintiff who enlists the aid of the judicial arm of the State by invoking a particular legal process persistently to fail to comply with the conditions laid down for a favourable exercise of the judicial power may be said to abuse the process invoked. By "peremptory" order of the court Lord Diplock meant an order "providing for the dismissal of the action for non-compliance with its orders as to the time by which a particular step in the proceedings is to be taken" (at 321). No such order was made here. However, the circumstances pointed just as strongly to the fact that the willingness of the court to ignore further breaches was at an end. The third order made here was made at the second, not the first, of the series of hearings at which the plaintiff had to show cause why the action should not be dismissed under Part 18 rule 3(1) and after the plainest viva voce warnings of Ainslie-Wallace DCJ. The adjective "contumelious" conveys the sense of insolent, dishonourable, or opprobrious behaviour. It could be inferred that the plaintiff's behaviour between March 1998 and February 1999 was contumelious in the absence of any testimonial explanation being proffered for it. 56 Another aspect is whether there had been an inordinate and inexcusable delay. By 1998 the plaintiff's proceedings had been on foot but not heard for nine years. She was complaining of conduct taking place in the years 1984-1987. According to the affidavit of 15 February 1999 filed by the solicitor for the first defendant, there were several occasions in the Supreme Court where the plaintiff was not ready to proceed, but the evidence is silent on whether this want of readiness delayed the holding of a trial. The plaintiff was ordered to file particulars on 23 March 1998 by a court which, unlike the Supreme Court, offered every prospect of a speedy trial. Yet she failed to file those particulars until 25 February 1999, and then only did so after two further orders to do so, the fixing of one hearing to show cause why the proceedings should not be struck out, the warnings of Ainslie-Wallace DCJ on 20 November 1998, and the receipt of two Notices of Motion seeking an order to that effect to be heard the day after the date on which the particulars were supplied. The delays by the plaintiff, in the District Court alone, can fairly be described as inordinate and inexcusable. If the plaintiff was personally responsible, she showed a complete lack of regard for her own interests, the rights and legitimate expectations of the defendants and the interests of the court. If the plaintiff's legal advisers were responsible, they showed a complete lack of regard for the position of the plaintiff, the defendants and the court, and their behaviour was unethical. The delay was inordinate and inexcusable unless it were explained, and neither the plaintiff nor her legal advisers ever did this either to Garling DCJ or to this Court. Rather, the initial posture of the plaintiff before this Court was that nothing wrong had been done. 57 But did the delay render a fair trial impossible? Though it is not necessary to decide the question, it is debatable whether in this case a trial in 1999 or 2000 arising out of events which took place in 1984-1987 at a factory which closed in 1990, being conduct carried out by two defendants, one of whom left the relevant site in 1984, would have been a fair trial. By reason of the delay, the memories of every relevant witness would have faded a little more. The chances of witnesses, particularly elderly medical witnesses, retiring, moving, becoming unfit to testify, or dying would increase. However, the delay between March 1998 and February 1999, or even between June 1997 and February 1999, by itself was not a major factor tending to make a fair trial impossible. The departure of the first defendant and the closing of the factory were not events which were brought about by the plaintiff's delay in the District Court in 1998-1999. 58 Can it be said that the delay was likely to cause or to have caused serious prejudice to the defendants? The plaintiff's submissions that the defendants had not established any prejudice by evidence had considerable force. The affidavit of 15 February 1999 filed on behalf of the first defendant, apart from referring to the sale of its business by the first defendant and the closure of the factory, said: "The Plaintiff has after commencing these proceedings and setting them down for trial as set out above, failed to prosecute same with due despatch, and thus caused prejudice to the First Defendant." The second defendant's affidavit said: "The Plaintiff has failed to prosecute the proceedings within a reasonable time, and thus has caused prejudice to the Second Defendant." These paragraphs were not objected to. If they had been, there would have been a very grave risk of their rejection as inadmissible. Their admission without objection does not cause them to carry any weight. They are totally lacking in any specificity. 59 However, can serious prejudice be found from the general circumstances of the case? As just noted, the delay in 1998-1999 was likely to have created a risk of increasing impairment of memories and an increased risk of witnesses ceasing to be available. There is also a form of prejudice which arises from the fact that the defendants had to remain active in litigation that was apparently never being brought to finality. According to Garling DCJ, there were "numerous appearances" before the Supreme Court. That is a proposition which the plaintiff did not deny and they almost certainly exceeded in number those described above. Before each appearance, some preparation would have taken place and executives would have been spoken to. At each appearance the time of lawyers would be consumed. Even if none of that wasted effort was the fault of the plaintiff or her advisers, much of the forensic activity in the District Court was. One costs order was made against the plaintiff in the Supreme Court on 7 August 1995. Only one costs order was made against the plaintiff in the District Court before 12 March 1999. But it would have been futile to make costs orders to control the plaintiff and it would have been wholly unrealistic to regard costs orders as a means of compensating the defendants: the plaintiff had not worked for many years and lacked the means to meet them. Had Garling DCJ allowed the plaintiff to go to arbitration on the old particulars and without an expert's report, the defendants would have been compelled to prepare for a full hearing; had the plaintiff lost, as was a real possibility in the absence of the expert's report contemplated, the defendants would have been faced with a significant costs bill which the plaintiff could not pay. 60 The plaintiff's attitude in the District Court alone gave no reason to suppose that she would move with minimum delay and minimum waste of resources to trial. A reasonable observer would anticipate that whatever Garling DCJ did on 26 February 1999 - whatever limitation he imposed, or indulgence he granted, or self-executing order he made, or other technique he adopted - the plaintiff would probably not take proper advantage of it. If the plaintiff had been allowed to proceed to hearing or to arbitration on the old particulars, or on the reports filed and no others, it may be inferred that she would later have sought to proceed on the new particulars, or on additional reports. That inference flows from two matters in combination. The fact is that if the plaintiff had a desire to have her case heard quickly she would, after the extreme delays in the Supreme Court, have leapt at the chance of a speedy District Court hearing. The second is that not only did the plaintiff not seize that chance, she positively obstructed it. By February 1999 the case was no nearer readiness for trial in the District Court than it had been when it was transferred on 3 December 1997. Each aborted hearing, each fruitless step, and each month that passed without the day of decision being fixed added to the prejudice suffered by the defendants. The future held a significant prospect that there would be more of the same. Apart from the irrecoverable costs thrown away, the defendants' executives faced a future of wasted opportunity costs in dealing with their lawyers and, if they were insured, with their insurers. If there was insurance, the insurer or insurers faced a future of changing and uncertain provisioning. (For example, the 7 August 1995 Part 33 rule 8A particulars claimed $1,200 for wage loss in the period June 1984-November 1987; the 25 February 1999 Part 9 rule 27 particulars claimed $16,500 for that period. The 7 August 1995 particulars claimed $350 per week from November 1987; the 25 February 1999 particulars claimed $350-500 per week from November 1987.) Each aborted hearing, whether it had happened or was likely to happen in future, by itself might not cause much prejudice. Each month that had passed or that was likely to pass by itself might not cause much prejudice. But taken together what happened and what was likely to happen added up to serious prejudice to the defendants. By 1997 the chance of a fair trial taking place had been substantially diminished by the passing of time. The delays caused by the plaintiff before February 1999 reduced that chance further to the prejudice of the defendants, and presaged the risk of further delays. 61 Accordingly, even if the English test were the law in this State, it would not have assisted the plaintiff.

[51]

It cannot be said here that the primary judge was seeking to punish the plaintiff for mistakes or delays. Their Honours had earlier referred to the adequacy of costs orders to cure prejudice to the other party: that was not a practical possibility here. Case management was not the only matter which the primary judge here took into account. More fundamentally, the passage does not support the proposition that in every case complete justice to the party in default is the paramount consideration. Their Honours were speaking of applications for leave to amend in a case concerning the refusal of a late amendment to a defence which, if allowed, would have caused vacation of a fixture for the trial. It is questionable whether they were intending to create an absolute rule even in that field, for that would be antithetical to the idea of a discretion. But their Honours were certainly not speaking of applications under an equivalent to Part 18 rule 3(1). That rule contemplates the possibility that on occasion it will be right to terminate proceedings without determination of an issue between the parties on its merits. 64 The plaintiff also referred to the following passage in Kirby J's reasons for judgment in Jackamarra v Krakouer (1998) 195 CLR 516 at 541-542: "In the cyclical way of these tendencies, the close of the century has seen something of a revival of insistence upon a stricter adherence to rules and practices. The source of the strictness is a larger judicial concern to ensure the efficient despatch of court business. Such an objective was never completely overlooked by the courts [See, eg, Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935; Revici v Prentice Hall Inc [1969] 1 WLR 157 at 159-160; [1969] 1 All ER 772 at 774.] Lord Denning MR, for example, in Allen v Sir Alfred McAlpine & Sons Ltd [[1968] 2 QB 229 at 245] countered the applicant's submission that to strike out an action without trial for time default would contravene Magna Carta, with this retort: 'To this there is a short answer. The delay of justice is a denial of justice. Magna Carta will have none of it. 'To no one will we deny or delay right or justice' [Magna Carta, ch 40]. All through the years men have protested at the law's delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time [Hamlet, Act III, sc 1]. Dickens tells how it exhausts finances, patience, courage, hope [Bleak House, ch 1]. To put right this wrong, we will in this court do all in our power to enforce expedition: and, if need be, we will strike out actions when there has been excessive delay. This is a stern measure. But it is within the inherent justice of the court. And the Rules of Court expressly permit it.' More recently, this rhetoric has been converted into action in Australia as courts have come to appreciate that they have their own interest in ensuring compliance with time limits [ Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 153-154]. Court lists are typically more congested today. This fact and a growing awareness about the needs for efficiency in judicial administration help to explain a somewhat diminished inclination, recently, to extend procedural indulgences. Yet even today, rules and efficient case management must not be seen as ends in themselves. The ultimate obligation of a court is the attainment of justice as the law requires [ Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154, 172]."

[57]

Non-compliance with orders about expert reports 69 Fourthly, the plaintiff contended that Garling DCJ mistakenly assumed that the plaintiff was not only in breach of Ainslie-Wallace DCJ's order about particulars, but was also in breach of her order to file medical reports or expert reports by 16 January 1999. The plaintiff argued that she was only obliged to file by that date those on which she wished to rely; if she chose not to rely on further reports, she was not in breach of the order. In the Statement of 8 October 1998 which was before Garling DCJ on that day, it was said on behalf of the plaintiff that a non-medical expert opinion was being sought. That is not surprising, since it might have been difficult for the plaintiff to succeed on the issue of liability without material of that character in view of the fact that the Statement of Claim alleged that the nature and conditions of the plaintiff's employment involved excessive and repetitive strain and chemical fume inhalation. As long ago as 9 June 1995 a Supreme Court Registrar had directed the plaintiff to file any expert's report on liability by 28 July 1995. Though on 7 August 1995 Simpson J noted that she was informed that the plaintiff had served all its medical reports, she noted nothing about the service of any expert report on liability. The plaintiff had been directed to file an affidavit pursuant to the then Practice Note 68 on 28 July 1995. That affidavit, sworn on 4 August 1995, dealt with particulars and medical reports, but not expert reports on liability. Evidently the plaintiff's camp apprehended both in 1995 and in 1998 that whatever material in the nature of an expert's report on liability already existed (and the plaintiff submitted that a report dated August 1990 had been served), it might not be sufficient. In the meantime the first defendant's solicitor's letter of 2 June 1997 had stressed the importance of early service of "all experts reports of any type". The plaintiff's solicitors did not reply denying that there would be any. That the plaintiff had the intention of filing a non-medical expert report is further supported by the fact that on 20 November 1998 the plaintiff's representative, after the adjournment to take instructions, said that the "plaintiff undertakes … to serve all expert reports within forty-two days … ." The offer of an undertaking after taking instructions evidences a significant probability that there will be an expert report, not just a remote possibility. This is particularly so where nothing was said to Ainslie-Wallace DCJ about expert reports before the instructions were taken. The plaintiff never said that her intention to rely on a non-medical expert report had changed. Garling DCJ was told on 26 February 1999 at the end of the hearing that all medical reports and documents in support of economic loss had been served, but the possible non-medical expert report was not mentioned. Earlier he had been told that "All reports have been served", but that was in a context in which the Part 9 rule 27 particulars, relating to damages and not liability, were under discussion and it was said that the Part 9 rule 27 particulars did not go beyond "the medical evidence previously served". Hence it was not clear whether the plaintiff had abandoned the possibility flagged in the 8 October 1998 Statement of a further non-medical expert report. The possibility of a further non-medical expert report thus remained in existence, and if the possibility had come to pass, it would have been seen that the order of Ainslie-Wallace DCJ had been breached and that the matter had never been ready for trial. However, this possibility does not appear to have been part of Garling DCJ's process of decision. He said in the first part of his judgment "I am told there has been no updated medicals, expert report". But he did not refer to that as a breach of orders earlier when he was describing the history. And he did not set that matter out as one of the reasons for dismissing the proceedings for want of prosecution when he came to that part of his judgment. His reasons centre on the particulars under Part 9 rule 27, which relate to damages, not liability, and the possibility of a non-medical expert report related to liability in relation to the location of the machines at the factory. Finally, even if the primary judge did incorporate into his reasoning a belief that the plaintiff was in breach of the order about expert statements because of an intention to rely on a non-medical expert report, it was not a belief that the plaintiff's representative explicitly disabused the primary judge of or argued against. The fact that this did not happen supports an inference that the plaintiff was seeking to preserve a free hand in that respect despite the terms of Ainslie-Wallace DCJ's orders of 20 November 1998.

[69]

Failing To Take Into Account Or Give Sufficient Weight To Relevant Matters 78 The plaintiff first submitted that the "blamelessness of a plaintiff personally" for delay was a relevant matter: Stollznow v Calvert [1980] 2 NSWLR 749 at 753. She submitted that there was a lack of personal blameworthiness on the part of the plaintiff in this case and that the primary judge failed to take it into account. However, as indicated at [49] above, the plaintiff did not tender evidence casting any light on that question, and it was therefore not possible for the primary judge to take it into account. This may be compared with what happened in Stollznow v Calvert [1980] 2 NSWLR 749 at 755-756, where the plaintiff filed an affidavit leading to a finding of fact that she was "totally innocent of any fault", which in turn led to a rejection of the application to dismiss for want of prosecution. 79 Another matter which the plaintiff said was not considered was the hardship which dismissal of the proceedings would cause to her. Neither the legal representative of the plaintiff before Garling DCJ, nor Garling DCJ himself, referred to this, but it is a point which goes without saying and it cannot be doubted that he would have taken it into account. 80 Thirdly, the plaintiff said that the primary judge failed to give consideration to the proposition that dismissal of the proceedings was too extreme a remedy for any prejudice suffered by the defendants and said that he ought to have taken into consideration some "alternative remedy". The main "alternative remedy" relied on was refusing the plaintiff leave to rely on the new particulars. It is true that Garling DCJ did not mention that "alternative remedy" in his reasons for judgment. But he raised it in argument, in the passages quoted in [68] above. In those passages the representative for the plaintiff opposed that course. He said: "I would ask your Honour not to do that". He also said: "it would be more practical, with respect, for them to remain there rather than strike those out". Sometimes the plaintiff's submissions moved close to assuming that in these and related passages the plaintiff's representative before Garling DCJ refused his invitation to proceed on the old particulars; sometimes it was said that the invitation had not been refused. It seems clear that it was refused. The complaint which the plaintiff now makes is wholly baseless. It is not logically possible to criticise a District Court Judge who is obliged to make a discretionary decision about whether or not to dismiss proceedings for failing to consider the alternative of striking out particulars when that alternative was actually suggested and proffered by him but rejected by the plaintiff. He cannot be criticised for not considering or adopting the alternative remedy when the plaintiff herself refused it. Two other "alternative remedies" referred to in the appeal were for Garling DCJ "to refuse to set the matter down for hearing" or "to bring the matter back to him on short notice". These "alternative remedies" were not suggested on 26 February 1999 by the plaintiff to Garling DCJ. Instead the plaintiff sought "a date for hearing before a judge or an arbitrator". The plaintiff's representative said: "We'd take a date today". The primary judge cannot be criticised for not devising alternative remedies when they were inconsistent with the course which the plaintiff was urging on him. Further, to refuse to set the matter down for hearing would increase the delays; to have it brought back after a period on short notice carried the risk that something to be done during that period would remain undone. 81 Fourthly, according to paragraph 12 of the Notice of Appeal, Garling DCJ "erred in failing to take into consideration the alternative remedy available to address prejudice to the [defendants] arising out of any allegedly unseen medical reports, that being to refuse to allow the [plaintiff] to tender those reports at the hearing." However, no argument was addressed to the court in support of this ground. Further, the representative for the plaintiff did not suggest to Garling DCJ that he should take the course which, the plaintiff now says in this appeal, he should have taken. The representative for the plaintiff before Garling DCJ could not suggest that, since the plaintiff's stand there, communicated at least three times, was that "All reports have been served." It is impermissibly contradictory to rebuke the primary judge for not adopting a course which he was not asked to adopt and which is inconsistent with what he was told. 82 Fifthly, paragraph 13 of the Notice of Appeal alleged that Garling DCJ had failed to take into consideration various matters relevant to prejudice. No argument was advanced in support of this ground. No argument was advanced to the primary judge that he should take those matters into consideration. Some of the matters are not supported by evidence. This contention must be rejected. 83 Sixthly, at various stages the plaintiff submitted that the primary judge had not "been fully appraised of the background and of the competing interests between the parties". Little particularity was advanced in support of the submission. It was said that the hearing on 8 October 1998 had not been drawn to his attention by the affidavit of the solicitor for the first respondent: yet the hearing had taken place before him, and he was reminded of that fact by the representative for the plaintiff. It was submitted that mistaken things were said to Ainslie-Wallace DCJ, such as the date of the Amended Particulars supplied under Part 33 rule 8A (1992, not 1995): this detail is not important. But the fundamental problem is that while it is legitimate to criticise a primary judge considering a discretionary judgment for not understanding matters of which he had been informed, it is not legitimate to criticise a primary judge for not taking account of matters not drawn to his attention. If there was some inadequacy in the primary judge's understanding because of what he had not been informed of by the plaintiff's representative, it was not an inadequacy of which the plaintiff can complain on appeal.

[70]

Unreasonable Or Unjust Result? 84 The question is whether the dismissal of the proceedings was so unreasonable or unjust a result as to indicate that some appellable error must have occurred in the process of reasoning which led to it, even though it is difficult or impossible to identify the error on the face of the reasons. 85 The fact, considered by itself, that the order had the effect of terminating the plaintiff's whole case without its ever having been considered on the merits, is not necessarily unreasonable or unjust. Orders made under Part 18 rule 3(1) will often be made when the limitation period has expired. The rule contemplates that the result which has come to pass here will not infrequently come to pass. If the fact of terminating the whole case is to lead to the conclusion that the result was unjust or unreasonable, some additional ingredient must be found. 86 The additional ingredient cannot be found in the fact that on 25 February 1999 the plaintiff supplied the particulars. That circumstance did not alter the fact that she had, in breach of District Court orders, failed to do so for many months before that day. She had done so, it may be inferred, only because of the pressure brought to bear by the defendants' Notices of Motion and the court's indication that on 26 February 1999 she would have to show cause why an order under Part 18 rule 3(1) should not be made. 87 Nor can the additional ingredient be found in the fact that the defendants made no complaint about the particulars as such. The defendants had scarcely had any real opportunity to examine them before the hearing on 26 February 1999. And the gravamen of the difficulties which the primary judge saw was not the plaintiff's capacity to carry out legal procedures correctly eventually, but her capacity to carry them out diligently and in conformity with the times specified in court orders in such a manner as not to obstruct the court's attempts to get the proceedings ready for hearing. 88 Further, the additional ingredient cannot be found in the fact that 26 February 1999 was the first occasion on which the defendants had moved the court for dismissal. If that were a crucial factor in the eye of the law, there would be an encouragement of fruitless applications by defendants merely to lay the groundwork for a later successful application. The plaintiff referred to Stollznow v Calvert [1980] 2 NSWLR 749 at 753-754, but that passage does not support the proposition. Moffitt P said: "in some cases inaction by a defendant in the face of impending prejudice to him if delay continues, may render a later claim of actual prejudice less creditworthy, and the prejudice, if established, a less weighty factor."