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[2002] NSWCA 273
respondent. Applications for leave to appeal refused, with the appellant, National Parks and Wildlife Service, to pay the respondent Pierson’s costs.
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The Court of Appeal refused NPWS's applications for leave to appeal against the restoration of Pierson's proceedings. The proceedings had been struck out because he had not complied with court directions. His first restoration application failed while those defaults remained outstanding. Before he made the second application, the defaults had been fixed. The Court said that this change meant the second application was not an abuse of process. It also said that a second attempt made before curing the default would usually be abusive if the first failed for that reason. The Court found no recognised error in the District Court judge's exercise of discretion and ordered Pierson to pay the costs of the leave applications.
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2,064 words · generated 30/09/2026
The New South Wales Court of Appeal dealt with applications for leave to appeal concerning two related District Court proceedings. The National Parks and Wildlife Service (NPWS) was the defendant and applicant for leave. Charles Reginald Pierson was the plaintiff and respondent. The judgment was delivered on 19 August 2002 by Mason P, Santow JA and Palmer AJA. Mason P and Santow JA each agreed with Palmer AJA's reasons [1]-[3].
The proceedings had been struck out of the District Court list by Christie DCJ in June 2000 because of Pierson's prolonged failure to comply with the Court's directions about preparation for trial [3], [8]. The judgment explains that, although the order used the phrase “struck out”, Christie DCJ had not intended to dismiss the proceedings under Part 18 r 3(1) of the District Court Rules 1973 (NSW). Instead, the order removed them from the list pending a further order. Under the rules as they then stood, the proceedings could not be called on for hearing without leave of the Court [8].
Pierson first applied to have the proceedings restored to the list. Christie DCJ dismissed that application on 20 July 2000. The reasons, as recounted in the Court of Appeal judgment, included the need for evidence explaining the delay and breaches, and for the defaults to be rectified so that the proceedings could progress satisfactorily [11]. By the time Pierson made a second application, the defaults had been remedied. He filed an affidavit attributing the delays and breaches to his former solicitor and said his new solicitor would progress the cases expeditiously. Ainslie-Wallace DCJ accepted that evidence and restored the proceedings to the list [12].
NPWS argued that the second application should not have been entertained because it was an abuse of process. It relied on Nominal Defendant v Manning (2000) 50 NSWLR 139, arguing generally that a party should not make a second interlocutory application for the same order after an unsuccessful first attempt unless there had been a change of circumstances or fresh evidence [13]. The Court rejected NPWS's challenge. It refused leave to appeal, finding no basis to conclude that the District Court judge's decision was affected by a vitiating error [4]-[6]. It then made observations about successive restoration applications [7].
The judgment gives two connected reasons. First, the Court applied a restrained standard of review to a procedural decision made in the exercise of discretion. Such an order would not be disturbed unless a recognised error was clearly shown. The listed errors included an error of legal principle, a material factual error, taking account of an irrelevant matter, failing to consider or properly weigh a relevant matter, or reaching a result so unreasonable and unjust that one of those errors must be inferred [4]. The Court said that each matter relied on by NPWS had been raised before Ainslie-Wallace DCJ and weighed by her [5]. It was not persuaded that a vitiating error had occurred [6].
Second, the Court addressed whether the second restoration application was itself abusive. It rejected the idea that restoration applications were a special category exempt from the principles governing repeated interlocutory applications. The Court warned that repeated applications could impose expense and distress on a defendant and could amount to abuse [16]. Its reading of Manning was that the majority did not adopt a permissive approach to repeated applications, even though it did not treat the availability of evidence at the first application as automatically decisive in every case [17].
The practical distinction was whether the plaintiff had cured the default. If the first application was dismissed because the default remained uncured, a second application made before cure would usually be dismissed as abusive because nothing relevant had changed [18]. But when the default had been remedied, the circumstance that had led to refusal of the first application had changed. On that basis, the second application could not, merely because it was a second attempt, be treated as an abuse [18], [20].
The Court applied that distinction to Pierson's applications. His defaults had been remedied before the second application came before Ainslie-Wallace DCJ [20]. The second application was therefore not abusive on the ground advanced by NPWS. That did not itself require restoration: the District Court judge still had to exercise her discretion. The Court of Appeal concluded she was entitled to do so and found no vitiating error [6], [20].
The judgment describes the rules and procedural setting relevant to the proceedings, rather than setting out a complete account of the law before and after the decision. Its main contribution in the text provided is to explain how the principles concerning repeated interlocutory applications apply when proceedings have been struck out or stayed for a plaintiff's procedural default.
Before the Court's observations, NPWS argued for a general rule against a second application seeking the same interlocutory order, unless there was a change of circumstances or previously unavailable fresh evidence [13]. The District Court judge had considered that Manning did not support a general rule of that breadth and did not regard there as being a general bar to a later restoration application [14]-[15]. The Court of Appeal clarified that restoration applications are not exempt from abuse-of-process scrutiny [16]. Repeated attempts can be abusive, and the fact that an application seeks restoration does not give a plaintiff unlimited opportunities to renew it [16]-[17].
The Court then stated a context-specific general approach. An application to restore proceedings struck out under Part 18 r 3 of the District Court Rules, or to lift a stay under Part 33 r 6 of the Supreme Court Rules 1970 (NSW), should generally be made after the default has been cured [18]. If the first application was refused because the default remained uncured, a second application before cure will usually be dismissed out of hand as abusive. After cure, however, there is a relevant change in the circumstance that led to the first refusal, so the second application cannot be regarded as abusive merely because it is successive [18]-[20].
The judgment also preserves an exceptional qualification: the interests of justice may require restoration even where the default remains uncured and an earlier application has failed. But it characterises such cases as difficult to conceive and likely to be very rare [19]. This is not a broad permission to disregard defaults. It is an acknowledgment that the particular circumstances and the interests of justice remain relevant.
The rules described in the judgment are historically specific. Paragraphs 8-10 explain the effect of the District Court Rules as they stood in June 2000 and note that Parts 18 r 3 and 26 r 5 were amended in September 2001, in a way said to be immaterial to the Court's observations. The judgment does not set out the current rules or establish their present wording. Any present-day procedural analysis would require checking the current legislation and rules separately.
At paragraph 4, the Court says it will not interfere with a procedural discretionary order unless a recognised error is clearly shown. In plain English, disagreement with the result is not enough. The appellant must identify a problem in the judge's approach, such as applying the wrong legal principle or overlooking an important matter.
At paragraph 16, the Court rejects the proposition that restoration applications are beyond the ordinary abuse-of-process analysis. In plain English, a plaintiff cannot assume that repeated attempts to restore a case are automatically acceptable. Repetition may burden the opposing party and the court.
Paragraph 18 gives the central distinction. A renewed application before the default is fixed will usually fail if the earlier application failed because the same default remained. A renewed application after cure is different because the reason for the earlier refusal has changed. The decision does not say that a cured default guarantees restoration; it says that the second application is not abusive merely because it is a second application.
Paragraph 19 recognises that the interests of justice remain the overarching consideration for interlocutory applications. In plain English, the general approach is not stated as an inflexible rule that can never yield. The Court nevertheless signals that an exception allowing restoration despite an uncured default and an earlier unsuccessful application would be unusual.
Finally, paragraph 20 applies the distinction to the facts: Pierson had cured the defaults by the time of his second application, so the second application was not an abuse of process. The Court consequently left the District Court judge's exercise of discretion undisturbed.
The reasoning is most directly engaged where proceedings have been struck out of a list, or stayed, because a plaintiff failed to comply with court directions or orders, and the plaintiff later seeks restoration or the lifting of the stay. The key factual question in the judgment is whether the default that led to the procedural sanction has been cured by the time of the renewed application [18]-[20].
A first application refused because the default remains outstanding, followed by a second application while that same default is still outstanding, is the pattern the Court says will usually amount to abuse of process [18]-[19]. Conversely, where the default is remedied after the first refusal and before the second application, the changed circumstance means the second application cannot be treated as abusive simply because relief was previously sought and refused [18], [20].
The decision also matters where one party argues that a particular type of interlocutory application is exempt from the ordinary scrutiny applied to repeated applications. The Court rejected that categorical position for restoration applications [16]-[17]. It does not, however, decide every possible successive-application scenario. Its stated approach is tied to restoration after strike-out or a stay for default, with the interests of justice retained as the overarching consideration [18]-[19].
The supplied judgment does not contain decisions delivered after Pierson, so it cannot establish how later courts have applied, followed, distinguished or limited it. The analysis here is confined to the cases expressly discussed in the judgment.
The Court cited Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 for the standard governing appellate intervention in discretionary procedural orders [4]. It discussed Nominal Defendant v Manning (2000) 50 NSWLR 139 in responding to NPWS's argument about successive interlocutory applications [13]-[17]. It explained the significance of Manning's majority reasoning and said that it did not support a permissive or relaxed attitude to multiple applications [17]. It also referred to Foster AJA's statement in Manning about the interests of justice as the guiding principle for interlocutory applications [19].
The judgment identifies its own treatment of Manning in its catchwords as “explained and distinguished”. That description is consistent with the reasoning: Pierson does not state that every second application is abusive, nor that repeated applications are generally acceptable. It distinguishes applications made after a material procedural change, particularly cure of the default, from applications renewed without that change [18]-[20].
The judgment does not define every circumstance that might amount to a relevant change beyond the specific example of curing the default that led to the strike-out or stay. It also does not exhaustively describe the rare case in which the interests of justice might justify restoration despite an uncured default and an earlier unsuccessful application. It expressly says such a case is difficult to conceive and would arise very rarely [19].
Nor does it decide what result should follow where the default has only been partly cured, where new evidence arises, or where the later application relies on a different procedural basis. Those matters would depend on the circumstances and the applicable procedural rules, and the judgment does not supply a definitive answer.
The decision also concerns procedural rules and provisions identified in the judgment, including the District Court Rules 1973 (NSW) and Supreme Court Rules 1970 (NSW). Although it notes amendments to two District Court rules in September 2001 [10], it does not provide a current account of procedural rules. The decision's present-day relevance therefore cannot be fully assessed from this judgment alone.
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CITATION : National Parks and Wildlife Service v Pierson [2002] NSWCA 273 FILE NUMBER(S) : CA 40963/01; 40964/01 HEARING DATE(S) : 26 July 2002 JUDGMENT DATE : 19 August 2002
PARTIES : National Parks and Wildlife Service (Appellant) Charles Reginald Pierson (Respondent) JUDGMENT OF : Mason P at 1; Santow JA at 2; Palmer AJA at 3
LOWER COURT JURISDICTION : District Court LOWER COURT DC 9062/99 FILE NUMBER(S) : LOWER COURT Ainslie-Wallace DCJ JUDICIAL OFFICER :
COUNSEL : G M McGrath (Appellant) C Evatt (Respondent) SOLICITORS : General Insurance Law Department (Lynn Boyd) (Appellant) Beazley Singleton (Respondent) CATCHWORDS : PRACTICE AND PROCEDURE - STAY OF PROCEEDINGS - INTERLOCUTORY APPLICATIONS - ABUSE OF PROCESS - Proceedings struck out of list for Plaintiff's default in complying with Court's directions - application to restore dismissed because default had not been rectified - Plaintiff makes second application to restore after default rectified - whether second application is an abuse of process - principles discussed - Nominal Defendant v Manning (2000) 50 NSWLR 139 explained and distinguished. HELD: As a general rule: - (i) when proceedings have been struck out under Part 13 r.3 of the District Court Rules or stayed under Part 33 r.6 of the Supreme Court Rules an application to restore the proceedings or lift the stay should only be made when the Plaintiff's default has been cured - (ii) if an application is dismissed because the Plaintiff's default has not been cured, a second application made prior to the default being cured will usually be dismissed out of hand as an abuse of process because there will have been no relevant change of circumstance since the first application - (iii) a second application made after default has been cured cannot be regarded as an abuse of process because there will have been a change in the circumstance which led to the refusal of the first application - (iv) there may be exceptions to the general rule but, in reality, such cases are difficult to conceive and will necessarily occur very rarely. LEGISLATION CITED : District Court Rules (1973) (NSW) - Part 18 r.3(1), Part 26 r.5 Supreme Court Rules (1970) (NSW) - Part 33 r.6 CASES CITED: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Nominal Defendant v Manning (2000) 50 NSWLR 139 DECISION : Leave to appeal refused with costs.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40963/01 CA 40964/01 DC 9061/99 DC 9062/99
MASON P SANTOW JA PALMER AJA
19 AUGUST 2002 NATIONAL PARKS AND WILDLIFE SERVICE -v- Charles Reginald PIERSON PRACTICE AND PROCEDURE - STAY OF PROCEEDINGS - INTERLOCUTORY APPLICATIONS - ABUSE OF PROCESS - Proceedings struck out of list for Plaintiff's default in complying with Court's directions - application to restore dismissed because default had not been rectified - Plaintiff makes second application to restore after default rectified - whether second application is an abuse of process - principles discussed - Nominal Defendant v Manning (2000) 50 NSWLR 139 explained and distinguished.
Held: As a general rule: (1) when proceedings have been struck out under Part 13 r.3 of the District Court Rules or stayed under Part 33 r.6 of the Supreme Court Rules an application to restore the proceedings or lift the stay should only be made when the Plaintiff's default has been cured; (2) if an application is dismissed because the Plaintiff's default has not been cured, a second application made prior to the default being cured will usually be dismissed out of hand as an abuse of process because there will have been no relevant change of circumstance since the first application; (3) a second application made after default has been cured cannot be regarded as an abuse of process because there will have been a change in the circumstance which led to the refusal of the first application; (4) there may be exceptions to the general rule but, in reality, such cases are difficult to conceive and will necessarily occur very rarely.
Orders: · The applications for leave to appeal are refused. · The Claimant is to pay the Opponent's costs of the applications.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40963/01 CA 40964/01 DC 9061/99 DC 9062/99
MASON P SANTOW JA PALMER AJA
19 AUGUST 2002 NATIONAL PARKS AND WILDLIFE SERVICE -v- Charles Reginald PIERSON Judgment 1 MASON P: I agree with Palmer AJA. 2 SANTOW JA: I agree with Palmer AJA. 3 PALMER AJA: These are applications for leave to appeal against orders of Ainslie-Wallace DCJ restoring to the list two related proceedings after they had been struck out by Christie DCJ for the Plaintiff's prolonged failure to comply with the Court's directions as to preparation for trial. 4 The orders of Ainslie-Wallace DCJ are quintessentially procedural in character and are founded upon the exercise of the Judge's discretion. The Court will not interfere with orders of that character unless it is clearly shown that, in the exercise of the discretion, the Judge either made an error of legal principle, made a material error of fact, took into account some irrelevant matter, failed to take into account or failed to give sufficient weight to some relevant matter or else arrived at a result which was so unreasonable and unjust as to indicate in itself that one of the foregoing vitiating errors must have been made: see Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, at para.45 and the cases there cited. 5 Each of the matters which has been relied upon in this Court as requiring the learned District Court Judge to have refused the Plaintiff's applications to restore the proceedings to the list was urged upon her Honour and was weighed in the balance in the exercise of her discretion, as appears from her Honour's reasons for judgment. 6 Despite the careful argument of Mr McGrath for the Claimant/Defendant, we are not persuaded that there is any real basis for the suggestion that the Judge's decision was affected by any of the vitiating errors to which we have referred. Accordingly, leave to appeal will be refused. 7 Before parting with the case, however, the Court considers it appropriate to make some observations concerning a matter of procedure relating to applications to restore a matter to the list and the effect on such applications of the decision of this Court in Nominal Defendant v Manning (2000) 50 NSWLR 139. 8 The Plaintiff's two proceedings had been struck out by Christie DCJ in June 2000 for default in complying with the Court's directions. Although his Honour did not expressly say so, it is clear from his judgment that he did not intend to dismiss the proceedings under Part 18 r.3(1) District Court Rules (1973) (NSW); rather, in the exercise of the power under that sub-rule to make "such other order as the Court thinks fit", his Honour intended to strike the proceedings out of the Court's list. Striking out was, in effect, a direction to the Registrar not to include the proceedings in any daily list paper for business before the Court, without further order of the Court. If the proceedings could not be included in the Court's daily list, then under Part 26 r.5, as that rule stood in June 2000, the proceedings could not be called on for hearing without the leave of the Court. 9 The Court's order striking the proceedings out of the list had the effect of placing them in a procedural limbo. If they were not restored to the list the Defendant could move under Part 18 r.3 for their dismissal for want of prosecution; if that application succeeded after the expiry of the limitation period the Defendant would be immune from further suit on the same causes of action unless leave to sue out of time was given. 10 Part 18 r.3 and Part 26 r.5 of the District Court Rules were amended in September 2001, but in a manner which is not material to these observations. 11 In June 2000, the Plaintiff filed a Notice of Motion seeking that the proceedings be restored to the list. The Motion was dismissed by Christie DCJ on 20 July, his Honour remarking that the only way in which the matters could ever be restored to the list was if the Plaintiff could establish by evidence the reasons for his delay and for his breaches of the Court's directions, and that the breaches had been rectified so that the progress of the matter would thereafter be satisfactory. 12 The Plaintiff filed another Notice of Motion seeking that the proceedings be restored to the list. By that time his defaults in compliance with the Court's directions had been remedied. In support of the Motion he filed an affidavit in which he attributed the delays and breaches of the Court's directions on his part to the dilatory conduct of his then solicitor. He said that his new solicitor was prepared to conduct the proceedings expeditiously. Ainslie-Wallace DCJ accepted this evidence and, in the exercise of her discretion, restored the proceedings to the list. 13 The submission of National Parks & Wildlife Service ("NPWS") before Ainslie-Wallace DCJ and in this Court was that, on the authority of Nominal Defendant v Manning, Ainslie-Wallace DCJ should have refused to entertain the Plaintiff's second Notice of Motion on the ground that it was an abuse of process. NPWS submitted that, as a general rule and leaving aside circumstances involving fraud, it is an abuse of process for a party to proceedings to make an interlocutory application seeking the same order as was sought unsuccessfully in a prior interlocutory application unless the applicant demonstrates that there has been change of circumstances since the prior application, or that the applicant can adduce fresh evidence which was not reasonably available at the time of the prior application. 14 Ainslie-Wallace DCJ observed that there was no support for the existence of a rule of that generality and quoted the following passage from the judgment of Heydon JA in Manning at 147: "… there are considerable differences between the particular goals of each type of order, and the categories of circumstances in which each type of order is made. These differences make it difficult to propound a general rule suitable for all cases when the controversy in one specific case for decision does not have characteristics which are common to all categories." 15 Her Honour then said: "I am not prepared to find that there is any general bar to a subsequent application of this type nor am I persuaded that there is any reason, in this case, to prevent the Plaintiff making an application pursuant to the leave granted by his Honour when the order was made." 16 If, by her statement that there is "no general bar to a subsequent application of this type", her Honour is suggesting that an application to restore a matter which has been struck out of the list under Part 18 r.3 is in a special category, so that the Court need not consider whether successive applications are an abuse of process, then we do not agree. The passage quoted from the judgment of Heydon JA and the other judgments in Manning do not support such an approach and it would be unfortunate if a perception developed in the profession that a plaintiff can go to sleep, suffer an order striking the proceedings out, and then make as many applications to restore the proceedings as he or she liked. Repeated applications to restore a matter can constitute abuse of process just as much as any other kind of application: a plaintiff who did not wish to go to the trouble or expense of prosecuting his or her case with diligence could nevertheless cause a defendant considerable expense and distress by repeatedly making the same unsuccessful application to restore a matter to the list. 17 It should be remembered that the majority in Manning differed from the President only to the extent that they would not, without more, hold it an abuse of process for an applicant to make a second interlocutory application on the basis of evidence which could reasonably have been adduced in the first application. But nothing said by their Honours could be construed as indicating a permissive or relaxed attitude of the Court to the bringing of more than one interlocutory application for the same order - indeed, quite the contrary: see e.g. per Heydon JA at 156, para.72. 18 Where a plaintiff has made default in complying with an order or direction of the Court as to the conduct of proceedings, an application to restore the matter after it has been struck out under Part 18 r.3 of the District Court Rules or stayed under Part 33 r.6 of the Supreme Court Rules (1970) (NSW) should only be made when the plaintiff's default which led to the proceedings being struck out or stayed has been cured. If an application is made but is dismissed because the plaintiff's default has not been cured, a second application made prior to the default being cured will usually be dismissed out of hand as an abuse of process because there will have been no relevant change of circumstance since the first application. On the other hand, a second application made after the default has been cured cannot, per se, be regarded as an abuse of process because there will have been a change in the circumstance which led to the refusal of the first application. 19 It is possible that proceedings struck out or stayed for default in compliance with the Court's directions would be restored even though the plaintiff has not cured the default and even though the plaintiff has failed in an earlier application to have the proceedings restored to the list or the stay lifted. That is so because the overriding principle governing the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the particular circumstances of the case: per Foster AJA in Manning at 161. But, in reality, such a case is difficult to conceive and will necessarily occur very rarely. The general rule, which will apply in the vast majority of cases, is that an application to restore proceedings struck out under Part 18 r.3 of the District Court Rules or to lift a stay imposed under Part 33 r.6 of the Supreme Court Rules will be refused if the plaintiff has not by then cured the default and any subsequent application for the same relief prior to the default being cured will be dismissed out of hand as an abuse of process. 20 In the present case, because the Plaintiff had cured the defaults which had led to the proceedings being struck out by the time that the second application to restore the matter came before Ainslie-Wallace DCJ, there was a relevant change of circumstance so that there was no abuse of process in bringing the second application. Accordingly, her Honour was at liberty to exercise her discretion in the way that she did. 21 The orders of the Court are: · The applications for leave to appeal are refused. · The Claimant is to pay the Opponent's costs of the applications.
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National Parks and Wildlife Service
Pierson
Applications for leave to appeal refused, with the appellant, National Parks and Wildlife Service, to pay the respondent Pierson’s costs.