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.