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Judgment

1. THE COURT: This is an application by Mr David Singh pursuant to s 46(4) of the Supreme Court Act 1970 (NSW) for an order discharging an order of Simpson JA made on 22 August 2016. Her Honour dismissed a Notice of Appeal filed by Mr Singh on 18 January 2016.
2. The Notice of Appeal sought orders setting aside orders made by Black J in the Equity Division consequent on a judgment of his Honour dated 2 October 2015. In that judgment, Black J dealt with a variety of claims arising out of the death of Mr Singh's father. His Honour concluded that probate in solemn form should be granted of a will of the deceased dated 17 August 2006. In reaching that conclusion his Honour dealt with issues of testamentary capacity, the deceased's knowledge and approval of the will, rectification of the will under s 27 of the Succession Act 2006 (NSW) and also issues relating to jointly owned property. As well, his Honour concluded that a claim by Mr David Singh for provision pursuant to Chapter 3 of the Succession Act should be dismissed, although no formal order to give effect to that conclusion appears to have been made. As a result, at this stage the time for appeal in respect of the decision on that claim has not commenced to run and Mr Singh's Notice of Appeal is premature, and therefore incompetent, insofar as it appeals against an order not yet made.
3. Before this Court, counsel for the respondents contended that Mr Singh's challenges to Black J's judgment were hopeless, whilst Mr Singh (who was self-represented) contended that they were strong. As (subject to the point mentioned about the family provision claim) Mr Singh has an appeal as of right, it should be assumed that his appeal is bona fide and arguable unless the contrary is shown, which in our view it has not been. On the other hand, Mr Singh's submissions to this Court were not able to advance his position beyond the presumption of arguability that should be made in his favour. There is simply too much potentially relevant material for the Court to form a view, favourable or otherwise, on the merits of the appeal at this stage. In passing we indicate that as we have not derived any assistance favourable to Mr Singh from his affidavit of 31 October 2016 dealing with the merits of his appeal, it is unnecessary to deal with the respondent's objection, which was to most of the affidavit.
4. Simpson JA likewise did not form a view about the merits of Mr Singh's appeal. Rather, her Honour dismissed the appeal by an order pursuant to 61(3) of the Civil Procedure Act 2005 (NSW). Section 61 empowers the Court "by order" to give directions relating to practice and procedure, for the purpose of "the speedy determination of the real issues between the parties to the proceedings". Section 61(3) provides that if a party fails to comply with such a direction, the court may make a number of different orders, including dismissing the proceedings. It was not contended that "proceedings" did not embrace appeal proceedings, but in any event the general powers conferred by s 61 authorised her Honour to make an order dismissing appeal proceedings.
5. Whilst dismissal of proceedings under s 61(3) does not, unless the order otherwise provides, prevent the commencement of further proceedings (see s 91 of the Civil Procedure Act), the expiry of a limitation period or period for appeal may mean that the claimant's rights are effectively at an end. Thus, in the case of an appeal, whilst there is at least a theoretical possibility of a prospective appellant subsequently obtaining an extension of time to further appeal, the prospect of such an extension being granted would be extremely limited.
6. As the motion that came before Simpson JA was founded upon Mr Singh's failure to comply with court directions, it is necessary to outline the course that the appeal proceedings took prior to the date of her Honour's judgment of 22 August 2016. We note that s 61, pursuant to which the motion was brought, deals with directions made by the Court "by order". Requirements of the Civil Procedure Rules are not of this character, because, whilst binding, they do not constitute court orders. Non-compliance with them (as distinct from directions made by court orders, in this case of the Registrar) accordingly does not trigger the operation of s 61(3).
7. A Notice of Intention to Appeal was filed on 30 October 2015, within 28 days of Black J's judgment, as required by r 51.8 of the Uniform Civil Procedure Rules 2005 ("UCPR"). Contrary to that rule, it appears however not to have been served until 13 November 2015. The Notice of Appeal was filed on 18 January 2016, within the period specified in r 59.1 (taking into account the intervention of the Court vacation), but was not served until 16 February 2016.
8. Pursuant to UCPR r 51.32, Mr Singh should have filed and served the Red Appeal Book within six weeks of filing his Notice of Appeal, but he did not do so. At a directions hearing on 16 March 2016, the Registrar directed him to file and serve it by 20 April 2016.
9. As well, Mr Singh was required by r 51.37 to file and serve written submissions in support of his appeal within six weeks of filing the Notice of Appeal. Again he did not do so, and at the directions hearing on 16 March 2016 he was directed to do so by 20 April 2016.
10. At a further directions hearing on 27 April 2016, the Registrar directed Mr Singh to file and serve his submissions by 18 May 2016. No order was made about the still outstanding Red Appeal Book.
11. At a directions hearing on 25 May 2016, the Registrar recorded that the Registry was to issue to Mr Singh a notice under UCPR r 13.6 directing Mr Singh to show cause why his appeal should not be dismissed or struck out for his non-attendance on that day. This "order" did not of itself require Mr Singh to do anything. Nor was any other direction given to him, other than an order that he pay the respondent's costs of the day.
12. At the directions hearing on 22 June 2016, the only direction to Mr Singh, apart from an order that he pay the respondents' costs of the day, was a direction that he file and serve his written submissions on the appeal by 3 August 2016.
13. At a directions hearing on 10 August 2016, the registrar directed that those submissions be filed and served by 17 August 2016 and that the Red Appeal Book be filed and served by 17 August 2016. Leave was given to the respondents to file in Court the Notice of Motion seeking dismissal for non-compliance with directions that came on for hearing before Simpson JA on 22 August 2016.
14. Mr Singh filed and served his written submissions on 18 August 2016. These far exceeded the prescribed length. They were amended on 31 October 2016. The Red Appeal Book was filed on 23 August 2016.
15. It can be seen from the above that the principal relevant defaults (that is, in complying with directions made by court order) were Mr Singh's failure to file and serve the Red Appeal Book in accordance with directions of 16 March and 10 August 2016, and his failure to file and serve his written submissions in accordance with directions of 16 March, 27 April, 22 June and 10 August 2016. The last non-compliance was minor as his written submissions were filed only one day after the date for filing specified in the order of 10 August 2016. The Red Appeal Book was filed 6 days after the date of 17 August 2016 stipulated in the order of 10 August 2016.
16. An order of 16 March 2016 permitted Mr Singh to file any Amended Notice of Appeal by 15 April 2016. This order did not require him to do anything, but his filing of an Amended Notice of Appeal on 17 or 18 August 2016 constituted a non-compliance with it.
17. At or shortly after the directions hearing of 22 June 2016, the Registrar sent a "Notice of Listing (of Appeal)" to the parties stating that "the matter" was listed for hearing on 30 September 2016 and that various steps were to be taken prior to that date. Relevantly, these included the filing of various appeal books not later than 10 weeks before the hearing, that is, by mid-July. Failure to do this constituted further non-compliance with court directions.
18. In his affidavit of 19 August 2016, which was read at the hearing before Simpson JA, Mr Singh described communications he had had in March and April 2016 with three different legal practitioners, by which he attempted to obtain advice and assistance in relation to his appeal. He said that the first practitioner was unable to do what was required and that the second and third "did nothing, despite repeated assurances". He sent an email to the Registrar on 21 June 2016 describing the difficulties he alleged that he was having in progressing the appeal.
19. In the same affidavit Mr Singh said, in relation to the 22 June 2016 directions hearing: "I attended the directions by telephone on 22 June 2016. I did not understand or realise the date 30 September 2016 was being contemplated by the Registrar of the New South Wales Court of Appeal as the prospective date. I understood the date of 30 September 2016 was the date provided by the Registrar of the New South Wales Court of Appeal as the first available date in response to the barrister, Darran Harsewan Singh and Paul William Campbell expressing a desire to have the appeal dismissed by a notice of motion" ([9]).
20. Mr Singh then said that the "Red Book is in the advanced stages of preparation" and gave a purported explanation, alleging an inability to obtain necessary documents, as to why its filing and serving was delayed. He attributed delay in preparing the Blue and Black Appeal Books to the volume of documents involved.
21. No objection was taken to Mr Singh's affidavit, he was not cross-examined on it, and no evidence was led in response to it.
22. In her judgment of 22 August 2016, Simpson JA said that nothing put before her by Mr Singh led her to believe that he would in the future comply with the requirements of "the rules" (presumably intended to at least embrace directions made by court order, as that was the basis upon which dismissal of his appeal was sought). Her Honour said that "[t]he [R]ed [B]ook comprises material which must be readily available, and should have been filed" and that Mr Singh's assertion that he had not received guidance from the other parties as to the content of the appeal books was "no reason that his [B]lack and [B]lue Appeal Books should not have been filed by the appropriate date". Her Honour's conclusion was: "These proceedings have been outstanding for a long time. There is no reason why the other parties to the appeal should be further held up when it is apparent that the material required will not or is very unlikely to be filed."
23. The principles applicable to a review under s 46(4) of the Supreme Court Act were stated by this Court in Rhinehart v Welker [2011] NSWCA 403 at [48] as follows: "We are conscious of the heavy burden a party seeking a s 46(4) review has to discharge to have a Judge of Appeal's order set aside. Such an application is not an appeal: s 19(2), Supreme Court Act; Uniform Civil Procedure Rules 2005 51.2. In order to succeed, the plaintiff beneficiaries must demonstrate that the judge erred in principle or that the judge's decision was plainly wrong: Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143 (at [4], [6]); Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 (at [14]) (per Giles JA, Ipp and Basten JJA agreeing); Lo v Iverach [2009] NSWCA 92 (at [ 29]) (Allsop P, Giles and Macfarlan JJA). Although these tests bear similarities to those applied in reviewing a discretionary decision (House v R [1936] HCA 40; 55 CLR 499), a decision to make a suppression order is not a discretionary one: Hogan v Australian Crime Commission (at [33])."
24. The decision under review in that case was not discretionary, whereas that in the present case is. This fortifies the analogy to be drawn in the present case with House v R principles and confirms that Mr Singh, who seeks intervention by the Court, bears a heavy burden of the nature described in Rhinehart v Welker.
25. So far as the principles to be applied by Simpson JA are concerned, we note that the application was not one for dismissal under UCPR r 12.7 on the general basis of "want of due dispatch" (although the analogous words "want of prosecution" appeared in the dismissal motion) but was expressly stated to be an application under s 61(3) of the Civil Procedure Act. We have mentioned earlier that this is concerned only with non-compliance with directions made by court order. Nevertheless, certain discretionary considerations will be relevant to both classes of application. In particular, the Court must consider and assess any explanation proffered for default or delay and must consider the likely impact of an order dismissing proceedings. Where, as here, the dismissal is likely to be effectively final, the Court must consider whether dismissal of the proceedings is a proportionate response to the claimant's defaults.
26. In our view the primary judge erred in two significant respects when exercising her discretion. First, in her judgment her Honour did not consider the explanations proffered by Mr Singh. They were limited but, in respect of a significant period, he sought to cast the blame for his delay on lawyers. If this explanation were accepted, the absence of personal fault on the part of Mr Singh would have been a relevant consideration (see Stollznow v Calvert [1980] 2 NSWLR 749). Her Honour did not say that she rejected the explanation and indeed would have had difficulty doing so as Mr Singh's evidence was not objected to, challenged or countered.
27. Furthermore, Mr Singh sought to explain his non-compliance with the directions made by means of the Notice of Listing of 22 June 2016 by saying that he did not understand the appeal proper to have been fixed for hearing on 30 September 2016. If Mr Singh was in fact confused in this respect, it would have been a relevant matter to take into account. Again, her Honour did not reject his evidence on this topic and rejection would in any event have been difficult because the evidence was admitted without objection and not challenged.
28. Secondly, her Honour's reasons do not disclose any consideration of the fact that dismissal of Mr Singh's Notice of Appeal would effectively put a final end to his rights to challenge Black J's judgment. Nor do the reasons disclose any consideration of whether that result was a proportionate response to defaults of the type Mr Singh committed.
29. In these circumstances, the primary judge's exercise of discretion miscarried and this Court must re-exercise the discretion.
30. In re-exercising the discretion, we would not dismiss Mr Singh's appeal. As an order doing this is the only substantive order sought in the respondents' notice of motion, the notice of motion should be dismissed.
31. Mr Singh's conduct of the appeal has been highly unsatisfactory but in light of his unchallenged evidence it must be accepted that to some degree, perhaps small, this has been due to him not receiving appropriate assistance from the lawyers with whom he communicated, and to confusion on his part. Moreover, whilst not excusable, his failures to comply with the relevant orders up to the date of the hearing of the respondents' motion (22 August 2016) were confined to a period of a little over five months, commencing when the first directions were made on 16 March 2016. As we have noted above, these defaults principally related to the filing and serving of the Red Appeal Book and to his written submissions. The defaults concerning the submissions were rectified prior to 22 August 2016, and those related to the Red Appeal Book were rectified a few days after. The further relevant defaults (non-compliance with the Notice of Listing) commenced in mid-July, only about a month before the hearing of the motion for dismissal.
32. In these circumstances, we consider that it would be a disproportionate response to Mr Singh's defaults to dismiss his appeal and thereby effectively prevent him appealing.
33. Mr Singh must understand that, notwithstanding his success on this review application, his conduct of his appeal thus far has been unsatisfactory and will not be tolerated if it continues. If he does not hereafter conduct the appeal in a timely and efficient manner, he may be met by a further dismissal application which may well have a different result to that of the one presently under consideration. His conduct has been such that no order for the costs of the dismissal application or this review application would have been made in his favour even if he were otherwise entitled (see Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 in relation to costs orders in favour of self-represented litigants).
34. Before concluding, we note some matters that came to the attention of the Court which need to be attended to. First, an application needs to be made to Black J to make a formal order giving effect to his decision on Mr Singh's family provision application. Secondly, as Mr Singh's Notice of Appeal seeks to challenge certain interlocutory orders made by Rein J, his Honour's orders and reasons need to be added to the Red Book. Thirdly, the respondents' complaint that the Blue and Black Appeal Books are deficient needs to be addressed. There may well be other matters.
35. For these reasons, we make the following orders: 1. Order under s 46(4) of the Supreme Court Act that the orders of Simpson JA made on 22 August 2016 be discharged. 2. Order that the respondents' notice of motion filed in Court on 10 August 2016 be dismissed.