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Loukas-Karlsson J: Introduction

1. This is an application for leave to appeal from orders made by McCallum CJ (the primary judge) on 2 September 2022. I am sitting as the Court of Appeal constituted by a single judge pursuant to s 37J of the Supreme Court Act 1933 (ACT). The application for leave to appeal was filed out of time. The delay was explained by a slight delay in access to the primary judge’s reasons. The extension of time was not opposed, and I granted the extension of time at the hearing. The sole issue that remains to be determined is whether leave to appeal should be granted.

2. By the orders of 2 September 2022, the primary judge dismissed the proceeding for the applicant’s failure to comply with directions of the Court pursuant to r 1404 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules), ordered that the applicant pay the respondent’s costs and ordered that the funds paid into court as security be paid out to the respondent: Su v Kamal (No 2) [2022] ACTSC 239 (the primary judgment).

3. In relation to the order concerning the security, the primary judge ordered that that order be stayed for a period (I infer to permit the application for leave to appeal to be filed). At the hearing I made a further order extending the stay. I took that approach as the primary prejudice the applicant submits results from the decision of the primary judge is the loss of the security. In the result, it was, in my view, appropriate to continue the stay in order to preserve the utility of the application.

4. It is common ground between the parties that the decision of the primary judge is interlocutory in nature and, accordingly, leave to appeal is required.

Background to the primary judge’s decision

5. The primary judge outlined the procedural background that led to the matter being listed before her Honour for consideration of the applicant’s compliance with the discovery orders: primary judgment at [5]-[17]. There is no need to repeat the comprehensive summary in these reasons, I did not understand either party to submit there was any issue or inaccuracy with the primary judge’s summary of events leading up to the hearing.

6. It is, however, worth emphasising the following point. As is apparent from her Honour’s reasons, the order made on 2 September 2022 to dismiss the proceeding pursuant to r 1404 was made following an earlier hearing before her Honour regarding the applicant’s compliance with discovery orders.

7. Following that earlier hearing, the primary judge made orders on 5 July 2022 in the following terms: (1) That the plaintiff give further discovery in accordance with the previous order to comply with the notice to produce discoverable documents within 14 days; (2) Stand the proceedings over before McCallum CJ on 26 July 2022 at 9am. (3) Order the plaintiff to pay the sixth defendant’s costs of the matters determined today which include the costs of Mr Barry’s appearances on 9, 23 and 27 May, 23 June and 1 and 5 July 2022.

8. The relevant date for compliance for order 1 was 19 July 2022.

9. Her Honour outlined the reasons for the making of those orders in Su v Kamal [2022] ACTSC 161, where her Honour noted at [27] that: … the order today should be understood by the plaintiff to be very much a “last chance” kind of order. Secondly, that what is established on the evidence … is that the discovery should have included reference to the solicitor’s file and also to the earlier loans to Mr Noumeir referred to in Mr Barry’s submissions in Court last week.

10. It was in this context that the matter returned before the primary judge on 1 September 2022 for further argument as to whether the applicant had complied with the discovery notice, with the respondent at that time seeking that the proceedings be dismissed for want of prosecution or failure to comply with Court directions.

11. At that hearing, her Honour considered whether the applicant had complied with the discovery orders, with the focus being on two categories of documents that were held by two different law firms who had previously acted for the applicant. The first were documents held by Summer Legal. Her Honour held that those documents (if there were any) would relate to matters post-dating the relevant loan agreement and (one can infer) were not relevant documents. There is no challenge to the primary judge’s findings in this regard.

12. The second category of documents were documents held by Juris Cor, which is a firm of solicitors that had previously acted for the applicant. The primary judge outlined in the primary judgment the communications between the applicant’s current solicitors and the former solicitors at [22]-[26]. There is no need to set out those remarks in full.

13. Her Honour then outlined at [27]-[29] that: What is clear from those exchanges is that Juris Cor accepts that it still holds a copy of whatever was provided to the plaintiff, or at least a copy of its file and that it is prepared to provide that material but that it is not prepared to do so without a subpoena. The question accordingly arises whether a party should be expected, in circumstances where its former solicitor will not provide a copy of documents to which the party is entitled without a subpoena, that is a part of the obligation for discovery; that is, to issue the subpoena and obtain the documents in that way. Mr Barry submitted that the upshot of the exchanges that have passed and the current state of the evidence is that the court should find Mr Su has not provided proper disclosure notwithstanding the last chance afforded to him by the Court's orders made on 5 July 2022. In my view, in circumstances where it is clear enough that further documents probably exist and the only reason those searches have not been undertaken is for want of the issue of a subpoena, it must be concluded that the plaintiff has not taken all reasonable steps to obtain the documents. Even if that is wrong, it is clear that his affidavits of discovery have been inadequate in not revealing anything of the trail I have just described.

14. I will turn to these paragraphs in more detail later in these reasons when discussing the parties’ submissions as to whether leave to appeal should be granted.

15. Having found that the applicant had not complied with the discovery orders, the primary judge went on to consider r 1404 and the overarching obligations under s 5A of the Court Procedures Act 2004 (ACT). At [34], her Honour noted that the documents sought by the discovery orders “are central to the question of the ostensible authority of the second defendant to bind [the sixth defendant]. Without even knowing what documents exist falling into that category, the sixth defendant is left to fight the case in effect with one arm tied behind its back”.

16. Ultimately, her Honour found that it was appropriate to dismiss the proceedings pursuant to r 1404 (for failure to comply with directions of the Court). It is against this order that the applicant now seeks leave to appeal.

Submissions

17. There is no disagreement between the parties as to the relevant test that applies to the question of whether leave to appeal should be granted. The applicant referred to the case of Donohue v Volanne Pty Ltd (No 2) [2021] ACTCA 11 (Volanne) at [13], where Murrell CJ outlined that while there are no rigid and exhaustive criteria that govern the discretion as to whether leave is granted, the two touchstones are: (a) whether the decision is attended with sufficient doubt to warrant appellate review; and (b) whether (assuming the decision is wrong) substantial injustice would result if leave were refused.

18. Also relevant to the question of whether leave should be granted are the remarks of Refshauge J in Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37; 7 ACTLR 48 (Arrow International), at [58], where his Honour stated: 58. The principles on which a court will grant leave to appeal have been dealt with by the courts. The principles, which I set out in Capital Property Projects (ACT) Pty Ltd and Anor v Planning and Land Authority (ACT) (2008) 2 ACTLR 44, may be summarised as follows: (a) leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases; (b) a Court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion; (c) decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave; (d) the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave; (e) the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant; (f) leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is ‘attended with difficulty and [its] correctness is open to dispute’ (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and (g) it may be a factor favouring the grant of leave that: (i) the decision involves a matter of public importance; or (ii) the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial. Is the decision of the primary judge attended by sufficient doubt to warrant appellate review?

19. There was one overarching submission contained in the applicant’s written submissions which was not discussed in detail at the oral hearing. That submission was not, however, expressly abandoned at the oral hearing. In the result, it is appropriate that I deal with that submission first before turning to consider the specific errors that the applicant claims the primary judge made in reaching her Honour’s decision.

20. The applicant submitted that there were no previous cases that counsel was aware of where a proceeding had been dismissed for a failure to comply with discovery orders. The applicant submitted, with reference to Federal Court authority, that even for a very significant breach, the appropriate remedy would have been a permanent stay of proceedings: Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV (No 4) [2017] FCA 1345 at [16] (Perram J); Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy [2020] FCAFC 5.

21. In my view, the authorities the applicant referred to in support of this submission do not aid his case. In this matter, the primary judge was considering whether the proceeding should be dismissed with a failure to comply with Court directions (dating back to the consent order to provide discovery). It is clear from the case of Mulcahy v Registrar General Office of Regulatory Services [2013] ACTCA 45 and from the text of r 1404 that the Supreme Court has the power to dismiss a proceeding for failure to comply with court directions.

22. The applicant further submitted that, in any event, the primary judge made four House v The King errors in reaching her decision. The first was that the primary judge erred in principle at [29] in holding that the applicant was required to issue a subpoena in order to take reasonable steps to comply with the discovery orders. The second was an error in law in finding that the applicant’s affidavit should have disclosed the trail of information regarding the Juris Cor documents at [29]. The third was a failure to consider alternative orders under r 1404, including, for example, a failure to give a further direction that the applicant subpoena Juris Cor, an order for costs, or an order staying the proceedings pending compliance with the discovery order. The fourth was a failure to consider the interests of justice (or a failure to view the interests of justice as the paramount consideration as required by r 1404(5)) in making the decision to dismiss the proceeding.

23. In relation to the third and fourth purported errors, counsel for the respondent submitted that it was clear that the primary judge considered the interests of justice and was aware of the other powers available to her Honour. In particular, counsel noted that her Honour had previously adjourned the matter to provide additional time for the applicant to comply with the order and that her Honour expressly referred to s 5A of the Court Procedures Act 2004 (ACT).

24. In relation to the first two purported errors counsel for the respondent advanced the following submissions.

25. In relation to the first purported error, counsel submitted that the primary judge’s reasons can be read in a different way and that her Honour was simply referring to the applicant’s explanation as to why the documents had not been provided rather than why he had not taken reasonable steps. Counsel for the respondent further submitted that that finding was not necessary to the primary judge’s ultimate finding that the applicant had not taken all reasonable steps to comply with the discovery order and that that conclusion was available to her Honour. Counsel referred to various matters in support of that submission, including that the applicant had only emailed Juris Cor providing authorisation for files to be released on 19 July 2022 (the final date for compliance with the extension granted by the primary judge) and that this had been sent to the general email for the firm.

26. Counsel noted that the further affidavit verifying the list of documents was made on the same date, with the applicant deposing that he had made all reasonable enquiries about further discoverable documents. Counsel noted that this appeared to conflict with the fact that the applicant had not, at this stage, heard back from Juris Cor about what documents they may have had in their possession.

27. Counsel for the respondent further submitted that Juris Cor had an obligation to provide their file to the applicant and that he alone was in a “position to insist on compliance with that obligation”. Counsel noted that the solicitor for the respondent had suggested that a reference to a potential referral to the Legal Services Commission could have encouraged Juris Cor to provide the documents in accordance with their duty, but that this had not occurred.

28. In relation to the second House v The King error counsel for the respondent submitted that an open interpretation was that her Honour was referring to the lists of documents the applicant had deposed were in his possession and noted that the list of documents of 19 July 2022 did not contain documents relating to the subject loan and did not refer to the extensive amount of emails referred to by Juris Cor in its later correspondence with the applicant.

Consideration

29. It is convenient in my view to deal with the third and fourth purported errors first. In my view, neither of these alleged errors are arguable.

30. In particular, in my view, it is plain from her Honour’s reasons that the primary judge expressly considered the interests of justice in coming to her decision. So much is clear from [31] where her Honour considered the overarching purpose contained in s 5A of the Court Procedures Act 2004 (ACT).

31. While it is true that her Honour did not refer expressly to the “position of the applicant by the consequence of the dismissal” (T34.20-21) it is clear from her Honour’s reasons (read in the context of her Honour’s earlier judgment) that her Honour viewed the order to dismiss as a last resort in response to ongoing non-compliance with Court orders. It could not, in those circumstances, be said that her Honour did not have regard to r 1404(5) and did not take into account the interests of justice in coming to her decision.

32. Similarly, it is clear from her Honour outlining the options available to her pursuant to r 1404 and her earlier decision that the primary judge carefully considered the available options under r 1404. So much is clear from [34] and [36] of the primary judgment.

33. The position in relation to the first two House v The King errors requires further analysis. Both concern her Honour’s findings at [29] of the primary judgment, where her Honour stated: In my view, in circumstances where it is clear enough that further documents probably exist and the only reason those searches have not been undertaken is for want of the issue of a subpoena, it must be concluded that the plaintiff has not taken all reasonable steps to obtain the documents. Even if that is wrong, it is clear that his affidavits of discovery have been inadequate in not revealing anything of the trail I have just described.

34. There is arguably some difficulty in her Honour’s finding that having not subpoenaed his former law firm the applicant has not taken reasonable steps to obtain the documents. Error arguably arises as documents that must be subpoenaed to be accessed would, on their face, not be documents within one’s control.

35. While the respondent submitted that her Honour’s reasons could be read in a different manner in context, it seems clear from the discussion at [27] of the primary judgment that her Honour was expressly considering the question “whether a party should be expected in circumstances where its former solicitor will not provide a copy of documents to which the party is entitled without a subpoena, that is a part of the obligation for discovery; that is, to issue the subpoena and obtain the documents in that way”. Her Honour seems to have answered this in the affirmative at [29] before concluding that the applicant had not taken reasonable steps to comply with the discovery order.

36. In my view, this aspect of her Honour’s reasons may give rise to an arguable error. Certainly, there is an argument that there is a conflict between discovery being for documents within one’s control and the Court imposing a requirement to issue a subpoena.

37. There is, however, no need to say anything further on this issue. That is the case for two reasons. First, beyond pointing out the purported error in reasoning at [29] the applicant did not explain why the conclusion that the applicant had not taken reasonable steps was incorrect. It must be noted that the context of her Honour’s decision is important. The applicant had already received extensions to the deadline for discovery and had been told this was his “last chance” to comply with Court orders. In the result, it seems to me that her Honour’s conclusion that the limited steps the applicant took to comply with the order were not adequate is not attended by sufficient doubt.

38. Second, and even if I am wrong in relation to that matter, there is, in my view, no arguable error with her Honour’s conclusion that the applicant’s affidavits of discovery were not adequate. This was expressly noted by the primary judge to be an alternative basis for her order. So much is clear when her Honour states at [29] “even if that is wrong …”.

39. As noted above, the applicant submitted that the primary judge’s conclusion regarding the discovery affidavits is also in error as the applicant’s affidavit pre-dated the correspondence with Juris Cor and as such could not address those matters. I do not accept this submission. In my view, her Honour’s statement at [29] should be read as effectively referring to the matters raised at [25] and suggesting that in order to comply with the discovery orders at the least a further affidavit should have been made by the applicant.

40. Such a finding follows from her Honour’s discussion of the Juris Cor correspondence, by which Juris Cor had indicated that it would not provide a further copy of their file to the applicant without a subpoena as they had already provided a copy of the file to the applicant and to the applicant’s current solicitors.

41. No further affidavit of discovery was provided by the applicant. In my view, in circumstances where the applicant was not providing the Juris Cor documents and where the reason the documents were not being supplied was because the firm had asserted it would only respond to a subpoena as the firm had already provided the applicant with the documents, the need for an updated affidavit by the applicant is clear.

42. This is because without a further affidavit the Court was left with no evidence from the applicant explaining why his former law firm was asserting it had provided him with the documents and no evidence as to whether this was or was not correct. While it is true that the Court had the earlier affidavits of discovery, as is clear from the hearing on 1 July 2022, the applicant’s solicitor had conceded that there were some matters that had been overlooked when the first affidavit had been prepared.

43. In the result, it seems that the primary judge was not satisfied with the state of the applicant’s evidence as to the steps taken to comply with the discovery requirements. There is in my view nothing in that conclusion that suggests error sufficient to warrant appellate intervention. What is the purported injustice to the applicant?

44. The applicant noted that there was no bar to the applicant re-commencing proceedings, with no Limitation Act or other issue barring the applicant from re-filing an application against the respondent. The applicant submitted, however, that the applicant would suffer significant injustice if the decision was wrong and leave was not granted as the applicant would lose the benefit of the current security.

45. In particular, the applicant submitted that the dismissal of the proceedings altered the position of an applicant from what was in effect a secured creditor to an unsecured creditor.

46. The second matter the applicant pointed to in relation to possible prejudice was exposure to costs orders, with the applicant noting that the applicant would immediately be exposed to the costs order if the order dismissing the proceeding stands.

47. In relation to the prejudice to the applicant, counsel submitted that the merits of the claim were in favour of the applicant. In particular counsel submitted that due to the operation of s 128 of the Corporations Act 2001 (Cth) (Corporations Act) the Juris Cor documents could not be relevant as they could not establish the defence as pleaded. This submission effectively argues that the applicant was entitled pursuant to s 128 to make the assumption (and rely on that assumption) that the respondent could be bound by the individual who signed the loan agreement.

48. This was not an issue that was raised with the primary judge.

49. Sections 128 and 129 of the Corporations Act relevantly provide: 128 Entitlement to make assumptions (1) A person is entitled to make the assumptions in section 129 in relation to dealings with a company. The company is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect. (2) A person is entitled to make the assumptions in section 129 in relation to dealings with another person who has, or purports to have, directly or indirectly acquired title to property from a company. The company and the other person are not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect. (3) The assumptions may be made even if an officer or agent of the company acts fraudulently, or forges a document, in connection with the dealings. (4) A person is not entitled to make an assumption in section 129 if at the time of the dealings they knew or suspected that the assumption was incorrect. 129 Assumptions that can be made under section 128 … Director or company secretary (2) A person may assume that anyone who appears, from information provided by the company that is available to the public from ASIC, to be a director or a company secretary of the company: (a) has been duly appointed; and (b) has authority to exercise the powers and perform the duties customarily exercised or performed by a director or company secretary of a similar company.

50. Counsel for the applicant, in effect, submitted that the Juris Cor documents were said to be relevant in that they may show what information the applicant had at the time the loan was entered into. Counsel for the applicant submitted that s 128 defeats this issue, as the applicant was entitled to assume that the respondent could be bound to the loan agreement by its director. The submission, in effect, was that it did not matter what the Juris Cor documents contained as they could not defeat the s 128 argument and, as such, they could not be relevant documents.

51. In the result, counsel submitted that the applicant would suffer significant injustice as his proceeding has been dismissed (with the loss of the benefit of the security) as he “failed” to discover irrelevant documents.

52. In relation to the Corporations Act submission, counsel for the respondent advanced several submissions. First, counsel for the respondent noted that this was not an issue that had been advanced before the primary judge, nor had it been raised at any stage that the documents being sought were not relevant. Second, the respondent noted that it had pleaded that the applicant had knowledge of the breach of fiduciary duty and the lack of authority to bind the respondent and as such s 128(4) would apply to prevent the applicant from relying on the assumption. Third, the respondent submitted that the applicant had accepted the documents were relevant when the discovery order had been made by consent and that it is not open to the applicant to now advance a new submission before the Court of Appeal. In particular, counsel submitted that by consenting to the order, the applicant must be taken to have accepted the basis for the making of the order, namely, that the documents were relevant. Fourth, counsel referred me to transcripts of the hearing before the primary judge on 1 July 2022 (which was in evidence on this application along with the other transcripts) and noted that counsel who then appeared for the applicant acknowledged that the primary issue between the parties was whether the applicant was aware of the matters said to prevent the individual who signed the loan agreement from binding the respondent.

53. In relation to the broader matters, the respondent advanced the following submissions.

54. First, in relation to the question of security the respondent submitted that the applicant has had an “indulgence” by the Court to-date in circumstances where the security amount of $480,000 exceeds the amount in dispute. In particular, the respondent noted that the original loan amount of $100,000 has been repaid, so the remaining issue relates to interest on the loan and costs and that the amount in security exceeds the claim.

55. The respondent further submitted that the loss of security would be a matter that arose by virtue of the applicant’s own conduct and that it would not be a disproportionate outcome where the applicant had failed to comply with Orders of the Court. The respondent further noted that if the loss of the benefit of the security was due to the fault of lawyers there may be options available to the applicant.

Consideration

56. In my view, it could not be said that substantial injustice will flow if (even assuming the decision is not correct) leave is not granted. This is the case for the following reasons.

57. First, the cost consequences that flow from the primary judge’s decision are an ordinary result that occurs following non-compliance with court orders. While I accept that with the matter being dismissed, those costs will become due and payable earlier than may otherwise be the case, that is, in my view, hardly a matter of substantial injustice. The costs would have had to be paid at some stage in any event, even if these were to be set off against a future costs order in his favour if he were successful.

58. In relation to the question of security, I accept the respondent’s submission that the order for security was an indulgence of the Court. In particular, it is apparent that the remaining claim is only for interest and costs (there being no dispute that the principal sum has been repaid to the applicant by a different defendant in the primary proceeding). In the result, I accept that the order for $480,000 in security significantly exceeds the remaining claim.

59. Second, there does not seem to me to be any bar in the applicant seeking a new order for security in the event he re-commences proceedings. The applicant conceded there was no bar on him re-instituting proceedings, the same concession must extend to any application for security.

60. While the applicant from the bar table submitted that if the security lapses, the respondent will have “free use of the money that’s in Court. It can distribute that to its shareholders, and it can then properly put itself in liquidation” there is no evidence before me explaining why either course would be taken or was likely. In particular, there is no evidence before me that suggests that the respondent is likely to enter liquidation once the money currently held in court is returned to the respondent. In any event, if the applicant seeks to re-institute proceedings, he could seek an urgent hearing in relation to that matter.

61. In relation to the submissions concerning the Corporations Act while I accept that these submissions are matters that I can take into account in terms of assessing the injustice that flows from the primary judge’s decision, I do not accept the submission that the Juris Cor documents are not relevant and as such the applicant has suffered significant injustice as the proceeding has been dismissed for a failure to provide irrelevant documents.

62. While it is possible that the documents will ultimately not be relevant if the applicant can establish his argument that he can rely on ss 128 and 129 of the Corporations Act, there is not sufficient material before me to determine that matter. Ultimately, as the respondent has pleaded that the applicant has actual knowledge that the respondent could not be bound by the agreement, it seems that there is at the least a live issue in the matter that would need to be proven at trial.

63. In my view, there is at least a possibility that the documents may contain information as to what knowledge the applicant possessed at the time the loan agreement was entered into. The documents may therefore contain information that could establish the applicant had actual knowledge, enabling the respondent to rely on s 128(4). Alternatively, the documents may tend to reveal that the applicant had no knowledge but was aware of the status of the director which may tend to support the applicant’s argument. For those reasons it could not be said that the documents are irrelevant.

64. In any event, even if I am wrong in relation to that matter, in circumstances where the argument was not advanced before the primary judge it seems to me that the argument cannot now be deployed to claim the documents are irrelevant. Indeed, this conflicts directly with the applicant having consented to the discovery order being made. Having consented to that order and having accepted before the primary judge that the documents were relevant (as contrasted to the Summer Legal documents) the applicant should not now be permitted to argue that the documents are irrelevant in order to seek leave to appeal from the primary judgment. Simply put, the time to argue as to relevance of the discovery documents has well and truly passed.

Other matters

65. Counsel for the respondent also submitted that the applicant is seeking leave to appeal from a decision relating to case management matters. Such matters, counsel submitted, fall into the purview of a discretionary matter of practice and procedure and that, if leave is granted, the proceeding will be fragmented. In the result, counsel for the respondent submitted that these were matters that tended against leave being granted.

66. I generally accept those submissions, however, I note that where the order is one dismissing the proceeding there is no direct issue of fragmentation in this particular matter. Of course, the Court should be wary of lowering the bar in relation to the test for leave to appeal to prevent applications for leave to appeal being brought against discretionary matters of practice and procedure.

Conclusion

67. In my view, while there may be an arguable error in one aspect of her Honour’s reasons as discussed above at [36] I am not satisfied that there is sufficient doubt in her Honour’s overall conclusion that the applicant had not complied with the discovery orders.

68. Nor has the applicant demonstrated that the primary judge failed to follow the test required by r 1404(5). I am also not satisfied that, assuming the primary judge’s decision to be wrong, the applicant will suffer significant injustice. In particular, the applicant can re-commence proceedings and the loss of the security is not a matter that rises to a significant injustice in circumstances where the applicant could re-commence proceedings and seek a new order for security. Nor is there any significant injustice from the costs order made by the primary judge.

69. Finally, I accept that the decision the applicant seeks leave to appeal from is one of a matter of practice and procedure and leave to appeal from such decisions should only be granted ”sparingly”: Arrow International at [58]. The primary judge was the judge best placed to assess whether the applicant had complied with her Honour’s orders. The primary judge was also best placed to determine what the consequences of a failure to comply should be. These are plainly matters within the discretion of trial judges.

70. As noted by Young JA (Allsop P and Sackville AJA agreeing with additional observations) in Bi v Mourad [2010] NSWCA 17 at [33]: Primary judges must consider themselves free to exercise their discretions in this sort of case without the thought in the back of their mind that this court will weakly say, "Oh, we had better let the claim be adjudicated and the other side can be satisfied by an order for costs".

71. These remarks apply with force to case management matters of this kind, the decision whether to dismiss the application or to provide further time for compliance in circumstances of repeated and protracted failure to comply with a Court order (in lightof a “last chance” being provided) was a matter that fell within the discretion of the primary judge.

Orders

72. I make the following orders: 1. The applicant’s application for leave to appeal be dismissed. 2. The applicant pay the respondent’s costs. 3. The stay of Order 3 of the orders made by McCallum CJ on 2 September 2022 in the matter SC 214 of 2020 be vacated. 4. The operation of order 3 be stayed for seven days.

I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Andrew Ray Date: 11 November 2022