Exercise of discretionary powers
76 In Cropper v Smith (1884) 26 Ch D 700 at 710, Bowen LJ said:
"…[I]t is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy…."
77 In El Ali v Government Insurance Office of New South Wales (1988) 15 NSWLR 303 the Court of Appeal held that Part 3 r 2 of the District Court Rules 1973 empowers the District Court to extend the time pursuant to which a person aggrieved by the award of an arbitrator may apply for a rehearing under the Arbitration (Civil Actions) Act 1983.
78 Both Kirby P and Mahoney JA emphasised that the Part 3 r 2 power is intended to remedy the injustice which would flow if, by virtue of human frailties, time periods were overlooked. Thus, Kirby P said (at 309):
"Every judge and practitioner knows that mistakes can occur which are no fault of the hapless litigants. Staff can fall ill. They can misfile or mislay documents. Messages as to time limits can become confused or misunderstood. The intervention of holiday periods, as in the present case, can lead to an unintended failure to comply with a time limit which is generally enforced. Time limits must be respected and enforced. But the administration of justice has come a long way since, in the nineteenth century, such rigidity, inflexibly applied, frequently caused substantial injustice."
79 Mahoney JA observed (at 312):
"It is common experience that, notwithstanding that proper care is taken, time limits are overlooked or cannot in the instant circumstances be complied with; and it is equally common experience that, through lack of common care they are not observed. From either of these injustice may flow. And it would be understandable if the legislature intended that there should be available a means by which, used with appropriate care, such justice could be avoided."
80 The continuing relevance of these remarks was emphasised by the High Court in State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154. Dawson, Gaudron and McHugh JJ observed that nothing the High Court said in Sali v SPC Ltd (1993) 67 ALJR 841 sanctioned any departure from the principles established in Cropper v Smith, commenting:
"… The ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim."
81 These principles should have been adverted to in the present case. It should have been apparent to anybody who gave it a moment's thought that the appellant's solicitor was proceeding on the mistaken belief that the time period in which the rehearing application had to be filed was governed by Pt 51 r 11 of the District Court Rules rather than Pt 51A r 10. Even if that had not dawned upon the respondent's legal representatives or Delaney DCJ, both should in my view have had at the forefront of their consideration of the matter, once they appreciated that the rehearing application had first been filed on 2 January 2003 and then followed up with a filing fee on 7 January 2003, that the appellant's solicitors had made a mistake concerning the time of filing of the rehearing application. This mistake, at worst, translated into a slip of 1 working day to 2 January 2003 when the application was filed and 6 days to 7 January 2003 when the oversight concerning the filing fee was realised.
82 The respondent never sought to point to any prejudice flowing from the time the rehearing application was filed. It must have been obvious there had been a comparatively minor slippage during a holiday period. In those circumstances, in my view, even if they had not identified the point of law or appreciated the appellant was proceeding under a mistaken belief as to the applicable rule, the respondent's solicitors should have had the principles of Cropper v Smith at the forefront of their consciousness. They should have advised their client that it was probable that a Court would, having regard to the interests of justice, grant relief which would correct the appellant's mistake.
83 Equally, too, Delaney DCJ should have apprehended the misapprehension of the rules under which the appellant's solicitor was labouring from the repeated references to Part 51 r 11. He may then have understood that the appellant's solicitor was making a genuine, albeit misguided, attempt to explain the timing issues.
84 Instead, like ships passing in the night, Delaney DCJ continued to insist on an explanation for a "delay" which the appellant's solicitor, mistakenly but transparently, believed had not occurred.
85 Delaney DCJ's reasons were brief. They did not demonstrate any familiarity with Cropper v Smith. They do not examine the history of the matter or undertake any examination of the interests of justice. As I have already observed, the award was never inspected, leading to the matter proceeding on a false premise that time had commenced to run. Even then, it is not clear Delaney DCJ ever knew precisely when that time had started, let alone expired. He clearly never understood the appellant's solicitor's mistaken belief. He seems to have decided that no adequate explanation had been given because he concluded the appellant's solicitor had left it until the twenty-eighth day to decide to file the application. It is apparent Delaney DCJ never came to grips with the case with which he was dealing. While the pressures of a busy applications list in the District Court must be appreciated, complete and careful consideration of findings are important to the decision-making process.
86 In my view, Mr Campbell SC's submission that Delaney DCJ misapprehended the facts and acted on a wrong principle is correct. The delay was explained: the appellant's solicitor had mistaken the time within which the rehearing application had to be filed because of her mistaken belief about the relevant rule.
87 Mr Perry submitted that Delaney DCJ correctly applied El Ali, in requiring substantial reasons to disturb the judgment deemed entered pursuant to s 63A(5).
88 In El Ali Kirby P was not laying down a rule of law or, in my view, intending to impose any limits on the availability of discretionary relief in a case where mistakes have been made.
89 In any event, on one view, Delaney DCJ had before him "substantial" reasons to explain the problem with which he was dealing. True it was those reasons demonstrated a complete misapprehension of the rules on the part of the appellant's solicitors, but as Bowen LJ said as long ago as 1884:
"The object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases …".