There was error in the order of 16 June 2003
47 In Wilson v Kochate Pty Ltd the preliminary dismissal order was made at a directions hearing in the absence of an appearance by the plaintiff. The plaintiff's application to set the order aside was dismissed. On appeal it was held that there had been error in various respects in dismissing the plaintiff's application. In the course of his reasons Ipp JA, with whom Stein JA agreed, said -
"35 On 24 October 2001 the claimant knew that it was required to show cause why the Court should not dismiss her claim; that is, at that stage she faced, potentially, a dismissal of the action on the Court's own motion. There was then no notice of motion of any form before the Court filed by the opponent indicating that it intended to apply for the dismissal of the claimant's claim. Indeed no such motion has ever been filed. Therefore, on 24 October 2001, the claimant had no notice of any application by the opponent for dismissal of her claim. The grant of an application for dismissal, without notice to the claimant, would have been a denial of natural justice."
48 Hodgson JA also agreed, and added -
"39. … In my opinion there is a great difference between an order for dismissal of proceedings which is reversible and an order for dismissal of proceedings which is irreversible. This is illustrated by the previous case of Weston v Howell [1999] NSWCA 411 and Howell v Weston [2001] NSWCA 174. The claimant was on notice of the possibility of a reversible dismissal, but was not on notice of the possibility of an irreversible dismissal; and as stated by Ipp JA, this means that an order for irreversible dismissal would have been a denial of natural justice."
49 The show cause procedure within the case management regime is, as PN33 demonstrates, part of the court's resolve to ensure that actions progress efficiently and expeditiously. The court intervenes, and does not leave the course of the proceedings to one or even all of the parties.
50 A plaintiff (or other party) in default will be conscious of possible dismissal on the court's initiative, warned by para 5.8.2 of PN33. A show cause notice such as that passed on through Mr Fernie will emphasise that consciousness. It tells the plaintiff that the proceedings have been listed for him "to show cause why the action should not be dismissed for want of prosecution", and that an affidavit explaining his default has to be filed. But it addresses all the parties, including by the note -
" Matters Listed To Show Cause
Please Note: All parties are reminded that this is now a very serious matter and the following orders of the court must be complied with:
This matter is listed to show cause why the statement of claim or cross claims or any defences thereto should not be dismissed for want of prosecution.
Submissions
Any party who wishes the Court to consider any submissions (either supporting or opposing dismissal) must put them in writing and they must be filed and served at least five (5) days prior to the date allocated to show cause.
Generally, any submissions not received prior to the show cause date will not be accepted or considered by the Directions Judge."
51 The case management function of the directions hearing on 16 June 2003, and in particular the direction in the show cause notice that any party, not just the party in default, file and serve any submissions for the court to consider, put the claimant on notice of an order dismissing the proceedings on the court's own motion. The dictate of rule 7A(2) was satisfied. It did not put the claimant on notice of an order dismissing the proceedings on the opponents' applications. To the contrary. On 5 February 2003 the opponents had been content to take a date for hearing despite medical reports and particulars being outstanding. On 22 April 2003 their stances appear to have been mild, and they had not filed and served any submissions five days prior to 16 June 2003, in support of dismissal or at all. Assuming Mr Cowley's affidavit of 6 June 2003 had been served, it envisaged the proceedings continuing with attendance at the medical appointments on 17 June 2003 and 18 July 2003.
52 In my opinion, it was a denial of procedural fairness to accede to the opponents' applications made orally on 16 June 2003, and to dispense with the compliance with the Rules whereby the claimant would have had notice of the applications. The order of 16 June 2003 was a determinative order: the claimant would be statute barred from commencing fresh proceedings. Because made on the opponent's applications, it was not a preliminary dismissal order within rule 7A. It was not reversible, to use Hodgson JA's language in Wilson v Kochate Pty Ltd, pursuant to that rule. It may or may not have been reversible pursuant to Pt 31 r 12A or in the exercise of an inherent jurisdiction (although if not infected by want of procedural fairness it is not easy to see how the order could have been made irregularly, illegally or against good faith within Pt 31 r 12A or could have involved the abuse of the processes of the court necessary for exercise of an inherent jurisdiction). Even if it was arguably reversible otherwise than pursuant to rule 7A, it should not have been made without notice to the claimant that he was at risk of an irreversible order, and so at risk of dismissal without the last opportunity given by rule 7A to explain his default, put his house in order and persuade the court that the proceedings should be allowed to continue despite the default (see Bamforth v Betcke [2003] NSWCA 116 at [53]).