Ah Sam v Mortimer

[2021] NSWCA 141

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ah Sam v Mortimer [2021] NSWCA 141

Hearing dates:

31 May 2021; 2 July 2021

Date of orders:

8 July 2021

Decision date:

08 July 2021

Before:

Payne JA

Decision:

(1) Vacate the directions hearing listed at 9am on Friday 9 July 2021.

(2) Set aside orders 4, 5 and 6 made on 31 May 2021 and in lieu thereof order:

“4. Mr Mortimer to file and serve written submissions of no more than 20 pages by 28 July 2021.

5. Mr Ah Sam to file and serve written submissions in reply of no more than 10 pages by 4 August 2021.

6. Dispense with the requirements for the filing of red, orange, blue and black books and in lieu thereof order that four copies of a white folder or folders be filed by Mr Ah Sam with the Court by no later than 10 August 2021. Each folder is to contain the submissions, the notice of appeal, the judgment below and the transcript below together with copies of all the evidence led at the trial and copies of any written submissions made to the trial judge.”

Catchwords:

APPEALS – procedure – stay pending appeal

Category:

Procedural rulings

Parties:

Julius Iulai Ah Sam (Appellant)
Christopher John Mortimer (Respondent)

Representation:

Counsel:
Appellant in person
K Tang (Respondent)

Solicitors:
Russell Baxter Lawyers (Respondent)

File Number(s):

2021/146866

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Expedition List

Citation:

[2020] NSWSC 1763

Date of Decision:

9 December 2020

Before:

Sackar J

File Number(s):

2019/197941

Judgment

1. PAYNE JA: Given recent developments in the case management of this appeal it is desirable that I now formally describe the history of proceedings in this Court.

2. This is an appeal by Mr Ah Sam, who was and is self-represented, from a judgement of Sackar J delivered in December 2020: Mortimer v Ah Sam [2020] NSWSC 1763. A notice of appeal dated 9 March 2021 was filed on 24 May 2021.

3. The matter came before me in the referrals list on 31 May 2021. On that occasion I was persuaded, by a bare margin, that a stay of execution of the writ of possession should be granted until publication of the Court of Appeal’s reasons dealing with Mr Ah Sam’s notice of appeal. I set the matter down for hearing in this Court on 17 August 2021. The complete suite of orders I made on 31 May comprised the following:

1. The execution of the writ of possession granted by Sackar J be stayed until publication of the Court of Appeal’s reasons dealing with Mr Ah Sam’s notice of appeal dated 9 March 2021 and filed 24 May 2021.

2. Fix the matter for hearing with a 1 day estimate for Tuesday 17 August 2021.

3. Mr Ah Sam to file and serve written submissions of no more than 20 pages by 30 June 2021.

4. Mr Mortimer to file and serve written submissions of no more than 20 pages by 21 July 2021.

5. Mr Ah Sam to file and serve written submissions in reply of no more than 10 pages by 28 July 2021.

6. Dispense with the requirements for the filing of red, orange, blue and black books and in lieu thereof order that four copies of a white folder or folders be filed with the Court by no later than 10 August 2021. Each folder is to contain the submissions, the notice of appeal, the judgment below and the transcript below together with any documents the parties wish to take the Court of Appeal to.

7. If Mr Ah Sam does not comply with orders 3, 5 and 6 above by the due dates, liberty is granted to Mr Mortimer to relist the matter before Payne JA by email to his Honour’s associate with a view to deciding whether the stay granted by order 1 be lifted.

8. Grant each party liberty to apply on 24 hours’ notice by email to the chambers of Payne JA.

4. Order 3 required Mr Ah Sam to file and serve written submissions of no more than 20 pages by 30 June 2021. Mr Ah Sam did not comply with that order. On 1 July 2021, the respondent exercised the liberty to apply and had the matter relisted before me. I conducted a hearing at 9am on Friday 2 July. In preparation for that directions hearing, my associate wrote to the parties as follows:

“As his Honour made clear in the orders on the last occasion, if Mr Ah Sam does not comply with orders including order 3 above by the due date, liberty was granted to Mr Mortimer to relist the matter before Payne JA by email to his Honour’s associate with a view to deciding whether the stay granted by order 1 be lifted.

Tomorrow morning Mr Ah Sam should be in a position to explain to the Court his apparent default in compliance with the order of the Court and to identify when his submissions will be filed. If there is to be continuing default, his Honour will make directions to permit determination of the question whether the stay granted in order 1 made on 31 May 2021 should be vacated.”

5. Mr Ah Sam did not appear at the directions hearing at 9am. Mr Mortimer submitted that the stay I had granted should be lifted. I declined to do so, however indicated that I would consider the application further on 9 July. I made the following orders:

1. Adjourn the matter to 9am on Friday 9 July 2021.

2. Reasons reserved.

6. I had proposed to deliver brief reasons for standing the application to lift the stay over later that day, however events overtook that course. After the conclusion of the directions hearing, my associate received several emails from Mr Ah Sam indicating that his written submissions would be filed by Monday 5 July. My associate replied to Mr Ah Sam and the parties as follows:

“If, as you indicate in your email of 11:43am today your written submissions are filed and served on Monday 5 July the hearing on 9 July will be vacated. His Honour will consider any application for an extension of time made by your opponents and any further time for your reply by email. If, however, your written submissions are not filed on Monday 5 July the hearing on 9 July will go ahead and his Honour will consider whether to lift the stay granted by his orders of 31 May.”

7. Mr Ah Sam eventually provided a copy of his submissions to the Court and to Mr Mortimer’s representatives on the evening of Tuesday 6 July. After giving the parties an opportunity to make submissions about the course I should adopt, on 8 July 2021 I made the following orders in chambers:

1. Vacate the directions hearing listed at 9am on Friday 9 July 2021.

2. Set aside orders 4, 5 and 6 made on 31 May 2021 and in lieu thereof order:

“4. Mr Mortimer to file and serve written submissions of no more than 20 pages by 28 July 2021.

5. Mr Ah Sam to file and serve written submissions in reply of no more than 10 pages by 4 August 2021.

6. Dispense with the requirements for the filing of red, orange, blue and black books and in lieu thereof order that four copies of a white folder or folders be filed by Mr Ah Sam with the Court by no later than 10 August 2021. Each folder is to contain the submissions, the notice of appeal, the judgment below and the transcript below together with copies of all the evidence led at the trial and copies of any written submissions made to the trial judge.”

8. Should there be any default in compliance with orders 5 and 6, I will have the matter re-listed before me to consider any application to lift the stay granted by order 1 made on 31 May 2021.

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Decision last updated: 08 July 2021