Ardestani v Doss

[2019] NSWCA 13

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Ardestani v Doss [2019] NSWCA 13
Hearing dates:	11 February 2019
Decision date:	11 February 2019
Before:	McCallum JA
Decision:	1. I direct the appellants to file and serve their submissions by close of business on 22 February 2019. 2. I stand proceedings over to 25 February 2019 at 9.30 am before me. 3. I order the appellants to pay the respondents’ costs of today, such costs to be assessable forthwith.
Catchwords:	CIVIL PROCEDURE – appellants twice failing to comply with directions to serve submissions – whether appeal should be dismissed for want of prosecution
Category:	Procedural and other rulings
Parties:	Navid Miraki Ardestani (first appellant) Sepideh Miraki (second appellant) Helen Doss (first respondent) Harry Mehmani (second respondent)
Representation:	Counsel: H Alameddine (solicitor for appellants) N Bentley (respondents)   Solicitors: Birchgrove Legal (appellants) Armstrong Legal (respondents)
File Number(s):	2016/364581
Publication restriction:	None
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2018] NSWSC 1084 Date of Decision: 17 July 2018 Before: Ward CJ in Eq File Number(s): 2016/364581

Judgment

1. HER HONOUR: This matter has been referred to me by the Registrar to call upon the appellants to show cause why the appeal should not be dismissed for want of prosecution. The decision under appeal was given on 17 July 2018. A notice of intention to appeal was filed the following day but not served until 15 August 2018. A notice of appeal was filed on 17 October 2018 but not served until 7 November 2018.

2. Two timetables have passed without compliance by the appellants with the directions made by the Registrar. On 14 November 2018, the Registrar ordered that the red book be filed and served by 5 December 2018; that the appellant's submissions be filed and served by the same date and that the matter be listed for directions on 12 December 2018. Neither direction was complied with.

3. On 12 December 2018, the Registrar ordered the appellants to file and serve the red book by 21 December and their submissions by 31 January 2019, listing the matter for directions today. On that date, the Registrar further ordered that, if the appellants’ submissions had not been filed by 6 February 2019, the solicitor on the record file and serve an affidavit explaining why the matter should not be dismissed for want of prosecution.

4. The red book was served late, on 24 December 2018. No submissions have been filed. An affidavit sworn by the solicitor for the respondents, who are individuals, states that the appeal has been intensely distressing to them. They attribute their separation as a couple to the stress of the litigation at first instance and say that their financial resources have been exhausted by the court process and that they remain in significant debt as a result of these proceedings.

5. An affidavit sworn today by the appellants’ solicitor, Mr Hamza Alameddine, puts forward to the Court an explanation for the default. It is not entirely satisfactory. In short, counsel who appeared at the trial assisted in the preparation of the notice of appeal but later formed “a view of the matter” and advised that he was not prepared to continue to appear in the appeal.

6. Mr Alameddine has subsequently made many efforts to contact barristers who might accept a brief in the proceedings, without success. Early in February a barrister, Mr Philip Bates, indicated that he would consider accepting instructions after considering the papers and forming an opinion as to prospects.

7. In those circumstances, the appellants seek until 22 February 2019 to file their submissions. Whilst the explanation is unsatisfactory, given that there is at least an explanation, a request for further time and the prospect of further developments during that time, it may be considered unduly draconian to dismiss the appeal today. It should, however, be made very clear to the appellants that what is to be afforded to them today is one last opportunity to get their house in order.

8. I propose to allow the appellants until 22 February 2019 to file and serve their submissions and to stand the proceedings over before me on 25 February 2019 on the clear understanding that, if the submissions have not been filed by close of business on 22 February 2019, the appeal will in all likelihood be dismissed on that occasion.

9. For those reasons I make the following orders:

1. I direct the appellants to file and serve their submissions by close of business on 22 February 2019.

2. I stand the proceedings over before me at 9.30 am on 25 February 2019.

10. The parties have also addressed me as to costs. Mr Alameddine did not seek to be heard against an order that the appellants pay the respondents’ costs of today, such costs to be assessable forthwith. I make that further order.

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