Athari v Wandell Builders Pty

[2018] NSWSC 771

Supreme Court

New South Wales

Medium Neutral Citation:	Athari v Wandell Builders Pty [2018] NSWSC 771
Hearing dates:	24 May 2018
Date of orders:	24 May 2018
Decision date:	24 May 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The appeal is dismissed and the plaintiff is to pay the defendant's costs.
Catchwords:	CIVIL PROCEDURE – appealing decision and seeking leave to appeal - Magistrate failed to decide a material issue - mixed questions of fact and law - failure to adhere to timetable - notice of ceasing to act filed - no appearance for plaintiff before Registrar - efficiency of the Court - attempts made to contact the plaintiff - adequate notice given - whether the matter should be dismissed for want of cause - no motion seeking pro bono referral - whether proceedings should be dismissed in the absence of the plaintiff - case not prosecuted with due dispatch - prejudice to the defendant - failure of the plaintiff to appear - appeal dismissed - costs awarded
Legislation Cited:	Nil
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Taeed Athari trading as Father and Son v Wandell Builders Pty
Representation:	Counsel: I J King (Respondent)     Solicitors: MCW Lawyers (Respondent)
File Number(s):	17/374331
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Civil Date of Decision: 14 November 2017 Before: Magistrate Virgo File Number(s): 2016/226352

EX TEMPORE Judgment (revised)

1. These proceedings are an appeal from a decision of the Local Court made on 14 November 2017 in a civil dispute between the parties, which I infer was in the nature of a ‘building dispute’. The plaintiff in this Court was also the plaintiff below suing for a debt he claimed was owed to him. The defendant building company propounded a cross-claim for the value of damaged materials supplied by the plaintiff. A judgment was entered in the defendant's favour by Magistrate Virgo.

2. The plaintiff filed a summons in this Court appealing, and seeking leave to appeal, on 11 December 2017. He was then represented by solicitors and that summons rather takes the form of what might be referred to in a different context as a holding appeal. An amended summons was filed on 9 March 2018 which set out grounds which mostly seem to raise factual matters or perhaps, in some instances, mixed questions of fact and law. In respect of such matters, of course, the plaintiff requires leave. The first ground is potentially a question of law, given that it purports to assert that the Magistrate failed to decide a material issue between the parties.

3. In any event, the plaintiff failed to comply with the timetable for filing written submissions which was fixed by the Registrar on 15 March 2018. The defendant brought the matter back before the Court on 16 May 2018. It had transpired that the plaintiff's solicitors had served a Notice of Intention of Ceasing to Act and, on 11 May 2018, a Notice of Ceasing to Act. When the matter came before the Registrar on 16 May 2018 those facts were made known to the Registrar and the plaintiff asked for time to engage other solicitors, indicating he would need some time to find someone to handle the claim. Having read the affidavit of the defendant's solicitors, Mr Hay, as to the plaintiff's non-compliance with the timetable, the Registrar made the following additional orders to the effect that the matter was stood over until today to enable the plaintiff to obtain legal representation with these additional orders:

“3: On 24 May 2018, should the plaintiff not be able to progress the matter, or have legal representation, the case is to be referred by the Registrar to the Duty Judge for a show cause and to consider vacation of the hearing date (of 18 June 2018); and

4. The plaintiff is to file any motion for pro bono assistance by midday on 21 May 2018 together with an affidavit in support. Such motion to be made returnable on 24 May 2018."   

Although the plaintiff was apparently present in person, the Registrar directed that he be advised of those orders by email to the address he had provided.

4. I am informed by Ms King of Counsel that when the matter was called before the Registrar today there was no appearance on behalf of the plaintiff. In accordance with the time-honoured practice of the courts in this State his name was called outside the courtroom three times, yielding no appearance. In accordance with the orders he made, the Registrar referred the matter to me to be dealt with.

5. When the matter was first mentioned before me this morning, I asked Ms King if she could have her instructing solicitor attempt to contact the plaintiff, lest there may have been some misadventure which explains his non-attendance today. On the resumption of the hearing at 12:30 pm Ms King has read an affidavit of her instructing solicitor, Mr Hay, affirmed today. From that affidavit I find that Mr Hay checked the plaintiff's phone number by speaking to his client. The phone number his client provided matches the phone number which appears on an electronic Yellow Pages listing for the plaintiff's business. At 10:43 am Mr Hay tried to call that mobile phone number, which went through to voicemail. He left a message to the following effect:

“You were ordered by the court on the last occasion to appear before the court today. You have not appeared today. Please call me back as soon as possible to tell me where you are.”

6. At 10:54 am Mr Hay sent a text message to the plaintiff's mobile number encapsulating the effect of his voice message, informing the plaintiff that the matter had been referred to me and that I had stood the matter down until 12:30 pm to enable him to appear. Mr Hay also provided directions to Court 6 for a person who may be unfamiliar with the Hospital Road complex. He also advised the plaintiff, in accordance with the direction made by the Registrar on the last occasion, that I would consider dismissing the appeal if he did not appear before me at 12:30 pm.

7. I am well satisfied that the plaintiff has had adequate notice, not only of the listing before the Registrar this morning but also of the listing before me at 12:30 pm, to consider the referral from the Registrar as to whether the matter should be dismissed for want of cause.

8. The Registrar obviously had in mind the consideration that the written submissions, which are critical in an appeal, had not been filed in accordance with the timetable and had not been filed since the matter was before him on 16 May 2018, nor has there been any change of solicitor noted on the record. Finally, no motion seeking a pro bono referral has been filed, supported by affidavit, or at all.

9. One is always reluctant to dismiss proceedings in the absence of a party and one is always reluctant to dismiss proceedings by shutting a party out from a fair hearing on the merits. However, it seems to me, given the history of this matter, the evidence that I have referred to and the facts I have found, that this case has not been prosecuted with due dispatch in all the circumstances. There is no doubt prejudice to the defendant.

10. Ms King, very fairly, indicated that if the written submissions were filed soon she would be able to deal with the matter. However, that is not the only consideration. The plaintiff has no legal representation, he has not sought the Court's assistance in that regard - I leave aside the question of whether or not that assistance would be given in what is essentially a small commercial dispute - and he has failed to appear today in circumstances where he had clear notice of the need to mend his hand and to attend court today to give an account of his conduct of the proceedings in the meantime.

11. These proceedings are, of course, vexing to the defendant, which I am informed by the evidence is a small single-director building company. Even people in business get vexed by ongoing litigation. I have not seen written submissions to enable me to assess the strength of the plaintiff's appeal but I must say, looking at the grounds as formulated in the amended summons, it is not self-evidently powerful.

12. In all the circumstances, I am satisfied, given the failure to prosecute and given the plaintiff's non-appearance today, that the proper order for me to make, him not having shown cause why it should not be made, is that the appeal is dismissed and the plaintiff is to pay the defendant's costs.

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Decision last updated: 01 June 2018