Beveridge v Hellquist

[2015] NSWCA 65

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Beveridge v Hellquist [2015] NSWCA 65

Hearing dates:

9 March 2015

Date of orders:

09 March 2015

Decision date:

09 March 2015

Before:

Emmett JA

Decision:

(1) The proceedings be listed for directions before me on Monday, 16 March 2015 at 9:45 am.

(2) Subject to orders (3) and (4), the appeal proceedings be set aside under s 63(3) of the Civil Procedure Act 2005 (NSW).

(3) Order (2) be stayed up to and including 16 March 2015 on terms that, no later than Friday, 13 March 2015, an appearance by a legal representative is filed on behalf of Mr Beveridge and a legal representative appears on behalf of Mr Beveridge at the directions hearing scheduled for Monday, 16 March 2015 at 9:45 am.

(4) Order (2) be rescinded if the terms of order (3) are satisfied.

(5) Subject to order (4):
(a) The hearing of the notice of motion of 2 October 2014 be listed for hearing on Monday, 30 March 2015 at 10:15 am before the referrals judge.
(b) Mr Beveridge file and serve any affidavit and written submissions on which he wishes to rely no later than 20 March 2015.
(c) Ms Hellquist file and serve any affidavit and written submissions on which she wishes to rely no later than 26 March 2015.

Catchwords:

PROCEDURE – motion for appeal proceedings to be set aside for procedural irregularity, including the appellant’s failure to file submissions

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 63

Category:

Procedural and other rulings

Parties:

Warren Beveridge (Appellant)
Patricia Hellquist (Respondent)

Representation:

Counsel:
Self-represented (Appellant)
Ms B Wallace (Respondent)

Solicitors:
Self-represented (Appellant)
Moray & Agnew (Respondent)

File Number(s):

2014/184223

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Date of Decision:

30 May 2014

Before:

Balla DCJ

File Number(s):

2012/131588

Judgment

1. On 30 May 2014, Balla DCJ in the District Court gave judgment for the defendant, Ms Patricia Hellquist, in proceedings brought by the plaintiff, Mr Warren Beveridge. Mr Beveridge had claimed damages for alleged negligence on the part of Ms Hellquist when the motorcycle he was riding came into collision with the motor vehicle being driven by Ms Hellquist.

2. While a notice of intention to appeal was filed (on 20 June 2014) within the time prescribed by the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), the notice of intention to appeal was not served within the time required by the UCPR, that is, within 28 days of the material date: r 51.8. When a notice of appeal was filed on 29 August 2014, the solicitors for Ms Hellquist first became aware that Mr Beveridge had an intention to appeal. No further steps were immediately taken on behalf of Mr Beveridge and, on 2 October 2014, a notice of motion was filed on behalf of Ms Hellquist seeking an order under s 63(3) of the Civil Procedure Act2005 (NSW) that the appeal proceedings be set aside in whole. That motion came before the Court for directions on 29 October 2014, 17 December 2014 and 11 February 2015. At each directions hearing, Mr Beveridge was directed to file submissions at a nominated future date.

3. While an outline of submissions was filed on behalf of Mr Beveridge on 20 October 2014, and a notice of appeal has been filed, no further submissions have been filed as directed and it is by no means clear that the material so far provided has demonstrated that there is a reasonably arguable case on the appeal. On 11 February 2015, the proceedings were stood over to 9 March 2015 to enable Mr Beveridge to show cause why the proceedings should not be dismissed for failure to comply with the directions concerning the filing of submissions. Mr Beveridge appeared in person on that day. He informed the Court that his solicitors had told him by telephone on Friday 6 March that they were proposing to file a notice of ceasing to act. Mr Beveridge said that he had had difficulty in communicating with his solicitors. His solicitors, on the other hand, had indicated to the Court on an earlier occasion that they were having difficulty obtaining instructions.

4. The matter is quite unsatisfactory in that there is no evidence from Mr Beveridge at this stage. He said that he had arranged appointments with different solicitors on 10 March and later that week. While, as I have said, it is unsatisfactory from the respondent’s point of view, I consider that the appropriate course is to give Mr Beveridge one last chance to have a solicitor appear and to consent to sensible directions for the purpose of disposing of Ms Hellquist’s notice of motion or, if need be, fixing the appeal for hearing.

5. I therefore propose to make orders to the following effect:

1. The proceedings be listed for directions before me on Monday, 16 March 2015 at 9:45 am.

2. Subject to orders (3) and (4), the appeal proceedings be set aside under s 63(3) of the Civil Procedure Act 2005 (NSW).

3. Order (2) be stayed up to and including 16 March 2015 on terms that, no later than Friday, 13 March 2015, an appearance by a legal representative is filed on behalf of Mr Beveridge and a legal representative appears on behalf of Mr Beveridge at the directions hearing scheduled for Monday, 16 March 2015 at 9:45 am.

4. Order (2) be rescinded if the terms of order (3) are satisfied.

5. Subject to order (4):

1. The hearing of the notice of motion of 2 October 2014 be listed for hearing on Monday, 30 March 2015 at 10:15 am before the referrals judge.

2. Mr Beveridge file and serve any affidavit and written submissions on which he wishes to rely no later than 20 March 2015.

3. Mrs Hellquist file and serve any affidavit and written submissions on which she wishes to rely no later than 26 March 2015.

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Decision last updated: 23 March 2015