Dunn v Australian Society of Certified Practising Accountants

[1996] FCA 1199

JUDGMENT No.

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 194 of 1996

1

GENERAL DIVISION )

BETWEEN: STEPHEN FRASER DUNN

Appellant

AUSTRALIAN SOCIEm OF CERTIFIED

PRACTISING ACCOUNTANTS

Respondent

10 September 1996

REASONS FOR JUDGMENT

LOCKHART J.

This is a motion to vacate the hearing of an appeal fixed for hearing this week on Thursday, 12 September, 1996. I will not review the evidence from the submissions, except to say that the application was put primarily on the following grounds. First, the solicitor formerly acting for the appellant ceased to act last week and another solicitor has been retained. Secondly, although counsel presently appearing for the appellant had been in the matter earlier, it is an association which has not been a constant one; there were other counsel also involved in the matter. Also, counsel informs me that the appellant wishes to amend the notice of appeal and wants time to do that.

Although counsel for the appellant has said all that can be said in relation to the motion, which is opposed, I can only say that I think the case in support of vacating the date is a very weak one indeed; but at the end of the day the Court

wants all the assistance it can get from counsel in a matter such as this, which does involve issues of fact albeit possibly involving questions of mixed fact and law. Accordingly, I think the best course to take is to vacate the fixture but on terms that the appellant will pay the costs of the respondent on an indemnity basis that have been thrown away by reason of the adjournment. The matter will be fixed for hearing on Friday, 29 November, 1996.

I direct that any amended notice of appeal be filed and served by 4 October 1996 and I make the usual order for written submissions. I also direct that any amendments required to the appeal papers be placed in a supplementary appeal book to be filed and sewed by 11 October 1996. The matter shall be listed for further directions on Friday,

18 October 1996 at 9.30am. And I order the appellant to pay

the costs of the respondent on an indemnity basis of today's motion and the costs that are thrown away by reason of the adjournment of the hearing of the appeal. Those costs may be taxed and paid before the completion of the appeal.

I certify that this and the

preceding page are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated: 10 September 1996

Counsel for the Applicant	J S Mendel
Solicitors for the Applicant :	Pitcher Walton & CO
Counsel for the Respondent	A J L B ~ M O ~
Solicitors for the Respondent :	Clayton Utz
Date of Hearing	10 September 1996
Date of Judgment	10 September 1996