French v Wilcox

[1999] NSWCA 451

CITATION:	French v Wilcox [1999] NSWCA 451
FILE NUMBER(S):	CA 40555/99
HEARING DATE(S):	2 December 1999
JUDGMENT DATE:	2 December 1999
PARTIES :	Appellant: John Desmond French Respondent: 1. Graham Milton Wilcox Respondent: 2. Rosanna Wilcox Respondent: 3. John William Spicer Respondent: 4. Birgitta Spicer
JUDGMENT OF:	Meagher JA at 1; Stein JA at 8; Giles JA at 10

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	3483/98
LOWER COURT JUDICIAL OFFICER:	Young J

COUNSEL:	Appellant:Douglas Knaggs (sol) Respondent: J E Robson
SOLICITORS:	Appellants: Douglas Knaggs Respondents: Peters Crompton & Worrell
CATCHWORDS:	Review of notice of motion; Appeal struck out by Registrar; Repeated default of legal practitioner; no explanation offered
DECISION:	Motion for review is struck out with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40555/99

MEAGHER JA
STEIN JA
GILES JA

THURSDAY 2 DECEMBER 1999

JOHN DESMOND FRENCH v GRAHAM MILTON WILCOX & 3 ORS

JUDGMENT

1   MEAGHER JA: This is an application to review a decision of the Registrar to strike out an appeal. There was litigation in which the plaintiffs were Kiama Development Pty Limited and Mr and Mrs French who apparently sued a Mr and Mrs Wilcox and Mr and Mrs Spicer. The hearing took place before Young J on 27 November 1998 and 2 December 1998. His Honour delivered judgment on 1 April 1999. 2   His Honour's judgment apparently was a judgment in favour of the defendants though we were not favoured with any documents which tell us any of this. A notice of appeal was filed on behalf of Mr and Mrs French, two of the plaintiffs, by Mr Knaggs on 26 July 1999 and that specified a call-over date of 7 October 1999. 3   Meanwhile, the respondents were minded to file either a notice of contention or a cross appeal and they put on a notice of motion to that effect on 1 September 1999 which was returnable on 13 September 1999. When 13 September 1999 came round, Mr Knaggs did not appear, nor did anyone appear on his behalf. On that day the respondent's notice of motion was adjourned to 11 October 1999. On 11 October 1999 Mr Knaggs did not appear at the adjourned hearing of that notice of motion nor did any person appear on his behalf. 4   Meanwhile, the appeal itself as specified in the call-over notice attached to it came on for call-over on 7 October 1999. Mr Knaggs did not appear on that occasion, nor did anyone appear on his behalf. The hearing of that was stood over until 14 October. The Registrar in the meantime made certain orders and they were to be communicated to Mr Knaggs by telephone which indeed they were. That telephone communication took place on 8 October. 5   On 14 October when the matter came back again Mr Knaggs did not appear nor did anyone appear on his behalf. On 7 October the Registrar had ordered that Mr Knaggs file the red book on or before 14 October and did he do so? No. He ordered Mr Knaggs file a call-over notice on or before 14 October, did he do so? No. 6   On 14 October the Registrar, feeling justifiably perturbed by Mr Knaggs's behaviour, ordered the appeal be struck out pursuant to the Rules. In my view he was perfectly entitled to do so. What Mr Knaggs had shown was a systematic dereliction of duty and that is a state of affairs the continuance of which the Registrar cannot be expected to tolerate. No explanation of this extraordinary and persistent behaviour has been offered by Mr Knaggs. 7   In my view the notice of motion's review should be dismissed with costs. 8   STEIN JA: I agree with Meagher JA. No good reason has been shown why the Registrar's order should be reviewed. The defaults were numerous, and some of them significant and there has been no satisfactory explanation given by Mr Knaggs. Indeed, one could be driven to say that Mr Knaggs' explanation is close to pathetic. Basically he says he did not listen to Mr Martin, the solicitor for the respondent, when he read from beginning to end the orders made by the Registrar. 9   I would agree with the orders proposed by Meagher JA. 10   GILES JA: I also agree, adding only that amongst the matters read to Mr Knaggs on 8 October was a notation by the Registrar that if the appellant failed to attend on the adjourned call-over, that is on 14 October, and failed to file the red appeal book and call-over notice, the appeal might be struck out for want of prosecution. There was certainly no lack of forewarning of what justifiably occurred.

11   MEAGHER JA: In that case the orders will be that the motion for review is struck out with costs.

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