Gregory Roman Chalik v Igor Chalik

[2024] NSWCA 203

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gregory Roman Chalik v Igor Chalik [2024] NSWCA 203

Hearing dates:

12 August 2024

Date of orders:

12 August 2024

Decision date:

12 August 2024

Before:

Price AJA

Decision:

1. Strike out causes of actions (A)-(I), clause 5 and grounds 2, 3, 4, 5, 6, 7, 12, 13, 14, 15, 19, 21, 22, 23, 24, 24(5), 25, 26 and 27 of the appellant’s Further Amended Notice of Appeal dated 29 July 2024.

2. Make a direction to the Registrar pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 7.36 to refer the appellant to a barrister or solicitor in the pro bono scheme panel to redraft the Further Amended Notice of Appeal.

3. Stand the matter over to 19 August 2024 before the Registrar and extend the current stay of the orders made by Henry J until 19 August 2024.

4. I make no orders as to costs.

Catchwords:

APPEALS — procedure — time limits — whether notice of appeal ought be dismissed for failure to serve on respondent in time

CIVIL PROCEDURE — summary disposal — notice of motion seeking striking out or dismissal of proceedings — abuse of process — no reasonable cause of action — frivolous or vexatious proceedings — where self-represented appellant failed to adequately draft grounds of appeal

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 63

Uniform Civil Procedure Rules 2005 (NSW), rr 51.41, 7.36

Category:

Procedural rulings

Parties:

Gregory Roman Chalik (Appellant/ Respondent in Notice of Motion)
Igor Chalik (Respondent/ Applicant in Notice of Motion)

Representation:

Counsel:
Mr G Chalik (Appellant/ Respondent in Notice of Motion) (Self-Represented, appeared by AVL)
Mr N Allan (Respondent/ Applicant in Notice of Motion)

Solicitors:
Ziman & Ziman Solicitors (Respondent/ Applicant in Notice of Motion)

File Number(s):

2024/00094840

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2023] NSWSC 117

Date of Decision:

16 February 2024

Before:

Henry J

File Number(s):

2021/326779 and 2021/296823

EX TEMPORE JUDGMENT

1. PRICE AJA: In these proceedings, this afternoon, the first respondent, in the underlying appeal, Igor Chalik, by an amended notice of motion sought orders in paras 1 and 2 for substantive relief. Those paragraphs sought orders dismissing the appeal summarily under Uniform Civil Procedure Rules 2005 (NSW) r 51.41 and Civil Procedure Act 2005 (NSW) s 63(3)(a) as having been improperly served and commenced out of time.

2. Following discussions with Mr Allan of counsel, to whose attention I directed the Registrar’s orders made on 22 July 2024, these prayers have not been pressed.

3. The alternative prayer in para 3 of the notice of motion has been pressed, in particular, the orders sought in para 3(a), striking out the appellant's further amended notice of appeal dated 29 July 2024 as not disclosing any arguable appeal, and being frivolous and vexatious and an abuse of process and, in para 3(b) seeking to dismiss the proceedings on the same basis.

4. I do not propose to accede to the request to dismiss the proceedings. However, I will make some orders striking out parts of the further amended notice of appeal as not disclosing any reasonable cause of appeal. 

5. It is of particular concern to me that there have been attempts by the appellant Mr Chalik to obtain legal assistance, but that has been unavailable to him because of requirements of lawyers for payment in advance which he is not able to make having regard to his present circumstances.

6. The judgment of Henry J was very detailed and involves very difficult concepts of law. It is hardly surprising that a litigant who is self-represented has struggled to frame a notice of appeal in a way which discloses to the first respondent the case that is being argued and the basis for it.

7. On the other hand, the first respondent is entitled to rely on the judgment of Henry J and have the matter proceed without excessive delay. This is a difficult case because I can understand the frustration that the first respondent must be feeling at the present time, but I also understand the appellant's frustration in being unable to formulate in a proper fashion his grounds of appeal.

8. What I propose to do today is strike out some of the grounds of appeal in the document as drafted. As I have discussed with the parties, there may be some arguable case in respect of those grounds that remain. That does not mean that I am satisfied with the way they are drafted.

9. After striking out some of the grounds of appeal, I also propose to make a referral to a barrister or solicitor under the Uniform Civil Procedure Rules 2005 (NSW) r 7.36. I do so having regard to subr (2). I take into account the means of the appellant under subr (2)(a). It appears that at some time he may receive some money from the estate, but at the present time, he is certainly not able to afford legal representation. That also is taken into account under subr (2)(b).

10. I take into account under subr (2)(c) the nature and complexity of the proceedings. As I have already indicated, these proceedings are complex involving difficult areas of the law. I also take into account under subr (2)(d) that both parties will be greatly assisted if the appellant is able to obtain some legal assistance in drafting this complex notice of appeal. 

11. Furthermore, I note that there is another notice of motion which is listed on 19 August 2024 in which the appellant is seeking to further amend the notice of appeal.

12. I will strike out the following parts of the document as presently drafted, that is the further amended notice of appeal dated 29 July 2024.

13. I turn to page 6, causes of action. All the causes of action set out in paras (A) to (I) are improper. They do not disclose relevant causes of action. I strike out the whole of paras (A) through to (I). I also strike out cl 5 on page 6.

14. Turning to the grounds of appeal, I strike out grounds 2, 3, 4, 5, 6, and 7. I leave in grounds 8, 9, 10, and 11. I strike out grounds 12, 13, 14, and 15. I leave in grounds 16, 17, 18, and 20. I strike out grounds 19, 21, 22, 23, and 24. Under ground 24 there is a ground numbered 5 which I strike out as well. I strike out grounds 25, 26, and 27. I leave in grounds 28, 29, and 30.

Orders

1. Strike out causes of actions (A)-(I), clause 5 and grounds 2, 3, 4, 5, 6, 7, 12, 13, 14, 15, 19, 21, 22, 23, 24, 24(5), 25, 26 and 27 of the appellant's Further Amended Notice of Appeal dated 29 July 2024.

2. Make a direction to the Registrar pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 7.36 to refer the appellant to a barrister or solicitor in the pro bono scheme panel to redraft the Further Amended Notice of Appeal.

3. Stand the matter over to 19 August 2024 before the Registrar and extend the current stay of the orders made by Henry J until 19 August 2024.

4. I make no orders as to costs.

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Amendments

13 August 2024 - added legislation cited on cover sheet.

Decision last updated: 13 August 2024