Jarvie v Hawkesbury City Council
[2013] NSWSC 1341
•17 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Jarvie v Hawkesbury City Council [2013] NSWSC 1341 Hearing dates: 17 September 2013 Decision date: 17 September 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. Defendant's Notice of Motion filed 10 September 2013 dismissed.
2. Parties directed to approach the listing manager to take earliest convenient date for hearing of Summons (hearing estimated to take half a day).
3. Plaintiff not permitted to file any further evidence in relation to the appeal. The hearing of the appeal to proceed on the basis of material filed to date including transcript.
4. Plaintiff to pay Defendant's costs of the Notice of Motion.
Catchwords: PROCEDURE - appeal from magistrate - application to strike out appeal for want of prosecution - appeal on grounds of law - delay in obtaining transcript - delay not adequately explained - appeal to proceed on basis of evidence filed to date Legislation Cited: Uniform Civil Procedure Rules Category: Interlocutory applications Parties: Russell Jarvie (Plaintiff)
Hawkesbury City Council (Defendant)Representation: Counsel:
In person (Plaintiff)
J Dawes (Defendant)
Solicitors:
In person (Plaintiff)
McCulloch & Buggy (Defendant)
File Number(s): 2012/370906
Judgment
This is an application by the Defendant for the Plaintiff's Summons to be struck out, pursuant to rule 12.7 UCPR.
The Summons was filed by the Plaintiff on 28 November 2012, and it is in the nature of a summons commencing an appeal to this Court from a decision of a magistrate given at the Local Court at Windsor on 31 October 2012.
The Summons identifies four grounds of appeal as follows:
1. The magistrate erred in not finding that the annulment of the Plaintiff's bankruptcy was retrospective in effect and that bankruptcy was of no force or effect from date of Bankruptcy to date of the application to strike out was made namely 31 October 2012 save to the extent of the provisions of Section 54 of the Bankruptcy Act.
2. The magistrate erred in finding on the 31 October 20122 that the Plaintiff's proceedings be struck out and should have found that the correct date and time to determine whether the plaintiff had an interest in the relevant chose in action is the date of the application to strike out namely 31 October 2012.
3. The magistrate should have found that the Plaintiff's rights in the chose in action automatically reverted to him on the date of the annulment of his bankruptcy namely the 14 July 2010.
4. The magistrate erred in allowing the defendant a second opportunity to apply to have the proceedings dismissed when the defendant should have done so at the first opportunity namely on the 10 September 2010 when the defendant chose to apply to have the proceedings stayed. The magistrate thus erred in the exercise of her discretion in all the circumstances of the case by dismissing the plaintiff's action.
The proceedings have been before this Court on a number of occasions since the filing of the Summons. It is not necessary to detail all of those occasions, but I will mention a few.
On 19 March 2013, the proceedings were listed for call over. Amongst other orders that were made was an order made that the Plaintiff was to file and serve all evidence upon which he intended to rely by 11 May 2013.
No such evidence was filed. It appears that the Plaintiff has had some difficulties obtaining transcript of the proceedings before the magistrate, although the evidence is rather unsatisfactory as to when that transcript was first sought. Nevertheless, it appears to have been that difficulty that led this Court, on 17 May 2013, to order the registrar of this Court to write to the registrar of the Richmond Local Court to request that the file in the Plaintiff's matter be forwarded to this Court, pursuant to UCPR rule 33.13.
On 19 July, the proceedings came before this Court and an order was made that should the matter not have progressed by the adjourned date of 2 August, it was to be referred to the duty judge for the Plaintiff to show cause why it should not be dismissed.
When it came before the registrar on 2 August it was referred to Garling J as the duty judge. Garling J read an affidavit sworn by the Plaintiff on 1 August which detailed the difficulties that he said he was having in obtaining a copy of the transcript of the hearing before the magistrate.
Having read that affidavit, Garling J ordered that the Plaintiff was to file and serve all affidavits on which he intended to rely in support of the Summons on or before 4 pm on 6 September 2013. Garling J further noted that it was intended on the date to which he adjourned the proceedings, namely 12 September, that the registrar would fix a date for the hearing of the appeal and that the appeal was to proceed on evidence which had been filed by that time.
The present Motion was filed on 10 September and came before the registrar on 12 September. Whether because of some problem in serving that Motion on the Defendant, or because of the shortness of time involved, the Motion was stood over to today.
Once again Mr Jarvie has sought to read an affidavit sworn as recently as yesterday. That affidavit again detailed the difficulties that he said he had had in obtaining copies of the transcript. It nevertheless disclosed that he obtained the transcript on 28 August. Notwithstanding that fact, he did not comply with Garling J's directions to file and serve any affidavits on which he sought to rely by 6 September. The explanation given for that failure is that at or about the time Mr Jarvie obtained the transcript he contacted a solicitor to ask the solicitor to act for him and draft any necessary affidavits to support the Summons.
I note that at the time that the Summons was filed, the Plaintiff was legally represented, but that that solicitor ceased to act for the Plaintiff on 31 January 2013.
I do not consider that any adequate explanation has been given by the Plaintiff for why he waited until 28 August, or thereabouts, to retain another solicitor. Whether or not he had the transcript available to him, it was perfectly possible for him to provide some instructions to a solicitor who may have been able to give him some appropriate advice in relation to the filing and service of affidavits, as he had been directed on two separate occasions to do.
It appears to me that the outcome of the appeal will turn on a determination of questions of law, as identified in the four grounds of appeal. In any event, were I to permit the Plaintiff now to serve further evidence in support of the Summons, I would be effectively overturning the order that Garling J made on 2 August which was that the matter was to proceed to a hearing on evidence which had been filed by that time.
I can understand the Defendant's frustration in the very slow progress of this matter. There is ordinarily no reason why a Summons commencing an appeal from the Local Court should not be able to be heard finally by this Court within 6 to 9 months of the Summons being filed.
Whilst I accept that the Plaintiff has experienced some delays at the hand of the Windsor Local Court, it does not seem to me that the Plaintiff has been proactive either in applying for the transcript at an early stage, nor in pressing his need to have that transcript in the light of orders made in this court, nor in retaining a solicitor at an earlier time.
Nevertheless, I do not consider that the dilatory behaviour on the part of the Plaintiff should deprive him altogether from a hearing of his appeal. In those circumstances, I am not prepared to accede to the Defendant's Notice of Motion.
In lieu of that, I shall direct that the parties are to take the earliest convenient date for a hearing, on the basis that the matter will take half a day, and that the matter is to proceed to a hearing on the basis of any evidence filed to the present time only, but including the transcript, which has now been placed with the Court file.
**********
Decision last updated: 20 September 2013
0
0
1