Khouzame v Reozone Pty Ltd (No 2)

[2015] NSWSC 1286

Supreme Court

New South Wales

Medium Neutral Citation:	Khouzame v Reozone Pty Ltd (No 2) [2015] NSWSC 1286
Hearing dates:	31 August 2015
Date of orders:	31 August 2015
Decision date:	31 August 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Under Rule 13.6 UCPR in default of appearance of the plaintiff on the hearing of this appeal, I adjourn the appeal for hearing on 14 September 2015 or on such later date as the Registrar may direct; I direct the Registrar to provide notice, in accordance with Rule 13.6, advising the plaintiff that the proceedings may be dismissed if there is no attendance by or on his behalf on 14 September 2015; The defendant’s costs of today should be its costs in the appeal
Catchwords:	APPEAL – withdrawal of plaintiff’s legal representation – application by defence for summary dismissal
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; 112 CLR 125
Category:	Procedural and other rulings
Parties:	Pierre Khouzame (Plaintiff) Reozone Pty Ltd (Defendant)
Representation:	Counsel: No appearance (Plaintiff) B. Miles (Defendant) Solicitors: O’Neill Partners (Defendant)
File Number(s):	2015/165883

EXTEMPORE JUDGMENT (REVISED)

1. In the circumstances I have explained in my judgment earlier today, there is no appearance by the plaintiff in this Local Court appeal.

2. Mr Miles of counsel, who appears for the defendant, has moved the court for an order summarily dismissing the appeal. He argues that the outcome of the appeal is sufficiently certain for me to be confident that I can form a decision that the appeal is untenable in accordance with the principles established in the decision of the High Court in General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; 112 CLR 125.

3. Although I have considered the papers in chambers in preparation for the hearing of the appeal today, and on the face of it, its prospects do not appear especially strong, I am unable to be satisfied, in the absence of more detailed argument, that its prospects are so hopeless as to justify an order of that type, especially in the absence of the plaintiff.

4. Mr Miles has also drawn my attention to the provisions of Rule 13.6 Uniform Civil Procedure Rules 2005 (NSW) which set out a procedure permitting me to adjourn the matter and directing the Registrar to require the plaintiff to show cause, effectively, as Mr Miles put it, why the proceedings should not be dismissed.

5. I am also informed by Mr Miles, more by a contribution of his instructing solicitor Ms Sally Nash, that the Registrar has power on such an adjourned hearing to make the order dismissing the appeal if the plaintiff again fails to appear without explanation. It seems to me that I should make such an order and I propose to adjourn the matter until Monday 14 September 2015 before the Registrar.

6. My orders are:

1. Under Rule 13.6 UCPR in default of appearance of the plaintiff on the hearing of this appeal, I adjourn the appeal for hearing on 14 September 2015 or on such later date as the Registrar may direct.

2. I direct the Registrar to provide notice, in accordance with Rule 13.6, advising the plaintiff that the proceedings may be dismissed if there is no attendance by or on his behalf on 14 September 2015.

7. I should say that on the basis of the information provided to me by Mr Tolson, I have no doubt that the plaintiff has actual notice of today's listing and of Mr Tolson's application to withdraw and of the necessity for him to appear here today personally or by some other legal representative.

8. This satisfies the due notice requirement of Rule 13.6, and it also persuades me that I should order that the defendant's costs of today should be its costs in the appeal.

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Decision last updated: 03 September 2015