Magjarraj v Stephen Paul Firth t/as the Compensation Lawyers

[2015] NSWCA 144

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Magjarraj v Stephen Paul Firth t/as The Compensation Lawyers [2015] NSWCA 144
Hearing dates:	18 May 2015
Decision date:	18 May 2015
Before:	Basten JA
Decision:	(1)The appellant must by 15 June 2015: (a) file and serve a red appeal book; (b) file and serve an affidavit pursuant to r 51.22 of the Uniform Civil Procedure Rules; and (c) file and serve written submissions in support of the proposed appeal. (2)Stand the matter over to the Registrar’s list on 22 June 2015. (3)Costs of today will be costs in the appeal.
Catchwords:	APPEAL – dismissal proposed for want of prosecution – inactive for more than five months – whether court should act on own motion – respondent represented – appellant with assistance from lawyer not on record
Legislation Cited:	Uniform Civil Procedures Rules 2005 (NSW), rr 12.8, 13.6
Category:	Procedural and other rulings
Parties:	Alija Magjarraj (Appellant) Stephen Paul Firth t/as The Compensation Lawyers (Respondent)
Representation:	A McQuilkin, Firths The Compensation Lawyers (Respondent) RM Ardino, Morgan Ardino & Co (Amicus curiae)
File Number(s):	2014/339589
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Civil Date of Decision: 24 October 2014 Before: Gibbs DCJ File Number(s): 2013/126670

Judgment

1. BASTEN JA:   This matter has been referred to a judge on the basis that the appellant is required to show cause why the appeal should not be dismissed for want of prosecution, pursuant to r 12.8 of the Uniform Civil Procedures Rules 2005 (NSW) (“the UCPR”). A notice to that effect under UCPR r 13.6 was sent to the appellant, pursuant to an order made on 25 March 2015, noting that the matter had been further listed for 1 April 2015.

2. The notice of appeal filed by the appellant, acting for himself, relates to a judgment of the District Court delivered on 24 October 2014. The notice stated that the appellant had not filed a notice of intention to appeal. The notice of appeal filed on 18 November 2014 was therefore out of time, but would almost certainly not have been dismissed for that reason, the delay being relatively slight. Since then the matter has been before the Court for directions on four occasions, namely 4 February 2015, 3 March 2015, 25 March 2015 and 1 April 2015. The appellant appeared on the second and fourth of those occasions.

3. At the second directions hearing on 3 March, the appellant indicated that he was seeking legal representation. On the fourth occasion directions were given for him to show cause why the appeal should not be dismissed on the basis that for over five months no party to the proceedings had taken any step in the proceedings.

4. Today the appellant is not legally represented, but the solicitor who appeared for him in the District Court, Mr Ardino, has attended to assist the appellant. He has agreed to help him put together a red appeal book and submissions, but has not agreed to act further. He does not propose to be the solicitor on the record and the appellant should understand that in those circumstances Mr Ardino’s role is to assist the court and he will not be responsible for any further delay or inaction.

5. The Court may dismiss the proceedings of its own motion: while this course is available, it would not normally be relied upon in circumstances where no step has been taken by the respondent, who was represented at each directions hearing, to have the matter summarily dismissed. The respondent is a solicitor. Even if he were not represented (as he is), he can be assumed to be familiar with his entitlements under the rules in respect of proceedings where there has been a want of prosecution. Nevertheless the Court has on occasions acted on its own motion in similar circumstances.

6. In this case the Court has not been provided with a copy of the judgment in the District Court and, although some explanation has been provided from the bar table this morning, the nature of the proceedings is obscure.

7. In these circumstances the Court should give the appellant a period in which to file and serve a red appeal book and written submissions in support of his appeal. He should also provide an affidavit indicating the basis upon which an appeal can be brought from the District Court, without leave, within s 127 of the District Court Act 1973 (NSW). If these things are not done, the respondent should consider what steps he wishes to take to bring matters to a point where they can be resolved.

8. Accordingly I give the following directions:

1. The appellant must by 15 June 2015:

(a)   file and serve a red appeal book;

(b) file and serve an affidavit pursuant to r 51.22 of the Uniform Civil Procedure Rules; and

(c)   file and serve written submissions in support of the proposed appeal.

2. Stand the matter over to the Registrar’s list on 22 June 2015.

3. Costs of today will be costs in the appeal.

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Decision last updated: 25 May 2015