NCR Australia Pty Ltd v The Credit Connection Pty Ltd

[2004] NSWSC 1016

CITATION:	NCR Australia Pty Ltd v The Credit Connection Pty Ltd [2004] NSWSC 1016
HEARING DATE(S):	27 October 2004
JUDGMENT DATE:	27 October 2004
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Adjournment granted of application to punish for contempt.
CATCHWORDS:	LEGAL AID [3] - Legal assistance schemes - New South Wales - Appeal to Legal Aid Review Committee not yet determined - Proceedings to be adjourned except where appeal intended to improperly hinder or improperly delay the conduct of the proceedings.
LEGISLATION CITED:	Legal Aid Commission Act 1979 s 57(b)
PARTIES :	NCR Australia Pty Ltd (P) The Credit Connection Pty Limited (D1) Ray Naumoski (D2) Gina Naumoski (D3) John Cannon (D4)
FILE NUMBER(S):	SC 2316/00
COUNSEL:	P T Newton (P) In person (D2) No appearance (D1, 3 & 4)
SOLICITORS:	Heidtman & Co (P) MacElbing Mednis & Assocs (D1) In person (D2 & 3) No appearance (D4)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 27 OCTOBER 2004

2316/00 NCR AUSTRALIA PTY LIMITED v RADE NAUMOSKI

JUDGMENT

1 HIS HONOUR: Before the Court is an amended notice of motion for the punishment of the second defendant Rade Naumoski for contempts of court, in essence in disobeying Mareva orders made against him. Mr Naumoski applies for an adjournment of the hearing. He did on 25 October 2004 lodge an appeal to the Legal Aid Review Committee against a refusal of legal aid to give him representation on the hearing of the motion. That refusal was conveyed to him on 19 October 2004.

2 Mr Naumoski has also informed the Court that he has only recently become apprised of the Bar Association’s pro bono scheme as a possible source of representation. I should hope that in this matter he would, subject to financial considerations, have a prospect of obtaining assistance from that source, bearing in mind that the hearing will be quite short, the preparation for it not considerable and the consequences of the motion for Mr Naumoski potentially very serious. He has also sworn in court that he is hopeful in four to five weeks of being able to obtain a loan of up to $10,000 from which he may be able to obtain representation on a paid basis.

3 Mr Newton, of counsel for the plaintiff, has very properly drawn my attention to s 57 of the Legal Aid Commission Act 1979 (“the LACA”), which enjoins a court to adjourn proceedings in respect of which a party has appealed to a Legal Aid Review Committee from a refusal of legal aid. However, that section in par (b) provides an exception, where it appears that the appeal is not bona fide or is frivolous or vexatious or is otherwise intended to improperly hinder or improperly delay the conduct of the proceedings.

4 Mr Newton provides evidence of and draws my attention to the fact that the motion was filed in May and that his instructing solicitors wrote to Mr Naumoski in May and June asking for details of his legal aid application that was then pending, and the fact that it appears from Mr Naumoski’s correspondence with the Legal Aid Commission that it was not until 29 September and 13 October 2004 that Mr Naumoski provided the Legal Aid Commission with information concerning respectively his means and special disadvantage. The plaintiff, not unreasonably, asks me to infer from that that the appeal falls within the exception that I have mentioned in s 57(b) of the LACA, at the very least as being intended to improperly hinder or improperly delay the conduct of the proceedings. However, on the balance of probabilities I have formed the view that, despite Mr Naumoski’s dilatoriness, I should not find the matter excluded by s 57(b) from the compulsion on the Court to grant an adjournment.

5 In any event, even if I were not prepared to make that finding, I should in the exercise of my discretion grant the adjournment sought on the basis that Mr Naumoski is now pursuing not only that appeal, but efforts to obtain representation through the Bar Association’s pro bono scheme, and is also endeavouring to borrow funds to permit him to be represented.

6 I have already indicated that this is a matter of utmost seriousness. This Court does not regard lightly disobedience of Mareva relief, if that disobedience be contumelious. It is inherent in the plaintiff’s case on the motion that it is asking the Court to regard the conduct as contumelious. It is highly desirable from his own point of view that Mr Naumoski be represented if at all possible on that hearing. It is also in the Court’s interests (and perhaps even the plaintiff’s) to have that hearing conducted in an orderly and informed way. I also take into account that, on the affidavit that he has filed and read before me, Mr Naumoski does have some case either that the conduct was not contumelious or, alternatively, material which would sound in mitigation on penalty. That being so, it is most desirable that his case be put to the Court in an orderly fashion.

7 For all of those reasons, I propose to grant Mr Naumoski’s application that the motion be adjourned from today. Bearing in mind the time frame in which it is likely to be apparent whether or not legal representation is going to be available to him from any source, and after further discussion on this subject matter in Court, I think the appropriate course is for me to place the matter back in the Expedition List early in December with a view to the matter receiving a new fixture.

8 It is not for me to fetter or influence the exercise on any future occasion of discretion by any Judge. However, in view of Mr Naumoski’s dilatoriness between May and September 2004, on which I have commented above, he will be very lucky in my view to obtain any further adjournment of these proceedings for the purpose of obtaining representation or by reason of the fact that he is not represented. If he cannot in the time I have allowed obtain representation through any avenue, it is highly likely that he will simply have to conduct the matter on his own as best he may.

9 The costs of this application will be reserved.

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Last Modified: 12/15/2004