Nicholas v Bantik

[1992] TASSC 94

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Nicholas v Bantik [1992] TASSC 94; B16/1992

PARTIES:  NICHOLAS
  v
  BANTIK

FILE NO/S:  FCA 112/1991
DELIVERED ON:  8 May 1992
JUDGMENT OF:  Cox J

Judgment Number:  B16/1992
Number of paragraphs:  5

Serial No B16/1992

List "B"

File No FCA 112/1991

NICHOLAS v BANTICK

REASONS FOR JUDGMENT  COX J

8 May 1992

Practice and Procedure – Dismissal of appeal for want of prosecution – Rules of the Supreme Court, O76, r18 – Dispensing with inclusion of lengthy transcript – Appeal book.

1. The plaintiff has appealed to the Full Court against the decision of Wright J striking out his claim as an abuse of the process of the court. One of the grounds of appeal is that his Honour erred in law when he held that the action constituted such an abuse within the principle laid down in the case of Hunter v The Chief Constable of the West Midlands Police & Ors [1982] AC 529. In addition, there is a ground claiming that his Honour ought to have disqualified himself from hearing the matter, and there are other grounds which raise for consideration evidence taken before his Honour, the questions being whether that evidence was fresh evidence or was of a kind such as to avoid the application of the principle in Hunter's case (supra).

1. The Registrar settled the contents of the appeal book on 6 February 1992 but no copy of any appeal book has been delivered to the respondent as required by the Rules of the Supreme Court, O76, r20(1)(b), and the respondent has accordingly moved to dismiss the appeal for want of prosecution pursuant to r20(1A) of the same Order. The following list of contents was settled:

1        Writ and Statement of Claim dated 21 February 1986.

2        Amended Defence and Counterclaim dated 26 June 1991.

3        Reply to amended Defence and Counterclaim dated 5 July 1991.

4        Transcript of evidence

(a)      earlier pages of transcript (to be discussed between parties as agreed) (sic);

(b)      argument re disqualification of his Honour Mr Justice Wright 1 – 67;

(c)      evidence of Desmond Hazelwood 156 – 249;

(d)      evidence of Janine Nicholas 250 – 391;

(e)      argument on the applicability of the principle in Hunter's case 406 – 541.

5        Exhibit D1 Certificate of Conviction.

6        Last will of deceased – copy.

7        Reasons for judgment of his Honour Mr Justice Wright of 9 October 1991.

8        Order 16 October 1991 noted as filed on 20 September 1991.

9        Transcript of consequential orders of his Honour Mr Justice Wright of 16 October 1991.

10      Notice of Appeal.

11      Certificate of examination of appeal book.

1. Mr Hodgman QC for the appellant submits that if he can persuade the Full Court that Hunter's case should not be followed, the appeal must succeed and it will be unnecessary to deal with the other grounds of appeal thereby saving considerable expense. That is the reason why the appeal books, with all the pages of transcript at the trial, some of which are not yet defined, have not been prepared. It may be that costs could be saved if the first ground I mentioned is argued separately, but it would be presumptuous of the parties or of me to assume that the Full Court will consider it appropriate to deal with what is described as that narrow issue as a preliminary point. The appellant is not prepared (and I mean no criticism in saying this) to abandon any of his other grounds of appeal, and if he fails on the "preliminary point", it would no doubt be argued that injustice could be caused to the respondent by an adjournment to produce the rest of the appeal book before the remaining grounds of appeal are heard. The case involves the proof of a will alleged to have been fabricated by or with the knowledge and approval of the appellant and he has been convicted of crimes, an essential factual element of which was that the will was forged. The respondent, as next of kin, is entitled to the whole of a large estate if the will is in fact forged.

1. Effectively the prosecution of the appeal has reached a stalemate because of the position taken by the appellant, and this cannot be allowed to continue. The appellant must prepare the appeal books in the form settled by the court's proper officer, or obtain a dispensation under the Rules of the Supreme Court, O76, r18, from the reproduction of the pages of transcript settled by the Registrar. Mr Hodgman verbally sought such a direction during the hearing of the motion, and Mr Pickard for the respondent did not suggest that any greater formality was required, nor that such a direction was inappropriate. As two copies of the transcript are normally held in the Registry and some 436 pages of transcript have been ordered by the Registrar to be included in the appeal book, I think it is a proper case to dispense with their incorporation in the appeal books at this stage. It may well be that many pages will not be adverted to, and if the Full Court does decide to hear the matter piecemeal, there may not be a need to refer to any of the transcript at all.

1. I make the following orders and directions:

1I order that the appeal be struck out for want of prosecution unless within fourteen days hereof the appellant files in the Registry three copies of the appeal book consisting of the documents hereafter mentioned for the use of the judges of the Full Court, together with an examined copy of the appeal book as provided by O76, r19(11) and within that time delivers a copy of the appeal book to the respondent.

2        I direct that the appeal book shall consist of the following documents:

(i)       Writ and Statement of Claim dated 21 February 1986.

(ii)      Amended Defence and Counterclaim dated 26 June 1991.

(iii)     Reply to amended Defence and Counterclaim dated 5 July 1991.

(iv)     Exhibit D1 Certificate of Conviction.

(v)      Last will of deceased – copy.

(vi)     Reasons for judgment of his Honour Mr Justice Wright of 9 October 1991.

(vii)    Order of 16 October 1991 noted as filed on 20 September 1991.

(viii)Transcript of consequential orders of his Honour Mr Justice Wright of 16 October 1991.

(ix)     Notice of Appeal.

(x)      A copy of this order.

(xi)     Certificate of examination of appeal book.

3I direct that all copies of the transcript of the trial held by the Registrar be produced in court on the hearing of the appeal.

4I direct that subject to any order of the Full Court, any party to the appeal wishing to cite any page of the transcript during the course of the hearing of the appeal have in court to be handed to the judges constituting the court three photostat copies of any such page.

5        I order that the appellant pay the costs of and incidental to this motion.