Pacanowski & Anor v Wakerman & Ors

Case [2009] NSWCA 402

New South Wales


Court of Appeal


CITATION: Pacanowski v Simon Wakerman & Associates [2009] NSWCA 402
HEARING DATE(S): 10 November 2009
 
JUDGMENT DATE: 
10 November 2009
JUDGMENT OF: Tobias JA at 1; Basten JA at 25
EX TEMPORE JUDGMENT DATE: 10 November 2009
DECISION: Summons for leave to appeal dismissed with costs
CATCHWORDS: PROCEDURE – Dismissal of proceedings for want of prosecution – Application for leave to appeal – Whether discretion to dismiss proceedings miscarried – Whether denial of procedural fairness – Where delay gave rise to presumptive prejudice
LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules
CATEGORY: Procedural and other rulings
CASES CITED: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 83 ALJR 951
Hoser v Hartcher [1999] NSWSC 527
PARTIES: David Pacanowski
Maxine Pacanowski
Simon Wakerman & Associates Pty Ltd
Simon Wakerman
Angelo Natoli
Natoli Constructions Pty Ltd
FILE NUMBER(S): CA 40255/09
COUNSEL: A: S D Robb QC
1&2 R: S Torrington
3&4 R: B Dooley SC / I Judd
SOLICITORS: A: Charles G Roth
1&2 R: Blackstone Waterhouse, Sydney
3& 4R: George Mallos, Lawyer,
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 3015/05
LOWER COURT JUDICIAL OFFICER: Registrar McDonald
LOWER COURT DATE OF DECISION: 16 April 2009






                          CA 40255/09

                          TOBIAS JA
                          BASTEN JA

                          Tuesday 10 November 2009

DAVID PACANOWSKI and Anor v SIMON WAKERMAN & ASSOCIATES


and Ors

Judgment on application for leave to appeal

1 TOBIAS JA: On 13 April 2009 Judicial Registrar McDonald of the District Court ordered that proceedings instituted by the applicants (the plaintiffs) on 20 July 2005 be dismissed for want of prosecution pursuant to rule 12.7 of the Uniform Civil Procedure Rules 2005 (the Rules). The order was made upon the basis that the Judicial Registrar was not satisfied that the plaintiffs had shown cause why the proceedings should not be so dismissed. The plaintiffs seek the Court’s leave to appeal from the Judicial Registrar’s orders.

2 The Judicial Registrar recognised that the relevant power she was exercising was that contained in s 61(3) of the Civil Procedure Act 2005 coupled with that in rule 12.7 of the Rules.

3 In the course of the hearing of the show cause application on 16 April 2009, counsel for one or other of the respondents handed up to the Judicial Registrar a chronology comprising two pages. During the course of her judgment the Judicial Registrar placed some reliance upon that document as evidencing the history of the proceedings although it is clear, when comparing that document with her recitation of that history, that she also supplemented the document, one assumes, by reference to the District Court file.

4 The Judicial Registrar referred to the 11 principles to be considered on an application to dismiss proceedings for want of prosecution stated by Simpson J in Hoser v Hartcher [1999] NSWSC 527. The Judicial Registrar dealt with each of those principles in a manner that is not challenged except with respect to two of them.

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AGLC
Pacanowski v Simon Wakerman & Associates [2009] NSWCA 402
Case
[2009] NSWCA 402
Decision Date

CaseChat Overview and Summary

Pacanowski and another (the applicants) sought leave to appeal against a decision of the primary judge to dismiss their proceedings against Wakerman and others (the respondents) for want of prosecution. The applicants contended that the primary judge had erred in the exercise of discretion by dismissing the proceedings and that the dismissal amounted to a denial of procedural fairness, particularly given the presumptive prejudice arising from the delay.

The central legal issue before the Court of Appeal was whether the primary judge had correctly exercised their discretion in dismissing the applicants' proceedings for want of prosecution. This involved considering whether the delay in prosecuting the proceedings had caused presumptive prejudice to the respondents, and if so, whether that prejudice, in conjunction with other factors, justified the dismissal. The Court also had to determine if the dismissal constituted a denial of procedural fairness to the applicants.

The Court of Appeal found that the primary judge had not erred in the exercise of discretion. Their Honours held that the delay in prosecuting the proceedings was significant and had indeed given rise to a presumption of prejudice to the respondents. The applicants had failed to provide a satisfactory explanation for the delay or to demonstrate that the proceedings could still be prosecuted fairly. Consequently, the Court concluded that the dismissal of the proceedings was a proper exercise of the primary judge's discretion and did not occasion a denial of procedural fairness.

The summons for leave to appeal was accordingly dismissed with costs.

Orders

Orders of the court

Summons for leave to appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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