Pirovic v Barbieri

[2022] NSWSC 123

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Pirovic v Barbieri [2022] NSWSC 123

Hearing dates:

11 February 2022

Date of orders:

11 February 2022

Decision date:

11 February 2022

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

Ex Tempore Reasons

Catchwords:

COSTS — Costs assessment — Procedure

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Non-appearance of plaintiff

Legislation Cited:

N/A

Cases Cited:

N/A

Texts Cited:

N/A

Category:

Procedural rulings

Parties:

Antun Pirovic (First Plaintiff)
Zorina Pirovic (Second Plaintiff)
Anita Victoria Barbieri (Defendant)

Representation:

Counsel:
J Drummond (First and Second Plaintiff)

File Number(s):

2019/00199597

Publication restriction:

N/A

Judgment – Ex Tempore

1. This matter has a somewhat long history. I gave judgment in the principal proceedings in December 2020 and on the question of costs in April 2021.

2. On 27 October 2021, Ms Barbieri, as appellant, filed a notice of appeal from my judgment of 21 December 2020. The matter was managed in the Court of Appeal and in due course Ms Barbieri was represented, for a time at least, by Mr Hall, solicitor. It was agreed that the question of her needing an extension of time to pursue the appeal should be determined as a separate question. Orders were made for the purposes of filing of evidence and a notice of motion and submissions on that issue.

3. Most recently, the matter came before Brereton JA in December of last year. His Honour gave judgment, part of which indicates that a further indulgence was to be provided to Ms Barbieri. His Honour made orders that, unless by 14 January 2022 the appellant filed her submissions and supporting affidavit on the question of extension of time, the proceedings would be dismissed with costs. He then adjourned the proceedings and ordered the appellant to pay fixed costs of $500 in relation to that procedure.

4. 14 January 2022 has come and gone and Ms Barbieri did not file, either in person or via a solicitor, any submissions, motion or evidence. I have been informed this morning by Mr Drummond of counsel, who appears for the Pirovic interests, that nothing was filed and that the Registrar of the Court of Appeal, consistent with Brereton JA's orders, dismissed the appeal on 14 January 2022.

5. Before me this morning, Mr Drummond has invited me to make some orders dealing with the lump sum costs issue which I determined by judgment in April of last year. After discussion, he will provide me, a little later today, with a set of minutes, together with updated calculations, including interest, to today's date and I will make those orders in chambers.

6. Mr Hall, I should indicate, as a courtesy to the Court, sent an email to my chambers yesterday at 2.58pm. He indicated that he did not currently have instructions from Ms Barbieri and that he was not in a position to seek them. He could pass on messages and emails but he had no retainer, but, in effect, he was, as a courtesy, telling the Court that she was without representation and, at least by implication, asking for some further indulgence.

7. This matter has gone on for far too long. Ms Barbieri has received numerous indulges over a very long period. In my view, and there can be no doubt, the matter requires finality. For that reason, I am of the view that I should not grant any further indulgence and I would therefore make orders in accordance with the proposed short minutes as discussed that I will receive a little later today.

8. I certify that this and the preceding 2 pages are a true copy of the reasons of Justice J Sackar – Associate: Catherine Young

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Amendments

22 February 2022 - coversheet - corrected case name

Decision last updated: 22 February 2022