Stanwell Park (R83095) Reserve Trust v Papadopoulos

[2019] NSWCA 57

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Stanwell Park (R83095) Reserve Trust v Papadopoulos [2019] NSWCA 57

Hearing dates:

25 March 2019

Decision date:

25 March 2019

Before:

Leeming JA

Decision:

1. Vacate the hearing of the appeal presently listed for 3 April 2019.

 

2. I refer the appeal to the Registrar for referral to a barrister to act as amicus curiae, such referral extending to the drafting of written submissions in response to those of the Reserve Trust filed on 21 November 2018, and appearing when the appeal is listed for hearing.

 

3. Direct Ms Papadopoulos to file and serve her written submissions on or before 15 April 2019.

 

4. List the matter before the Registrar for directions on a date to be fixed for the allocation of a hearing date (hopefully 4-6 weeks from today).

 5. I note that the directions hearing in 4 may be vacated if the Registrar can allocate a hearing date without the need for an oral hearing.

Catchwords:

PRACTICE – application to vacate – no prejudice to appellant – delay by appellant in filing and prosecution of appeal – appellant has benefit of stay of execution – grounds of appeal limited to questions of law – hearing date vacated – appropriateness of appointment of counsel to appear as amicus curiae

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Category:

Procedural and other rulings

Parties:

Sofia Papadopoulos (applicant)
Stanwell Park (R83095) Reserve Trust (respondent)

Representation:

Counsel:

 

Applicant in person
MW Maconachie (respondent)

 

Solicitors:

  Kells Lawyers (Wollongong) (respondent)

File Number(s):

2019/235339

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

5 July 2018

Before:

Curtis ADCJ

File Number(s):

2017/49343

EX Tempore Judgment

1. HIS HONOUR: Referred to me by the Registrar is a notice of motion filed on 15 March 2019 by the respondent, Ms Sofia Papadopoulos, seeking orders, in substance, that the hearing date of 3 April 2019 (which is Wednesday week) be vacated.

2. Before coming on to the bench, I received affidavits sworn by Ms Papadopoulos and her friend, Mr Paul Matters, and written submissions supplied both by Ms Papadopoulos and the appellant, the Reserve Trust. Those documents enabled me, together with what was in the file and the electronic court books which had been provided by the Reserve Trust, to proceed informally, and the result has been either consensus or, at least, non-opposition, to a course whereby the hearing date will be vacated, and I will make an order referring Ms Papadopoulos’s case for the appointment of an amicus, with a view to the appeal being listed for hearing in some four to six weeks’ time.

3. The reasons for judgment of the primary judge (Curtis ADCJ) are short, of some nine pages following a three day hearing, finding in favour of the plaintiff, Ms Papadopoulos, that she had been wrongfully evicted from premises in Stanwell Park operated by her as a business, which were also her residence. The Court entered judgment in favour of Ms Papadopoulos in the amount of $147,835.32. No part of that judgment has been paid, although the Reserve Trust’s limited grounds of appeal do not challenge liability, and further accept that Ms Papadopoulos is entitled at least to a judgment in the amount of $8,580.

4. The amended notice of appeal contains three grounds only, of which ground 1 (which went to the jurisdiction of the District Court) is no longer pressed. Grounds 2 and 3 are directed to the way in which the primary judge quantified the judgment to which Ms Papadopoulos is entitled. Ground 2 asserts that there was error by the primary judge in using (a) untendered benchmarks published by the Australian Taxation Office to calculate her loss and (b) an “arbitrarily fixed amount as the value of rent free accommodation in the living quarters attached to the kiosk”.

5. Ground 3 complains that the Reserve Trust was denied procedural fairness when his Honour used the ATO benchmarks and fixed an amount as the value of the rent free accommodation without “giving the appellant the opportunity to be heard; and without regard for the appellant’s written submissions on the question which were actually made” [sic]. This latter ground turns upon the events which occurred after judgment was reserved, which (as I presently understand it) uncontroversially included an invitation for a further hearing from the primary judge, and the supply of further written submissions by the Reserve Trust to his Honour after judgment had been reserved.

6. In giving that summary, I am not to be taken as expressing a view one way or the other on the merits of either of the remaining grounds. It is nonetheless clear that the appeal is narrow in compass. It was listed for a day and may, indeed, be completed in half the day.

7. So far as I can see, there has been a less than satisfactory degree of compliance with the Court’s directions by both sides. For its part, the Reserve Trust stated to the primary judge in support of its application for a stay that it “will conduct the appeal as expeditiously as possible,” although it delayed a full three months before filing a notice of appeal, and there were further delays in filing written submissions, leading to a direction from the Registrar that it show cause.

8. For her part, although the appeal was set down for hearing next week as long ago as last December, Ms Papadopoulos has failed to supply written submissions in a period of about three months (including the summer vacation). There is some evidence explaining the reasons of her inability to do so. I mention that because it is not in every case that a late application to vacate a hearing that was set down months ago will be entertained by this Court.

9. However it seems to me that the circumstances in this appeal are relatively unusual, insofar as: (a) there is no (nor is there contended to be any) prejudice to the Reserve Trust in a further relatively short adjournment; (b) this is a case where there is no dispute about liability; (c) it is also a case where the appellant has evicted an unrepresented, albeit successful, litigant from her home and business; (d) there has been on the successful application of the appellant a stay of execution of the entirety of the judgment to the ongoing prejudice of the unrepresented litigant; (e) the issues arising are purely legal, and (f) it is common ground that both the appellant and the respondent will be assisted by the appointment of an amicus. I share that view, and add my own view that the Court will be assisted by such an appointment.

10. Accordingly, in my view the correct application of s 56 of the Civil Procedure Act2005 (NSW) to the facts of this appeal results in the proposed orders which I foreshadowed at the outset of these reasons. I make the following orders:

1. Vacate the hearing of the appeal presently listed for 3 April 2019.

2. I refer the appeal to the Registrar for referral to a barrister to act as amicus curiae, such referral extending to the drafting of written submissions in response to those of the Reserve Trust filed on 21 November 2018, and appearing when the appeal is listed for hearing.

3. Direct Ms Papadopoulos to file and serve her written submissions on or before 15 April 2019.

4. List the matter before the Registrar for directions on a date to be fixed for the allocation of a hearing date (hopefully 4-6 weeks from today).

5. I note that the directions hearing in 4 may be vacated if the Registrar can allocate a hearing date without the need for an oral hearing.

**********

Decision last updated: 26 March 2019