Troiani & Anor v National Australia Bank Ltd

[2001] QCA 527

[2001] QCA 527
COURT OF APPEAL

THOMAS JA
CHESTERMAN J
ATKINSON J

Appeal No 3447 of 2001

SANTE TROIANI and
RITA CESARINA TROIANA             Appellants (Defendants)

and

NATIONAL AUSTRALIA BANK LIMITED
(ABN 12 004 044 937)               Respondent (Plaintiff)

BRISBANE

..DATE 22/11/2001

ORDER

THOMAS JA:  Well, this matter was set down in the usual course to be heard as an appeal.  Outlines of Argument for both the appellants and the respondent have been filed and read by the members of the Court.  However, there has been a belated parting of company between the appellants and their lawyers on the eve of the hearing.

The appellants do not appear to be capable of pursuing the matter properly today.  They have sought an adjournment.  I may say that on 19 July an application for dismissal for want of prosecution was brought by the respondent and this led to directions for the preparation of a record.  However, the record that has been produced does not contain everything that was read before the Chief Justice who heard the matter below.

We have heard at some length what the appellants have to say.  The gist of their statements this morning are that they believe that the bank's accounts are incorrect and that they need to look at all the statements and accounts and at many boxes of documents before they would be satisfied that they really owe money to the bank.

Although the question of quantum of the judgment was in issue below, no serious challenge of that kind appears to have been raised.  I can not see how this Court could or should assist the appellants in what would seem to be a fishing expedition.  Accordingly the Court intimated to the appellants that orders for further discovery would not be made at this stage of proceedings.

Notwithstanding this, they desire to keep the appeal alive. In view of the state of the record and of their incapacity to argue it today I think that they should be accorded one further opportunity to pursue the appeal appropriately.

In view of the past history, including the application for dismissal for want of prosecution, the present unsatisfactory circumstances, and the absence of any promising basis for the appeal on the outlines that have been filed,  it is appropriate that a guillotine order be made if the costs that are thrown away by today's adjournment are not paid or secured within 14 days.  The appellants have indicated to the Court that they intend to raise that money and to provide the necessary security.

In these circumstances I propose the following orders:

(1)Adjourn the matter to a date to fixed by the Registrar;

(2)Order the appellants to pay the costs thrown away by today's adjournments and to pay or provide security to the satisfaction of the Registrar for the sum of $7,500 within 14 days of today;

(3) In default of such payment or provision of security within that time the appeal will be dismissed with costs;

(4) In the event that the security is duly provided the parties are directed to prepare a supplementary record containing all material that was read before Chief Justice de Jersey, such record to be provided within four weeks of the provision of the security.

CHESTERMAN J:  I agree with the orders proposed by the presiding Judge and with his Honour's reasons.

ATKINSON J:  I agree.

THOMAS JA:  Right.  Well the order is as I have indicated.  Perhaps I should remind you, Mr Troiani, that if the matter proceeds, it should go ahead on the next occasion whether or not you have legal representation.  Any application for further adjournment would need very good reasons.

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