Vissaritis v Hatzikiriakos

[2013] NSWCA 474

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Vissaritis v Hatzikiriakos [2013] NSWCA 474

Hearing dates:

13 December 2013

Decision date:

13 December 2013

Before:

Beazley P at [1];
Ward JA at [9]

Decision:

Summons dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

DISMISSAL OF SUMMONS FOR LEAVE TO APPEAL - dismissal of proceedings by Judicial Registrar for failure to comply with court orders - whether dismissal unjust - Civil Procedure Act 2005, ss 56-58 - relevance of applicant's ability to commence proceedings in the Local Court.

PRACTICE AND PROCEDURE - Leave to appeal - matter of practice and procedure - discretionary decision - small sum of money involved.

Legislation Cited:

Civil Procedure Act 2005

Category:

Principal judgment

Parties:

Dionisia Vissaritis (Applicant)
John Hatzikiriakos (Respondent)

Representation:

Counsel:
A Di Francesco (Applicant)
D Hand (Respondent)
Solicitors:
Konstan Lawyers (Applicant)
John Peetz (Respondent)

File Number(s):

2013/135053

 Decision under appeal 

Jurisdiction:

9101

Citation:

Vissaritis v Hatzikiriakos

Date of Decision:

2013-04-04 00:00:00

Before:

Judicial Registrar Howard

File Number(s):

2011/359521

Judgment

1. BEAZLEY P: The proceedings in this matter were commenced by statement of claim on 10 November 2011. The defence was filed on 19 January 2012. There was then a delay in the appointment of a pre-trial conference, a delay that is not attributable to either party. The pre-trial conference was eventually held on 14 June 2012. On that occasion, orders were made for the plaintiff to file her evidence. On 15 November 2012, short minutes of order were provided to the Court by the plaintiff whereby directions were made that the plaintiff serve any amended statement of claim and her evidence by 29 November 2012. A supplementary order was made on that occasion that if those orders were not complied with the plaintiff may be required to show cause.

1. On 4 March 2013, consent orders were handed up whereby the following orders and directions were made:

"1. That the plaintiff is to file its lay evidence and any amended Statement of Claim by 18 March 2013.

2. That time is of the essence in respect to the Plaintiff's compliance with Order 1.

3. That the Plaintiff's failure to comply with Order 1 will result in immediate dismissal of the proceedings, together with a costs order in favour of the Defendant.

4. That if there is there is compliance with Order 1, the Defendant to file any amended Defence by 1 April 2013."

1. Those orders were not complied with. The matter of particular concern was the failure to file any amended statement of claim. There had been, however, service of affidavit evidence, but which had not been filed. The Court does not place any importance on that omission.

1. The matter came back before the Court at the request of the defendant on 26 March 2013. The Judicial Registrar's orders state that the parties tendered affidavits on the show cause application and after hearing the parties the Judicial Registrar reserved his judgment. Reasons for judgment were then delivered on 4 April 2013, dismissing the proceedings with an order that the applicant pay the respondent's costs of the proceedings and an order staying any further proceedings commenced on the same basis as the statement of claim, pending payment of the respondent's costs.

1. The applicant has sought leave to appeal from that dismissal. Her counsel contends that leave to appeal ought to be granted for two reasons. First, the matter raises an issue of principle and public importance, namely, what is meant in the authorities when it is said that to dismiss proceedings is "a matter of last resort". Secondly, because the order dismissing the proceedings was unjust to the applicant.

1. This is not the occasion to deliberate on the meaning of any principle such as last resort, as has been referred to. On the hearing of this summons for leave to appeal, we are guided by the provisions of the Civil Procedure Act 2005, s 56. That section provides in subs (1) that the overriding purpose of the Act and of the Rules of Court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings Section 56(3) provides that a party to civil proceedings is under a duty to assist the Court to further that overriding purpose.

1. We are of the opinion that there is no unjustness in the Registrar's order dismissing the proceedings, having regard to the Civil Procedure Act, s 56 and the following provisions, particularly in ss 57 and 58. The applicant chose to seek leave to appeal from the Registrar's orders. She could more usefully have commenced proceedings in the Local Court in which her present claim ought to have been brought. That course is still open to her. The amount involved in this matter is small. The costs of an appeal had leave been granted, including the costs of the summons for leave to appeal, would likely be disproportionate to the amount of the claim. In addition, this is a matter of practice and procedure in respect of which the Court is usually reluctant to grant leave to appeal.

1. Leave to appeal should be refused. The summons should be dismissed with costs.

1. WARD JA: I agree with her Honour's reasons and with the orders her Honour proposes.

**********

Decision last updated: 28 January 2014