Wakim v Kolotouros

[2018] NSWCA 46

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Wakim v Kolotouros [2018] NSWCA 46

Hearing dates:

12 March 2018

Date of orders:

12 March 2018

Decision date:

14 March 2018

Before:

Simpson JA

Decision:

Direct that the following be filed and served by Tuesday, 3 April 2018:
(i) red appeal book;
(ii) if required, an affidavit pursuant to Uniform Civil Procedure Rules 2005 (NSW) 51.22;
(iii) evidence in relation to costs.

 

Stand over each notice of motion to the registrar’s list on Tuesday, 3 April 2018.

 The question of costs in respect of the motions is reserved.

Catchwords:

APPEAL – procedure – motions for dismissal for want of due despatch and compliance with court directions – where no opportunity for recommencement – where minimal progress has been made – no issue of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 51.22

Cases Cited:

Wakim v Kolotouros [2018] NSWCA 24
Wakim v Kolotouros; Wakim v State of New South Wales [2017] NSWSC 697

Category:

Principal judgment

Parties:

Elias George Wakim (Appellant)
Theodorous Kolotouros (First Respondent)
State of New South Wales (Second Respondent)

Representation:

Counsel:
D Hawkins (Appellant)
R Gambi (First Respondent)
R Whittle (Second Respondent)

  Solicitors:
Attia Lawyers and Consultants (Appellant)
Curwoods Lawyers (First Respondent)
Norton Rose Fulbright Australia (Second Respondent)

File Number(s):

2017/131521; 2017/191184

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

Wakim v Kolotouros; Wakim v State of New South Wales [2017] NSWSC 697

Date of Decision:

29 May 2017

Before:

Fagan J

File Number(s):

2013/17087; 2013/262708

Judgment

1. SIMPSON JA: These proceedings relate to an appeal against a decision of Fagan J in the Common Law Division of the Supreme Court on 29 May 2017, in which his Honour refused an application by the appellant (plaintiff) for adjournment of a trial fixed for a three week hearing, to commence on that day, and entered judgment for the respondents (defendants): Wakim v Kolotouros; Wakim v State of New South Wales [2017] NSWSC 697.

2. By amended notice of motion filed on 9 February 2018 each respondent sought orders that the Notice of Appeal be dismissed, first, as incompetent, and alternatively, for failure to prosecute with due despatch.

3. The amended notice of motion initially came on for hearing before Macfarlan JA on 19 February 2018. His Honour stood it over for further hearing on 12 March 2018, and gave reasons for so doing the following day: Wakim v Kolotouros [2018] NSWCA 24. At the conclusion of the reasons, his Honour said:

“11  In these circumstances, I consider that Mr Wakim should be given an opportunity to rectify his defaults and that the respondents’ notices of motion should be stood over for hearing on 12 March 2018. If he has not brought his appeals into compliance with all relevant court rules and directions by that time, he will find it very difficult to resist an order dismissing his appeals being made on that day.”

4. At the hearing on 12 March both respondents again pressed for the second of the orders to be made. Neither pressed for the first (nor had they done so before Macfarlan JA).

5. At the conclusion of the hearing, I made the following orders:

“Direct that the following be filed and served by Tuesday, 3 April 2018:

(i) red appeal book;

(ii) if required, an affidavit pursuant to Uniform Civil Procedure Rules 2005 (NSW) 51.22;

(iii) evidence in relation to costs.

Stand over each notice of motion to the registrar’s list on Tuesday, 3 April 2018.

The question of costs in respect of the motions is reserved.”

These are my reasons for taking that course.

6. The history is a sorry one of failure by the appellant to comply with directions for the preparation of the appeal. Notwithstanding directions given on 23 October 2017, 27 November 2017, 7 February 2018 and 19 February 2018, no appeal books have been filed. The appellant has changed his legal representation on at least two occasions. On 7 February 2018 he failed to appear, either personally or by a legal representative. On 19 February 2018 a solicitor appeared, who indicated an intention to file a notice of appearance, but failed to do so.

7. In the proceedings today, 12 March 2018, the appellant was represented by counsel. An Amended Notice of Appeal was produced. Counsel indicated that the red book could be prepared within three weeks, that is by 3 April 2018, as could an affidavit pursuant to Uniform Civil Procedure Rules 2005 (NSW) 51.22.

8. The respondents maintained their opposition to further indulgence being granted to the appellant. Notwithstanding that, I determined that as some, although minimal, progress had been made, the appellant should be given one last opportunity to have the appeal prepared. A significant consideration in that decision was the finality of the order made by Fagan J, leaving open no opportunity for recommencement.

9. In making the order I did, I cautioned the appellant that it was unlikely that any further indulgence would be afforded to him.

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Decision last updated: 14 March 2018