Wakim v Kolotouros

[2018] NSWCA 24

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Wakim v Kolotouros [2018] NSWCA 24
Hearing dates:	19 February 2018
Date of orders:	20 February 2018
Decision date:	20 February 2018
Before:	Macfarlan JA
Decision:	Order that the respondents’ amended notices of motion filed on 9 February 2018 be adjourned for hearing on 12 March 2018.
Catchwords:	Appeal – procedure – motions for dismissal for want of due despatch and compliance with court directions – no issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 61 Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 29.7(4), 29.10, 36.17, 51.41
Category:	Procedural and other rulings
Parties:	Proceedings No 2017/131521: Elias George Wakim (Appellant) Theodorous Kolotouros (Respondent)     Proceedings No 2017/191184: Elias George Wakim (Appellant) Theordorous Kolotouros (First Respondent) State of New South Wales (Second Respondent)
Representation:	Counsel: Ms D Hawkins (Appellant) Ms B Carpenter (Solicitor) (Respondent in No 2017/131521) Ms R Whittle (Solicitor) (Respondent in No 2017/191184)   Solicitors: No appearance (Appellant) Curwoods Lawyers (Respondent in 2017/131521) Norton Rose Fulbright Australia (Respondent in 2017/191184)
File Number(s):	2017/131521; 2017/191184
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law 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): 2013/017087; 2013/262708

Judgment

1. HIS HONOUR: On 18 October 2017 the respondents to these appeals filed notices of motion seeking to have the notices of appeal dismissed as incompetent pursuant to r 51.41 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). They filed amended notices of motion on 9 February 2018, adding prayers, in the alternative, for dismissal of the notices of appeal pursuant to r 12.7 of the UCPR and/or s 61 of the Civil Procedure Act 2005 (NSW), for the appellant’s want of due despatch and compliance with court directions.

2. The judgment under appeal is that of Fagan J of 29 May 2017 in which his Honour refused the appellant’s application to vacate a fixture for a three week trial ([2017] NSWSC 697). Mr Wakim was represented on the application by Ms Hawkins of counsel, but Ms Hawkins was not briefed to appear on the hearing that would follow if the application were refused. Mr Wakim was not present.

3. His Honour carefully considered the evidence and reasons advanced in support of the adjournment application but concluded that the application should be dismissed with costs. After being informed that Mr Wakim’s counsel and instructing solicitor did not have instructions to proceed to conduct the hearing and as no evidence was tendered in support of Mr Wakim’s claims, his Honour decided that the proceedings should be dismissed with costs ([52]). However, the relevant formal order that his Honour made was:

“Judgment for the defendant against the plaintiff” ([54(2)]).

4. I was informed by the solicitor for the second respondent to the appeals that judgment pursuant to r 29.10 of the UCPR had been sought from his Honour, rather than simple dismissal of the proceedings as contemplated by his reasons for judgment.

5. The progress of the appeals in this Court has been unsatisfactory. In particular, the appellant did not comply with directions made by the Registrar on 23 October 2017 and 27 November 2017. Moreover, at the directions hearing on 7 February 2018 there was no appearance for the appellant. The Registrar made further directions on that day, including that the respondents to the appeals have leave to file amended notices of motion to be listed for hearing on 19 February 2018. These were filed and they have come before me for hearing.

6. For the following reasons, I consider that the respondents’ notices of motion should be adjourned for hearing on 19 March 2018. There are two matters of particular significance that have led me to this conclusion.

7. The first is that the appellant had an arguably good answer to the respondents’ prayer for an order that the appeals be dismissed as incompetent, this being the only substantive order sought in the original notices of motion. The respondents did not press that prayer before me. The answer would have arisen out of the fact that the order made below was not for dismissal of the proceedings but for judgment. That is a final, rather than interlocutory order because it precludes further proceedings. A purported appeal from an interlocutory order is incompetent unless leave to appeal has been granted, which has not occurred here.

8. Arguably the order that should have been made at first instance was dismissal of the proceedings under r 29.7(4) of the UCPR. If, as was suggested to me from the bar table, his Honour proceeded to enter judgment under r 29.10 that was arguably not warranted because no evidence was given by the appellant and indeed he was not present or represented at the hearing (see r 29.10(2)). If his Honour did not proceed under r 29.10, his Honour’s order for judgment would appear to have been a slip because his Honour’s published reasons refer only to dismissal of the proceedings (see the judgment [52]-[54]). If a slip did occur, his Honour can be approached to correct it under the “slip rule” (r 36.17).

9. Resolution of these questions can be left to the hearing of the appeals because, as I have noted, the respondents did not press before me for an order dismissing the appeals for incompetence.

10. The second matter is that the order for dismissal of the appeals on the grounds of want of due despatch and non-compliance with the rules was first sought only about one working week ago, that is, on 9 February 2018, when the notices of motion were amended. Moreover, on the hearing of the applications before me Mr Wakim was represented by Ms Hawkins of counsel who indicated that she was to be briefed on the hearing of the appeals and undertook to ensure that her instructing solicitors filed a notice of appearance within 48 hours.

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.

12. For these reasons, I order that the respondents’ amended notices of motion filed on 9 February 2018 be adjourned for hearing on 12 March 2018.

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Decision last updated: 20 February 2018