Nobarani v Mariconte [2018] HCA 36

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER, NETTLE, GORDON AND EDELMAN JJ

HOMAYOUN NOBARANI APPELLANT

AND

TERESA ANNE MARICONTE RESPONDENT

Nobarani v Mariconte [2018] HCA 36 15 August 2018 S270/2017

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 5 June 2017 and, in their place, order that:

(a) the appeal to the Court of Appeal of the Supreme Court of New South Wales be allowed;

(b) the orders of the Supreme Court of New South Wales made on 22 May 2015 (Slattery J) and 28 May 2015 (Senior Deputy Registrar Studdert) be set aside and, in their place, order that the plaintiff pay the second defendant's costs of the trial;

(c) the proceedings be remitted to the Equity Division of the Supreme Court of New South Wales for a new trial; and

(d) the respondent pay the appellant's costs.

3. The respondent pay the appellant's costs of the appeal to this Court.

4. The respondent have liberty to apply within 14 days for an order that the costs referred to in orders 2(b), 2(d) and 3 be paid out of the estate of the deceased and on a trustee basis.

On appeal from the Supreme Court of New South Wales

Representation

M J Windsor SC with J E F Brown and M E Hall for the appellant (instructed by Remedy Legal)

G O'L Reynolds SC with A E Maroya and D F Elliott for the respondent (instructed by Vizzone Ruggero Twigg Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Nobarani v Mariconte

Practice and procedure – Appeals – Denial of procedural fairness – Where appellant unrepresented – Where nature of hearing altered at short notice – Where appellant's applications for adjournments refused – Whether appellant denied procedural fairness at trial – Whether denial of procedural fairness amounted to "substantial wrong or miscarriage" – Whether appellant denied possibility of successful outcome – Whether new trial should be ordered.