Zioukin v Frank Bellissimo trading as Bellissimo Lawyers and Studio Legale [2023] NSWDC 539

District Court New South Wales

Medium Neutral Citation: Zioukin v Frank Bellissimo trading as Bellissimo Lawyers and Studio Legale [2023] NSWDC 539 Hearing dates: 12 October 2023; written submissions Date of orders: 4 December 2023 Decision date: 04 December 2023 Jurisdiction: Civil Before: Acting Judge Coleman SC Decision: (1) The plaintiff's Notice of Motion filed on 13 April 2023 is dismissed. (2) By 28 February 2024, the plaintiff is to serve on the solicitors for the defendant a report from a registered medical practitioner holding membership of the Royal Australian and New Zealand College of Psychiatrists with respect to the capacity of the plaintiff to conduct the proceedings. (3) Subject to order (4) below, pursuant to s 67 of the Civil Procedure Act 2005 (NSW), these proceedings are stayed. (4) In the event that the step set out in order (2) above is not completed by 28 February 2024, the defendant has liberty to approach me in chambers seeking the entry of the following orders: (a) Pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings be dismissed for want of due despatch; and (b) The plaintiff pay the defendant's costs of the proceedings. (5) In the event that the step set out in order (2) above is completed by 28 February 2024, the proceedings be listed for directions before the Judicial Registrar on Wednesday 6 March 2024 at 11:30 a.m. for further case management, including, but not limited to, case management directions concerning the following issues: (a) The lifting of the stay; and (b) Uniform Civil Procedure Rules 2005 (NSW), Part 7, Div 4 issues. (6) The plaintiff pay the defendant's costs of the plaintiff's Notice of Motion and the defendant's Notice of Motion and Amended Notice of Motion as agreed or assessed on the ordinary basis. (7) Any party seeking an order other than an order that the plaintiff pay the defendant's costs of the notices of motion the subject of this judgment as agreed or assessed on the ordinary basis file and serve submissions in writing not exceeding 7 pages in length within 21 days of Judgment, and a party resisting any such application file and serve written submissions not exceeding 7 pages in length in opposition to such order within 21 days thereafter. (8) Save to the extent provided for by these orders, the defendant's Amended Notice of Motion is otherwise dismissed. Catchwords: PRACTICE AND PROCEDURE – whether order made by consent for psychiatric assessment of the plaintiff to determine capacity to conduct proceedings should be set aside – whether pursuant to UCPR r 12.7 proceedings should be dismissed for want of due despatch – whether self-executing order for dismissal should be made if plaintiff fails to take steps to obtain psychiatric report with respect to his capacity to conduct proceedings Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 60 Uniform Civil Procedure Rules 2005 (NSW), rr 12.7 and 23.9 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 Bi v Mourad [2010] NSWCA 17 Bishopsgate Insurance Australia (In liq) v Deloitte, Haskins and Sells [1999] 3 VR 863 Building Insurers' Guarantee Corporation v Touma [2010] NSWSC 4 Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193 Day v Woolworths Limited & Ors [2018] QSC 266 Ferrier v Nationwide News Pty Limited (No 3) [2015] NSWSC 1806 Hartigan v International Krishna Consciousness Inc [1999] NSWSC 57 Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 Lewandowski v Lovell (1994) 11 WAR 124 Masterman-Lister v Brutton & Co [2003] EWCA CIV 1889; [2003] 1 WLR 1511; [2003] All ER 162 Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 NSW Insurance Ministerial Corp v Abualfoul [1999] 94 FCR 247 Petronaitis v Rowles [2012] NSWCA 236 Pistorino v Connell [2012] VSC 438 Queensland Trustees Limited v. Drysdale Hendy & Co. (a firm) [1992] 2 Qd. R. 625 Rappard v Williams [2013] NSWSC 1279 Reliance Financial Services v Griffiths & Anor [2010] NSWSC 1490 State of New South Wales v Plaintiff A [2012] NSWCA 248 Zioukin v BE Commerce Pty Limited [2023] NSWCATAP 110 Zioukin v Carson T/A Cars N Truck Holding [2017] NZHC 762 Zioukin v Laing [2023] NSWCA 42 Category: Procedural rulings Parties: Plaintiff: Andre Zioukin Defendant: Frank Bellissimo trading as Bellissimo Lawyers and Studio Legale (ABN 16 616 453 211) Representation: Plaintiff: Self-Represented at the hearing of the motions