SKIBICKI v TRW PRODUCTS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 6 November 1989 [1989] NSWCA 185 Mahoney J The plaintiff, Mr Skibicki, sues the appellant company in this matter for damages apparently for negligence. The matter was before the District Court but on 15 April 1988 Mr Skibicki made an affidavit, apparently in support of an application for expedition of the hearing in the District Court, in which he detailed his financial position and said unless proceedings were finalised within the next twelve months there was "every prospect I would either have to sell my home or it would be sold for me by the bank." The proceeding in the District Court appears to have come before the court in November and judgment was given on 8 December 1988 against the company. The company has appealed to the court on grounds going both to liability and to quantum of damages. An amended notice of appeal was apparently filed on 28 April 1989. I am informed by Mr Shaw for the applicant that the appeal papers are now in order and the appeal is ready for hearing. The notice of motion taken out on 25 August 1989 asked for expedition of the hearing of the appeal. The affidavit in support of it contains broadly similar material to that contained on affidavit in the District Court. In par 10 of that affidavit Mr Skibicki deposes: "Unless the proceedings are finalised within the next six months there is every prospect I will have to sell my home or it will be sold for me by the bank." No convincing explanation is offered why, if there were urgency of this kind, the application was not made prior to 25 August 1989. Mr Shaw appears for the applicant. There is no appearance for the respondent. Mr Shaw indicates to the court that the respondent does not desire to appear and consents to the application. The court will grant expedition in the appropriate case. The circumstances if accepted indicate there may be significant hardship on the plaintiff Mr Skibicki if the proceeding is not finalised reasonably quickly. A comparison of the two affidavits leads one prima facie to have doubts as to the accuracy of what is there being said. I do not need to detail all of the matters set forth in the two affidavits, but it is surprising that what is said in the first affidavit is repeated relevantly in the second affidavit. The position on the evidence is to some extent unsatisfactory. However, there is no opposition to the application. In the absence of contest I shall accept as accurate the statements made in the affidavit of 19 October 1989, the affidavit in support of the present application. Accepting that evidence for the present purpose it is proper to indicate that a degree of expedition should be given to the hearing of the appeal. As the court is assured that the matter is now ready for hearing, I will direct that the matter be fixed for hearing on a date to be fixed by the Registrar in due course. I assume that will be some time early in the coming year. 2 UNREPORTED JUDGMENTS HIS HONOUR: What do you say as to costs, Mr Shaw? SHAW: Costs to be ultimate costs. HIS HONOUR: The order is as I have indicated, and the costs of the present application will be costs of the appeal.