OLYMPIC AIRWAYS SA v CONSTANTINOS ADAMOPOLOUS [1990] NSWCA 141

OLYMPIC AIRWAYS SA v CONSTANTINOS ADAMOPOLOUS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 27 August 1990, 27 August 1990 [1990] NSWCA 141

PRACTICE and PROCEDURE — dismissal for want of prosecution failure to prepare index to appeal papers — intervening bankruptcy proceedings — confusion of unrepresented litigant — Registrar prepares draft index — held: Orders made for expedition of payment of costs for appeal books and of the proceedings. Supreme Court Act 1970, s46.

Kirby P On 4 May 1989 Powell J entered judgment in proceedings between the present parties. Constantinos Adamopoulos and his wife Adriana appealed from his Honour's orders on 7 June 1989.

Thereafter there has followed a lengthy endeavour to have the papers for the appeal books put in order so that the appeal could proceed in the normal way. Even to this day the appeal index has not been formally settled by the Registrar in the presence of the parties. To endeavour to reduce the delay, and because the opponent was unrepresented, the Registrar prepared a draft index to the appeal papers and supplied this to the opponents. Further delays were then occasioned because the opponents did not, as they should have, serve that draft index upon the claimants.

As a consequence, and not surprisingly, the claimants commenced bankruptcy proceedings in the Federal Court of Australia. Those proceedings resulted in an order by Wilcox J for the sequestration of the estate of the male opponent, ordered on 6 June 1990.

Proceedings in this Court were further delayed by an appeal which the male opponent brought to the Full Court of the Federal Court. That Court, on 26 July 1990 allowed the appeal. It accepted an undertaking from the opponent that he would prosecute without delay and with diligence the proceedings in this Court which challenged the judgment upon which the order of sequestration had been made. The opponent gave that undertaking. However to this date he has not acted in accordance with the undertaking, at least to the extent of taking steps to serve the index of the appeal papers, to arrange for the matter to be listed before the Registrar, to pay the costs of the printing of the appeal books and to have the matter set down before the Court for hearing.