STIVACTAS v MICHALETOS [NO 1] [1993] NSWCA 256

STIVACTAS v MICHALETOS [NO 1] SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, CLARKE JA and Cripps JA 13 July 1993

[1993] NSWCA 256

PRACTICE & PROCEDURE — Court of Appeal — appeal — adjournment of hearing — late application — long delay in appeal hearing — Greek-speaking appellant seeks barrister fluent in his language — barristers return briefs — suggested inference that barristers consider appeal without merit — appellant left without barrister — solicitor unable to present appeal — respondent aged 80 anxious about litigation — held: (Kirby P, Clarke JA concurring; Cripps JA dissenting): The hearing of the appeal should be adjourned upon terms requiring (a) payment of the costs of the day on an indemnity basis; and (b) expedited hearing and provision of written argument. Ketteman v Hansell Properties [1987] 1 AC 109 (HL); State Pollution Control Commission v Australian Iron and Steel Pty Limited [No 2] (1992) 75 LGRA 327; United Motors Retail Limited v AGC Limited (1991) 58 SASR 156 and Comino & Ors v Manettas & Ors, Court of Appeal, unreported, 5 March 1993; (1993) NSWJB 60 considered by Cripps JA.

Kirby P. When this appeal was called on for hearing this morning a motion was argued for the adjournment of the hearing of the appeal. The appeal arises out of a judgment given by Waddell CJ in Eq on 10 July 1991 elaborated by certain further findings made later.

Slow progress of an appeal to its hearing

The litigation between the parties concerns an allegation by the respondent that certain property of hers was procured by the appellant as a result of undue influence. She claims that it was procured in circumstances requiring the transfer of the property back to her. Waddell CJ in Eq found in favour of the respondent. The appellant, within time, appealed.

There then followed what appears to have been a very long and substantially unexplained delay in the listing of the appeal for hearing before this Court.