MIHAJLOVIC v SPARGO [1994] NSWCA 204

MIHAJLOVIC v SPARGO SUPREME OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 4 July 1994

[1994] NSWCA 204 Mahoney JA

MOTION

This matter comes before the Court after a history of default, perhaps not as long as that which has occurred in some matters, but a history of default of substantial dimensions in the taking of the necessary procedural steps.

Iam conscious that Mr Mihajlovic is appearing for himself. Why he is doing so does not appear and that is not a matter which need be pursued.

The matter on the last occasion, 20 June 1994, was stood over and the President Mr Justice Kirby said this:

"T will stand over the matter of the motion for an extension of time and stay of proceedings until Monday 4 July 1994 in the motions list.

It is noted the claimant will promptly prepare an affidavit setting out the grounds of his application for an extension of time and will serve that affidavit upon the solicitors for the opponent."

His Honour made orders as to costs.

The Court has before it a detailed statement (I say this not in any criticism of Mr Mihajlovic but to state the fact) in a rather rambling form, of a mass of information relating to the delay in the matter. I think it is sufficient to say that the proceeding should be brought to an end in one way or another. If Mr Mihajlovic is not in a position to file the necessary evidence then, prima facie, he is not justified in imposing upon the other party to the proceeding the costs of coming to Court each time and being faced with an application for adjournment.

I propose, therefore, to make what is conventionally described as a self-executing order.

I will order that this motion be stood over until Monday, 11 July 1994. I direct that the affidavit to which Mr Justice Kirby referred in the matter that I have quoted, be filed at or before 12 o'clock on Friday next. If the affidavit is not filed and served by that time then I direct that the motion be dismissed and that it will not be necessary for it to be listed in the Court list on Monday, 11 July 1994.