XIPOLITAS v AUBURN UNITED PTY LIMITED [1996] NSWCA 570

XIPOLITAS v AUBURN UNITED PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, CLARKE JA and POWELL JA 8 March 1996

[1996] NSWCA 570

Priestley JA. This appeal has had an unfortunate procedural history. The circumstances were recorded by Mahoney P in reasons which he gave for restoring the appeal to the list on 27 February 1995. Since then there has been a failure on the appellant's part to comply with directions made by the court which aimed at ensuring that when the matter came before the court today it would be ready to proceed.

However, when it came before the court today Mr Xipolitas appeared himself to ask for an adjournment on the ground that he had been told shortly before Christmas that his then solicitors were not proposing to act any longer for him and that in the period between then and now he had been unable to obtain legal representation.

The court raised with him the wisdom of proceeding with the appeal in any event, but we did not feel we could take that matter any further in view of his own lack of legal training. The particular circumstances and considerations relating to the appeal really require legal advice to be given to Mr Xipolitas and understood by him before he can make a sensible decision about what should happen to the appeal.

Fortunately during the discussion that took place concerning the adjournment application which in the circumstances was not at all unreasonably opposed by Mr Kearns for the respondent, Mr Egan, a solicitor in the court in connection with another case, realised what was happening. In the period since the adjournment of the application for adjournment earlier today and now, some time later, he has had a short opportunity of talking to Mr Xipolitas, as a result of which he has agreed to act for him in the appeal and to advise him on the appeal. In order to be in a position to advise him properly on the appeal he has renewed the application for adjournment.