AYDOGDU v BRADKEN CONSOLIDATED PTY LIMITED [1996] NSWCA 36

AYDOGDU v BRADKEN CONSOLIDATED PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 11 March 1996

[1996] NSWCA 36

Sheller JA. In this matter the claimant, Salih Aydogdu, filed a Notice of Appeal on 28 March 1994 from a decision of her Honour Judge O' Toole in the Compensation Court of 1 March 1994, in which her Honour made an order terminating an award for weekly payments. The appeal was not diligently prosecuted and came before Kirby P, on 3 May 1995. On that day the claimant was unrepresented. He appeared in person with an interpreter.

In a judgment of 19 May 1995 Kirby P set out what occurred on that occasion. Notably the appellant was informed that if he did not take steps which were described, within a period of two weeks, the matter would again be called over and the appeal would be struck out for want of prosecution.

The matter came back before his Honour on 19 May 1995. On that day there was no appearance for the appellant. No steps had been taken in the interval toprosecute the appeal and his Honour ordered that the appeal be dismissed for want of prosecution.

Today's application is one by Notice of Motion for the matter to be restored to the list of matters awaiting hearing in the Court of Appeal. Apparently the order made by Kirby P on 19 May 1995 has not been taken out.

Today's application is supported by an affidavit by the claimant. He said that his English is not very good. He said that on 3 May his interpreter translated what the President said as "The Judge has told me to tell you some papers have to be filed in the Court in two (2) weeks time. Go find a solicitor to prepare these papers for you otherwise your case cannot proceed any further until you file these documents'. He said that he understood that the matter was listed on 19 May 1995 but was unaware that if documents were not filed by 12 May 1995 that his appeal would be dismissed.