Weston v Howell [1999] NSWCA 411

New South Wales Court of Appeal CITATION : Weston v Howell [1999] NSWCA 411 FILE NUMBER(S) : CA 40328/99 HEARING DATE(S) : 2 November 1999 JUDGMENT DATE : 2 November 1999

PARTIES : William Weston v Paul Roch Howell JUDGMENT OF : Meagher JA at 26; Stein JA at 1; Fitzgerald JA at 27

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 7767/97 LOWER COURT JUDICIAL OFFICER : Garling DCJ

COUNSEL : G A Sirtes (Appellant) B Slowgrove (Respondent) SOLICITORS : Deacons Graham & James (Appellant) Dennis & Company (Respondent) CATCHWORDS : DISTRICT COURT - proceedings dismissed then re-instated - powers under District Court Rules to re-instate proceedings - Pt 18 r 3 - concurrent leave application ACTS CITED : District Court Rules; Pt 18 r 3, Pt 26 r 5B CASES CITED: n/a DECISION : Leave to appeal granted. Appeal upheld and order made by Garling DCJ on 9 April 1999 set aside

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40328/99 MEAGHER JA STEIN JA FITZGERALD JA Tuesday, 2 November 1999 William WESTON v Paul Roch HOWELL JUDGMENT

1 STEIN JA: This is an application for leave to appeal against a decision given by Garling DCJ in the District Court on 9 April 1999. As I understand it, if leave is granted, it is agreed that the appeal should be heard instanter. 2 The application relates to proceedings which appear to have been commenced in the Supreme Court in 1990, thereby indicating a matter of some antiquity. There appears to have been a record of some dilatoriness whilst the matter was within the Supreme Court, but that is neither here nor there for the purposes of the current application before the Court. 3 It seems that the matter was transferred from the Supreme Court to the District Court some time in late 1997 or early 1998, although the material before us is not entirely clear as to when this occurred. It also appears that subsequent to the transfer, the plaintiff changed his solicitor and this caused some difficulties in the prosecution of his case.