POLLICINO v POLLICINO [1999] NSWCA 91

New South Wales Court of Appeal CITATION : POLLICINO v POLLICINO [1999] NSWCA 91 FILE NUMBER(S) : CA 40356/98 HEARING DATE(S) : 30 March 1999 JUDGMENT DATE : 30 March 1999

PARTIES : Francesco and Teresa Pollicino - A Salvatore Pollicino - R JUDGMENT OF : Sheller JA; Beazley JA; Fitzgerald JA

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT FILE NUMBER(S) : 3801/87 LOWER COURT JUDICIAL OFFICER : Windeyer J

COUNSEL : D L Williams - A G McVay - R SOLICITORS : Garrett Walmsley Madgwick - A Sparke Helmore -R CATCHWORDS : N/A DECISION : Hearing date vacated

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40356/98 ED 3801/87 SHELLER JA BEAZLEY JA FITZGERALD JA

Tuesday, 30 March 1999

POLLICINO v POLLICINO JUDGMENT

1 SHELLER JA: Today there has come before the Court, by agreement between the parties, an application for leave to appeal and also a hearing of the appeal in the matter 40356/98. The appeal was against orders made by Windeyer J on 11 May 1998 setting aside certain costs orders that had been made by Master Macready. The costs arose from the taking of an account consequent upon earlier orders made by Windeyer J. 2 The hearing began at approximately 11 o'clock this morning and proceeded well into the afternoon. At that point it was revealed that there was on foot another appeal in this Court, number 40405/98, between the same parties and arising out of the same proceedings in the sense that the appeal was against certain orders made by Windeyer J on 14 August 1997. 3 It is apparent, and the parties agree with this, that matters raised and indeed relied upon in this appeal are matters which are subject to the appeal 40405/98. The parties are agreed that it is not possible and not desirable that the Court go any further with the appeal that has been heard today until such time as the other appeal comes before the Court. Quite clearly, had the existence of the appeal 40405/98 been revealed in the application for leave to appeal presently before the Court, the leave application would have been stood over to be dealt with at the same time as 40405/98, and if leave was granted the appeal dealt with at the same time, in the sense that on that occasion the Court would decide in what order the appeals should be heard and whether they should be heard on the same day. 4 The result of all this is that the time spent today has been entirely wasted. The Court has given some consideration as to whether there is any way that this can be avoided, but has decided there is none. It is, to say the least, most unfortunate from the point of view of the parties that these matters were not brought to the attention of the court by their legal advisers until the time that they were. In this regard, in my opinion, the legal advisers on both sides were at fault. As I say, it is now agreed that it is quite obvious that this appeal could not proceed today when the other appeal remained in the list for hearing at some later point of time. 5 The orders that the Court will make is that today's hearing is vacated, that the hearing of the application for leave to appeal and, if granted, of the appeal be stood over to the date fixed in due course for the hearing of appeal number 40405/98. The appeal will not be treated as part heard but on that occasion will have to start again and may well start again before a court differently constituted. 6 In the circumstances that neither party brought to the Court's attention the existence of the other appeal, it is appropriate that no order should be made for costs thrown away by today's hearing. In the circumstances, it is appropriate that I comment that the legal advisers for the parties should give consideration to whether the parties are charged by their legal advisers for the costs and time thrown away by today's abortive hearing. 7 The orders of the Court will therefore be as I have stated them. ******