New South Wales Bar Association v Stevens [2003] NSWCA 133

New South Wales Court of Appeal

CITATION : New South Wales Bar Association v Stevens [2003] NSWCA 133 HEARING DATE(S) : 27 May 2003 JUDGMENT DATE : 27 May 2003

JUDGMENT OF : Giles JA DECISION : The hearing fixed to commence on Monday 2 June 2003 be vacated; I order that the opponent pay the claimant's costs of and occasioned by the adjournment, including the costs of this notice of motion.

CATCHWORDS : Adjournment of proceedings seeking removal from Roll - default in filing affidavits - attention to filing affidavits unsatisfactory - nonetheless should be further opportunity - adjournment not opposed - undertakings not to apply for practising certificate or practice - adjournment granted. ND PARTIES : New South Wales Bar Association - Claimant Clarence James Stevens - Opponent FILE NUMBER(S) : CA 41003/02 COUNSEL : P R Garling SC - Claimant P H Greenwood - Opponent SOLICITORS : Hicksons - Claimant Beazley Singleton - Opponent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41003/02

GILES JA

Tuesday 27 May 2003 THE NEW SOUTH WALES BAR ASSOCIATION v CLARENCE JAMES STEVENS Judgment 1 HIS HONOUR: The claimant has brought proceedings seeking declarations of unprofessional misconduct and fitness to remain on the Roll of Legal Practitioners and an order that the name of the opponent be removed from the Roll of Legal Practitioners. The hearing of the proceedings has been fixed for three days commencing on Monday next. 2 By his notice of motion filed on 23 May 2003 the opponent has asked that the hearing dates be vacated. The claimant does not oppose that being done, and I will so order, but I consider that the circumstances should be explained in some detail. 3 The claimant brought its proceedings by a summons filed on 29 October 2002. The summons was returnable on 2 December 2002. On that date short minutes containing directions were handed up and, apparently by consent, the directions were given. In the short minutes it was noted that the claimant's affidavit evidence in chief was complete, and it was directed that certain particulars be provided by 16 December 2002 and that the opponent serve any affidavit evidence on which he proposed to rely by 4 February 2003. The summons was stood over to 10 February 2003. 4 On 10 February 2003 it was noted that the opponent had not complied with the direction for service of any affidavit evidence on which he proposed to rely. The record sheet in the file has the words "R says within two weeks", plainly enough meaning that the Court was told that the opponent would serve his affidavit evidence within two weeks. The record also includes the words "R to put on all evidence by 21/02/03", with further words about evidence in response from the claimant by 28 February 2003. The summons was stood over to 3 March 2003. 5 The summons came before the President on 3 March 2003. Still there was default. It is not entirely clear whether a further direction was given in relation to the filing of the opponent's affidavit evidence on that day, but it is common ground that at least it was indicated that the opponent's own affidavit was expected to be filed within the week. An order was made that the summons be expedited, and the parties were directed to approach the Registrar to have a date fixed. 6 No doubt from that came the hearing dates commencing on Monday next, which must have been in the expectation that the opponent's affidavit evidence in full would be filed in a timely fashion. It was not.