New South Wales Supreme Court CITATION : Slaveski v Citigroup Pty Ltd [2007] NSWSC 757 HEARING DATE(S) : 11/07/2007 JUDGMENT DATE : 11 July 2007 JUDGMENT OF : Associate Justice Malpass DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons. CATCHWORDS : Appeal from Local Court - plaintiff instructs solicitor to make an adjournment application only - application refused and hearing proceeds in absence of the plaintiff - practice of the Court - lack of merits LEGISLATION CITED : Trade Practices Act 1974 (Cth) PARTIES : Lupco Slaveski (Pl) Citigroup Pty Ltd (Def) FILE NUMBER(S) : SC 16364/06 COUNSEL : Mr K. Spencer (Pl) Mr S. Aspinall (Def) SOLICITORS : Henry Davis York Lawyers (Def) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 93698/2006 LOWER COURT JUDICIAL OFFICER : Helipurn LCM LOWER COURT DATE OF DECISION : 6/12/2006 - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE MALPASS 11 JULY 2007 16364/06 Lupco Slaveski v Citigroup Pty Ltd JUDGMENT 1 HIS HONOUR: On 28 December 2006, the plaintiff filed a Summons in this Court. It gives an address for service at Lalor, Victoria. It has been brought by way of appeal from a decision in the Local Court on 6 December 2006. The plaintiff unsuccessfully defended a claim for monies owing in respect of the use of a credit card. He was self-represented. 2 Whilst the Summons contains a heading "Appeal Grounds" and five purported grounds listed there under, nothing therein could be accurately described as an appeal ground. Since the filing of the Summons, nothing has been done to rectify that defect. 3 The Summons has been before the Court on a number of occasions. It was first before the Court on 7 February 2007. It was stood over to 28 February 2007. The plaintiff was seeking both legal aid and pro-bono assistance. He says that he was refused both of them. On 28 February 2007, orders were made in accordance with a Short Minute of Order (including the allocation of a hearing date for 4 April 2007). The plaintiff did not appear on 4 April 2007. In an affidavit sworn by him, he submitted to the following:- "14. On April 4 2007, the plaintiff was not very happy because he had to fly again under the influence of a lot of medication when the matter could have been heard via telephone conference or via video link, like other matters were heard on the day." Further directions were given (including the allocation of a new hearing date for 11 July 2007). 4 By facsimile of 6 July 2007, he advised the Court that he was seeking a further adjournment "due to being unfit to fly and my ill health". A copy Medical Certificate was enclosed. It purports to be signed by Dr G S Duggal. It contains, inter alia, the following:- "In my opinion, he will be unfit to fly to attend Court case on 11/7/2007, is advised to adjourn the court for later date." 5 On 9 July 2007, Registrar Bradford contacted the parties. He was advised that the defendant did not consent to an adjournment and wanted to proceed to a hearing on 11 July 2007. The plaintiff was advised by the Registrar of the approach taken by the defendant and informed him that someone should be in Court on his behalf on 11 July 2007. 6 When the matter was called shortly after 10.00am on 11 July 2007, a solicitor (Mr Spencer) appeared on behalf of the plaintiff. He informed the Court that he had limited instructions only. These instructions were restricted to the making of an application for an adjournment. The adjournment application was made and heard. It was opposed by the defendant. The application was refused. The solicitor then withdrew from the proceedings and the hearing proceeded in the absence of the plaintiff. 7 If a party brings proceedings in this Court, it is incumbent upon either him or her to ensure that they are diligently prosecuted. It is an abuse of process to endeavour to use those proceedings as a means of frustrating the satisfaction of a judgment obtained in another Court. 8 The plaintiff has already caused the vacation of one hearing date and the loss of valuable Court time, in a list that has a "no adjournment" policy. It is the practice of this Court, to require the attendance of a party, or his or her legal representative, for the purposes of both the conduct of proceedings and/or the seeking of an adjournment. 9 The grounds which were relied on for the adjournment fell into two categories. The first was the problems had by him in flying. The second was his medical condition. 10 The use of an aeroplane is not the only means of travel available to the plaintiff to attend this Court. If the choice is made to bring proceedings in it, it is the responsibility of that party to make suitable travel arrangements so that an appearance before the Court can be made. 11 There is a minimum of material put forward to support the contention that the plaintiff has health problems. If he does have health problems, there is a lack of evidence to support any contention that it hinders him in the conduct of these proceedings. Further, it was a matter that he should have taken into account prior to the commencement of the proceedings. 12 I now turn to the appeal itself. As the plaintiff has chosen not to prosecute the appeal himself, the defendant is entitled to a dismissal of the proceedings. Despite that entitlement, I will make some brief observations concerning the appeal and its merits. 13 Leaving aside the problem of no specified grounds of appeal, there is a lack of material before the Court from which any possible error could be gleaned. The plaintiff has not put either the transcript or the judgment of the Magistrate before the Court. 14 He has provided written submissions. These provide little assistance. They raise, inter alia, matters such as that the credit card was unsolicited and that he suffers from panic attacks when flying, as well as depression. There is an assertion that the Magistrate "persisted the plaintiff to go on the stand". This bald assertion is unsupported by any evidence. The submissions also allege breaches of provisions of the Trade Practices Act 1974 (Cth). The Court has been told that these were not matters that were litigated during the hearing before the Magistrate. 15 An appeal lies of right where there has been error in point of law. I have looked at what the plaintiff has placed before the Court. There is nothing in the material (including the plaintiff's written submissions) to indicate that there has been any error, be it in point of law or otherwise. 16 The view that I have formed on the question of the merits of the appeal reinforces the earlier expressed view that no adjournment should be granted. The granting of an adjournment would merely put the parties to further expense and waste further Court time. 17 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.