New South Wales Court of Appeal CITATION: Sedrak v Starr [2010] NSWCA 228 HEARING DATE(S): 23/08/10, 26/08/10, 27/08/10 JUDGMENT OF: McColl JA at 1 EX TEMPORE JUDGMENT DATE: 27 August 2010 DECISION: 1.Notice of motion filed on 16 August 2010 dismissed. 2. Appellant to pay the respondent's costs of and relating to the notice of motion on an indemnity basis. CATCHWORDS: PROCEDURE – civil – interlocutory issues – case management – preparation for appeal hearing – preparation, filing and service of Black and Blue Books – no issue of principle - COSTS – indemnity costs – where appellant's conduct of proceedings has caused unreasonable delay and expense – where respondent filed notices of motion to ensure compliance with rules as to preparation of appeal – where no explanation for failure to comply with rules LEGISLATION CITED: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 CATEGORY: Procedural and other rulings PARTIES: Maged Sedrak - Applicant Gavin Mark Starr - Respondent FILE NUMBER(S): CA 2009/298578 COUNSEL: B Hogkinson SC - applicant on the motion SOLICITORS: Woods & Day Solicitors - applicant on the motion JN Legal Solicitors - respondent on the motion LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 5407/08 LOWER COURT JUDICIAL OFFICER: Gzell J LOWER COURT DATE OF DECISION: 18/9/09 LOWER COURT MEDIUM NEUTRAL CITATION: [2009] NSWSC 996 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298578 McCOLL JA 27 August 2010 Sedrak v Starr Judgment ex tempore 1 McCOLL JA: Gavin Mark Starr, the respondent to an appeal brought by Maged Sedrak from a decision of Gzell J given on 5 November 2009, sought an order by notice of motion filed on 16 August 2010 pursuant to Uniform Civil Procedure Rules 2005 12.7(1) dismissing the appeal and dissolving a stay granted by the Court on 8 February 2010. UCPR 12.7(1) empowers the Court to order that proceedings be dismissed or make such order as the Court thinks fit if the plaintiff does not prosecute the proceedings. It applies to proceedings in the Court of Appeal (UCPR 51.1(3)) where "a reference to a plaintiff includes a reference to a person who commences proceedings in the Court (whether as an appellant or otherwise)": UCPR 51.1(4). 2 The appeal is listed for hearing on Wednesday 1 September 2010. 3 On 8 February 2010, the day the stay was granted, the Court noted that the appellant undertook to the respondent to take all reasonable and necessary steps to prosecute the appeal expeditiously and that the stay was conditional on such conduct. The respondent complains that the appellant has breached that undertaking in failing to prepare, file and serve the Blue and Black appeal books. 4 When the motion was called on 23 August 2010, Mr B Hodgkinson of Senior Counsel, who appeared for the respondent/applicant informed the Court that the first draft of a Black Book had been received on 19 August 2010, while three volumes of Blue Books had been received late on the afternoon of Friday 20 August 2010. He complained of inadequacy in both sets of books. It is unnecessary to detail those inadequacies, none of which have been disputed by the appellant. 5 On 23 August 2010, I directed the appellant to file and serve by 10am on Thursday 26 August 2010 a Black Book which complied with the rules as to their preparation. I specified certain documents which ought be included in that book according to Mr Hodgkinson. I also directed the appellant's solicitors, in the event that the respondent's complaints about the Blue Books were sound, to rectify any such defects and file and serve amended Blue Books by 10am on 26 August 2010. I stood the matter over until 2.15pm on 26 August 2010. 6 At that time Mr Hodgkinson advised the Court that further books had been received from the appellant. He made no further complaint about the Black Book, but complained that there were still inadequacies in the Blue Books. He handed to the Court a copy of a letter from Messrs Woods and Day, the respondent's solicitors, to Mr James Nicopoulos, the appellant's solicitor, of 23 August 2010 to which was attached a schedule outlining the deficiencies in, relevantly, the Blue Books. He drew attention to a number of matters in that schedule which he contended were still outstanding. 7 I gave Mr Nicopoulos the opportunity to consider that schedule overnight and, to the extent he agreed there were outstanding deficiencies in the Blue Books, to remedy those deficiencies by noon today. I stood the matter over again until 2.15pm today to ensure that order was complied with. 8 This afternoon Mr Hodgkinson has informed me that substantially all the defects in the Blue Books have been cured or will be curable by the time of the hearing of the appeal on 1 September. 9 The appellant's solicitors have, accordingly, finally produced Appeal Books in a form which appear suitable for the hearing on Wednesday 1 September 2010. However that result was only achieved after the filing of the present motion and considerable justified badgering by the respondent's solicitors. 10 The steps the appellant's solicitors took to produce the appeal books failed lamentably to comply with the Rules of Court for their production. The Black and Blue Books should have been served on the respondent by 23 June 2010: UCPR 51.32(2). They should have been filed by 4 August 2010: UCPR 51.32(3). It is apparent that the appellant has both failed to comply with the rules as to the filing and service of the appeal books as well, in my view, as failing to comply with the undertaking it gave to the Court on 8 February 2010. 11 However it appears that the deficiencies in the Appeal Books have now been substantially rectified. It would not, accordingly, in my view accord with the dictates of justice, to accede to the respondent's notice of motion (s 58, Civil Procedure Act 2005 (NSW)) and I do not understand the respondent now contends for the relief sought therein. 12 The respondent does, however, seek an order for costs on an indemnity basis. Mr Nicopoulos frankly conceded yesterday that the respondent was "not coming from a position of strength" in respect of an application for costs per se. However, he resists the respondent's submission that those costs should be ordered on an indemnity basis. 13 In support of an order for the respondent's costs on an indemnity basis, Mr Hodgkinson has drawn attention to the fact that this is not the first occasion on which the respondent has had to move the court for relief to ensure that the appellant complied both with its obligation under the rules as to the filing of appeal books and the undertaking to which I have earlier referred. 14 An earlier motion brought by the respondent to strike out its appeal for failing prosecution, alternatively for the lifting of same, came before Giles JA on 31 May 2010. That concerned a complaint by the respondent about the preparation of the Red Books. Giles JA noted on that occasion that there had been some delay in the preparation of the Red Book. However, he commented that it had not been without some involvement by the respondent. 15 Apparently there was a debate about a draft index to the Red Book, which Giles JA ventured to describe as possibly "nitpicking". There was also apparently a complaint at that time about the filing of the appellant's submissions. However, Giles JA commented that it was not clear to him that the appellant's failure in this respect was equally within the undertaking given in relation to the stay – apparently because while there had been delay in the preparation of the submissions, "the sin was not so much time but length". 16 At the time Giles JA entertained the respondent's notice of motion, the appeal had been fixed for hearing next week for approximately six or so weeks. Giles JA commented that the delays to which he referred would not affect adherence to that date and, accordingly, it did not seem to his Honour to be appropriate to strike out the appeal for failure to prosecute expeditiously. As his Honour noted, the delays were of a kind which not uncommonly occur. 17 His Honour did accept, however, that it was the notice of motion which the respondent had filed which probably provoked the compliance with the orders as to the prosecution of the appeal shortly before the day it came before his Honour. In those circumstances, he said that while the notice of motion should be dismissed, it should be on the basis that the appellant pay the respondent's costs of that notice of motion. 18 This is the second occasion, therefore, in which the respondent has had to file a motion to ensure the appeal books were filed and that the matter could proceed to filing. It should not be necessary for parties to proceedings in this Court to have to take steps such as by the filing of notices of motion to ensure compliance with the rules as to the preparation of appeals. All legal practitioners who purport to practice in this jurisdiction, and the other jurisdictions, should be well aware of the rules and ensure compliance with them. 19 The appellant's solicitors have offered no explanation for their failure (and hence the appellant's) to comply with the rules as to the preparation, serving and filing of the Black and Blue Books. In so doing they have, in my view, been in breach of their obligation under s 56(4) of the Civil Procedure Act 2005 (NSW) to ensure that parties to civil proceedings assist the Court in furthering the overriding purpose of the Civil Procedure Act, namely the facilitation of the just, quick and cheap resolution of the issues in the proceedings. The appellant has breached his obligation under s 56(3). 20 The Court is empowered under s 98 of the Civil Procedure Act to order any party to pay costs on an indemnity basis, a power which may be exercised, among other reasons, where the conduct of proceedings has caused unreasonable delay and expense. 21 In my view, the appellant's conduct in his preparation of the Blue and Black Books falls into that category. I propose to order that he pay the costs of this motion on an indemnity basis. Orders 22 I make the following orders: 1. I dismiss the notice of motion filed on 16 August 2010. 2. I order the appellant to pay the respondent's costs of and relating to the notice of motion on an indemnity basis. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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