Atanaskovic v Birketu Pty Ltd (ACN 003 831 392) [2021] NSWCA 11

Atanaskovic v Birketu Pty Ltd (ACN 003 831 392) [2021] NSWCA 11

The interests of justice required that the appeal hearing not be vacated because the appellants could brief alternative senior counsel and would not suffer substantial prejudice, whereas vacating the hearing would prejudice the respondents through delay and the substantial risk of unavailability of their senior counsel, the appellants delayed in bringing the application, an adjournment would adversely affect other litigants competing for hearing dates, and the public interest favoured efficient use of court resources.

Jurisdiction
Australia
Judgment Date
17 February 2021
Procedural Posture
Notice of Motion to Vacate the Hearing of an Appeal / Court of Appeal Application Before Appeal Hearing
Outcome
Notice of motion dismissed with costs.
Legal Topics
['adjournment' 'vacating Hearing Dates' 'case Management' 'unavailability of Counsel' 'covid 19 Pandemic' 'prejudice to Parties' 'efficient Use of Court Resources']
['civil Procedure'] ['adjournment' 'vacating Hearing Dates' 'case Management' 'unavailability of Counsel' 'covid 19 Pandemic' 'prejudice to Parties' 'efficient Use of Court Resources']

Case Brief

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Procedural Posture

Notice of Motion to Vacate the Hearing of an Appeal / Court of Appeal Application Before Appeal Hearing

Legal Issues

  1. 1 ["Whether the hearing dates for an appeal listed for three days should be vacated because the appellants' senior counsel was likely unavailable to attend in person from the United Kingdom and was reluctant to appear remotely." 'Whether the interests of justice, including prejudice to the parties, delay, case management considerations and efficient use of court resources, required refusal of the application.']

Ratio Decidendi

The interests of justice required that the appeal hearing not be vacated because the appellants could brief alternative senior counsel and would not suffer substantial prejudice, whereas vacating the hearing would prejudice the respondents through delay and the substantial risk of unavailability of their senior counsel, the appellants delayed in bringing the application, an adjournment would adversely affect other litigants competing for hearing dates, and the public interest favoured efficient use of court resources.

Court Disposition

Notice of motion dismissed with costs.

Orders

  • ['Notice of motion filed 5 February 2021 is dismissed.' "Appellants to pay the respondents' costs of the motion."]