Ghambir v Vision of IT Pty Ltd [2023] NSWSC 905

Ghambir v Vision of IT Pty Ltd [2023] NSWSC 905

Although the respondent's explanation for the delay was not adequate and the procedural history showed repeated non-compliance with Court timetables, events including original counsel's unavailability, replacement counsel returning the brief, and the solicitors' notice of intention to cease acting had interfered with the respondent's capacity to make the matter ready for hearing. Balancing those circumstances against the interests of the applicant and Court efficiency, justice did not require dismissal at this stage; the respondent should be given a further opportunity to obtain advice and, if there is merit, prosecute the appeal. Because that result was an indulgence and required...

Jurisdiction
Australia
Judgment Date
21 July 2023
Procedural Posture
Application Pursuant to Uniform Civil Procedure Rules 2005 (nsw), R 12.7 for Dismissal of Proceedings for Want of Due Despatch / Show Cause Hearing in Supreme Court Proceedings in the Nature of an Appeal From a Local Court Decision
Outcome
The application to dismiss the respondent's further amended summons was dismissed; the hearing date was vacated; the respondent was ordered to pay the costs of the application.
Legal Topics
['dismissal for Want of Due Despatch' 'failure to Comply With Court Orders' 'delay' 'show Cause Hearing' 'costs' 'appeal From Local Court']
['civil Procedure'] ['dismissal for Want of Due Despatch' 'failure to Comply With Court Orders' 'delay' 'show Cause Hearing' 'costs' 'appeal From Local Court']

Case Brief

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Procedural Posture

Application Pursuant to Uniform Civil Procedure Rules 2005 (nsw), R 12.7 for Dismissal of Proceedings for Want of Due Despatch / Show Cause Hearing in Supreme Court Proceedings in the Nature of an Appeal From a Local Court Decision

Legal Issues

  1. 1 ['Whether the respondent failed to prosecute the proceedings with due despatch so that the further amended summons should be dismissed under UCPR r 12.7.' "Whether the respondent's explanation for delay and non-compliance with Court timetables justified a further opportunity to prosecute the appeal." 'Whether costs should be ordered against the respondent if the dismissal application was refused.']

Ratio Decidendi

Although the respondent's explanation for the delay was not adequate and the procedural history showed repeated non-compliance with Court timetables, events including original counsel's unavailability, replacement counsel returning the brief, and the solicitors' notice of intention to cease acting had interfered with the respondent's capacity to make the matter ready for hearing. Balancing those circumstances against the interests of the applicant and Court efficiency, justice did not require dismissal at this stage; the respondent should be given a further opportunity to obtain advice and, if there is merit, prosecute the appeal. Because that result was an indulgence and required...

Court Disposition

The application to dismiss the respondent's further amended summons was dismissed; the hearing date was vacated; the respondent was ordered to pay the costs of the application.

Orders

  • ["Application pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 12.7 seeking dismissal of the respondent's further amended summons is dismissed." 'The hearing set for 8 August 2023 is vacated.' 'The respondent is to pay the costs of and incidental to this application.' 'The matter be listed for directions...