Ardestani v Doss [2019] NSWCA 13

Ardestani v Doss [2019] NSWCA 13

Although the appellants' explanation for failing to comply with directions was not entirely satisfactory, it provided some explanation, included a request for further time, and identified possible further developments in retaining counsel. In those circumstances, immediate dismissal for want of prosecution would be unduly draconian, but the appellants should have one last opportunity to file and serve submissions by 22 February 2019, with the appeal likely to be dismissed if they fail to do so.

Jurisdiction
Australia
Judgment Date
11 February 2019
Procedural Posture
Civil Procedure Appeal / Show Cause/directions Hearing on Whether Appeal Should Be Dismissed for Want of Prosecution
Outcome
Appeal not dismissed at this hearing; appellants given a final opportunity to file submissions, proceedings stood over, and appellants ordered to pay the respondents' costs of the day assessable forthwith.
Legal Topics
['want of Prosecution' 'non Compliance With Directions' 'appeal Procedure' 'costs']
['civil Procedure'] ['want of Prosecution' 'non Compliance With Directions' 'appeal Procedure' 'costs']

Case Brief

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Procedural Posture

Civil Procedure Appeal / Show Cause/directions Hearing on Whether Appeal Should Be Dismissed for Want of Prosecution

Legal Issues

  1. 1 ['Whether the appeal should be dismissed for want of prosecution after the appellants twice failed to comply with directions to serve submissions.' 'Whether the appellants should be given further time to file and serve submissions.' "Whether the appellants should pay the respondents' costs of the hearing."]

Ratio Decidendi

Although the appellants' explanation for failing to comply with directions was not entirely satisfactory, it provided some explanation, included a request for further time, and identified possible further developments in retaining counsel. In those circumstances, immediate dismissal for want of prosecution would be unduly draconian, but the appellants should have one last opportunity to file and serve submissions by 22 February 2019, with the appeal likely to be dismissed if they fail to do so.

Court Disposition

Appeal not dismissed at this hearing; appellants given a final opportunity to file submissions, proceedings stood over, and appellants ordered to pay the respondents' costs of the day assessable forthwith.

Orders

  • ['The appellants are directed to file and serve their submissions by close of business on 22 February 2019.' 'The proceedings are stood over to 25 February 2019 at 9.30 am before McCallum JA.' "The appellants are ordered to pay the respondents' costs of today, such costs to be assessable forthwith."]