Nikolovski v Telstra Corporation Ltd [2004] FCA 121 (9 February 2004)

Last Updated: 20 February 2004

FEDERAL COURT OF AUSTRALIA

Nikolovski v Telstra Corporation Ltd [2004] FCA 121

CANE NIKOLOVSKI v TELSTRA CORPORATION LTD
N 1306 of 2003



















WHITLAM J
9 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1306 of 2003

BETWEEN:	CANE NIKOLOVSKI APPLICANT
AND:	TELSTRA CORPORATION LTD RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	9 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed for want of prosecution.

2 The applicant is to pay the respondent’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1306 of 2003

BETWEEN:	CANE NIKOLOVSKI APPLICANT
AND:	TELSTRA CORPORATION LTD RESPONDENT

JUDGE:	WHITLAM J
DATE:	9 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for an order under O 53 r 20 of the Federal Court Rules that this appeal be dismissed for want of prosecution. The pending appeal is from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 4 August 2003 setting aside a determination under s 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) and remitting the matter for reconsideration by the respondent. I should briefly describe the background to the proceeding thus far.

2 At the directions hearing on 3 October 2003 I fixed the appeal for hearing on 3 February 2004 and delegated to the Registrar the settlement of the appeal papers. On 7 October 2003 the parties were notified by the District Registrar of an appointment to settle the appeal papers on 29 October 2003. On 27 October 2003 the appointment date was changed at the applicant’s request to 27 November 2003. Later, on 14 November 2003, the hearing date was altered to suit the convenience of counsel for the respondent to today’s date.

3 The applicant did not file a draft index prior to the appointment on 27 November 2003, and the settlement of the appeal papers was adjourned on that date to 5 December 2003. By 5 December 2003 the applicant had still not filed a draft index and on that date the Deputy District Registrar directed that no further appointment be made for the settlement of the appeal papers until the applicant filed a draft index. Importantly, on that occasion the Deputy District Registrar also drew to the attention of the applicant the terms and the effect of O 53 r 20. Today the matter was called on for hearing and nothing further had been done to prepare the matter for hearing.

4 The applicant has the misfortune to be acting for himself, and I canvassed with him the reasons for his failure to prosecute his appeal. The applicant made the point over and over again, not unnaturally, that he was unrepresented. He also said he felt he had been let down by solicitors to whom he had spoken. Nothing he said, however, gave any indication of any reason why an adjournment of the appeal would result in it being prosecuted with any more purpose than it has been to date. Accordingly, the respondent moved orally for the appeal to be dismissed for want of prosecution. In the circumstances that oral application was perfectly proper given the notice that the Deputy District Registrar had given to the applicant on 5 December 2003, and I dispensed with the requirement that the motion be on notice under 0 53 r 20(2).

5 I have looked again at the notice of appeal. It does not properly identify questions of law. I have also read the reasons for decision of the Tribunal. Nothing suggests that, as a matter of justice, this appeal should be allowed to remain in a state of suspension any longer. Plainly it has not been prosecuted with any vigour, and there is no prospect that it would be in the foreseeable future. Accordingly, the only proper order is to accede to the application.

6 As to costs, again the applicant said that he felt he had been harshly dealt with by solicitors whom he had consulted. He repeated that he is out of work and has not been in work for some time. Although he is no doubt impecunious as a result, that is not a reason not to make an order in favour of the respondent where he instituted the appeal. Accordingly the applicant must pay the respondent’s costs of the appeal.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated: 9 February 2004



The applicant appeared in person.

Counsel for the respondent:	N J Polin
Solicitors for the respondent:	Henry Davis York
Date of hearing:	9 February 2004
Date of judgment:	9 February 2004