Malaysian Airlines Australia v Patel [2011] NSWCA 339 (28 October 2011)

Last Updated: 17 November 2011

Court of Appeal New South Wales

Case Title:	Malaysian Airlines Australia v Patel
Medium Neutral Citation:	[2011] NSWCA 339
Hearing Date(s):	28 October 2011
Decision Date:	28 October 2011
Jurisdiction:
Before:	Allsop P at 1 and 8 Giles JA at 6 Basten JA at 7
Decision:	Grant leave to Malaysian Airlines Australia to rely upon a notice of discontinuance filed in court in accordance with r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW), subject to the following conditions: (a)No new proceedings be brought impugning the orders of the District Court made on 26 March 2010 and 14 February 2011. (b)Malaysian Airlines Australia pay Mr Patel's costs of these proceedings. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - civil - notice of discontinuance.
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 12.1
Cases Cited:	Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; 85 ALJR 1183
Texts Cited:
Category:	Procedural and other rulings
Parties:	Malaysian Airlines Australia (Applicant) Mr Kalpesh Patel (Respondent)
Representation
- Counsel:	Mr G Miller QC and Mr A Davis (Applicant) Respondent in person
- Solicitors:	Lander & Rogers Lawyers (Applicant) Respondent in person
File number(s):	2009/00336102
Decision Under Appeal
- Court / Tribunal:
- Before:	Levy DCJ
- Date of Decision:	14 February 2011
- Citation:	Patel v Malaysian Airlines Australia Ltd (No 2) [2011] NSWDC 4
- Court File Number(s)	2009/336102
Publication Restriction:

JUDGMENT

1. ALLSOP P : An application is made to discontinue this application for leave to appeal against the decision of Levy DCJ by the notice of motion filed in court today. The matter was heard some weeks ago and is part heard. I do not propose to traverse the issues that arose on that occasion but shortly prior to the hearing of the matter, the case in the High Court of Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; 85 ALJR 1183 was handed down, which contained a proposition within the judgment of the Court which may have had a direct effect on the prospects of success of the applicant on these summons, Malaysian Airlines Australia.

2. The Court made a suggestion as to the possibility of settlement (being a matter for the parties of course). Malaysian Airlines has taken the view that it wishes to discontinue and abandon the attack on the judgment of the District Court. Normally, if a discontinuance is sought after the commencement of a hearing, there will be a term imposed that no new proceedings of the same character will be brought. That condition is consented to. Malaysian Airlines also agrees to an order to pay the respondent's costs.

3. Mr Patel (the respondent) has been self-represented. To the extent he may have costs recoverable under the law for out-of-pocket expenses and other matters, that can be dealt with upon any claim for costs that he makes. Mr Patel does not consent to the course being taken. He has addressed the Court about the need for an apology and other matters.

4. Taking those matters into account and recognising the disturbance that the application may have had to his life, in my view the application to discontinue should be permitted on condition that no new proceedings be brought impugning the orders of the District Court the subject of the summons and that the appellant/applicant pay Mr Patel's costs, to the extent that they are recoverable.

5. Subject to those two matters I would grant leave to Malaysian Airlines Australia to rely upon a notice of discontinuance in accordance with r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW).

6. GILES JA: I agree.

7. BASTEN JA: I also agree.

8. ALLSOP P: The orders of the Court being the grant of leave as I have pronounced on the terms and conditions that I have identified. The Court is adjourned.

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