[2014] NSWCA 121

Ghosh v Ninemsn Pty Limited

(1) Dismiss the notice of motion filed 3 February 2014; (2) Order the appellant, Dr Ratna Ghosh, pay the respondents' costs of the appearance on the notice of motion; (3) Direct the respondents to file and serve their notices of appearance by 4 pm, Monday 14 April 2014. [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 - costs - dismissal of proceedings PROCEDURE - appearance in absence of formal service - active participation in directions hearings - notice of appearance required - Uniform Civil Procedure Rules, r 6.1

Legislation cited

Uniform Civil Procedure Rules 2005

Judgment

[1]
HER HONOUR: In this matter, I have been informed by Dr Ratna Ghosh, who has appeared for herself in the absence of her counsel being available, that she wishes to withdraw the notice of motion which was filed on 3 February 2014 and which, as it presently stands before the Court, would appear to seek orders for referral to a barrister for legal assistance under the Uniform Civil Procedure Rules 2005 (UCPR), Pt 7, r 7.36(1) and for a stay of the costs orders in a judgment in the District Court, being judgment [2013] NSWDC 145 and a further judgment in the District Court in the matter, as well as for costs of the notice of motion.
[2]
As Dr Ghosh does not wish to proceed with the notice of motion, it is appropriate that the notice of motion be dismissed.
[3]
The respondents seek an order for costs of their appearance on the notice of motion today. That was opposed on the ground that the respondents contended that they had never been formally served with the notice of motion, and that whilst they had been notified of the notice of motion, the documents with which they have been served have been unfiled documents. Dr Ghosh explained that she had deposited the copies of the filed documents with counsel whom she had briefed in the matter, and those documents have not been returned to her.
[4]
The complaint about formal nonservice is perhaps a little difficult to fathom, given that the respondents appeared before the Court on 17 March 2014 and in fact were the recipients of a costs order on that date.
[5]
I consider that the appropriate position is that the respondents have effectively been served with process. When I say effectively, they had in effect been given notice of process in circumstances in which they considered appropriate to appear today. Having regard to the orders made on 17 March when the notice of motion was stood over until today, they were on notice of today's hearing and it was appropriate for them to appear. For that reason, I consider that they are entitled to an order for costs.
[6]
Accordingly, the orders that I make are as follows: (1) Dismiss the notice of motion filed 3 February 2014, (2) Order that the appellant, Dr Ratna Ghosh, pay the respondents' costs of the appearance on the notice of motion.
[7]
Since making these orders, it has been brought to my attention that the respondents have not filed their notices of appearance. I consider that failure to do so constitutes non-compliance with UCPR, Pt 6, r 6.1. Although the respondents stated at the commencement of the hearing of the notice of motion that they appeared as a matter of courtesy to the Court, they have not only appeared in court, but sought and were awarded costs. As it turns out, it is the second occasion on which they have done so. In addition, Dr Ghosh stated she had served the red book on the respondents and has a receipt in respect of that service.
[8]
Accordingly, I direct the respondents to file and serve their notices of appearance by 4 pm, Monday 14 April 2014.