A recent decision handed down by the NSW Court of Appeal has shed light on several civil procedures of the Court.

In the matter of French v Bremner [2020] NSWCA 77, the NSW Court of Appeal considered the Plaintiff’s application to remove a matter to the High Court and to vacate a hearing date taking into consideration the current court restrictions due to COVID-19.


Mr French was an inventor who engaged in various business activities in partnership with Dr Bremner. The partnership broke down in 2011. At  first instance the Court found in favour of Dr Bremner. Mr French subsequently filed an application for removal of the proceedings to the High Court of Australia. He then filed a notice of intention to appeal the decision to the NSW Court of Appeal.

It later became apparent that Mr French sought not only removal of the proceedings to the High Court and to stay any further steps being taken in the proceedings of the NSW Court of Appeal, but sought relief to have default judgment entered into against Dr Bremner.


1. Removal of proceedings to High Court

The High Court may order proceedings to be removed into the High Court when there is a matter pending in a State Court involving the exercise of federal jurisdiction (s 40(2) of the Judiciary Act). Mr French’s application was rejected on the basis that there was no cause pending in the NSW Court at the time the removal application was filed. An appeal is not commenced merely by notice of an intention to appeal.

2. Request to vacate hearing date

Mr French requested to vacate the hearing date of his appeal on the basis that he lived in the country and was not able to come to Sydney to prepare all the necessary documents and seek legal advice. He wanted to present his case in person which was not possible under the Court’s restrictions due to the COVID-19 pandemic.

It was not clear whether Mr French had the necessary equipment to conduct appeals through audio-visual link. The Court stated accordingly that it would be unsatisfactory if the Plaintiff was to appear by telephone and the Defendant’s lawyers by audio-visual link. Considerations for unrepresented litigants to appear physically in Court are usually granted, however given the current pandemic it would not be possible. Therefore, the request to vacate the hearing date, unopposed by the Defendant, was granted.


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