ROSIER FUEL INJECTION SERVICE PTY LTD v THOMPSON [1988] NSWCA 131

ROSIER FUEL INJECTION SERVICE PTY LTD v THOMPSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 26 September 1988, 26 September 1988

[1988] NSWCA 131

Practice — appeal — motion to dismiss for want of prosecution — affidavit explains delay — delay occasioned by consideration of senior counsel of the prospects of success — necessary for legal aid purposes — held: motion dismissed but, being properly brought, claimant secures cost order — no matter of principle. Orders; (1) Motion dismissed. (2) The costs of the motion to be respondent's costs in the appeal.

Kirby P The respondent to an appeal has sought an order that the appeal be dismissed for want of prosecution. In its notice of motion it also sought orders that the appellants pay the costs of the appeal and that the cross-appeal brought by the respondents be permitted to proceed independently. I am dealing with the motion pursuant to s46 of the Supreme Court Act 1970.

On the basis of the initial affidavit of Mr Philip Young, sworn 7 September 1988 and read in these proceedings, the bringing of the motion appeared entirely reasonable. The appeal had proceeded at a languid pace. The explanation for this apparent languor was, however, given in an affidavit of Mr Bruce McCann sworn 26 September 1988. This was also read today. That affidavit explains the consultation which was thought necessary with Mr Hall QC, on behalf of the appellants, to secure his opinion for the purpose of seeking the approval of the Legal Aid Commission for the funding of the appeal. As counsel for the claimant properly conceded, it was difficult in the light of this additional material (which sets out in considerable detail the steps that have been taken with proper caution to safeguard the public funds of the Commission) now to suggest that the Court should not proceed to a hearing of the appeal on the merits. There is nothing before me that suggests that the appeal is not one properly brought. On the contrary, the evidence relating to the painstaking consideration of the matter by Mr Hall, suggests that it may eventually be considered to be such.