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. I should record that, on the return of the motion, counsel for the respondent, the cross-appellant, indicated that if the Court were minded to dismiss the appeal for want of prosecution it would abandon its cross-appeal. However, it requires an extremely strong and clear case to deny a party the opportunity of exercising the appellate facility which it has lawfully invited. This is not such a case The motion should be dismissed. Nevertheless, in the light of the fact that the motion was properly brought, it appears to me that it is proper to order that the costs of the motion should be the costs of the respondents in the appeal. I would also observe that, in taking the course I have, I am acting on the basis that counsel for the appellants has indicated to me that there is no reason why the settlement of the appeal papers should not proceed on 25 October 1988. There is annexed to the affidavit of Mr McCann a draft index to appeal papers. It is my expectation that Mr Hall will have completed his consideration of the matter by 25 October 1988 so that the appeal can then proceed without further delay. Against the possibility, small as I hope, that such will not be possible, I would still expect that the settlement of the appeal index should proceed so that the 2 UNREPORTED JUDGMENTS printing of the appeal papers can be initiated immediately after Mr Halls' early advice on the utility of the appeal is given. The orders which I make are: 5 1. Motion dismissed. 2. The costs of the motion to be respondent's costs in the appeal. Counsel for the Claimant: Dr KE Lindgren Solicitors for the Claimant: Rankin and Nathan Counsel for the Opponent: GS Charny Solicitors for the Opponent: Malcolm McDonald and Co