GUY v BRITTEN [1988] NSWCA 59

GUY v BRITTEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 1 February 1988

[1988] NSWCA 59

PRACTICE & PROCEDURE — dismissal for want of prosecution — opponent does not oppose but does not appear — letter from opponent tendered — no question of principle. Supreme Court Act 1970, s46.

Orders 1. The appeal is dismissed for want of prosecution. 2. The opponent pay the claimant's costs of the appeal and of the notice of motion.

Kirby P I am dealing with this motion sitting alone, pursuant to s46 of the Supreme Court Act 1970.

This is not a matter where lengthy reasons would be appropriate.

An appeal was first brought to the Court by the opponent at some time in December 1986. That decision led to the judgment in favour of the present opponent. Despite numerous efforts on the part of the claimant to secure prosecution of the appeal no steps were taken by the opponent for the purpose of bringing the appeal to finality. The opponent changed her solicitors. However, the new solicitors have apparently no further instructions to act for her. They have, through the solicitor for the claimant, informed the Court of their intention this day to file a notice of ceasing to act.

Placed before the Court is a letter of 29 January 1988 from the opponent herself in which she states:- "I do not wish to proceed with the appeal filed by Mr Cheney and I have written to the court to advise it. I would not oppose your application in the notice of motion that the appeal be dismissed. I can't pay your costs and do not agree that I should pay them. I enclose a copy of the letter that I sent to the court."

Although the dismissal of an appeal for want of prosecution is a drastic step to be conserved for propel cases, this is such a case. A relevant consideration is that the opponent does not oppose such an order.