TRADERS PRUDENT INSURANCE CO LTD v GUMODIN PTY LTD [1989] NSWCA 215

TRADERS PRUDENT INSURANCE CO LTD v GUMODIN PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS JA 17 April 1989

[1989] NSWCA 215

Samuels JA The claimant was the successful defendant in an action for damages heard by Lusher J and a jury and determined by a judgment directed in the defendant's favour as long ago as 20 September 1985.

The present opponent filed a notice of appeal on 16 October 1985 which, however, was not served for rather more than two years. There followed gross delays on the part of the opponent by which I must mean the solicitors then acting for him. In matters of this kind one is reluctant to make criticisms of practitioners who are not represented and therefore who have no direct opportunity to offer explanations for acts or omissions or inactivity which at first sight seems reprehensible. Hence anything I say about those who have acted in the matter must be read subject to that caveat.

Ultimately in December 1987 the claimant filed a notice of motion to dismiss the appeal for want of prosecution and alternatively, for an order that the appellant, the opponent, provide security for costs. At that stage, as far as I am aware, nothing had been done to move the appeal forward; certainly no index had been settled.

That notice of motion came before the court. There were discussions between the parties and ultimately on 15 February 1988 the interlocutory dispute was compromised, it being agreed that the opponent would provide security for costs of the appeal, and this was done. The motion was then dismissed but the opponent was ordered to pay the costs as between solicitor and client.

The agreement having been arrived at, the solicitors for the claimant wrote to their opposite numbers on 18 February 1988, referring to the compromise and requesting that the opponent's solicitors notify them within seven days of the new date of settlement of the index to the appeal papers. No reply to that letter was ever received.