OLYMPIC AIRWAYS SA v CONSTANTINOS ADAMOPOLOUS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 27 August 1990, 27 August 1990 [1990] NSWCA 141 PRACTICE and PROCEDURE — dismissal for want of prosecution failure to prepare index to appeal papers — intervening bankruptcy proceedings — confusion of unrepresented litigant — Registrar prepares draft index — held: Orders made for expedition of payment of costs for appeal books and of the proceedings. Supreme Court Act 1970, s46. Kirby P On 4 May 1989 Powell J entered judgment in proceedings between the present parties. Constantinos Adamopoulos and his wife Adriana appealed from his Honour's orders on 7 June 1989. Thereafter there has followed a lengthy endeavour to have the papers for the appeal books put in order so that the appeal could proceed in the normal way. Even to this day the appeal index has not been formally settled by the Registrar in the presence of the parties. To endeavour to reduce the delay, and because the opponent was unrepresented, the Registrar prepared a draft index to the appeal papers and supplied this to the opponents. Further delays were then occasioned because the opponents did not, as they should have, serve that draft index upon the claimants. As a consequence, and not surprisingly, the claimants commenced bankruptcy proceedings in the Federal Court of Australia. Those proceedings resulted in an order by Wilcox J for the sequestration of the estate of the male opponent, ordered on 6 June 1990. Proceedings in this Court were further delayed by an appeal which the male opponent brought to the Full Court of the Federal Court. That Court, on 26 July 1990 allowed the appeal. It accepted an undertaking from the opponent that he would prosecute without delay and with diligence the proceedings in this Court which challenged the judgment upon which the order of sequestration had been made. The opponent gave that undertaking. However to this date he has not acted in accordance with the undertaking, at least to the extent of taking steps to serve the index of the appeal papers, to arrange for the matter to be listed before the Registrar, to pay the costs of the printing of the appeal books and to have the matter set down before the Court for hearing. The claimants thereupon commenced the proceedings by motion which has come before me, sitting alone, and dealing with it in accordance with s46 of the Supreme Court Act 1970. By the motion, the claimants seek order that the proceedings be dismissed for want of prosecution c, r, in the alternative, that the hearing of the appeal be expedited. I was at first minded to order the dismissal of the proceedings for want of prosecution, having regard to the sorry history which I have, in part, outlined. However, as the opponent is unrepresented and as he claims that his health has been affected by these proceedings and that some confusion has attended his attention to the orders of this Court, the Rules of the Court and the undertaking 2 UNREPORTED JUDGMENTS given to the Federal Court, I am prepared to provide one last opportunity for him to ensure that the matter comes before this Court for determination on its merits. I have emphasised to him, as I do again, that the Court will not allow its process to be abused by delay in the bringing of the appeal to its conclusion. It is the entitlement of the claimants, which have been waiting now for more than a year, for there to be a resolution of the appeal which has not progressed even to the point of the settlement of the index. I have examined the index which was prepared by the Registrar of the Court. It is in proper form. I an informed that the Registry has all the relevant papers. Those papers should be put together at once. There should be no further appointment for the settlement of the index. The index as prepared by the Registry is to be taken as settled. I have told Mr Adamopoulos that he is to provide the Registrar, within three weeks, with the necessary funds, as every appellant does, for the purpose of the printing of the appeal books. As he well knows, this is a step prerequisite to the listing of the matter for hearing. Once that has been done I will order expedition of the hearing, category B: to the intent that the matter will be heard before the end of November 1990. The orders which I make for the foregoing reasons are: 1. Order the expedition of the hearing of the appeal; 2. Direct the opponent Constantinos Adamopoulos, on his own behalf and on behalf of Adriana Adamopoulos, if she be a proper party, to pay to the Registrar within twenty-one days the sum ordered by the Registrar in accordance with the Rules for the printing of the appeal books. Notice of the sum payable is to be given by the Registrar to the opponent within two days of this date; 3. In the event that the aforesaid sum in (2) is not paid within twenty-one days, ie by 4 pm on 17 September 1990, I direct that the motion for the order dismissing the appeal be relisted before the Court on Monday, 24 September 1990 when it will be dealt with; and 4. The costs of these proceedings before the Court today be claimant's costs in the appeal. Counsel for the Claimant: R Aldridge Solicitors for the Claimant: Minter Ellison The Opponent appeared in person