TALBET IBRAHIM v KHALIL EL DROUBI [1991] NSWCA 151

TALBET IBRAHIM v KHALIL EL DROUBI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 12 August 1991, 12 August 1991

[1991] NSWCA 151

PRACTICE — appeal — dismissal for want of prosecution — 16 months Inactivity — defective grounds held: Appeal dismissed. PRACTICE and PROCEDURE — appeal — jury verdict for defendant — appeal — dismissal for want of prosecution — no proper grounds of appeal — no compliance with direction to provide proper grounds — four successive solicitors — 16 months pass without proper prosecution of appeal — appellant does not appear although served — held: Appeal dismissed for want of prosecution.

Kirby P Before the Court is a motion for dismissal of the appeal by Talbet Ibrahim. I am dealing with the motion pursuant to s46(1) of the Supreme Court Act 1970. The ground relied upon is the want of prosecution of the appeal.

The circumstances can be briefly stated. The hearing of the proceedings which are the subject of appeal took place before his Honour Smyth DCJ and a jury of four in the District Court at Penrith in February 1990. On 7 February 1990, the jury returned with a verdict for the defendant, the respondent to the appeal and the claimant in this motion.

Following the verdict and the judgment which gave it effect, the opponent, Mr Ibrahim, caused a notice of appeal to be filed within time. That notice of appeal was plainly defective. It raised only three grounds of appeal, namely:

1. That the verdict of the jury was against the evidence and the weight of the evidence;

2. That the verdict of the jury was perverse; and

3. Such other ground or grounds as may be available on receipt of his Honour's summing up and the transcript at the trial.

It is notorious that delays in the provision of the transcript of proceedings in the District Court can occasion inadequate grounds of appeal. The Court has said that it is desirable that appeals be filed in time. But it is a corollary of that requirement that, within as short a time as possible after the receipt of the transcript, the grounds of appeal will be adequately stated in compliance with the Rules of Court and fair procedure. This has never been done in this appeal.