STOJANKA SKORIC v LILLY LEPOSAVA STEFANOVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS JA 20 May 1991 [1991] NSWCA 248 Samuels JA In this matter, judgment was given in the District Court on 23 March 1988. It was an unsuccessful action for damages for negligence against a solicitor. The defendant, the present claimant and respondent to the appeal, supported her recollection, I presume of conversations with the opponent and other action taken on behalf of the client, by tendering message slips upon which it seems considerable reliance was placed. I am told, however, that at the trial, counsel for the plaintiff, the appellant and present opponent, expressly disclaimed any intention of suggesting that these items of evidence were fabricated. The appeal was filed on 15 April 1988, that is rather more than three years ago. The index was settled on 9 November 1988. The appeal books have never yet been printed or served, it, of course, being the responsibility of the appellant to attend to those matters. From time to time during the years which have elapsed, the solicitors for the claimant have pressed their adversaries to produce the appeal books without success, as I have indicated. It seems from evidence filed by the opponent that from the time the appeal index was settled, for the following two years or so, attempts were being made by the solicitors for the opponent to obtain evidence which might support the allegation that the message slips were in fact not authentic, the line of attack which was contemplated being that they were of a style which had not been in existence at the time that they were supposed to have been used to record contemporary events. This would probably have required amendment of the notice of appeal but no such amendment has ever been sought. It was not indeed until August 1990 that in reply to another awakening call from the solicitors for the claimant, the solicitors for the opponent said that they had instructions to proceed with the appeal, and were awaiting evidence in admissible form which, if obtained, would be the subject of an application to adduce fresh evidence. This was the first indication given to the solicitors for the claimant that this exercise was being undertaken. In reply, in September 1990, the solicitors for the claimant gave notice that unless the appeal books were served within fourteen days, an order would be sought dismissing the appeal. Certainly that threat was somewhat delayed in execution but no response of any kind came from the solicitors for the opponent until on 28 March 1991 this motion was filed. I can see no ground of excuse for the delay which has taken place. The investigation which I have shortly summarised was undertaken at a leisurely pace in any event but there was no reason why, if the appeal was to proceed upon the other grounds taken, the appeal books could not have been printed and served. If it was not proposed to pursue the other grounds of appeal but merely to ascertain that the contemplated new ground had substance, the proper course was to indicate this to the respondent so that some arrangement could have been made between them which would both 2 UNREPORTED JUDGMENTS protect the respondent's right to have the matter determined without delay and the appellant's right to pursue all reasonable grounds upon which the appeal might be supported. As it turns out, the evidence which the appellant seeks has, even now, not been procured. In my view, the conduct of the appellant was unreasonable and the appeal had not been prosecuted with proper diligence. I therefore order that the appeal be dismissed for want of prosecution; that the appellant pay the respondent's costs of the appeal and the opponent pay the claimant's costs of the motion, excluding any costs of drawing, filing and serving the notice of motion which was wrongly titled.