NORDDEUTSCHE LANDESBANK GIROCENTRALE v SCHAEFFER [1992] NSWCA 172

NORDDEUTSCHE LANDESBANK GIROCENTRALE vy SCHAEFFER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 24 August 1992, 24 August 1992

[1992] NSWCA 172

PRACTICE AND PROCEDURE — Appeal — dismissal of for want for prosecution — notice by former solicitors of ceasing to act — notice that appellant has returned to Germany — Held: (1) Dismissal for want of prosecution should be delayed; (2) Notice to claimant at last known addresses ordered; (3) Final dismissal reserved to later determination.

Kirby P Before the Court is a motion which seeks, amongst other relief, an order dismissing an appeal of Kurt Schaeffer for want of prosecution of the appeal. The appeal is listed for hearing before the Court on 1 September 1992.

Mr Schaeffer has taken no steps to prosecute the appeal as required by the Rules. He has not filed and served the appeal books. Nor has he provided written submissions or taken such other steps as are necessary to ready the appeal for hearing.

When the matter was returned before the Court today I was handed a notice of ceasing to act as a solicitor, which was sent by facsimile from the former solicitors for Mr Schaeffer to the solicitors for the Norddeutsche Landesbank Girocentrale (the bank). That notice was filed without seeking leave of the Court. I do not pause to comment whether it is appropriate that it should have been provided to the solicitors for the bank in that way. The position remains that the appeal has not been properly prosecuted. The bank has good reason to advance the application that the appeal be dismissed for want of prosecution.

On the other hand, by reason of the purported notice of ceasing to act, I am now myself on notice of the fact that Mr Schaeffer, who seems to have returned to Germany, may not be aware of the proceedings before the Court today. It is therefore inappropriate, without providing him with an opportunity to be heard, to dismiss the proceedings for want of prosecution. It seems preferable to return the motion before the Court next Monday, when further relief may be considered.