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. In the meantime, a copy of the motion and of the affidavit in support should be posted to the last known address of Mr Schaeffer in Australia, in Byron Bay. Arrangements should also be made with the bank to provide a copy of the motion and of the affidavit in support of it to Mr Schaeffer at his last known address in Berlin, Germany. In the event that there is no appearance before the Court next Monday, 31 August 1992, I would expect that the Court will then proceed to remove the matter from the list for hearing on 1 September 1992, the following day, and to afford the bank the order which it first seeks in its notice of motion, namely that the appeal be dismissed for want of prosecution. However, that will be a matter for the Court to determine as it is then constituted and in the light of the material then placed before it. My purpose today is simply to ensure that, before such an order is made, a last opportunity should be afforded to Mr Schaeffer by due notice to his known addresses in Australia and Germany to respond to the motion and to take up the 2 UNREPORTED JUDGMENTS appeal which he lodged but which he has not prosecuted. It would be appropriate for the solicitor for the bank to provide a short statement indicating the substance of these reasons with the documentation to be so served so that, so far as may be possible between now and next Monday, it should be brought to the attention of Mr Schaeffer that he runs the risk on Monday next that his appeal will be dismissed for want of prosecution and therefore removed from the list for hearing on | September. The orders which I therefore make are: 1. Stand over to Monday, 31 August 1992 the hearing of the motion of the claimant, Norddeutsche Landesbank Girocentrale; 2. Order that a copy of the notice of motion and the affidavit of Ms Nicolette Egsten be sent by pre-paid registered post to the last known address of the opponent, Mr Kurt Schaeffer, in Byron Bay, New South Wales,Australia and to the last known address of the opponent Kurt Schaeffer, in Berlin, Germany, together with a letter from the solicitors for the bank informing the said Kurt Schaeffer of the substance of the motion which will be returned before the Court on 31 August 1992 and of the reasons of this Court; and 3. Reserve to the Court on 31 August 1992 determination of the costs of this motion. No appearance for claimant. Counsel for the opponent: MD Young Solicitors for the opponent: Dibbs Crowther and Osborne