AUSTIN and ANOR v NEW SOUTH WALES PERMANENT INSURANCE PTY LTD [1992] NSWCA 16

AUSTIN and ANOR v NEW SOUTH WALES PERMANENT INSURANCE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 7 December 1992, 7 December 1992 [1992] NSWCA 16

PRACTICE and PROCEDURE — Court of Appeal — want of prosecution — motion for dismissal of appeal — failure of appellant to appear at callover — failure of respondent to give notice of intended application for dismissal — held: (1) Although not invariable, the duty to give notice of intention to apply for dismissal of a proceeding for want of prosecution is obviously sensible. Failure to give such notice will normally result in the party concerned being deprived of costs and may result in dismissal of the motion; (2) Motion dismissed. Costs to follow outcome of appeal.

Kirby P This is an application which began as one that the appeal be dismissedfor want of prosecution. It was ultimately formulated as a contest as to who should bear the costs of that motion.

The appeal began as long ago as 23 December 1988, when on the eve of Christmas in that year, a notice of appeal was filed. The actual hearing out of which the appeal arises took place on 3 August 1988 before McDevitt DCJ in the District Court. The trial concluded on 4 August 1988. The appeal meandered its wandering way through the lists of the Court until it was called over on 7 October 1992 by Registrar Jupp. On that occasion there was no appearance for the respondent. It seems that the appellants thereupon informed the Registrar that the appeal might not be proceeding.

On 4 November 1992, in a further callover before Registrar Jupp, the appellants did not appear. The matter was then stood ova for further callover until 2 December 1992. Doubtless, by reason of the earlier intimation of unsettling doubts about the appeal, the respondent proceeded to file this motion for dismissal of the appeal for want of prosecution. The fatal flaw in its procedure was that the respondent did not give notice of that step to the appellants.