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. Although it has been the practice of the Court for as long as I have sat here that a notice warning of such proceedings is normally given and, indeed, required before a notice of motion for dismissal of the appeal for want of prosecution will ordinarily succeed, that is merely a practice. I must clear my mind of the thought that it is an inflexible rule of law. The relief of dismissal for want of prosecution invokes a discretion. I am obliged to endeavour to exercise it justly on the material before me. It was said that there were some conversations between the solicitors. That may be so. However, those conversations are not in evidence before me at this time. All I have before me are the details of the facts. The most important of which I have mentioned, and the notice of motion asking that the appeal be dismissed. No letter was sent. Certainly no letter warning of the proceedings has been exhibited in the affidavit of the solicitor in support of the motion. The appellants not only oppose the order for costs. They seek an order for costs in the motion, contending that it was brought prematurely in the circumstances. 2 UNREPORTED JUDGMENTS The matter is now ready to proceed to a hearing. The appeal book is in the file. The appeal has been listed for hearing in February 1993. It is no longer contested that the appeal should go forward and be determined on its merits. So far as the costs are concerned, it seems to me that in this case it would have been advisable for a letter of warning to be sent. The practice, though not immutable, is obviously a sensible one. Numerous explanations can exist for the failure of a party to attend at a callover. Doubtless there was a good explanation why the respondent, the current claimant, did not appear when the matter was called over before the Registrar on 7 October 1992. However that may be, it would have been wise and prudent in this case for notice to be given. Yet that was not done - at least it was not done in writing, or at least it was not done in a way that has now been put before me. Accordingly, it is apparent that the motion must be dismissed. The circumstances that have been disclosed before me today indicate that the motion was brought on an understandable footing that the absence of the appellants from the callover on 4 November 1992 arose out of the earlier intimation that the appellants might not be proceeding with their appeal. For this reason I do not believe that it would be just to fix the respondent with the costs occasioned by the dismissal of this now redundant motion. The better course is to order that the costs should be costs in the appeal. In that way, whichever party wins the appeal will have the benefit of the costs of the proceedings which are before me today. The order of the Court is that the motion is dismissed. The costs of the motion are to be costs in the appeal. Counsel for the Claimant (Respondent): R G Davies Counsel for the Opponents (Appellants): D K Jordan Solicitors for the Claimant (Respondent): Vandervords Solicitors for the Opponents (Appellants): Smail, Rhodes and Co