TELADO PTY LTD v VINCENT [1992] NSWCA 248

TELADO PTY LTD v VINCENT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 23 April 1992

[1992] NSWCA 248

Clarke JA. (See page 6 of transcript)

The application before the Court is that the appeal be dismissed for want of prosecution. The judgment under appeal was given on 3 May 1991 and at the date the motion was filed the appeal book had not been settled. Indeed, although it may be accurate to say that the appeal book has now been put broadly in order, there is still no appeal book in existence, over eleven months after the date of the judgment. These simple facts make the application a strong one.

However, this Court is not disposed to prevent a party exercising its appeal rights except in the most extreme circumstances. In putting it that way, I am perhaps being favourable to the opponent, but it is clear that there is a practice in the Court not to allow these motions where it is clear that the appeal cannot proceed reasonably promptly and the delay has not caused prejudice to the parties successful at first instance.

In circumstances that the short minutes of order which have held up the final settlement of the appeal books were signed by Mr Justice Cole yesterday, I am disposed to dismiss the appeal. I thinkit should be allowed to proceed for the reason that I would not be disposed to deprive the opponent of its appeal rights. If the claimant had indicated that he was prejudiced by the delay or sought an order for expedition, I would have readily made an order of that nature. However, the claimant has indicated that he is satisfied with the judgment under appeal and he disavows any desire to have the hearing expedited. In some circumstances I might have expedited the hearing of the appeal because it is clear that the opponent has been much delayed in having the case disposed of.