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. The factor which persuades me that it would be quite inappropriate to make any order for expedition is that the gross delay was occasioned by a mixture of negligence and incompetence on the part of the opponent's solicitors. Where, therefore, the claimant does not seek expedition and the prejudice to the opponent has been caused by its own solicitor, I do not think it would be proper for me to expedite the hearing of the appeal and it should take its ordinary place in the queue. I would add to that there is now a complication insofar as Terrence Patrick O'Neill, who is the second respondent to the appeal, was declared bankrupt on 11 March 1992 and it may well be that the opponent needs to obtain leave to proceed against that respondent before it can go ahead with the appeal. Alternatively, it may elect simply to go ahead with its appeal against the claimant. The dismissal of the application should be upon grounds that the opponent pay the claimant's costs. There can be no doubt about that and the point has been conceded by counsel for the opponent. The question which is in issue is whether there should be a normal party and party costs order or whether the Court should exercise itsundoubted discretion to make an order that the opponent pay the claimant's costs on an indemnity basis. 2 UNREPORTED JUDGMENTS The grounds upon which the claimant seeks that order are the already noted negligence and incompetence of the solicitor for the opponent. The appeal was listed before Mr Acting Registrar Jupp on 4 July 1991 for the settling of the index. For reasons which I do not understand, the short minutes of order had not been signed as at that time. Accordingly, the Acting Registrar made an order that the opponent settle the short minutes of order and have his Honour approve those terms. There then followed a fairly lengthy period during which the solicitor for the opponent seems to have placed the obligation of determining how he should arrange for Mr Justice Cole to approve the terms on the Acting Registrar. I wish to emphasise that it is no part of the function of the Registrar of the Court of Appeal to be involved in the settlement of orders made at first instance. The authority to settle such orders resides in the trial judge and it is to that judge that an appellant should go in order to have the settled terms approved. In any event, correspondence passed between the Registrar and the solicitor for the opponent and time wandered on. On 30 August the solicitor for the claimant raised for the first time the prospect that an application would be made for the first time for the appeal to be dismissed for want of prosecution. The solicitor for the opponent does not appear to have been impressed, for he meandered on in his fairly casual fashion. On 28 November, however, the solicitor for the claimant indicated that he found the short minutes which had been finally settled in order, subject to a minor adjustment, and he asked tohave the document engrossed correctly and submitted for signature. All that was needed on the part of the solicitor for the opponent was to have the document engrossed, signed by him, and sent to the solicitors for the three respondents, and then an arrangement made for the filing of the consent of short orders. This was a simple task which would not have taken either time or great ingenuity. What did the solicitor for the opponent do? In a word, nothing. On 13 December the solicitor for the claimant wrote again asking for the re-engrossed documentation. On 28 January 1992 he wrote again. He did the same thing on 14 February 1992 and again on 25 February 1992. On 23 March 1992 he wrote another letter pointing out that the last five letters had been unanswered and indicating that an application would be filed seeking an order that the appeal be dismissed for want of prosecution. That application was filed the next day and even then there was very little action until, I think, 30 March when the solicitor for the opponent finally got off his backside and wrote a letter. Since that time, I think he has acted reasonably but nothing can excuse his gross discourtesy to a fellow practitioner and his gross negligence and incompetence which have, as I have already pointed out, caused prejudice to his own client. In the circumstances of this case there can be no doubt in my mind that the order sought by the claimant should be made. Accordingly, I order that the opponent pay the claimant's costs on an indemnity basis and that leave be granted to the claimant under Supreme Court Rules Pt 52 r 9A to proceed with the taxation prior to the conclusion of the appeal. I should for the sake of clarity indicate that when I have spoken of the opponent I have been referring to the appellant. I say this because the notice of motion presently before the Court in its original form did not refer either to URJ TELADO PTY LTD v VINCENT (Clarke JA) 3 claimants or opponents. It was then amended with the addition of handwritten notes demonstrating that the appellant, the second respondent and _ third respondent were all opponents. The application has been contested before me between the appellant whom I have called the claimant. Accordingly, the orders I formally make are: (1) The notice of motion is dismissed. (2) The opponent is to pay the claimant's costs on an indemnity basis and leave is granted to the claimant to proceed with the taxation of the costs prior to the completion of the appeal. Orders accordingly.