WESTRAY ENGINEERING Pty Ltd v MOUSSA [1993] NSWCA 287

WESTRAY ENGINEERING Pty Ltd v MOUSSA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 1 March 1993, 1 March 1993

[1993] NSWCA 287

PRACTICE and PROCEDURE — Court of Appeal — gross delay in prosecution of appeal — application to dismiss appeal for want of prosecution — late change of solicitor — pending application for legal aid — held (1) Proceedings stood over to Registrar's call-over; (2) Transcript referred to the Law Society for investigation. LEGAL PRACTITIONERS — duty of care — timely attention to prosecution of proceedings — gross delay in prosecution of appeal — no adequate explanation — held: The papers should be referred to the Law Society for investigation. Supreme Court Act 1970, s46(1).

Kirby P This is another shocking case of delay. The history of the matter can briefly be stated: The opponent (who was the plaintiff in the Court below) was injured on 4 November 1981. A District Court statement of claim was issued in 1985. The proceedings were heard in 1989. Judgment was given for the claimant (which was the defendant below) on 9 February 1990. A notice of appeal was lodged, within time, in March 1990. However, since that date the delays have been truly shocking. The attention to the case on behalf of the opponent appears to have been perfunctory.

The first appointment to settle the appeal papers index was made on 14 April 1990. A transcript of the judgment under appeal became available shortly thereafter, in April 1990. The opponent's then solicitors wrote to the claimant indicating that the appeal would not be prosecuted. However, subsequently, in June 1992 they wrote stating that the appeal would in fact proceed. Notwithstanding this intimation, and three further appointments for the settlement of the appeal papers, the proceedings have not been put in order. The claimant has, understandably, now approached this Court for an order dismissing the appeal for want of prosecution. I am dealing with that motion pursuant to the powers conferred on me by s46(1) of the Supreme Court Act 1970.