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. Read before me this morning is an affidavit of Mr Eric Kranz, solicitor. This indicates that there has recently been a change of solicitor, in February 1993. There has also been a somewhat belated application for legal aid. That application is still under consideration. It appears, from the affidavit, that the opponent herself is, or may be, innocent of the delays. She may even believe that these are the kinds of delays which are common in our courts and which are inescapable in this jurisdiction. They are not. The delays here appear truly shocking. They deserve investigation. I propose to refer these remarks to the Law Society for consideration, although I would emphasise that I have formed no concluded opinion on the matter of the former solicitor's conduct because the persons concerned have not been given notice of these concerns and heard in their defence. Because of the possible innocence of the opponent herself, and the pendency of an application for legal aid, it would not be just to take the serious step of dismissing her proceedings for want of prosecution. Nonetheless, the duty of the 2 UNREPORTED JUDGMENTS Court extends to protection of its own process, of the position of the claimant and indirectly, of the position of the opponent herself. The orders which I therefore make are: 1. Confirm the call-over of the proceedings before the Registrar on Wednesday, 10 March when it will be expected that both parties will attend; 2. Direct that the Associate inform the Legal Aid Commission that expedition of the consideration of the opponent's application for legal aid would be appreciated by the Court; 3. Stand over the motion to be further heard by the Court, which may be differently constituted, on Monday 29 March 1993 in the motions list; 4. Order the opponent to pay the claimant's costs of the motion and direct that the present solicitors bring to the attention of the former solicitors these remarks so that consideration may be given by them to the payment of the costs of this motion which has been occasioned by the great delays in these proceedings. It would be my present intention that serious consideration should be given to dismissing the proceedings for want of prosecution if, by 29 March 1993, the proceedings are either not (a) set down for hearing by the Registrar; or (b) in a clear state of readiness for the hearing of the appeal without further delay. 1. Confirm the call-over of the proceedings before the Registrar on Wednesday, 10 March 1993 when it will be expected that both parties will attend; 2. Direct that the Associate inform the Legal Aid Commission that expedition of the consideration of the opponent's application for legal aid would be appreciated by the Court; 3. Stand over the motion to be further heard by the Court, which may be differently constituted, on Monday 29 March 1993 in the motions list; 4. Order the opponent to pay the claimant's costs of the motion and direct that the present solicitors bring to the attention of the former solicitors these remarks so that consideration may be given by them to the payment of the costs of this motion which has been occasioned by the great delays in these proceedings. Counsel for the Claimant: AD Hewitt Instructed by: Bruce and Stewart Turton Counsel for the Opponent: EH Kranz (Sol'r) Instructed by: Colin Daley Quinn