HIND v WARRINGAH SHIRE COUNCIL [1993] NSWCA 136

HIND v WARRINGAH SHIRE COUNCIL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P 1 March 1993

[1993] NSWCA 136

PRACTICE & PROCEDURE — Court of Appeal — dismissal for want of prosecution — failure to discover transcript in Registry of Court of Appeal — order that solicitor pay costs personally.

Kirby P. For reasons which sufficiently appear in the exchanges between the Court and the representatives of the parties, it is not appropriate to strike out this appeal for want of prosecution.

The delay in the prosecution of the appeal appears to have arisen from a misunderstanding or mistaken belief that certain transcript of the proceedings below was missing. A rudimentary enquiry of the Registry would have disclosed that such transcript was available in the Registry of this Court as it was produced in the ordinary course by the Compensation Court of New South Wales to the Registrar of the Court of Appeal. It would also seem that a rudimentary enquiry of the Registrar of the Compensation Court of New South Wales would have disclosed the whereabouts of the transcript. It isastonishing that neither of those enquiries seems to have been performed.

In the circumstances, it is not appropriate to dismiss the appeal for want of prosecution for that could work injustice to the opponent/worker. However, it is appropriate to make other orders which I will now do:

(1) Order that the appeal be listed before the Registry for call over for the settlement of the index of the appeal papers at 2.30 pm on Thursday 4 March 1993;

(2) Dismiss the motion for dismissal of the appeal for want of prosecution;

(3) Order that the costs of the motion be borne by the solicitor for the opponent/worker personally. I record that the solicitor has been heard in response to the proposal that the third order should be made and does not oppose the making of that order in the circumstances.