LIGHTING and ALLIED MANUFACTURING Pty Ltd (now known as AUSTRALUME Pty Ltd) v JEZ [1993] NSWCA 162

LIGHTING and ALLIED MANUFACTURING Pty Ltd (now known as AUSTRALUME Pty Ltd) v JEZ

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 1 March 1993, 1 March 1993 [1993] NSWCA 162

COURT OF APPEAL — practice and procedure — dismissal of appeal for want of prosecution — delays in prosecution of appeal — belated change of solicitor — held (1) Motion stood over for further consideration; (2) Papers referred to the Law Society for investigation. LEGAL PRACTITIONERS — solicitor — duty of professional care — duty of prompt and efficient prosecution of cases — failure promptly to prosecute appeal — held: Papers referred to the Law Society for investigation. "Only in this way will litigants be protected against legal practitioners where they fail to attend to their duty promptly and efficiently to prosecute their cases".

Kirby P This is another case, sadly all too familiar in the motions list of this Court, where there has been gross delay in the prosecution of an appeal.

The appeal in question is from an award entered by Chief Judge McGrath of the Compensation Court as long ago as 25 October 1989. A notice of appeal was filed in good time in November 1989. However, despite the timely listing of the proceedings for the settlement of the index to the appeal papers, that process took almost a year. It was not until 3 October 1991 that the appeal index was finally filed. Notwithstanding this, the opponent, the worker in the Court below, has failed to file the amended appeal index as settled, and has not uplifted the appeal papers for the purpose of the printing of the appeal books. Necessarily, the opponent has, therefore, not filed and served appeal books. All of these are the rudimentary steps which are necessary for the prosecution of an appeal.

The claimant, which is the employer and was the respondent in the court below, has brought these proceedings, understandably enough, to bring the matter to a head and to seek an order that the appeal be dismissed for want of prosecution. Belatedly filed in Court today was a notice of change of solicitor. This is also becoming a procedure all to common. The solicitor who is professionally responsible for the delays is dismissed at the last moment. New solicitors appear and complain that they are not in a position to meet applications such as the present.