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. Behind the legal representatives stand litigants who may or may not be innocent of the causes of delay. It is a serious step to dismiss an appeal, without a hearing on the merits, whether for failure to prosecute an appeal or otherwise. The Court will hold back from doing so where the cause of the delay is, or may be, the lack of attention to the matter on the part of the legal representatives. I am not saying that such is the case here. I have not heard the previous solicitors for the opponent. However, the case is one where it wold be appropriate for the papers to be referred to the Law Society so that, if there has been undue delay on the part of those solicitors, that can be investigated and dealt with by the Society. 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. 2 UNREPORTED JUDGMENTS The orders which I make are: 1. Stand over the motion for further hearing before the Court, which may be differently constituted, on Monday 29 March 1993; 2. Direct that the solicitor for the opponent cause to be filed an affidavit deposing to the steps which have been taken before that date to prosecute the appeal; 3. Order that the costs of the motion today be paid by the opponent but direct that these remarks be forwarded by the present solicitor for the opponent to the former solicitors for the opponent for consideration of whether it would not be just, in the circumstances, for the costs of today to be borne by those solicitors; and 4. Refer the papers to the Law Society for investigation. 1. Stand over the motion for further hearing before the Court, which may be differently constituted, on Monday 29 March 1993; 2. Direct that the solicitor for the opponent cause to be filed an affidavit deposing to the steps which have been taken before that date to prosecute the appeal; 3. Order that the costs of the motion today be paid by the opponent but direct that these remarks be forwarded by the present solicitor for the opponent to the former solicitors for the opponent for consideration of whether it would not be just, in the circumstances, for the costs of today to be borne by those solicitors; and 4. Refer the papers tot he Law Society for investigation. Counsel for the Claimant: P Greenwood Instructed by: Curwood and Partners Counsel for the Opponent: S Johnston (Sol'r) Instructed by: Slannery Mura and Costello