ELIZABETH CATHERINE SANDERSON v THE PUBLIC TRUSTEE; HEATHER SANDERSON v THE PUBLIC TRUSTEE [1993] NSWCA 242

ELIZABETH CATHERINE SANDERSON v THE PUBLIC TRUSTEE; HEATHER SANDERSON v THE PUBLIC TRUSTEE

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Mauoney JA, MEAGHER JA and SHELLER JA 23 August 1993

[1993] NSWCA 242

Mahoney JA. This matter comes before the Court this morning on appeal from an order of McLelland J made in 1989. The notice of appeal appears to have been filed on 26 September 1989.

Mr Blackburn-Hart, on behalf of the Public Trustee, has filed a chronology which he says indicates that there was considerable delay in bringing the appeal forward for hearing. The matter was listed for today. He has filed affidavits which purport to show that the appellants were notified of the date of the callover, and then ultimately the date fixed for hearing. This was done by formal letter to them.

The matter was listed at 10.15 this morning; it is now approximately 10.30. There is no appearance for the appellants, and they have been called.

In the circumstances the Court is of the opinion that the appeal should be dismissed with costs. That is theapplication which has been made to the Court on behalf of the Public Trustee and on the face of the matter there is no reason why that order should not be made.

However, in case there has been some accident in relation to attendance at Court this morning the Court will direct that the appellants have liberty to apply for the matter to be restored to the list today upon an application to the Court and upon proper explanation as to why the matter was not ready to proceed at 10.15 am. The Court has indicated to counsel that he should remain available within call so that the matter can be restored to the list if necessary.

The order dismissing the appeal presumably will not be taken out for some little time and under the Rules it is open to a party before the formal order is entered to make application in relation to the matter in accordance with established law. I merely add that comment for completeness.