JOHN BARRY MAXWELL THOMAS v THE COMMONWEALTH OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA 15 February 1993 [1993] NSWCA 267 Clarke JA. This is an application by the first respondent to strike out an appeal against it on the ground of the failure of the appellant to prosecute the appeal with diligence. The proceedings which led to judgment from which the appeal is brought arose out of an accident on 11 March 1976 when the appellant was injured whilst driving a five ton truck in the course of a mail run in his employment as a truck driver with the first respondent. He received those injuries when the vehicle hit a trench running across O'Riordan Street, Mascot. The appellant sued four defendants, including the first respondent and the Botany Municipal Council, the second respondent. The appeal only concerns those two respondents. At the trial, Miles J (as he then was) directed a verdict for the second respondent and the appellant has appealed against the judgment entered as a consequence of that direction. His Honour found that there was a case against the first respondent for submission to the jury and, in due course, the jury considered that case and found for the first respondent. The appeal also concerns the jury decision, although most of the grounds of appeal relate to the directions which the trial judge gave in the summing-up to the jury. There is, however, anallegation that the verdict was against the evidence and the weight of the evidence. The case against the first respondent was that it had failed to install a seatbelt in the truck for use by the appellant. It was contended that if a seatbelt had been available then the appellant could have avoided his injuries or at least suffered less severe injuries. The case against the second respondent was that it had been negligent in failing properly to repair an excavation across the road. It may be that my description of this case is not entirely accurate because it is too concise; however, it is only necessary to refer to the nature of the case in this application. Judgment was entered on 20 March 1984 and a notice of appeal was filed either in April or May of that year. Before dealing with the course of the appeal I should add that there is evidence before me which shows that in 1981 the appellant was an unwell man who claimed that he was unable to sleep and unable to tolerate stress of any sort. Dr Wright-Short thought at that stage he should be considered for premature retirement, saying that he did not think that he would be able to continue to work. It was, I hasten to add, the accident which, according to the appellant, caused the severe nervous reaction from which he suffered. To describe the path of the appeal procedures through the courts as extraordinarily slow is, if anything, an understatement. Evidence has been filed by the appellant's solicitor which includes the following: 2 UNREPORTED JUDGMENTS A perusal of the file regrettably does not disclose any contact between this office and the appellant between 1985 and 12 September 1991 when we wrote to the appellant."'There is, however, evidence of correspondence between the solicitor for the appellant and the solicitor for the first respondent between those dates. Although there is reference to a letter written by the solicitor for the appellant, all the material in the affidavit originated in the office of the solicitor for the first respondent. On 18 February 1987 the solicitor for the first respondent asked when an appointment had been made to settle the index and threatened, in default of action, to file a motion to have the proceedings struck out. On 24 August 1987 he wrote a further letter about the unsatisfactory nature of the lack of progress, again threatening to have the matter struck out. On 8 September 1988 he again threatened to have the matter struck out unless steps were taken to settle the appeal index. There is a memo relating to 6 March 1990 when a telephone conversation is said to have taken place between the solicitor for the appellant and a representative of the solicitor for the first respondent about the progress of the matter. On 22 August 1991 there is another letter from the solicitor for the first respondent suggesting that the appeal be withdrawn. It would appear that it was following this letter that the solicitor for the appellant got in touch with his client. I should add that none of the earlier letters brought forth any reply. Even though there appears to have been some contact between the appellant and his solicitor in 1991, there was no answer to the letter of 22 August 1991 and in March 1992 the present notice of motion was threatened. It was filed on 7 May 1992 and the matter has been mentioned on a number of occasions since then. Despite the enormous delay both between the accident itself, the hearing of the action and following judgment, the court granted to the appellant many indulgences. Initially, the appellant sought legal aid andthe court was anxious that he be granted every opportunity to obtain that legal aid. Unfortunately that, the appellant wishes to proceed with the appeal and it would seem that his solicitor is standing behind him in the finest of traditions. The case is not simply one in which there is an enormous delay but one in which there is an important complicating feature. The transcript of the judge's summing-up on 20 March 1984 is not presently available. Steps have been taken to locate that summing-up, but so far they have proved unsuccessful and it is hoped that the summing-up might be located at the Court Reporting Archives. However, it has not yet been located. There are a number of disturbing features about this case. The first is that an appeal can be allowed to go to sleep in the fashion that this one has been allowed to go to sleep. The second is that, despite the obvious need to move with great expedition once a motion to strike out the appeal had been filed, one cannot find any air of urgency in the responses of the appellant's solicitor. There may or may not be reasons for the apparently slow and deliberate pace at which his solicitors have worked, but for my part I find it very difficult to understand how anyone could not have sought to ensure that the proceedings were in a correct and complete fashion in order to enable a hearing to take place as soon as possible after the motion had been filed. I do not know when the search started for the transcript of the summing-up. I infer that it was relatively recently and that the discovery of the possibility that the transcript may be at the archives is very recent indeed. UBYIN BARRY MAXWELL THOMAS v THE COMMONWEALTH OF AUSTRALIA (Clark@ JA) The first respondent has said in this motion, with much justification, that without the summing-up it is greatly prejudiced. The appellant responds that, if anyone is prejudiced, it is the appellant. There is also a matter which has not been debated at great length before me but one which I feel I should mention, and that is that if the appeal were to succeed then a new trial would be ordered. It does not take much imagination to realise that a new trial nearly twenty years after the incident is likely to be beset with problems with consequential injustice to one or other of the parties. Mr Kelly, who I must acknowledge has presented his client's case both today and previously before me in this motion, thoroughly and with considerable thought, has argued that there is no evidence of prejudice resulting from delay and, if the appeal has to go on without the summing-up, it is the appellant who will suffer. In this respect I must confess difficulty in understanding how an attack can be made on a judge's directions when the court does not know what those directions were. Nonetheless, the fact that the appellant wishes to proceed with the appeal against the second respondent is an important consideration and the court is loath to make an order the effect of which is to deprive a party of his appeal rights. The present application is, in many ways, one of the most difficult I have faced if for no other reason than that the delay and lack of progress on the appellant's side is so great as to raise a very real question as to whether the appellant should be allowed to proceed. I should add that the element of urgency was certainly emphasised by me on prior occasions when the matter was before me. Mr Kelly has also submitted that an appeal will only be struck out in extraordinary circumstances, particularly if no specific prejudice is demonstrated. Although it is true to say that the first respondent has not come forward and shown that there are witnesses who will not be available if there is a new trial, there is the undoubted fact that thepassage of time itself must cause a significant prejudice. At one stage I was disposed to the view that it would be inappropriate to strike out the appeal because there may be some interrelationship between the case against the first respondent and that against the second respondent in respect of which there has presently been no application to strike out. However, it seems to me that the cases are sufficiently discrete to remove that particular consideration from the present application. Although the solicitor has appeared for the second respondent in the motion, no application has been filed by that party, although it may file one in the future. I think it is right to say that it is only in an extraordinary case that an application of this nature will be granted, but this is quite an extraordinary case. At this stage I was interrupted by Mr Kelly and will have to reconsider one aspect of what I was saying after hearing from counsel in the morning. Orders accordingly.