BAFTIROVSKI v SKOFLEK [1993] NSWCA 17

BAFTIROVSKI v SKOFLEK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 1 February 1993, 1 February 1993

[1993] NSWCA 17

PRACTICE and PROCEDURE — Court of Appeal — judgment — dismissal of appeal for want of prosecution — nine listings before Registrar — no index — solicitor withdraws — due notice to appellant — held: Appeal dismissed.

Kirby P These proceedings have a long history which is set out in summary formin an affidavit of the solicitor for the claimant, sworn 23 December 1992, and filed in these proceedings. That affidavit was read before me today.

A saga of incomplete litigation

When the motion, which is, in effect, for judgment for want of prosecution was first before me, there was no appearance for the opponent. The opponent is the appellant in the appeal to this Court. The opponent was called and did not appear. At my suggestion, counsel for the claimant arranged for his solicitor to contact the opponent's solicitor, still apparently on the record for the opponent, to enquire whether the opponent would be represented today and was in fact aware of proceedings. I have been informed by counsel for the claimant that communication was made with the opponent's solicitor, who acknowledged notice of the fact that the matter was before the Court. He claimed to have filed a notice ceasing to act. Such notice has not come to the attention of the claimant and, in any case, is rather belated at this stage.

According to the information given by the solicitor for the opponent to the solicitor for the claimant, and communicated to me by counsel, the opponent was duly informed of the proceedings before the Court today. I must therefore infer that she is aware of them, both by the notice to her solicitor (or former solicitor) and by actual notification. Nevertheless, she has failed to attend the Court today.