HART v HERRON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER JA 11 June 1993 [1993] NSWCA 131 Sheller JA In this matter, there were handed up short minutes of orders proposed to dispose of the four Notices of Motion, one of which was the subject of the Court's judgment of 3 June 1993. In addition, the short minutes dealt with directions as to further conduct of the appeals. For the most part, there is no dispute about the form of those orders. One of the orders sought is for expedition. I indicated to the parties that I thought an application for expedition was premature and at this stage I am not prepared to make such an order. The appellant, Mr Hart, sought an order that the respondent, Dr Herron, pay his costs of and incidental to his Notices of Motion, both of which will be dismissed. Mr Sackar, of Queens Counsel, who appears for the respondent, urged upon me that this was a case, despite the failure of the motions by his client, where costs as a matter of discretion should be made costs in the appeal. It is true that the motion brought to the Court's attention the many delays in proceeding with the appeal. But it was a motion that was only filed after steps, albeit very delayed, had been taken to have the appeal set down for hearing. In all the circumstances, I do not think it appropriate to depart from the ordinary rule that the costs should follow the event. Accordingly, in my opinion, the respondent should pay the appellant's costs of and incidental to the respondent's Notices of Motion. The other matter in contest related to the general directions sought. In that regard I was informed by Mr Branson of Queens Counsel, who appears for the appellant, that it is proposed to file and to serve an amended Notice of Appeal. It was suggested that the appellant should be given until 23 July 1993 to do this. In my opinion, the stage has been reached in this case where the parties must be required to take all steps necessary to bring the appeal on for hearing. There is apparently some problem, I have been informed, about the appellant's obtaining Legal Aid or other means for prosecuting the appeal. However, while I have sympathy for the appellant's position, I think this is a case in which steps must now be taken by the appellant to prosecute the appeal expeditiously. Accordingly, I am not prepared to allow a time up to 23 July 1993. With some reluctance, I am prepared to allow the appellant to file and serve an amended Notice of Appeal on or before 9 July 1993, that is to say, 28 days from today. The respondent seeks an order related to the situation if the appellant does fail to comply with that order as to filing and service of the amended Notice of Appeal and I am prepared to make an order substantially as suggested. In accordance with what I have said and the short minutes of order handed up, I order as follows: UNREPORTED JUDGMENTS On the Notices of Motion of the respondent Dr Herron, dated 13 November 1992, I order: qd) (2) (3) (4) (5) (6) Leave granted to the respondent to discontinue his cross appeal in each matter; Each Notice of Motion otherwise dismissed; The respondent to pay the appellant's costs of and incidental to the Notices of Motion. In relation to the Notice of Motion of the appellant in CA 226/80 I order: (1) That the Notice of Motion is dismissed. (2) Each party to pay his own costs of and incidental to the Notice of Motion. In relation to the appellant's Notice of Motion in CA 378/80 I order: (1) That the Notice of Motion be dismissed. (2) Each party to bear his own costs of and incidental to the Notice of Motion. In relation to the further conduct of the appeals I give the following directions and orders: (1) That the appeals CA 226/80 and CA 378/80 be heard together. (2) That the appellant file and serve an amended Notice of Appeal on or before 9 July 1993. Such document to incorporate all grounds of appeal and relief sought by the appellant. (3) On 9 July 1993 the parties have liberty to approach the Registrar to appoint a time to settle a draft index. In the event that the appellant - (a) fails to file and serve an amended Notice of Appeal on or before 9 July 1993, or (b) fails to comply with such reasonable requirements as the Registrar may impose, the respondent be given leave on 48 hours notice to file and serve a Notice of Motion seeking an order that the appeal be dismissed. The costs of today's hearing be costs in the appeals. Liberty to each party to apply on 48 hours' notice to the other.