SCHEMBRI v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION [1994] NSWCA 280

SCHEMBRI v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and POWELL JJA 10 October 1994, 10 October 1994 [1994] NSWCA 280

PRACTICE AND PROCEDURE- Court of Appeal — dismissal by single Judges of Appeal for want of prosecution — review — loss of solicitor's file — want of action by respondent — held: Proceedings restored for hearing on merits but on terms that solicitors personally pay costs on an indemnity basis.

PRACTICE AND PROCEDURE — Court of Appeal — dormant appeal list — appeal dismissed for want of prosecution following non-appearance of solicitor at call-over — application for review under Supreme Court Act 1970, s46 — affidavit discloses loss of file in solicitor's office following departure of previous solicitor for appellant from service in the firm — failure of opponent itself to take initiative to terminate appeal — offer of solicitors to pay opponent's costs on an indemnity basis personally — held: In the circumstances, and to secure a determination of the appeal on the merits, the order dismissing the appeal should be set aside and the appeal restored to the list of dormant appeals for assignment of a hearing date. Supreme Court Act 1970, s46.

ORDERS

1. Order that the order made by Cole JA on 23 September 1994 be reviewed and set aside;

2. Order that the proceedings be remitted to the dormant appeals list on a date to be fixed by the Registrar and notified to the parties; and

3. Order that the solicitors for the claimant pay the costs of the New South Wales Insurance Ministerial Corporation of and coincidental to the proceedings before Cole JA on 23 September 1994 and of the proceedings in this Court, on its motion, on an indemnity basis.

Kirby P The motion before the Court is for an order that an order made on 23 September 1994 by Cole JA be set aside. On that day Cole JA was engaged in the call over of a large list of dormant appeals. The Court has before it a very large number of such appeals. It has initiated a programme for the culling of dormant appeals. These are appeals filed more than three years ago, which do not appear to have been prosecuted in accordance with the Rules of the Supreme Court.