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. One of those appeals was an appeal by Mr Schembri against the decision in a case involving the New South Wales Insurance Ministerial Corporation. When the matter was called over before Cole JA, as appears from the transcript of the proceedings before his Honour which is before us, there was no appearance on behalf of Mr Schembri. Ms Field appeared before his Honour for the Corporation. She is today before us for the opponent to this application. Cole JA, for short reasons which he gave, noted the failure of Mr Schembri or his representative to prosecute the appeal, noted the absence of Mr Schembri or his representative before him that day. In the circumstances his Honour dismissed the appeal for want of prosecution. His Honour was empowered to do so by s46 of the Supreme Court Act 1970. 2 UNREPORTED JUDGMENTS What is today before us is, in effect, an application to review his Honour's decision in the light of further evidence which has been placed before us. Giving further evidence is Mr Robert Horton, solicitor in the firm of solicitors which acts for Mr Schembri, namely Michell Sillar, described on the frontispiece of the Court documents as "Australian and International Attorneys". The affidavit by Mr Horton is itself not entirely satisfactory. It does not really explain how it came about that the proceedings were so long delayed so that they were not prosecuted with even partial attention to the Rules of the Court and the obligation of a solicitor to advance the cause of the client. However, it appears from the affidavit that the partner of the solicitors' firm who had the conduct of the proceedings left the service of the firm before the call-over. Yet, when the detail of the affidavit by Mr Horton is examined, it appears that that solicitor actually left the firm in November 1993, that is to say nearly a year before the proceedings were called over before Cole JA. How the proceedings were then completely overlooked in the firm of solicitors who were acting on behalf of Mr Schembri and for virtually a whole year, is entirely unexplained. Counsel for Mr Schembri was permitted from the Bar table to give what was said to be an "explanation" for the further delay. It was said that this arose out of the fact that the file concerning Mr Schembri's appeal was not amongst the files of the solicitor when he left the service of the firm in November 1993. The file was in this way overlooked. When the notice came in from the Court requiring attendance at the call-over of dormant appeals, it was not attached to the file, presumably because this was mislocated. It did not come to the attention of a partner, or solicitor, of the firm until after Cole JA had made the order now under review. There appears to have been no proper system for the review of case files. This is, I have to say, discouraging. Counsel has assured us that if there was no proper system in place at the time of these events, a proper system will be adopted in position in the future, without delay. The New South Wales Insurance Ministerial Corporation opposed the application for review. It was pointed out, quite correctly, that there has been an enormous delay in this case. Amongst many dormant appeals, it must surely have been one of the most dormant. The appeal simply appears to have been forgotten. As was pointed out by Powell JA, during argument, the New South Wales Insurance Ministerial Corporation itself took no steps to bring the matter to a head earlier, as it might and should have done. It did not seek, by motion, to have the appeal struck out for want of prosecution. It simply left the matter dormant until the Court itself took the initiative which I have described. This is also discouraging. Be that as it may, no specific prejudice has been shown which should be visited upon Mr Schembri personally. Mr Schembri may be completely unaware of the reasons for the delay for the prosecution of his appeal. He may well be under the assumption that these were the normal delays that attend proceedings in the Supreme Court and in the Court of Appeal in particular. I hope that he will be disabused of that fact. His solicitor should provide him with a copy of these reasons, which set out the truth of the matter. The Court asked whether, in the circumstances, the solicitor for the claimant would, in the event of the proceedings being reopened, personally and not by Mr Schembri, agree to pay the costs that have been occasioned by this application for review. Counsel indicated that the solicitors would so agree. But for that \REHEMBRI v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Powel JA) agreement, I would not myself have been minded to set aside the order which was properly made by Cole JA on the material before him. In the circumstances, however, as that offer is now made, and as no other specific prejudice has been demonstrated, I consider that the orders of Cole JA should be set aside. I so propose, out of deference to the fundamental principle that an appeal should not be determined, save in exceptional cases, without affording the party most closely involved an opportunity to have its contentions heard and determined on the merits. The orders which I propose are: 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. Mahoney JA I agree. Powell JA I also agree. Kirby P: Such are the orders of the Court. 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. Counsel for the Claimant: RA Campbell Instructed by: Michell Sillar McPhee Meyer Counsel for the Opponent: M Field Instructed by: Solicitor for the New South Wales Insurance, Ministerial Corporation