LANG and ANOR v KIRKNESS and ANOR [1994] NSWCA 178

LANG v KIRKNESS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY JA 15 June 1994

[1994] NSWCA 178

Handley JA This is an application by the respondents for the appeal to be dismissed for want of prosecution. The notice of appeal was originally filed on 2 August 1993 but was not competent because the order appealed from was interlocutory. In due course the appellants applied for leave to appeal which was granted by this Court on 21 February this year. At that time leave to appeal was not opposed by the solicitor appearing for Mr and Mrs Kirkness.

The appeal was referred to the Registrar for the purpose of settling the index to the appeal books and he gave a direction that the appeal books should be filed by 29 April. The appellants did not comply with this direction and indeed, as of today's date, the appeal books have still not been filed. Some explanation for the delay has been offered by the appellants relating to the inefficiency with which this matter was attended to by their former solicitor.

The appellants have now changed their solicitors and instructed Messrs Wilshire Webb. Today, Mr Hudson from that firm has appeared for the appellants and I am informed that the appeal books can possibly be filed by Friday, but that there is no reason at the moment why they should not be filed by next Monday.

This appeal has had an unfortunate history of delay which is causing Mr and Mrs_ Kirkness_ substantial loss because they are having to rent other accommodation, their access to their home next to the Langs' property having been disrupted by the damage to the causeway across one of the creeks in the area.

Although the appellants are now some six weeks out of time in the preparation of the appeal books, and this delay has supervened on earlier delays, I do not consider that the Court can take the drastic step at this time of dismissing their appeal for want of prosecution. However, I propose to act under RSC Pt51 r17 and to fix a time peremptorily for the filing of the appeal books on or before Spm, next Monday, 20 June. The appeal books are to be served on Mr and Mrs Kirkness on or before 5pm on Tuesday 21 June. The time for service is also fixed peremptorily.