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. The case is obviously one which should be expedited. I order expedition Category B and I fix the hearing of the appeal for Thursday 26 July on the basis of present information that the appeal should not last for more than one day. Mr Hudson has informed me that a brief with the appeal books will be delivered to Mr Malcolm Craig QC early in the week of 20 June, and that the appellants will be having a conference with him in all probability on 22 June. I direct that Mr Craig QC advise me by telephone on or before Spm on Friday 24 June of his estimate for the likely duration of the appeal. If there are any unpleasant surprises in that information, the Court may have to consider fixing the appeal for later in July when two days would be available. 2 UNREPORTED JUDGMENTS On 6 June the appellants were not in a position to proceed and had to ask for an adjournment which had been occasioned either by the default of their previous solicitor and perhaps, to some extent, by the delay of the present solicitors in filing a notice of change of solicitor. I ordered then that the costs of that adjournment be paid in any event by the appellants. I asked Mr Kirkness to advise me today of the amount of his loss of wages for that day after deduction of tax. Mr Kirkness informed me that his loss of wages after tax was $109.36. On reflection these party and party expenses will be taxable and I should take a pre-tax figure. Assessing this amount in a sensible way, I allow $150 and I direct that the appellants pay this amount to Mr Kirkness on or before Spm on Tuesday 21 June. Again I fix that time peremptorily pursuant to RSC Pt51 117. Mr and Mrs Kirkness were justified in bringing this application and I order the opponents, Mr and Mrs Lang, to pay the other costs of Mr and Mrs Kirkness of this application. In relation to the hearing of the appeal, I direct that the appellants file and serve their written submissions on or before 5pm on 15 July 1994 and I fix that time peremptorily also to ensure that Mr Kirkness has available to him over the weekend of 16/17 July a copy of Mr Craig's written submissions to enable him to prepare for the hearing of this appeal. I direct that Mr Kirkness file and serve in typewritten form a copy of his outline of submissions in reply on or before 5pm, on 20 July to ensure that a copy of these will be available to Mr Craig before the hearing of the appeal. The written submissions which are to be filed should be lodged in the submission box on Level 12 of this building which is in the lobby near the lifts outside the Court. Mr Hudson informed me that he will make a sensible arrangement with Mr Kirkness for service of documents on Mr Kirkness and by Mr Kirkness. If there is any difficulty in this regard, I can be contacted in the first instance by Mr Hudson by telephone through my Associate. Those are the orders I will make.