JOHNSON v URBAN TRANSIT AUTHORITY [1994] NSWCA 158

JOHNSON v URBAN TRANSIT AUTHORITY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 14 November 1994

[1994] NSWCA 158

Handley JA In this matter the appellant Miss Leigh Johnson seeks the setting aside of an order made by Cole JA on 5 October 1994 dismissing her appeal to the Court of Appeal for want of prosecution. The matter is properly before me as a single judge, because the order made by Cole JA, was made in the absence of either Miss Johnson or any representation on her behalf. The order having been made ex parse it may be reconsidered by a single judge on the application of the party who did not appear, after proper notice to the party who did. See Taylor v Taylor 143 CLR 1.

The appeal in this case was commenced on 20 December 1990, being an appeal from a reserved judgment by his Honour Judge Conomos in the District Court, delivered at Parramatta on 26 November 1990. His Honour found a verdict for the defendant in the action and indicated that had he found it necessary to assess damages, he would have awarded the plaintiff $400. The judge took an unfavourable view of the way in which the plaintiff's claim for damages had been pleaded, particularised and presented. In these circumstances it is not surprising that the primary relief sought in the Notice of Appeal was a new trial.

Deferring for a moment the question of who was responsible, the fact remains that no single step has been taken since 20 December 1990 to prosecute this appeal.

A number of appointments to settle the appeal index were made and either cancelled or the matter adjourned. The last appointment for the settlement on the index, was made during 1991. The judgment of the trial judge was not lodged with this court, nor was the transcript. The only documents the court held was the District Court file transmitted by the Registrar of that court, following receipt of the Notice of Appeal.