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. Letters drawing attention to the want of prosecution of the appeal, were sent to the appellant's solicitors Messrs Anthony Malouf & Co of Parramatta on 11 January 1993, and early in January 1994. The file was marked inactive earlier this year, following an absence of any response by Messrs Anthony Malouf & Co, to the court letter sent out on 4 or 5 January this year. On 9 September this year a further letter was sent to Messrs Anthony Malouf & Co, advising that a callover of dormant appeals would be held before a Judge of Appeal on 28 September 1994. The letter pointed out that: "Tf the appellant cannot establish that the appeal is being and will be actively prosecuted, it may be dismissed for want of prosecution pursuant to Pt51 r17 of the Supreme Court rules." It appears that the appellant was notified by her then solicitors of the receipt of this letter, and she then arranged to be represented by new solicitors Messrs Keddies & Co, and in particular by Mr Roulstone of that firm. 2 UNREPORTED JUDGMENTS Mr Roulstone appeared for the appellant before Cole JA on 28 September. At that stage he had little to report with regard to the prosecution of the appeal. In short reasons given on 28 September Cole JA said this: "T note that this matter has lain dormant since 1990 and that the appellant is a solicitor of this court. In those circumstances I will adjourn the matter until Wednesday, 5 October 1994 at 9.30 am. On that occasion the court will address the question of whether the appeal should be dismissed for want of prosecution. If the appellant does wish to proceed and if that motion is not granted, then the matter will be brought on for hearing in late November. If the appellant wishes to proceed, the appellant should immediately undertake the preparation of any necessary appeal books to ensure that the matter can meet the earliest hearing date if the application for dismissal for want of prosecution is unsuccessful." I should add that following receipt of the letter from the court of 9 September this year, the respondent filed a motion on 15 September to have the appeal dismissed for want of prosecution, and the Notice of Motion and a supporting affidavit was served on the appellant's then solicitors, Anthony Malouf & Co. As I have already mentioned, there was no appearance for the appellant when the matter was next before Cole JA on 5 October. She was not represented by counsel, or solicitor, and she was not present in person. In those circumstances the appellant's name having been called outside the court three times, his Honour proceeded to give judgment dismissing the appeal for want of prosecution. He said: "T adjourned the matter to today to enable steps to be taken for the immediate preparation of the appeal papers, if it was the attention of the appellant to proceed. That order was made in circumstance where this appeal having been lodged in 1990 no steps have been taken by the appellant either to settle the index or to prepare the appeal papers. No steps have been taken in that regard since 28 September 1994, and there has been no contact from the appellant to the respondent. As I have said the appellant did not attend nor appear through a solicitor today. In those circumstances I dismiss the appeal for want of prosecution and I order the appellant to pay the respondent's costs." It is clear that the orders made by Cole JA on 5 October, were made ex parse as a result of a breakdown in the relationship between the appellant and Mr Roulstone, the solicitor she had previously instructed to act on her behalf in this appeal. Mr Roulstone informed Miss Johnson at only 9.20 am, on the morning of 5 October, that he would not be appearing on her behalf at the mention before Cole JA at 9.30. This indication came, according to Miss Johnson, after a lengthy 15 to 20 minute telephone conversation between her and Mr Roulstone. She then endeavoured to attend court in person, departing from her office at East Sydney for that purpose, but she arrived at 9.45 only to be told that the matter had been dealt with and that her appeal had been dismissed. Under normal circumstances the court would not hesitate to relieve against this situation brought about by a late, and it would appear unprofessional statement by Mr Roulstone at 9.20 on the morning, that he was not going to appear before Cole JA at 9.30. See Taylor v Taylor 143 CLR 1. However, this is not an ordinary case. The appeal was struck out for want of prosecution in October 1994, a little under 46 months after the Notice of Appeal was filed. During that time no effective step has been taken to prosecute this appeal, apart from the lodgment of the Notice of Appeal itself. URJ JOHNSON v URBAN TRANSIT AUTHORITY (Handley JA) 3 Messrs Anthony Malouf & Co have not been heard in this matter, and it would not be right to express any view about their responsibility for this very long delay, until their instructions were withdrawn in September this year. I fully accept the appellant's evidence that she does not practice in the civil side of litigation but essentially on the criminal side, and that therefore, she does not have any working knowledge of the way in which civil courts proceed in matters of this kind. However, the fact remains she is a solicitor and far better able than the ordinary lay client to supervise the acts and omissions of her own solicitors, retained to prosecute her appeal. Having regard to the inordinate delay and the total failure to take any steps at all to prosecute the appeal since December 1990, it is impossible I think, for this court to treat the appellant as if she was entirely blameless for this long period of delay. Had there been any real wish on her part to prosecute this appeal, obtain a decision of this court and a new trial of her action in the District Court, she would surely have done more than she appears to have done over this very long period. It is abundantly clear that this appeal has not been prosecuted effectively, or indeed at all, and it seems to me that the only order that could properly have been made on 5 October 1994, had Miss Johnson been properly and efficiently represented that day, was that her appeal should then have stood dismissed for want of prosecution. The court's authority to make such an order is conferred, or regulated, by the rules of this court Pt51 r17. Accordingly although the appellant is prima facie entitled to be relieved against the miscarriage which took place on 5 October, in my opinion her appeal was then doomed, and treating the matter as it could and should have been treated on that day, one is faced with this inordinate delay and complete failure to take any steps at all to prosecute the appeal. Mr Patch submitted that the court should nevertheless allow the appeal to proceed, because the respondent has not pointed to any particular prejudice. While this is a powerful consideration when it is sought to dismiss an action before trial on the merits it is not so powerful a consideration when it is sought to dismiss an appeal following a trial on the merits. As this court said recently in Zeiz v Lindahl (12 September 1994 unreported), in a case where the appellant sought leave to appeal out of time, and referring to a decision of the New Zealand Court of Appeal and quoting from a judgment in that case of Richmond JA: "The rules do not provide that a court may grant leave if satisfied no material prejudice has been caused by the failure to appeal in time. Everything is left to the discretion of the court." Similarly Pt51 r17 does not provide that an appeal may only be dismissed for want of prosecution if there has been no material prejudice to the respondent. In any event, it seems to me that since a new trial is probably the only effective relief which the appellant could obtain there is presumptive prejudice in proceeding to a new trial in a case of this kind so many years after the original accident in 1986. In all the circumstances therefore, I decline to set aside the order for the dismissal of this appeal made by Cole JA. The motion of 26 October is therefore dismissed with costs.