AYDOGDO v BRADKEN CONSOLIDATED PTY LTD [1995] NSWCA 34

AYDOGDO v BRADKEN CONSOLIDATED PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBY P 3 January 1995

[1995] NSWCA 34

PRACTICE & PROCEDURE — dormant appeal — failure to settle index — repeated delay — last chance given — no progress — held: Appeal dismissed for want of prosecution

Kirby P. This matter was listed in the Registrar's dormant matters callover on 31 March 1995. Mr Fitzsimonds appeared for the appellant. On that occasion there was no appearance for the respondent. Mr Fitzsimonds, who appeared for the solicitors on the record Williams Hussain Davidson advised the Registrar that new solicitors had been instructed by the appellant. On the application of Mr Fitzsimonds the matter was then adjourned to a further callover on 28 April 1995. The solicitors on the record were directed to advise the new solicitors of the adjourned date.

An index to the appeal papers has never been settled in this appeal. The Registrar granted leave to the appellant to apply for an urgent appointment to settle the appeal index before the callover.

On 28 April 1995 an appearance by a Mr (or Mrs) Maloney, as agent for G H Healey, reportedly the new solicitors for the appellant but not on the record, was noted. A Mr (or Miss) Davidson appeared for the respondent. It was noted that no further step had been taken to prosecute the appeal after the previous callover. The Registrar thereupon referredthe matter to the Court to be dealt with by a judge on 3 May 1995 at 9.30am. Both parties were informed.

On that day Mr Sciglitano, solicitor, appeared for the respondent. There was, at first, no appearance for the appellant. I was the judge who heard the matter.

Later in the morning the appellant appeared with an interpreter. I then said to the appellant that the Court would give him another two weeks but that there would be no further leniency after that. I told him that within the two weeks he would have to secure a new solicitor if he could or make other arrangements with the Registrar to pay the money which was necessary to print the appeal books. If he did not do that within the two weeks allowed, if there had been no progress, I would call the matter over before myself and the appeal would be struck out for want of prosecution. All of this was said in the presence of the appellant with an interpreter. I observed that the interpreter interpreted what I said to the appellant. He appeared to understand.