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. In the presence of the appellant and his interpreter I also informed the appellant that the matter would be called over before me this morning at 9.30am. I asked that the date be placed on a piece of paper so that there would be no doubt that the appellant knew the date. I told the appellant once again that if, on that date, appropriate arrangements had not been made for his representation by new solicitors and/or the payment to the Registrar of moneys necessary to print the appeal books the appeal would be struck out for want of prosecution. I asked the appellant if he understood what I told him through his interpreter. He answered yes. 2 UNREPORTED JUDGMENTS This morning, as arranged, the case has been called over before me. Mr Sciglitano, solicitor, has again appeared for the respondent. He has told me that he is unaware of any steps that have been taken to conform to the orders of the Court. There is no note on the court file that any stephas been taken to file the appeal papers which are the necessary pre-requisite to the prosecution of the appeal. Three times outside the Court the appellant has been called. He has not appeared. There is no appearance of any solicitor or other representative of the appellant. This matter has now gone on for too long. The respondent asks that the appeal be dismissed for want of prosecution. I agree. The order of the Court is that the appeal is dismissed for want of prosecution. The appellant is to pay the respondent's costs. Orders accordingly. Counsel for the appellant: (On 3 May 1995) In Person Counsel for the appellant: (On 19 May 1995) No Appearance Solicitors for the appellant: No Appearance Counsel for the respondent: J Sciglitano Solicitors for the respondent: J Sciglitano and Co