JEFFREY vy DIRECTOR OF PUBLIC PROSECUTIONS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA 6 February 1995 [1995] NSWCA 218 Priestley JA. This application arises from an order made by Hunt J in 1992 under s 48(4) of the Proceeds of Crime Act 1987. There seems to be quite a deal of history involved in the matter but for the purposes of today's application I need only mention some small parts of it. Mr Jeffrey filed a notice of appeal against the order made by Hunt J, Because of delays, for which the Director of Public Prosecutions was not responsible, he in due course filed a notice of motion seeking dismissal of Mr Jeffrey's appeal for want of prosecution. That matter was dealt with by Powell JA, who took into account the history of delay and the reasons for it that had occurred up to the date when he made the orders which he made on 9 May 1994. Those orders were that Mr Jeffrey was to file and serve the settled appeal index on or before 16 May 1994; and file, lodge and serve the appeal book on or before 23 May 1994; and finally, that upon non compliance with his preceding orders, the appeal should stand dismissed for want of prosecution. What happened after that date was that the settled appeal index was filed on 16 May 1994, the due date, but there is no evidence that Mr Jeffrey can produce that it was served on that date. Mr Jeffrey caused the filing and lodgment of the appeal books on 23 May 1994 but no copy of the appeal book was served until 25 May 1994 and then only one set, instead of three sets, was served. Since then the proper number of appeal books has been served upon the Director of Public Prosecutions. These events leave the appeal in an unusual limbo. Ordinarily, when orders are made requiring conditions to be met to avoid an order of dismissal for want of prosecution, and the conditions are not complied with, the non compliance is complete. It is unusual to find the near but incomplete compliance that happened here. This limbo state seems to have left the Director of Public Prosecutions in some difficulty as to the procedure to follow to bring the matter to finality. I might add that the Director of Public Prosecutions has not suffered any problems in executing the orders made by Hunt J in January 1992. The problem has been one of knowing where the matter stands. To deal with the problem the Director of Public Prosecutions caused the motion for dismissal for want of prosecution to be relisted and it has come before me today. Miss Johnson, who appeared for Mr Jeffrey, explained from the bar table the circumstances that led to the compliance with Powell JA's orders not being literally complete. If what she said had been contested, the usual practice would have made an affidavit necessary, but in the present circumstances I am prepared to accept what she said from the bar table, a further reason being that the failure to comply with the orders was of a kind that does not seem to me to go to the substance of the matter. 2 UNREPORTED JUDGMENTS The Director of Public Prosecutions is quite right in pointing out that the orders were not complied with but, as I have said, this seems to have ledonly to the difficulty for the Director of not knowing whether or not the appeal was going ahead, that difficulty being one which the Director, quite rightly, wanted to resolve. Counsel for the Director also candidly said that no prejudice had been suffered by the Director as a result of the non compliance with the orders beyond the uncertainty in which he was left as to the status of the appeal. One basic purpose behind the rules permitting dismissal of appeals for want of prosecution is to separate out appeals which are not going to be prosecuted to a hearing on the merits from those which are. In the present case, even although the orders were not strictly speaking complied with, the partial compliance with them indicated very plainly, in my opinion, that the appeal was one of the class where the appellant genuinely intended to proceed and had attempted to take all steps necessary for the appeal to go ahead. As these facts and this position unrolled before the court Miss Johnson made an application for extension of time for compliance with the orders made by Powell JA. Mr Bourke sensibly, in my opinion, had no objection to my considering this application, even although brought rather informally. For the reason I have already indicated I think that application should be granted and I order that the orders made by Powell JA on 9 May be varied so as to permit the serving of the settled appeal index by 25 May 1994 and the serving of the appeal book by 25 May 1994 and I also order in the circumstances, the right number of appeal books having later been served upon the Director, that the service of one set of appeal books on 25 May 1994 be sufficient compliance with the order of Powell JA as I have varied it. Upon this footing the appeal should no longer stand dismissed for want of prosecution and I declare that the appeal is not dismissed for want of prosecution. I order that this appeal should be listed in the next call-over ofthe Registrar of the court of Appeal and that it proceed thenceforward in accordance with the directions of the Registrar. Application was made that I make an order under s 76C of the Supreme Court Act. This section enables the court to make punitive costs orders against solicitors whose serious neglect, serious incompetence or serious misconduct delays or contributes to delaying proceedings. Although Miss Johnson was in default in regard to service of the index and lodgment of service of the appeal books in accordance with Powell JA's orders, on the material before me I would not draw the conclusion that that default amounted to serious neglect, serious incompetence or serious misconduct. I notice that Powell JA did not make an order for costs, in terms at any rate, on the original notice of motion which has been revived before me. The ordinary rule is that when an appellant has got to the position where a respondent has brought proceedings for want of prosecution and the appellant has been in default then if an order is made refusing to make an order dismissing the proceedings for want of prosecution on terms, in substances than the appellant remedy the default of which the appellant has been guilty, then the appellant is to pay the costs of the motion seeking dismissal for want of prosecution and unless Miss Johnson has any cogent argument to put against that, that would be the order I would make on this motion. (Counsel addressed.) URJ JEFFREY v DIRECTOR OF PUBLIC PROSECUTIONS (Priestley JA) 3 Mr Bourke has informed me that in the event of my not making an order under s 76C there is no point in making any order as between the parties concerning the costs of this motion because the eventual paymaster is the Commonwealth on both sides of the record. I therefore do not make any order for costs of the motion. Orders accordingly.