COLEMAN v COX [1995] NSWCA 83

COLEMAN vy COX SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBY P 18 August 1995 [1995] NSWCA 83

PRACTICE & PROCEDURE — Court of Appeal — dismissal for want of prosecution — withdrawal of instructions from solicitor — failure to attend Registrar's call-overs — loss of interest in appeal — held: Appeal dismissed for want of prosecution.

Kirby P. Before the Court now is a motion for dismissal of an appeal for want of prosecution. The appeal arises out of a judgment which was entered in the District Court of New South Wales by Taylor DCJ in favour of Mr Dominic Coleman, Mr John Coleman and Mr Andrew Coleman, the claimants.

The judgment arose out of the publication of material in the Murwillumbah District Mail on 5 August 1993. The proprietor and publisher of the Mail is Mr Peter Cox, the opponent.

Following the publication of the matter complained of, the claimants instituted their proceedings by a statement of claim dated 3 November 1993. On 5 August 1994 the Registrar of the District Court at Murwillumbah entered default judgment in favour of the claimants against the opponent pursuant to Pt 11 r 1 of the District Court Rules. This was done on the ground that theopponent had failed to file a notice of his grounds of defence. No steps were taken by the opponent to have this judgment set aside.

Pursuant to Pt 11 r 1 (2) (b) and r 3 of the District Court Rules the Registrar then set the action down for trial as an assessment of the damages to be recovered

by the claimants. It was the trial of this action which resulted in the judgments entered by Taylor DCJ at Murwillumbah on 30 August 1994.

The opponent was not represented at the trial, neither did he attend in person. For reasons which he gave, Taylor DCJ entered judgment on the assessment of damages in the sum of $50,000 for Mr Dominic Coleman, $40,000 for Mr John Coleman and $30,000 for Mr Andrew Coleman. Those judgments are undischarged.