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. On 31 March 1995 Messrs Halliday & Stainlay, solicitors of Murwillumbah, filed a notice of appeal to this Court on behalf of the opponent. The notice specified 11 May 1995 as the date for the settlement of the appeal papers. The notice of appeal contains grounds challenging the finding by Taylor J that the article containing the matter complained of carried the defamatory imputations set forth in the judgment and that his Honour had erred in finding that the defamatory imputations related to the claimants, that he erred in awarding exemplary damages and that he erred in finding that the reputations of the claimants had been injured. When the proceedings came before the Registrar of this Court on 11 May 1995 there was no appearance by the opponent. The index was not settled. The matter was relisted for 30 May 1995. On that day the opponent also failed to attend. 2 UNREPORTED JUDGMENTS On 26 June 1995 the solicitors whom the opponent had retained to act in the appeal notified the solicitors for the claimants that they had not been able to obtain further instructions in respect of the appeal. They foreshadowed that they would be filing a Notice of Ceasing to Act within the following seven days. At the further callover before the Registrar on 27 June 1995, a barrister appeared in the interest of the opponent and at his request the Registrar referred the matter to the dormant list for callover on 28 July 1995. The appeal was duly called over on that day. Once again there was no appearance by the opponent. The matter was then referred into the list of a Judge of the Court. It came before me on 4 August 1995. It could not conclude on that day as I required that proof be given of the service upon the opponent of the process and of the supporting affidavit. The matter has come before me again this day, I have read an affidavit of Mr Noel Hardy, commercial agent, sworn 15 August 1995. This indicates the attempted service, including of the documents in the present motion, upon the opponent and the difficulty which had been experienced in effecting the service. By further affidavit of 16 August 1995 Mr Hardy deposes to additional attempts on 10 August 1995, 11 August 1995, 12 August 1995 and 14 August 1995 to serve the process upon the opponent at various addresses. An affidavit of Mr Ian Angus, Solicitor, sworn 17 August 1995 deposes to the service of the documents in the present motion upon the solicitors who had previously been retained for the opponent in the appeal and who remain on the record and upon the opponent himself, care of the Murwillumbah District Mail. I have been informed that the documentation has been sent by fax to the last-mentioned address. I infer that the fax has been received. It is clear either that the opponent has received the documents relating to the appeal and to this motion or, as I would infer, that he is making it difficult for the claimants to effect personal service of process upon him. I am satisfied that the documents will have come to his notice. I have been informed that he is still the proprietor and publisher of the journal. From the beginning of this litigation the opponent has not taken the steps which are usual and orthodox. He did not defend the proceedings at trial, either in the pleadings or during the hearing. His belated appeal has not been prosecuted as the Rules of the Court require. The purpose of the dormant list is to remove from the Court's list any process which has not been prosecuted with due diligence and in accordance with the Rules. The solicitors for the opponent have indicated that they could not receive instructions from him. I would infer that he has either lost interest in the appeal or is not prepared to prosecute it as the Court requires. For these reasons I consider that the application for relief on the part of the claimants is justified. The orders which I make are: (1) Dismiss the appeal of Peter William Cox against the judgment entered against him in the District Court by Taylor J; (2) Order that the opponent pay the claimants" costs of the appeal and of the motion for the dismissal of the appeal for want of prosecution. Orders accordingly. Counsel for the claimants (respondents): N Humphrey (Solr) Solicitors for the claimants (respondents): Mallesons Stephen Jaques URJ COLEMAN v COX (Kirby P) Counsel for the opponent: No appearance Solicitors for the opponent: Halliday and Stainlay