MARLENE PATRICIA PRASAD v HOSPITAL PRODUCTS LIMITED [1996] NSWCA 433

MARLENE PATRICIA PRASAD v HOSPITAL PRODUCTS LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, SHELLER JA and COLE JA 26 June 1996

[1996] NSWCA 433

Clarke JA. (On application for leave to file motion in court.)

At the commencement of the hearing of this appeal the respondent sought leave to file in Court a Notice of Motion raising an issue which is specifically referred to in the Rules. It sought to file an objection as to competency with the consequence that, if successful, the appeal would be dismissed as incompetent.

The Supreme Court Rules, Part 51 Rule 17A subrule (1) provides that any application of this nature be made within 21 days after service upon the respondent of the Notice of Appeal with appointment. It is obvious that that Rule has not been complied with.

Furthermore, this case has been listed in a special sittings of short appeals which has been called over before Mr Justice Cole. On no occasion prior to last night did the respondent ever suggest it would be making such an application.

When counsel was submitting that the Court should entertain the motion he was asked what the reason was for the failure to make an application at theproper time, or even at some later time, well before the hearing and before the appellant had been put to the cost of preparing the appeal books and briefing counsel, and the Court had been put to the trouble of reading the appeal books preparatory to hearing the appeal.

He was unable to provide any explanation at all, nor did he file any affidavit in which any explanation was forthcoming. The inference to be drawn is that no proper attention was given to this appeal until the eleventh hour, a situation which can only be described as wholly unsatisfactory and as reflecting a dereliction by a solicitor of his duty to the Court.