MULVIHILL v STATE BANK OF NSW LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA 28 March 1996 [1996] NSWCA 375 Priestley JA. On 1 September 1995 Rolfe J entered judgment against AW and EA Mulvihill. By notice of appeal filed 11 November 1995 the Mulvihills appealed against the decision of Rolfe J. How that notice came to be filed at that time does not appear in the papers before me, but is not relevant to today's proceedings. A letter dated 9 February 1996 was addressed to the Mulvihills at 5S Nenagh Street North Manly New South Wales 2100. This was the address given in the notice of appeal as the appellants" address for service. This complied with Pt 65 r 1 (8) of the Supreme Court rules as the appellants were not represented by a solicitor in the lodgment of the notice of appeal. The letter of 9 February said that the appeal was listed for an appointment to settle the appeal index at 9.30 am on 8 February 1996 but neither party then appeared. The letter also noted failures to comply with rules relating to appeals. The letter continued that the appointment to settle the index had been adjourned to 15 March 1996 at 10.00 am. It further continued that if theappellants failed to appear on the adjourned appointment the matter would be referred to a Judge of Appeal to have the appeal dismissed for want of prosecution. The letter concluded by saying it was a notice pursuant to Pt 51 r 22 (2) of the Supreme Court rules. This rule refers to the procedure involved in the settling of indexes. I assume that the original of this letter was duly posted. That seems to be a legitimate inference from the state of the file before me. The next document in the file is a letter dated 15 March 1996, again addressed to the appellants at the address for service given in their notice of appeal. I likewise am prepared to infer that the original of this letter was duly posted and went to the place to which it was addressed. This letter was headed "Dismissal of the Appeal" and referred to the previous letter of 9 February 1996. It went on that since that letter no documents had been filed, nor had there been any appearance at the appointment to settle the index on 15 March 1996. It concluded by saying the matter had been listed for mention at 9.30 am on Thursday 28 March 1996 for the purpose of dismissing the appeal. There is no response in the file to this letter. The matter was listed for mention at 9.30 today 28 March 1996. It was called on for hearing at 9.30. Mr Toda appeared for the respondent. The names of the appellants were called three times outside the Court and they did not appear. Mr Toda has informed me from the bar table that the respondent has caused a bankruptcy notice to be served upon the appellants. The respondent says that notice was not complied with and has filed a bankruptcy petition against the appellants. It is for hearing on 4 April next. 2 UNREPORTED JUDGMENTS Mr Toda also tells me that service of various documents in connection with the bankruptcy proceedings was effected at the address for service given in the appellants" notice of appeal. Having looked at the judgment against which the appeal was brought, it seems that the Judge's decision was based in significant part on his views as to what evidence he should accept from witnesses who gave conflicting evidence about certain events relevant to the subject matter of the case. He found in favour of the respondent's witnesses upon these matters. The appeal is therefore one which was likely to run into difficulty at least in regard to the complaints about fact finding which are the principal matters raised in the notice of appeal. It is therefore understandable that the appellants have taken no steps to prosecute their appeal. In any event on the material before me it seems that full and proper opportunity has been given to the appellants to comply with the rules and directions of the Court relating to their appeal, as well as a full and proper opportunity to attend the Court this morning to raise any matters concerning their appeal that they wished to raise with the Court. There has been complete silence from them in circumstances which lead clearly to the inference that they do not wish to prosecute the appeal. Whether that be so or not on all the material before me it seems to me to be the proper course to dismiss their appeal for want of prosecution and I make that order. Along with that order there should be an order that they pay the respondent's cost of the appeal. Orders accordingly.