ABIGROUP CONTRACTORS PTY LTD vy ALGONS ENGINEERING PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL STEIN JA 17 June 1998 [1998] NSWCA 2 Stein JA Motion for Expedition Abigroup is the defendant/appellant in these proceedings. It seeks expedition of an appeal which involves a discrete issue as to the construction of a clause in a contract. The appeal arises out of a decision of Rolfe J given on 4 December 1979. The appeal required leave, which was granted by the Court of Appeal on 15 December 1997. The summons seeking leave to appeal also sought expedition. So far as I can ascertain, and I have no personal memory of the matter, it does not appear that the request for expedition was the subject of argument on 15 December last. It appears that on that day, when granting leave, the Court refused expedition, although the transcript of the ruling or judgment on leave is, for some reason, unavailable. Notwithstanding Mr Faulkner's submissions on behalf of Algons, I am prepared to assume that there never was a hearing on the merits of the application for expedition last December. Accordingly, I will treat this application for expedition afresh. The essential argument for expedition made by Abigroup is that if Abigroup is successful in the appeal, there will be no need to hear its cross-claim. Abigroup says that if the appeal is not expedited, the parties will incur unnecessary costs in the substantive proceedings, and the appeal will be rendered nugatory. I am summarising more detailed submissions made by Mr Corsaro on behalf of Abigroup. Algons dispute Abigroup's claims, and oppose expedition. The reasons for its opposition are to be found in the affidavits of Richard Henry Anicich, sworn 24 May and 2 June 1998 respectively. They have been expanded in oral submissions made by Mr Faulkner on behalf of Abigroup. Also,in some written points of contention to the expedition motion which he has handed to the Court. In particular, in the affidavits of Mr Anicich it is stated that if Abigroup is successful in the appeal, Algons will seek to have disputed in the current litigation the basis of deductions for back charges, liquidated damages and the value of variations contained in the payment certificate dated 24 October 1997. One thing is clear. That is, if the appeal is unsuccessful, Abigroup's cross-claim will proceed. I have considered the respective submissions, and am unpersuaded that sufficient justification has been advanced for an expedited hearing. I do not accept the suggestion that the appeal is necessarily futile, but if expedited it is unlikely that it will bring any finality to the litigation. I also do not accept that the appeal will 2 UNREPORTED JUDGMENTS necessarily be rendered nugatory if unexpedited. Thave to bear in mind the position of other litigants in the Court of Appeal who are awaiting hearing of their appeals. The more appeals that are expedited, the longer wait for those which are not. It is necessary to hold a balance, and only 5 expedite those appeals which truly merit it. I am not satisfied that this appeal satisfies any of the tests of expedition. The application is accordingly refused, with costs.