Commonwealth of Australia v Sasin [2001] NSWCA 150

New South Wales Court of Appeal

CITATION : Commonwealth of Australia v Sasin [2001] NSWCA 150 FILE NUMBER(S) : CA 108/84 HEARING DATE(S) : 14/05/01 JUDGMENT DATE : 28 May 2001

Commonwealth of Australia PARTIES : v Mieczyslaw Sasin JUDGMENT OF : Meagher JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT 10117/71 FILE NUMBER(S) : LOWER COURT Hodgson J JUDICIAL OFFICER :

COUNSEL : A: P T Taylor R: M Duncan SOLICITORS : A: Australian Government Solicitor R: Galland Elder Lulham CATCHWORDS : Notice of Motion - Application to strike out appeal for want of prosecution - where essential documents for a re-trial cannot be found - delay of approximately 16 years from filing of notice of appeal to institution of appeal - application granted. CASES CITED: Anns v Merton London Borough Council (1978) AC 728 DECISION : Application granted.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 108/84

MEAGHER JA

Monday, 28 May 2001 SASIN v COMMONWEALTH OF AUSTRALIA JUDGMENT

1 MEAGHER JA: This is an application by the Commonwealth of Australia, the respondent to the appeal, to strike out the appeal by Mr Sasin, the appellant, for want of prosecution. The appeal was from Hodgson J's decision to dismiss Mr Sasin's case with costs. 2 The case arose out of an aircraft collision which took place on 3 December 1965. Proceedings commenced on 2 December 1971. The hearing commenced on 21 November 1983, and judgment was delivered on 28 February 1984. A notice of appeal was filed on 23 April 1984. As far as the Court file is concerned, praeterea nihil. 3 We now know that, in the interim, Mr Sasin has applied, without success, to the NSW Legal Services Commission, the Commonwealth equivalent, and the WA equivalent, to fund his appeal. The matter was also mentioned in Court at various stages before the late Rath J, the late Master Cantor, and the long-retired Master Sharpe, but to no particular effect. Advice that the appeal was hopeless has been obtained from Mr Sasin's solicitors, from Mr Burchett QC (as he was before he joined the bench of the Federal Court, from which he recently retired), and from Mr D A Wheelahan QC (as he then was and still is). 4 Mr Malcolm Duncan, learned counsel for Mr Sasin, who argued this case with real skill, whilst acknowledging the obvious obstacles in his path, submitted that the Commonwealth's application should fail. He made the point that Hodgson J relied heavily on Anns v Merton London Borough Council ( 1978) AC 728, the reasoning of which cannot now be supported in the light of certain decisions of the High Court delivered since that date. 5 Nonetheless, that is not the end of the matter. There is no reason to think that a different result would have ensued if no reliance had been placed on Anns. 6 The plaintiff's cause of action really is that when he, as a pilot, flew his plane into power lines and crashed it, his flying harness was deficient, and that it was the Commonwealth's duty not to permit him to fly unless and until the harness was safe. One difficulty which arises from that formulation of the case is that, before the plane took off, Mr Sasin knew of the exact nature of the fault in his harness, and nonetheless took the risk of flying with the harness in that state. 7 Moreover, if the appeal were to succeed, it is highly likely that the Court would wish to inspect either the aircraft's logbook or its engineer's logbook. These were exhibits "G" and "H" at the trial. If a new trial were ordered, they would be essential documents. But they have vanished and cannot be found. 8 All in all, and with some regret , I will make the order sought by the Commonwealth in its Notice of Motion dated 8 December 2000, that the respondent's appeal be dismissed for want of prosecution, with costs. ******