MacKINNON by his tutor Nantia MacKINNON v BLUESCOPE STEEL (AIS) PTY LIMITED & ORS [2009] NSWCA 38

New South Wales Court of Appeal

CITATION: MacKINNON by his tutor Nantia MacKINNON v BLUESCOPE STEEL (AIS) PTY LIMITED & ORS [2009] NSWCA 38

HEARING DATE(S): 27 February 2009

JUDGMENT DATE: 6 March 2009

JUDGMENT OF: Allsop P at 1

DECISION: The motion is dismissed and the first respondent ordered to pay the appellants costs of the motion.

CATCHWORDS: Motion for dismissal for want of prosecution – motion dismissed.

CATEGORY: Procedural and other rulings

PARTIES: MacKINNON by his tutor Nantia MacKINNON BLUESCOPE STEEL (AIS) Pty LIMITED & ORS

FILE NUMBER(S): CA 40533/2007

B Toomey QC, E Romunink (Appellant, First Cross Respondent) COUNSEL: P Blacket SC (Third Cross Respondent) I Morvath (Fourth Cross Respondent) M Joseph SC, V Heath (Respondent)

Keddies Lawyers (Appellant & First Cross Respondent) SOLICITORS: Sparke Helmore Lawyers (First Respondent) Draft One Communications (Third Cross Respondent) McKenzie & Associates Pty Ltd (Fourth Cross Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 20429/1999

LOWER COURT JUDICIAL OFFICER: Patten AJ

LOWER COURT DATE OF DECISION: 20 July 2007

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40533/2007

ALLSOP P

6 March 2009 MacKINNON by his tutor Nantia MacKINNON v BLUESCOPE STEEL (AIS) PTY LIMITED and Ors JUDGMENT 1 ALLSOP P: This appeal arises from proceedings which were heard for ninety four days between 23 May 2006 and 20 April 2007 by Patten AJ. His Honour gave judgment on 20 July 2007 in favour of the defendant/first respondent to the appeal. In the primary proceedings, the appellant was an employee of the first respondent who alleged that he had suffered psychiatric injury in the course of that employment as a result of its conduct in requiring/allowing him to attend a "leadership course" in September - October 1996. 2 The hearing of the appeal has been fixed for 30 March 2009. Although nine days have been allowed for the appeal (eight are now available), it is anticipated that it will conclude inside that estimate. In order to achieve that result, the matter has come before the Registrar and Judges of this Court on a number of occasions. For the purposes of the present application, the following directions hearings are material. 3 On 19 November 2008 the matter came before Bell JA and myself. No formal orders were made on that occasion but I made it clear to the parties that they should co-operate so as to ensure that the appeal was able to proceed expeditiously with a minimum waste of time. To that purpose I raised with senior counsel for the appellant the need for his side to provide an annotated judgment with each finding of fact which was contested marked and numbered. I suggested that a schedule should accompany the annotated judgment which referred to the evidence which affected the fact in dispute and which set out the finding or findings which the appellant asserted should have been made. 4 The matter came before Registrar Schell on 16 December 2008. The Registrar made a number of orders on that occasion including an order that the appellant file an annotated version of the original judgment and a schedule of evidence relied upon in support of alternative findings and contentions by 21 January 2009. The appellant was not able to meet that timetable and on 4 February 2009 I extended the time for compliance with that direction to 10 February 2009. I also ordered that the appellant serve a draft appeal index of extracted evidence and transcript by 24 February 2009. 5 The first respondent accepts that documents purporting to comply with the orders of the Court were filed on the dates specified. It does not accept that those documents comply with the orders of the Court. By motion filed 24 February 2009 the first respondent seeks an order that the appeal be dismissed for want of prosecution and an order for costs. The motion was heard on 27 February 2009.