Bird, G.J. v The Hon. Free, R
[1995] FCA 366
•4 MAY 1995
CATCHWORDS
APPEAL - dismissal for want of prosecution - litigant in person - refusal to submit to the Court's jurisdiction
Federal Court Rules - O. 52 r. 38
Van Reesema v Gaimeos (1979) 27 ALR 525
Muto v Faul [1980] VR 26
Barton v The Queen (1980) 147 CLR 75
Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1994) ATPR 41-315
Birkett v James [1978] AC 297
GEOFFREY JAMES BIRD V THE HONOURABLE ROSS FREE & ORS
No. QG 3 of 1995
SPENDER, EINFELD & COOPER JJ
BRISBANE
4 MAY 1995
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) No. QG 3 of 1995
GENERAL DIVISION )
BETWEEN : GEOFFREY JAMES BIRD
Appellant
AND: THE HONOURABLE ROSS FREE, Minister for Schools, Vocational Education and Training
First Respondent
AND: THE HONOURABLE SIMON CREAN, Minister for Employment, Education and Training
Second Respondent
AND: DEREK VOLKER, Secretary to the Department of Employment, Education and Training
Third Respondent
CORAM: SPENDER, EINFELD & COOPER JJ
PLACE: BRISBANE
DATE: 4 MAY 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal shall be dismissed.
The appellant is to pay the respondents' costs of and incidental to the appeal, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) No. QG 3 of 1995
GENERAL DIVISION )
BETWEEN : GEOFFREY JAMES BIRD
Appellant
AND: THE HONOURABLE ROSS FREE, Minister for Schools, Vocational Education and Training
First Respondent
AND: THE HONOURABLE SIMON CREAN, Minister for Employment, Education and Training
Second Respondent
AND: DEREK VOLKER, Secretary to the Department of Employment, Education and Training
Third Respondent
CORAM: SPENDER, EINFELD & COOPER JJ
PLACE: BRISBANE
DATE: 4 MAY 1955
REASONS FOR JUDGMENT
SPENDER J: This appeal arises out of an application filed on 27 September 1994. As filed, the applicant was styled the Australian Union of Students and the respondent was DEET, an acronym for the Department of Employment, Education and Training. Mr Bird filed two notices of motion on 27 September 1994 and a further notice of motion on 12 October 1994. The respondent also filed a notice of motion on 19 October 1994.
On 20 October 1994 Mr Bird applied to Kiefel J that she disqualify herself. It is unnecessary to refer to the grounds on which Mr Bird relied, save to say that they were offensive. The primary judge refused to disqualify herself. An
application for leave to appeal to the Full Court of the Federal Court was refused. The proceedings were adjourned until 26 October 1994. On that day Kiefel J heard a number of the motions and on 14 December 1994, in respect of the principal proceedings, her Honour ordered that the application be dismissed and that Mr Bird pay the respondents' costs of and incidental to the proceedings, to be taxed.
That judgment on 14 December followed the hearing of the principal proceedings on 20 and 26 October. In the course of giving her reasons for judgment the primary judge said:
"Mr Geoffrey James Bird is a student and in receipt of Austudy Benefits under the Student Assistance Act 1973. On 28 July 1994 he wrote on behalf of the "Australian Union of Students"...and indeed on behalf of all students in Australia receiving Austudy payments, to the Secretary and Chief Executive of the Department of Employment Education and Training. That department administers...[the Student Assistance Act 1973]. Mr Bird enclosed a "log of claims" and required a decision upon the requests or demands contained within that document. "
The primary judge analysed the nature of those demands. In the course of that outline, she indicated that three respondents, who ultimately became respondents to the proceedings, were the relevant respondents in the view of the department, and she gave directions to that effect.
By letter dated 17 August 1994 from the Assistant Secretary of the legal branch of the department, and on behalf of the Secretary of the department and the two Ministers, Mr Bird was informed that the department had looked at the log of claims. The letter continued:
"The department does not consider that the points raised have merit and will therefore not be implementing any of the matters raised in the log of claims. "
Concerning the nature of the applicant in the proceedings before the primary judge, she said:
"As to the proper applicant, Mr Bird contended that he was entitled to use the name 'Australian Union of Students' in respect of which an application for registration of a trade mark has been made, by way of analogy to the rules relating to business or partnership names or by reference to provisions as to the bringing of class proceedings. Mr Bird's difficulty is, as he informed me, that he is the only member of the group he refers to. He is the Australian Union of Students. He was only able to suggest there might be other members in the future and who might be persons likely to receive financial assistance under the Student Assistance Act. "
The primary judge referred to further submissions made on Mr Bird's behalf and concluded by directing that the name of the applicant be amended to read Geoffrey James Bird. The nature of the application was described by the primary judge as the seeking of declarations and orders under the Administrative Decisions (Judicial Review) Act 1977 and under section 39B(1) of the Judiciary Act 1903.
The respondents sought orders dismissing the application under O. 20 r. 2 and O. 54 r. 6, there being no reasonable basis for the application disclosed and because the proceedings were an abuse of the process of the court. The primary judge said:
"Mr Bird did not contend for a review of the decision on its merit. Whilst Mr Bird made the submission that the decision was legally invalid for unreasonableness, the relief he seeks are declarations and mandatory orders which oblige his log of claim to be implemented. "
In her reasons for judgment, the primary judge said that neither s. 7 nor s. 11(1) of the Student Assistance Act 1973 referred to Mr Bird creates any obligation for which he contends. She referred to further proceedings brought by Mr Bird which had been the subject of judgments by Davies J and concluded that neither s. 7 nor s. 11(1) requires the decisions sought by Mr Bird.
There were other submissions dealt with by the primary judge in the course of her reasons, and she concluded in the penultimate paragraph of her reasons dealing with the proceedings:
"Although it is unnecessary in the light of my other findings, I was also of the view that Mr Bird was not, with respect to the relief sought under the Administrative Decisions (Judicial Review) Act, a 'person aggrieved' since he was in no different position from any other student and no interest of his was affected by the decision. Mr Bird appeared to equate that requirement with a refusal of any request which he considered might be of some benefit to a student. "
She then dismissed his application and indicated that she proposed to order, as she subsequently did, that Mr Bird pay the respondents costs of and incidental to the proceedings, to be taxed.
In the events that have happened, it is not irrelevant to note the observations by the primary judge concerning the conduct of Mr Bird. Her reasons for judgment concluded with these observations:
"I should also add that I have some concern about Mr Bird continuing to bring applications with respect to his Austudy benefits or the scheme to this court. Davies J has heard two applications earlier this year. Both applications were dismissed with Mr Bird being ordered to pay costs and, on my reading of his Honour's reasons, both applications were considered to be misconceived. Mr Bird has appeared before me on a number of occasions with respect to two applications, one of which required a separate consideration of his request that I disqualify myself. The other application I dealt with was concerned with the alleged cancellation of Mr Bird's Austudy payments. Davies J dealt with a similar question. Mr Bird had a legal technical argument which he considered justified the matter being brought in this court and not before the Student Assistance Review Tribunal constituted under the Student Assistance Act, but it seemed to me he simply considered proceedings here might be determined more quickly. The matter was resolved by undertakings although resurrected again by Mr Bird when he brought a motion for breach of those undertakings. In fact Mr Bird sought by those means to obtain a further order not covered by the undertakings made. Needless to say these matters have occupied considerable time. None of them has been of substance and each of them doomed to failure. Mr Bird would be well advised in the future to consider alternative means available for the resolution of these questions. "
On the day when her Honour pronounced her reasons for dismissing the application, Mr Bird raised a matter concerning costs. In that respect, her Honour said:
"I will vacate the order if you point out...[why costs]...ought not follow the event, because that is really what has happened here. "
To that observation, Mr Bird said:
"Your Honour, it would not be appropriate for me to really say anything. I could give a reason why I should not have to pay the respondents' costs, but seeing as how I am appealing on the basis that Keating has stacked this court with corrupt judges, it would be inappropriate to make any sort of submission to any such judge. So I will make my submission to the Full Court. Thank you. "
Apparently, from the transcript of those proceedings, Mr Bird attempted to leave but the primary judge asked the Court Officer if he would ask Mr Bird to come back and present himself to the court. She then continued:
"Mr Bird, I think that you might have been a little emotional before, but you did suggest that the judges of this court, and in particular I took your reference to be me, were corrupt. You would appreciate, of course, that that amounts ...to a contempt of court. Do you wish to pursue that [accusation] or do you wish to retract it? "
There was then some further interchange between the primary judge and Mr Bird, and then Mr Bird said:
"I am not making an accusation to your Honour. I will [be] making the accusation...I have already made the accusation to a Member of the Federal Parliament and I will be - I understood I had the right to say anything of - anything like that to a Federal Member of Parliament, and I will be saying that in [the notice of] appeal, if they will allow me to file it, and I am certainly not making a complaint to your Honour about this court. I mean, that would be ludicrous. So nothing I have said should be regarded as a complaint to this court. "
To which her Honour rejoined:
"which seems to me a very cowardly way of making the sort of accusations you have. "
On 4 January 1995, Mr Bird filed a notice of appeal. The first ground of that notice of appeal was:
"Her Honour was disqualified from hearing the application on the ground that the appellant had, and members of Parliament might have, the reasonable apprehension that her Honour would not bring an impartial and unprejudiced mind to determining the questions in issue in the application. "
The other grounds of appeal alleged various errors of law concerning the matters dealt with by the primary judge in her reasons for judgment.
On 30 January 1995, a draft index to the appeal papers was filed. On 30 January, both Mr Bird and legal representatives for the respondents attended an appointment to settle the appeal index. That appointment resulted in Mr Bird being requested to prepare a new draft final index as a result of discussions held at the appointment and to commence work on his appeal books. It was directed that those appeal books be filed by 24 February 1995.
At that appointment, Mr Bird foreshadowed an application to the judge at the callover to include transcript and written submissions in the appeal books, perhaps as a second volume. The further draft index was filed on 2 February 1995, but there has never been any compliance by Mr Bird with the direction that appeal books be filed by 24 February. In fact, the appeal books have never been filed at all.
On 24 February 1995, an officer of the court on behalf of the District Registrar wrote to Mr Bird informing him of the callover of matters to be dealt with by the present Full Court sittings, and that letter made reference to the information required by the Federal Court of Australia Practice Note No. 1 of 8 April 1994.
On 1 March 1995, there was a letter sent to Mr Bird inquiring concerning the progress in preparing the Appeal Books. The Deputy District Registrar in that letter said that:
"I had expected the books may have been delivered to me by this time. Would you please telephone me and let me know the current situation. "
On 10 March 1995, Mr Bird telephoned the Deputy District Registrar, Ms McQuaid. A file note indicates that, in that call, Mr Bird said he would not be able to file the Appeal Books for another six months because he was in Melbourne for that period. He said that he had attempted to file a notice of motion in Melbourne but it had not been accepted. He requested the Deputy District Registrar to obtain a direction that the notice of motion be filed. The Registrar told him that she was not prepared to do that. She asked Mr Bird formally to write to her in view of his much changed circumstances. He objected to this request and the Registrar
indicated in the file note that she did not expect to receive written communication from him.
In that telephone conversation, Ms McQuaid informed Mr Bird that a callover of Full Court matters had been held on 9 March 1995. She was not able to assist Mr Bird in his inquiries as to what had happened at that callover.
On 30 March 1995, an officer of the court on behalf of the District Registrar wrote to Mr Bird at 1st Floor, 1048 Beaudesert Road, Coopers Plains, Queensland 4108, indicating that the matter had been listed before the Full Court to commence at 10.15 am on Thursday, 4 May 1995, in this present courtroom. The letter said:
"You are reminded of the need to comply with Practice Note No. 1 and the directions made by the court at the callover of 9 March 1995.
A hearing fee of $500 is payable, by the applicant, in this matter. See regulation 2A(1)(b) of the Federal Court of Australia Regulations. The applicant is requested to pay this fee as soon as possible. "
On 4 April, there was a further letter seeking information in relation to the appeal and the preparation of the appeal books. That letter referred to the callover on 9 March 1995 and the listing of the appeal for 4 May 1995.
On 12 April a communication from Mr Bird was received by the Registrar by facsimile. In that letter Mr Bird said:
"You earlier wrote to me, advising the date of the callover, in letters postmarked 27 and 28 February 1995. I did not receive these letters until 27 March. The letters were therefore illegally intercepted and delayed until after the callover. "
He then made some further comments not relevant to the present matter. He did observe however:
"If I do not receive notice of a hearing, due to your letters being illegally intercepted, then any orders made at the hearing are liable to be set aside. "
He said:
"I have not received any notification from you of a date for the hearing in this proceeding. Would you please advise me by 'security mail', of whether a date has been set, and if so, what date. Mr Bishop, of the Australian Government Solicitor's Office, wrote to tell me about certain orders that Spender J purportedly made at the callover, but Mr Bishop did not say whether a hearing date had been fixed. "
His facsimile letter of that day said:
"I take this opportunity to inquire whether the Commonwealth Law Courts building in Brisbane comes under your jurisdiction or under the jurisdiction of the Department of Administrative Services or some other Department. The reason I ask is that I am planning a demonstration against judicial corruption immediately outside the Commonwealth Law Courts, and would like to obtain permission for the protesters to enter the Ground Floor of the building. Strictly speaking we don't need anyone's permission for the demonstration, as why should we obey the law given that judges don't, but naturally, we don't want to break the law if we can avoid it by obtaining permission. "
On 18 April 1995 the District Registrar wrote to Mr Bird at the address he had given in his facsimile communication of 12 April 1995. That letter said:
"I refer to your letter dated 12 April 1995. On 30 March 1995, this Registry wrote to you informing you that this appeal had been listed for hearing before a Full Court at Brisbane at 10.15 am on 4 May 1995.
Deputy Registrar McQuaid wrote to you on 1 March 1995 asking you to let her know how you were progressing with the preparation of the appeal papers. On 10 March 1995 you telephoned Deputy Registrar McQuaid and informed her that, among other things, you would not be able to file the appeal books for another six months.
On 4 April 1995, Deputy Registrar McQuaid again wrote to you asking you to let her know urgently in writing the current position regarding preparation of the appeal books. She again informed you that the appeal has been listed for 4 May 1995.
In your letter dated 12 April 1995 you do not state the current position regarding preparation of the appeal books.
I again advise that the appeal in this matter has been set down for hearing before a Full Court at Brisbane at 10.15 am on 4 May 1995. It is imperative that preparation of the appeal books be completed without delay. You are requested to inform me urgently in writing of the present position regarding preparation of the appeal books. The directions orders made by Justice Spender on 9 March 1995 are contained on the attached sheet.
I have no comment to make in relation to the final paragraph of your letter dated 12 April 1995. [that being a reference to Mr Bird's intention to organise a demonstration]. "
On 21 April 1995, under a covering letter of that date, a solicitor for the Australian Government Solicitor wrote to the Registrar enclosing a copy of a letter that the Australian Government Solicitor had received from Mr Bird. The covering letter noted:
"It seems clear from the letter that Mr Bird does not intend to appear at the Hearing. I advise also that I have not received an Appeal Book. "
In the letter sent by Mr Bird to Mr John Bishop, a solicitor with the Australian Government Solicitor, by facsimile and dated 18 April 1995, he commences by saying:
"I am writing to inform you of the current status of the appeal, and to request your co-operation in obtaining certain orders relating to the conduct of the appeal. "
He referred to his claim that he had not received the letters posted on 27 February 1995 until 27 March 1995. After making further statements which are not presently relevant, he said:
"There are four problems with the appeal. "
These comments are expressly relevant to the decision that the appeal should be dismissed for want of prosecution. He said:
"First, I will not be able to present the case in Brisbane, as I am currently living in Melbourne, and it would be prohibitively expensive for me to travel to Brisbane. Secondly, I am not required, as a matter of law, to present my case to a judge where I have the reasonable apprehension that the judge is biased or corrupt. I have this apprehension in the case of Federal Court judges based in Brisbane, the Chief Judge, and judges appointed at the time of Spender J and subsequently. Thirdly, it is not reasonable for me to include a transcript in the appeal papers unless one is provided free of charge. Fourth, while I am prepared to take all reasonable steps to prosecute the appeal I am not going to commit
time and money to doing so until the questions of the venue, the judges and the transcripts are resolved. Frankly I think the Federal Court is corrupt, and that it will not agree to these requests, so why should I waste more time and money? It follows from what I have just said that I will not be appearing before the court on 4 May 1995. "
The letter then refers to a number of matters which are not of present relevance, although the comments that Mr Bird makes in them repeat his abuse and allegations of judicial corruption which he has earlier made, as I have indicated.
On 28 April 1995 Ms McQuaid, as Deputy District Registrar, wrote to Mr Bird at Post Office Box 123, Roma Street Queensland 4003, being the address again referred to in the facsimile to the Australian Government Solicitor. The letter commenced by referring to Mr Bird's facsimile of 18 April 1995 and then said:
"The Federal Court is very conscious of the difficulties facing persons who for one reason or another are acting for themselves. I note the matters in your letter, but the position is that what you do is a matter of your choice.
Your appeal will be called on for hearing in Brisbane at 10.15 am on Thursday, 4 May 1995. It will not be necessary for you to attend the hearing in Brisbane personally. You will be able to argue your appeal by using the video-conferencing facilities in court V2, Federal Court of Australia, Ground Floor, 450 Little Bourke Street, Melbourne. You should fax to the Brisbane Registry, fax no. (07)248 1260 and to the Australian Government Solicitor in Brisbane, fax no. (07)360 5799 your outline of submissions by 4.00 pm on Wednesday, 3 May 1995.
The Melbourne Registry (telephone (03)289 9353, contact officer Ms Tina Boudlis) will do what is necessary to assist you in the video-conferencing
of your appeal. Please be at the Court room above by 9.30 am on Thursday, 4 May 1995.
If you, or someone on your behalf entitled to appear to prosecute the appeal, does not do so, the appeal will be dealt with in accordance with the Federal Court Rules. "
An affidavit by a senior court officer, Mr Rodney Slater, deposes to the fact that the letter was posted to Mr Bird at Post Office Box 123, Roma Street, Queensland on 28 April 1995 and was placed in the box at 11.12 am on that day. Further inquiries indicate that at 4.30 pm on 3 May 1995, that is to say, yesterday, the letter no longer was in the box. There is some information to suggest that a request for redirection of mail from that post office box had been made on the morning of 3 May to Melbourne on the instructions of Mr Bird. Notwithstanding then that the letter was delivered to the address for service of Mr Bird on 28 April he may, at some subsequent time suggest that that letter was not received prior to today and was not able to be acted upon.
Even if that be the case, it seems to me that it is plain from the history of the matter that I have recited, and in particular from the four points of his facsimile letter of 18 April 1995, that Mr Bird has made a deliberate decision not to prosecute this appeal with diligence, and he has indicated that concerns personal to him should dictate how the matter should be dealt with.
In the light of the history that I have recited, what is to be done? The primary purpose of this court is to administer justice according to law. As is apparent from the correspondence to which I have referred, Mr Bird is not above making high-handed and baseless demands concerning the litigation in which he has been involved. He seems prepared to ignore the requirements of the rules in respect of any procedural steps he wishes to make and seems to think that for some reason he is exempt from their application.
He has habitually made abusive and insulting allegations which are baseless concerning judges of this court. The incidence of litigants in person is an unfortunate phenomenon which is increasing. It is unfortunate because it places great demands on the efficient operation of the legal system, and imposes stressful obligations on the judges who have to deal with litigants in person because the judges would, as a matter of general practice, seek to ameliorate as much as possible the difficulties experienced by litigants who have no legal training and who are inexperienced in the conduct of litigation.
At the same time the judges have an obligation to maintain an essential neutrality that is required as a specific requirement of the determination of issues between parties. The problem of litigants in person is not confined to Australia, and is a worrying problem worldwide. Some aspects of the difficulties posed by litigants in person, referred to in the United States as pro se litigants, appears in an article, "Abusive Pro se Plaintiffs in the Federal Courts: Proposals for Judicial Control" Journal of Law Reform Fall 1984, Vol. 18.1, p. 93.
So far as the present matter is concerned, O. 52 r. 38(1) of the Federal Court Rules provides:
"Where an appellant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted his appeal with due diligence, the court may -
(a)order that the appeal shall be dismissed for want of prosecution;
(b)fix a time peremptorily for the doing of the Act and at the same time order that upon non-compliance the appeal should stand dismissed for want of prosecution, or subsequently and in the event of non-compliance, order that it be so dismissed; or
(c)make any other order as may seem just. "
Rule 38(2) provides:
"A respondent may move on notice for an order under sub-rule (1), and the Court, after notice to the appellant has been given by the Registrar, may make orders in accordance with sub-rule (1) of its own motion. "
Rule 38(3) provides for an opportunity to vary any such order, and provides:
"An order under paragraph (1)(b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time. "
In this particular case there is no motion by any respondent. However, O. 52 r. 38(1), in my opinion, permits the court, if an appellant has not prosecuted his appeal with due diligence, to make an order dismissing the appeal for want of prosecution.
Van Reesema v Gaimeos (1979) 27 ALR 525 is an instance where a Full Court dismissed an appeal for want of prosecution. The facts are somewhat different from those presently before us, in that there were notices of motion filed by the respondents seeking the dismissal of the appeal on that ground. But in the course of giving their reasons, Bowen CJ, Fisher and Lockhart JJ, made some observations which have a present relevance.
In giving their reasons, their Honours indicated that public policy demands that the business of the court should be conducted with expedition, and that its rules and orders should be complied with. The court emphasised that the power to dismiss appeals for want of prosecution is not a power to be exercised lightly, and that each case depended on its own circumstances.
There were factors peculiar to that appeal which persuaded the court to make the orders dismissing the appeal for want of prosecution. It seems to me in the present case, that the history of the matter to which I have referred, leads to a similar conclusion. The court clearly has the power to regulate its own process, a power which in my opinion permits it to dismiss an appeal for want of prosecution.
The Federal Court of Australia is a statutory court, unlike the Supreme Court of Victoria, but the considerations which the Full Court considered in Muto v Faul [1980] VR 26, seem, in my opinion, apposite when called upon to consider the exercise of the power contained in O. 52 r. 38. In Barton v The Queen (1980) 147 CLR 75, Murphy J, at p. 107, made the observation that:
"Every court hearing criminal proceedings has power to control those proceedings in order to avoid injustice; where necessary, it may stay proceedings. "
While that observation appears in respect of criminal proceedings, it emphasises the concern of the courts with the paramount consideration of avoiding injustice. And in the same way that a court has power in an appropriate case to stay proceedings in the interests of justice, there are circumstances where the court, in the interests of justice, ought to dismiss proceedings for want of prosecution.
Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1994) ATPR 41-315, is a case where French J gave judgment for a failure by the respondents to file a defence. It was concerned with the operation of the powers contained in O. 10 of the Federal Court Rules. But his Honour noted at 42,203:
"In the present case there has been a failure to comply with the order of the court requiring the filing of a defence. It is plain that that omission is an expression of a continuing refusal to submit to the jurisdiction of the court or to otherwise co-operate with its procedures in any way. In my opinion, therefore, the case is one which falls within the order. Further orders would be a waste of time having regard to the stated attitude of the two respondents. In my opinion, therefore, there should be judgment against them pursuant to O. 10 r. 7(1)(b). "
In this case, in my opinion, there has been a similar expression of attitude on the part of Mr Bird. He has made it plain that he does not intend to prosecute his appeal except on conditions of his own stipulation. He has persistently failed to comply with the direction that he prepare the Appeal Books. He has manifested the intention not to prosecute his appeal when it is called on. There has been, in my opinion, a repeated non-compliance with requirements of O. 52 in the preparation of this appeal, and that, in my opinion, it is just for the court to make the order dismissing the appeal for want of prosecution.
There is one final matter which supports the appropriateness of the making of that order. I have had regard to the grounds in the notice of appeal and to the reasons of judgment of the primary judge. In my opinion, there is nothing in the grounds for appeal in the light of the reasons for judgment of the primary judge which leads me to think that there is any reasonably arguable case for the appellant on the appeal. In my opinion, the appeal should be dismissed for want of prosecution.
EINFELD J: I agree with the House of Lords in Birkett v James [1978] AC 297 that dismissal of appeal for want of prosecution is such a drastic step that it should only be justified by the grossest or most contumelious delay. This view was followed by this court in Van Reesema, to which the learned presiding judge has referred. It seems to me that the circumstances in this case are, for the reasons given by the presiding judge, within that description, and I therefore agree with the orders proposed.
COOPER J: I agree with the orders proposed by the presiding judge, and I have nothing further to add to the reasons he has given.
SPENDER J: The order of the court is that the appeal be dismissed. The court further orders that the appellant pay the respondents' costs of and incidental to the appeal, to be taxed if not otherwise agreed.
I certify that this and the preceding nineteen (19) pages are a true copy of the reasons for judgment herein of the Court.
Associate
Date
No appearance for the appellant.
Counsel for the respondents : Mr P. E. Hack
instructed by: Mr R. Melville of Australian Government Solicitor's Office
Date of Hearing : 4 May 1995
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