Davis Samuel Pty Ltd v Commonwealth of Australia

Davis Samuel Pty Ltd and others (the appellants) sought to appeal a decision of the Federal Court of Australia. The Commonwealth of Australia (the respondent) applied to the Full Court of the Federal Court to have the appeal dismissed for want of prosecution.

The central legal issue before the Full Court was whether the appeal should be struck out due to the appellants' failure to prosecute it diligently. Specifically, the Court had to consider the appellants' prolonged delay in settling the appeal index, which had not been completed for twelve months, and whether any sufficient cause had been shown to justify this delay.

Burns J found that the appellants had not provided adequate evidence to explain their failure to progress the appeal. The Court rejected submissions that the appellants were impecunious or that ancillary proceedings had consumed their time and resources, noting a lack of supporting evidence. Applying the principles of the interests of justice, the Court concluded that the delay was inexcusable and that the appeal should be dismissed for want of prosecution.

Consequently, the Full Court ordered that the appeal be struck out for want of prosecution.