Hart v Mossensons

[2001] WASCA 359

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   HART -v- MOSSENSONS [2001] WASCA 359

CORAM:   MALCOLM CJ

WALLWORK J
OLSSON AUJ

HEARD:   7 NOVEMBER 2001

DELIVERED          :   7 NOVEMBER 2001

FILE NO/S:   FUL 5 of 2001

BETWEEN:   LLOYDE WILLIAM HART

Appellant

AND

MOSSENSONS
Respondent

Catchwords:

Appeal - Practice and procedure - Application to dismiss for want of prosecution - Delay by appellant compounded by delay by Court in responding to inquiry whether appeal book settled - But for such delay appeal may otherwise have been dismissed

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr A F Mizen

Respondent:     Mr R E Keen

Solicitors:

Appellant:     Alan Mizen

Respondent:     Mossensons

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. MALCOLM CJ:  In my opinion this application to dismiss this appeal for want of prosecution should be dismissed.  I have reached that conclusion, notwithstanding the fact that there has been delay on the part of the appellant's solicitors, but the position has been sufficiently compounded by the failure of the Court to respond to correspondence confirming whether or not the appeal book index had been finally settled.

2. It is important that those who are responsible for the conduct of an appeal proceed with all due expedition in accordance with the time limits which have been laid down.  It is not necessary to go back to the various authorities in relation to this case.

3. In the event that a party to litigation communicates by letter to a Registrar or other officer of this Court and does not receive a reply within the ordinary course of business, which I would have thought would be not more than 7 to 10 days at the outside, immediate steps should be taken to communicate with the Court to pursue the matter until a reply is obtained.  If there is any difficulty about it, a complaint can be addressed either to the Registrar's Associate in the case of a Registrar or to the Executive Officer of the Court, where the matter relates to some delay within the Registry of the Court.  It is not satisfactory for matters to be left to rest in the way in which they were in this case, but it is an ameliorating circumstance which does substantially explain much of the period of delay which accumulated in the present case.

4. It is marginal and I would have thought, but for the failure of the Court to respond to correspondence and requests by follow‑up telephone conversations, this application would have succeeded, but for the reasons which I have indicated, I am of the opinion that the application should be dismissed.

5. WALLWORK J:  Yes, I agree with what the Chief Justice has said.  There is nothing I wish to add.

6. OLSSON AUJ:  I also agree.