Jordan v Anderson

[2001] WASCA 403

JORDAN -v- ANDERSON [2001] WASCA 403

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 403
Court:	THE FULL COURT (WA)
Case No:	FUL:76/2001	Heard:	7 DECEMBER 2001
Coram:	MURRAY J STEYTLER J OLSSON AUJ	Delivered:	7/12/01
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	PAUL BRYCE JORDAN TRACEY YVONNE ANDERSON
Catchwords:	Practice and procedure Dismissal of appeal for want of prosecution Turns on own facts
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : JORDAN -v- ANDERSON [2001] WASCA 403 CORAM : MURRAY J

STEYTLER J
OLSSON AUJ

HEARD : 7 DECEMBER 2001 DELIVERED : 7 DECEMBER 2001 FILE NO/S : FUL 76 of 2001 BETWEEN : PAUL BRYCE JORDAN

Appellant

AND

TRACEY YVONNE ANDERSON
Respondent (Applicant)

Catchwords:

Practice and procedure - Dismissal of appeal for want of prosecution - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : No appearance
Respondent (Applicant) : Mr R J Butcher

Solicitors:

Appellant : No appearance
Respondent (Applicant) : Butcher Paull & Calder

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

Nil

Case(s) also cited:

Nil

(Page 3)

1 MURRAY J: The application is on motion to dismiss the appeal for want of prosecution. In my opinion that should be the order made by the Court. The judgment in question which Mr Butcher has described, accurately enough, as a de facto property settlement, was given on 23 April in this Court and the appeal was initiated by notice dated 14 May and filed on that date.

2 The process of settlement of the draft appeal book index occurred within a reasonable time at the end of May and was finalised on 6 July, but there it ends. No further steps have been taken. There has been correspondence from early July, to which our attention is drawn, culminating on 18 September with advice by the respondent's solicitors to the appellant's solicitors that they were contemplating making this application presently before the Court and the application was indeed duly made on 28 September.

3 The last link in that chain of correspondence is an exchange of letters, firstly from the respondent's solicitors to the appellant's solicitors on 26 November 2001, which effectively advised of the return date of the application today, and elicited the response that since speaking to the appellant by telephone on 12 October 2001 the solicitors had had no contact with him and had received no instructions from him in relation to the notice of motion to dismiss the appeal. And so it is perfectly evident that instructions were sought as to the application returned today and they have not been provided. That is the final step in that process of total inactivity.

4 It seems to me to be clearly established that not only does the appellant have solicitors who remain formally on the record but that he has personal knowledge of the present proceedings and his instructions have been sought unsuccessfully in relation thereto. In my view the grounds for the application to succeed have been made out and I would make the order dismissing the appeal for want of prosecution.

(Page 4)

5 STEYTLER J: I agree. I would be content to make the order simply upon the basis that no step has been taken by the appellant to advance his appeal since 6 July this year when the appeal book index was settled, taken with the fact that his solicitors of record have been informed of the date of this hearing and of the nature of the application and have been properly served but have been able to provide no response either by way of explanation for the delay or otherwise.

6 OLSSON AUJ: I also agree with the order proposed. It seems to me that the plain inference is that due notice has been given of the present application and the facts before the Court amply support the orders sought.