Williams & Ors v Grainger & Anor
[2002] WASCA 87
•18 APRIL 2002
WILLIAMS & ORS -v- GRAINGER & ANOR [2002] WASCA 87
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 87 | |
| THE FULL COURT (WA) | 18/04/2002 | ||
| Case No: | FUL:24/2001 | 7 NOVEMBER 2001 | |
| Coram: | MALCOLM CJ WALLWORK J OLSSON AUJ | 7/11/01 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed for want of prosecution | ||
| B | |||
| PDF Version |
| Parties: | GALE CURTIS WILLIAMS RUTH EILEEN WILLIAMS MARK CURTIS WILLIAMS GEOFFREY ORMOND GRAINGER JOAN HARRINGTON GRAINGER |
Catchwords: | Appeal and new trial Appeal Practice and procedure Application to dismiss appeal for want of prosecution or stay of proceedings until payment of costs ordered to be paid by District Court Turns on own facts |
Legislation: | District Court Act 1969 (WA) s 79(1), (2) Rules of the Supreme Court 1971 (WA) O 25 r 2(g), O 63 r 4(1), (3), O 64 r 3(1) |
Case References: | Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Hunt v Knabe (No 2) (1992) 8 WAR 96 Jackamarra v Krakouer (1998) 195 CLR 516 Palata Investments Pty Ltd v Bunt & Sinfield Pty Ltd [1985] 1 WLR 942 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WILLIAMS & ORS -v- GRAINGER & ANOR [2002] WASCA 87 CORAM : MALCOLM CJ
- WALLWORK J
OLSSON AUJ
- First Appellant (First Defendant)
RUTH EILEEN WILLIAMS
Second Appellant (Second Defendant)
MARK CURTIS WILLIAMS
Third Appellant (Third Defendant)
AND
GEOFFREY ORMOND GRAINGER
JOAN HARRINGTON GRAINGER
Respondents (Plaintiffs)
(Page 2)
Catchwords:
Appeal and new trial - Appeal - Practice and procedure - Application to dismiss appeal for want of prosecution or stay of proceedings until payment of costs ordered to be paid by District Court - Turns on own facts
Legislation:
District Court Act 1969 (WA) s 79(1), (2)
Rules of the Supreme Court 1971 (WA) O 25 r 2(g); O 63 r 4(1), (3); O 64 r 3(1)
Result:
Appeal dismissed for want of prosecution
Category: B
Representation:
Counsel:
First Appellant (First Defendant) : Mr M G Clay
Second Appellant (Second Defendant) : Mr M G Clay
Third Appellant (Third Defendant) : Mr M G Clay
Respondents (Plaintiffs) : Mr M P O'Connor
Solicitors:
First Appellant (First Defendant) : Martin De Haas
Second Appellant (Second Defendant) : Martin De Haas
Third Appellant (Third Defendant) : Martin De Haas
Respondents (Plaintiffs) : O'Connor Partners
Case(s) referred to in judgment(s):
Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Hunt v Knabe (No 2) (1992) 8 WAR 96
Jackamarra v Krakouer (1998) 195 CLR 516
Palata Investments Pty Ltd v Bunt & Sinfield Pty Ltd [1985] 1 WLR 942
(Page 3)
Case(s) also cited:
Nil
(Page 4)
1 MALCOLM CJ: This was an application by the respondents to this appeal for an order that the appeal be dismissed on the ground that it was commenced out of time or, alternatively, for want of prosecution. In the further alternative the respondents sought an order that the appeal be stayed until such time as the appellants paid the respondents' costs awarded and taxed in District Court Action 237 of 1999, inclusive of interest.
2 At the conclusion of the argument on 7 November 2001 the Court was unanimously of the opinion that the appeal should be dismissed for want of prosecution. An order was made accordingly, together with an order that the appellants pay the respondents' costs of the application and the appeal to be taxed inclusive of the costs of the hearing on 26 July 2001. It was then indicated that the reasons for making those orders would be published later. These are my reasons for joining in the making of those orders.
3 The respondents' application to dismiss the appeal first came before this Court, constituted by Kennedy and Anderson JJ and White AUJ, on 26 July 2001. At that time it was contended that the appeal should be dismissed because it was commenced out of time or, alternatively, stayed until the taxed costs of the proceedings in the District Court had been paid. That application was sought to be made under O 25 r 2(g) of the Rules of the Supreme Court 1971. At that stage a personal cheque for the amount of the costs had been tendered to the solicitors for the respondents two days previously, but after the banks had closed. The cheque had not been cleared at the time of the hearing on 26 July 2001. The amount tendered did not include interest on the judgment. Doubts were then expressed regarding the appropriateness of an order staying an appeal on the ground of non-payment of costs ordered below. That issue is now moot, but I would certainly wish to associate myself with the doubts expressed by the members of this Court on that occasion.
4 In the result, the Full Court adjourned the proceedings to a date to be fixed to enable the respondents to ascertain whether the cheque for costs was met and whether the appellant had paid interest on the outstanding costs, as well as to enable the appellants to make any necessary application for an extension of time.
5 The matter came before the Court as presently constituted on 7 November 2001. In the meantime the cheque in payment for costs had been paid. There was no application by the appellants for any extension of time. The position was that by an ex parte motion for leave to appeal
(Page 5)
- dated 8 December 2000, the then solicitors for the appellants applied for leave to appeal against the orders made by Yeats DCJ in the District Court on 17 November 2000. Such an application was required to be filed in this Court within 21 days of that date, namely on or before 8 December 2000: O 64 r 3(1) and (2) of the Rules of the Supreme Court 1971. The respondents contended that the application for leave to appeal was made out of time and that no steps had been taken to obtain an extension of time. The general rule is that a notice of motion by way of appeal must be served and a copy filed within 21 days from the date of the judgment, order or verdict of the court appealed from: O 63 r 4(1). An appeal is instituted upon service and filing of the notice of appeal: O 63 r 4(3).
6 In the present case, the appeal was against an order made by Yeats DCJ in the District Court on 17 November 2000 dismissing an appeal against a decision by a Registrar of that Court. The Registrar had granted the respondents' application for summary judgment; ordered the appellants to deliver up possession of certain land to the respondents within 21 days of 26 August 1999; and pay the respondents compensation or damages to be assessed.
7 By an ex parte motion filed in this Court on 8 December 2000 the appellants applied for leave to appeal against the judgment of the learned Judge pursuant to s 79(1)(a) and (2) of the District Court of Western Australia Act 1969 (WA) ("the District Court Act") and in accordance with O 64 of the Rules of the Supreme Court. The motion for leave was required to be made and was made not later than 21 days after the judgment by O 64 r 4(4) of the Rules. That motion was heard on 19 February 2001 by the Full Court constituted by Anderson, Scott and Steytler JJ and leave to appeal was granted by an order of the Court made on that date. It was also ordered that the draft notice of appeal dated 8 December 2000 stand as the notice of appeal and that the appellants serve on the respondents a copy of the order within three working days of the appellants' receipt of the order after its extraction. It is noted that an appearance was entered in respect of the appeal by the solicitors for the respondents on 30 March 2001. There was no suggestion that the notice of appeal and the copy of the order were not duly served on the solicitors for the respondents. It is apparent, therefore, that the application for leave to appeal was made within time, and that the order and notice of appeal were duly served as directed by the Full Court. Unfortunately neither the draft notice of appeal approved by the Court nor the notice of appeal as served complied with O 64 r 4(5) dealing with applications for leave to appeal, which requires that:
(Page 6)
- "Where an appeal is brought by leave, the notice of appeal shall so state."
- This appears to have been a source of some confusion.
8 The summary judgment upheld on the appeal in the District Court on 17 November 2001 was an interlocutory judgment because the issues of the respondents' entitlement to compensation and/or damages for the appellants' unlawful occupation of the subject land, wrongful lodgment of a caveat and breaches of contract in failing to fertilise and spray the land, were reserved as issues to be determined by a Judge of the District Court in open court. Consequently, the judgment was not a "final judgment" for the purposes of s 79(1)(a) of the District Court Act, but "a judgment that is not a final judgment" within the meaning of s 79(1)(b). An appeal from such a judgment lies to the Supreme Court only by way of leave of the Court or a Judge thereof.
9 In a case such as this, in which the judgment has not finally determined all of the relevant rights of the parties, such as what and how much damages are payable, the judgment is not a final judgment: Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 at 768 per Gibbs CJ (with whom Murphy and Wilson JJ agreed). Where "further damages" or "consequential damages to be assessed" are involved, the judgment is interlocutory and not final: Hunt v Knabe (No 2) (1992) 8 WAR 96 at 109 per Malcolm CJ, Murray and White JJ. It follows that the appeal in this case was not an appeal as of right which was required to be commenced by a notice of appeal filed and served within 21 days of the date of the judgment, but an appeal which could only be commenced by leave. The application for leave was made within time. Consequently, the respondents' contention that the notice of appeal was filed and served out of time is without foundation. There is nothing to suggest that the order of the Court made on 19 February 2001 was not complied with. It follows that the application to dismiss the appeal because it was commenced out of time was entirely without merit. Counsel and the solicitors for the respondents seem to have been labouring under the misapprehension that the notice of appeal dated 8 December 2000, which was duly filed and served following the grant of leave, was the service of a notice of appeal as of right. How that misapprehension came about is not clear. As I have already noted, there was no suggestion that the order granting leave was not regularly served together with the other papers.
10 The fact is, however, that since the grant of leave to appeal and the directions for service, very little has been done to prosecute the appeal.
(Page 7)
- On 29 March 2001 a notice of change of solicitors was filed on behalf of the appellants. Nothing of any consequence had been done prior to that date. On 12 April 2001 the present solicitors for the appellants filed and served a draft appeal book index dated 11 April 2001. By a notice dated 8 May 2001 a Registrar of this Court appointed 8 May 2001 as the date for an appointment to settle the index. On the same date the solicitors for the respondents filed a memorandum of appearance in the appeal. By a motion dated 19 June 2001 an application was made by the respondents for the orders, to which I have referred, dismissing the appeal or, alternatively, staying the appeal until such time as the appellants paid the respondents' taxed costs in the District Court action.
11 The application was made on a number of grounds. Ground 1 contended that the notice of appeal was not filed within 21 days of the judgment appealed from as required by O 64 r 3 of the Rules of the Supreme Court. This contention was based on a further contention that the decision appealed from was a "final judgment" for the purposes of s 79(1)(a) of the District Court Act. For the reasons already stated that contention was misconceived. The decision was in the nature of an interlocutory judgment in respect of which an appeal to this Court could only be by leave under s 79(1)(b). Leave was duly granted by the Full Court on 19 February 2001.
12 Grounds 2 and 3 of the application were:
"2. This appeal relates to the decision of Judge Yeats in DC 237 of 1999. In that action costs have been awarded to the Respondents (Plaintiffs) against the Appellants (defendants). Those costs have been taxed at $30,114.45 and interest is accruing at the judgment rate.
3. The Respondents (plaintiffs) demanded payment of the costs on a partial certificate in April 2001 and as to the balance in June 2001, but the Appellants (defendants) have not paid those costs."
13 These grounds are misconceived. The non-payment of costs awarded at first instance is of itself no bar to the institution of an appeal. This was made clear by this Court, differently constituted, on 26 July 2001.
14 Grounds 4 and 5 of the application were:
(Page 8)
- "4. The decision in favour of the Respondents (Plaintiffs) in DC 237 of 1999 involved a summary judgment decision in their favour and an unsuccessful appeal by the Appellants (Defendants) in a rehearing de novo before a Judge of the District Court.
5. The Appellants' (defendants) appeal to the Full Court of the Supreme Court in FUL 24 of 2001 was made out of time and involves arguments of law twice comprehensively rejected by the District Court."
15 Ground 4 is entirely without merit, this Court having given leave to appeal to the appellants, the fact that the respondents succeeded before a Registrar and, on appeal, a Judge of the District Court is no answer.
16 Ground 5 is likewise without merit. The application for leave to appeal was made to the Full Court within time, leave to appeal was granted and the notice of appeal and other relevant papers were duly served. There was no suggestion to the contrary.
17 Notwithstanding these difficulties, the Court was prepared to entertain a submission that, in the alternative to the relief claimed, the appeal should be dismissed for want of prosecution. By O 63 r 7(1), unless the Full Court or a Judge otherwise orders, an appeal must be entered for hearing within 12 weeks from the institution of the appeal. In the present case, the appeal should have been entered for hearing on or before 15 May 2001. Following the grant of leave to appeal on 19 February 2001 and the filing and service of the notice of appeal and the order granting leave, the only steps taken on behalf of the appellants by their then solicitors were the payment of the filing fee on the notice of appeal on 20 February 2001 and service of the notice of appeal. The appellants filed a notice of change of solicitors to their present solicitors on 29 March 2001. The draft appeal book index was filed on 12 April 2001. The respondents filed an appearance on 8 May 2001. On the same date the Registrar made an appointment to settle the appeal book index on 20 June 2001. The index was duly settled on that date. The respondents' motion to dismiss the appeal or for a stay of proceedings on the appeal pending payment by the appellants of the costs of the action was filed on 19 June 2001.
18 It is difficult to imagine circumstances in which, absent a demonstrated case for security for costs or other exceptional circumstances, the costs of the action below, payable by the appellants to
(Page 9)
- the respondents pursuant to the judgment appealed from, would be ordered to be paid as a condition of the grant of leave to appeal.
19 We were also told by counsel for the appellants from the bar table that:
"Your Honour, when this motion first came on for hearing on 26 July 2001 there was considerable argument concerning the respondent's application for orders that the appeal be stayed until the appellants had paid certain costs. The end result was that the respondents were given further time to lodge additional material in support as you have indicated and the appellants were given time in which to prepare an appropriate application for an extension of time within which to appeal.
That extension was not time delimited and as the date hereof there is no further affidavit or material that has been filed by the respondent in relation to the application for the stay – and I'm not quite sure what my learned friend's position is in relation to that part of his application – nor has there been an application made for an extension of time within which to appeal."
20 With respect this misstates the position. For the reasons already stated, the notice of appeal had not been served out of time. It is correct, however, that no further affidavit material had been filed on behalf of the respondents in relation to the application for the stay of proceedings. We were told that the costs of the action had been paid and the relevant cheques had been cleared. It is apparent from what I have already said that there was no necessity as at 26 July 2001 for an application by the appellants for an extension of time within which to appeal.
21 In my opinion the appellants are not entitled to any particular indulgence in relation to framing possible steps by way of consolidation of existing or additional proceedings and bringing the matter on again before the Full Court. In my opinion it would not be appropriate to grant the appellants such an indulgence in the light of the evidence and materials before this Court.
22 As I understand it the appellants have made an application in this Court for the consolidation of proceedings in the Supreme Court between the first and second appellants and Geoffrey Ormond Grainger, first defendant, Joan Harrington Grainger, second defendant, and Wesfarmers Dalgety Real Estate (WA) Pty Ltd and Wesfarmers Dalgety Limited, third defendants, in CIV 1171 of 2000; between Wesfarmers Dalgety Limited
(Page 10)
- & Ors v Williams & Ors in CIV 2156 of 2000; between Geoffrey Ormond Grainger & Anor v Gale Curtis Williams & Ors in District Court No 237 of 1999 and this appeal from the judgment in that action, and the respondents' related appeal in this Court in FUL 48 of 2001, all to be heard at the same time as these proceedings. If such an order were to be made, it is submitted on behalf of the applicants that these proceedings and those in appeal FUL 48 of 2001 would be stayed in any event. At the time of the hearing in the Full Court on 26 July 2001, the application for consolidation was due to be heard on 9 August 2001. Enquiries indicate that the application for consolidation has yet to be dealt with and is listed for further hearing on 18 February 2002.
23 The Court is faced with a situation in which there has been significant delay. The change of the appellants' solicitors in March 2001 doubtless caused some delay. It is significant, however, that the time for taking any steps with reference to an appeal or review of the decision of the learned District Court Judge has long since expired and the principal solicitors for the appellants have been changed. The first step which should have been taken by the new solicitors should have been to protect the position by making an application for an extension of time within which to settle, file and serve an amended notice of appeal. It is difficult to see how the matter could be appropriately progressed without some such action. There is, of course, no relevant evidence before the Court in relation to these matters.
24 As already noted, we were told that some consideration or attempt had been made on behalf of the appellants in this Court to have the appeal consolidated with the proceedings pending in the District Court. The relevant application was apparently pending. There was no evidence about this matter and it should be put to one side. The only comment I would make is that I cannot see how an appeal to this Court could be consolidated with pending proceedings at first instance in the District Court.
25 The position is that this appeal was initiated by an application for leave to appeal made within time on 8 December 2000 against an order made in the District Court on 17 November 2000. As at 7 November 2001 almost 12 months had passed without any significant step being taken on behalf of the appellants. The notice of appeal was filed and served within time on 20 February 2001 following the grant of leave to appeal the previous day. Notice of change of the appellants' solicitors was filed on 29 March 2001. The draft appeal book index was filed on 12 April 2001 and settled on 20 June 2001. As is apparent from the Court
(Page 11)
- file nothing further had been done to prosecute the appeal between that date and the hearing before this Court on 7 November 2001, a period of some four months. The fact that there had been an adjournment of the respondents' motion in June 2001 constituted no bar or excuse for not prosecuting the appeal in the meantime.
26 In the result the appeal should have been entered for hearing by 15 May 2001. As previously mentioned the appeal book index was not settled until 20 June 2001. There was no evidence before the Court on 7 November 2001 that any steps had been taken to prepare the appeal books and enter the appeal for hearing. There was nothing to suggest when the appellants would be in a position to proceed with the appeal. There was no application for an extension of time.
27 While in applications for an extension of time made after an appeal has been lodged the merits of the appeal do not constitute the basis for granting or refusing an extension of time, the reasons for the failure, the length of the delay, the question whether the respondents would be prejudiced and whether the conduct of the business of the Court would be prejudiced by the grant of an extension of time are all relevant considerations: Jackamarra v Krakouer (1998) 195 CLR 516 at 519 per Brennan CJ and McHugh J. Unlike the position in this case, there was in that case both an application to dismiss the appeal for want of prosecution and an application on the part of the appellant for an extension of time. In the present case there was no application for an extension of time. As appears from pars 43 – 45 of the affidavit of Ms McFarlane, the solicitor for the appellants having the conduct of this matter under the supervision of her principal, sworn on 25 July 2001, it was then the intention to make application to consolidate the various proceedings and:
"… request that the Full Court appeals FUL 24 of 2001 (these proceedings) and FUL 48 of 2001 (the Respondents' appeal) be heard at the same time as the consolidated proceedings. In effect this would mean that these proceedings [ie, the present appeal] and those of FUL 48 of 2001 would be stayed in any event."
28 An application for orders for consolidation was filed on 9 July 2001. It was said that the "effect of the application for consolidation will be to stay these proceedings in any event". Why that should be so was not explained. On 9 August 2001 Miller J refused to make orders staying this appeal and appeal FUL 48 of 2001. It was in these circumstances that the application for consolidation was adjourned until a special appointment.
(Page 12)
- We were informed by counsel for the respondents that it was accepted by all parties before Miller J that it was not possible to consolidate an appeal to the Full Court with a trial and that this was accepted by counsel for the appellants at that time.
29 Should the appellants have wished an extension of time there was an opportunity to make an application to the Full Court as constituted on 26 July. This opportunity arose again before the Court as at present constituted on 7 November 2001. At that stage the concession regarding the inability to consolidate the appeals with the pending actions had been accepted. There was no application for an adjournment of the appeals or to extend time for the entry for hearing of the appeals. There was nothing to prevent the appellants seeking an extension of time before this Court on 7 November. That was already 11 months after the application for leave to appeal was made and nine months after the commencement of the appeal. In my opinion such explanations as there were for the delay were unsatisfactory. On the contrary, the other steps taken by the appellants were calculated to have proceedings on both of the pending appeals to this Court stayed.
30 On 9 August 2001 Miller J made an order setting out a timetable for filing affidavits in relation to the application for consolidation and ordered a stay of proceedings in District Court action 237 of 1999 and Supreme Court actions CIV 1171 of 2000 and CIV 2156 of 2000 until the resolution of the application for consolidation. His Honour refused to make orders staying Supreme Court appeals FUL 24 of 2001 and FUL 48 of 2001. It is apparent that the refusal of the stay of proceedings in relation to this appeal did not prompt any action by or on behalf of the appellants in the period of two months from the making of the orders by Miller J, whether to obtain an extension of time for the hearing of the appeal in the case of this appeal or otherwise. There was no evidence of any attempt to prepare appeal books. It was in these circumstances that I considered it appropriate to dismiss this appeal for want of prosecution.
31 In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 199 Kennedy J said that in the authorities, such as Palata Investments Pty Ltd v Bunt & Sinfield Pty Ltd [1985] 1 WLR 942 at 946, the Court of Appeal in England, in the context of an extension of time to appeal, considered that there were four "major factors" to be considered on an extension of time to appeal, namely, the length of the delay; the reasons for the delay; whether there was an arguable case and, fourthly, the extent of any prejudice to the respondent. As to the question of an arguable case that now needs to be considered having regard to the
(Page 13)
- decision of the High Court, on appeal from this Court, in Jackamarra v Krakouer, supra, where it was held by Brennan CJ, McHugh and Kirby JJ (Gummow and Hayne JJ dissenting) that the Full Court could not come to the conclusion that the appeal had no prospects of success unless it had examined all the evidence. Brennan CJ and McHugh J at [7] took the view that once an appeal had been filed, the merits were not a relevant consideration in an application for an extension of time for taking a step in prosecuting an appeal, unless the Court could be satisfied that the appeal was so devoid of merit that it would be futile to extend the time. Kirby J held that the considerations referred to in Esther Investments Pty Ltd v Markalinga Pty Ltd, supra, were relevant, but not exhaustive. Other relevant matters were whether the delay was intentional or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay was that of the litigant or its lawyer, with which the litigant should not be saddled and the delay was relatively short: see at [66] - ]73] per Kirby J. Gummow and Hayne JJ, who dissented, said at [41] – [43]:
"In some cases, reference to the reasons for judgment below and the notice of appeal will reveal an arguable case of error but in this case it did not. This was not said to be a case in which the reasons for judgment of the primary judge bespoke error. It was not suggested in the Full Court or before this Court that the reasons revealed inconsistency or error of logic. It was not suggested that the reasons showed that the primary judge had not used, or had misused, the opportunity which he had had to observe the witnesses. On their face, the reasons were cogent and comprehensive and were reasons that depended very largely upon the observations which the primary judge made of the witnesses who gave evidence before him.
This is not to say that every application to cure a procedural default in relation to an appeal will or may be turned into a hearing of the appeal. As we say, there will sometimes be nice questions of judgment to be exercised by the Court and by the parties' practitioners. But if there is a dispute about whether the appeal is arguable then it will be for the appellant who seeks to maintain the appeal to demonstrate that that is so. Sometimes, perhaps more often than not, very little material will be needed in aid of the contention that the appeal is arguable. This appeal was not of that kind. Indeed it was an appeal based on grounds of a kind which present an appellant with particular difficulties. Those difficulties had to be addressed if the appellant was to show that her appeal was arguable.
(Page 14)
- In particular, if the appellant wished to contend that examination of the transcript of the evidence would reveal error by the primary judge, it was for the appellant to put that transcript before the Full Court. Merely stating that the appellant would argue on appeal that the findings of fact were flawed says nothing about whether that argument can be maintained. The transcript was available to the appellant's advisers at the time of the application to the Full Court. The appellant's argument to that Court expressly acknowledged that the appellant must demonstrate that the appeal was arguable and the Full Court pointed to the importance of this issue. The Full Court was entitled, and indeed was bound, to decide whether the appeal was arguable on the material that was placed before it. On that material no arguable case was demonstrated. We would therefore dismiss the present appeal."
32 While the Court may well be less strict in the application of time limits when an appeal has been instituted within time and there is a subsequent delay in taking a step in the prosecution of the appeal as distinct from a delay in instituting the appeal, it is important that unless prevented by some just cause, appeals once commenced be prosecuted without undue delay. In the present case, I am of the opinion that the delay in prosecuting the appeal was such as to justify the making of an order that the appeal be dismissed for want of prosecution. While the appeal was instituted within time, the evidence leads me to the conclusion that the appellants, for reasons not explained to this Court, were not anxious for the appeal to proceed and in fact took steps, again for reasons not adequately explained, to have the proceedings on this appeal and a related appeal stayed, pending the prosecution of other proceedings.
33 WALLWORK J: I agree with the reasons for judgment of the Chief Justice.
34 There is nothing I wish to add.
35 OLSSON AUJ: I have had the advantage of reading the reasons prepared by the Chief Justice in draft. I agree with those reasons and have nothing to add to them.
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