Drover v Northern Territory of Australia & Anor [2004] NTCA 10

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Drover v Northern Territory of Australia & Anor [2004] NTCA 10

PARTIES: DROVER, Serena

v

NORTHERN TERRITORY OF AUSTRALIA

AND

EBATARINJA, Roland

TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: AP3 of 2003 (20207688)

DELIVERED: 18 June 2004

HEARING DATES: 27 May, 8 June and 15 June 2004

JUDGMENT OF: MARTIN (BR) CJ

CATCHWORDS:

PRACTICE AND PROCEDURE
Appeal – appeal from a decision of a single Judge of the Supreme Court – nature of proceedings – whether order final or interlocutory – application for leave to appeal – notice of appeal – whether appeal incompetent due to service out of time or irregularity – want of prosecution – application dismissed.

COSTS
Awarded against respondent’s solicitors personally.

Supreme Court Act (NT), s 51 and s 53.
Supreme Court Rules (NT), O 2.01(1); 63.18; 82.02; 84.09(1)&(2); 84.13, 85.02, 85.03, 85.05, 85.12

Bienstein v Bienstein (2003) 195 CLR 225 at 230 [25], applied.
Re Luck (2003) 203 ALR 1, considered.
Bilioara Pty Ltd v Leisure Investment Pty Ltd [2001] NTCA 2, considered.
TTE Pty Ltd & Anor v Ken Day Pty Ltd (1992) 2 NTLR 143, considered.
Brereton v Sinclair [2000] VSCA 211 [21], considered.

REPRESENTATION:

Counsel:
Applicant: M Heitmann
Respondent: J Stirk

Solicitors:
Applicant: Mark Heitmann
Respondent: Povey Stirk

Judgment category classification: B
Judgment ID Number: Mar0407
Number of pages: 27

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Drover v Northern Territory of Australia & Anor [2004] NTCA 10
No. AP3 of 2003 (0207688)

BETWEEN:

SERENA DROVER
Appellant

AND:

NORTHERN TERRITORY OF AUSTRALIA
First Respondent

AND:

ROLAND EBATARINJA
Second Respondent

CORAM: MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 18 June 2004)

Introduction
[1] This is an application to strike out proceedings in which the respondent to the application seeks to appeal against a decision of a Judge of this Court.
[2] On 18 September 2002 a Magistrate dismissed a series of applications by the respondent for extensions of time within which to commence applications for assistance under the Crimes (Victims Assistance) Act. The proposed applications for assistance were based upon assaults that the respondent alleged were perpetrated against her by her former partner, Mr Roland Ebatarinja, between April 1996 and October 1999.
[3] Pursuant to s 19 of the Local Court Act, the respondent sought leave of the Supreme Court to appeal to the Court against the decision of the Magistrate. In a single hearing Thomas J considered the application for leave to appeal and the merits of the proposed appeal. On 26 May 2003 her Honour dismissed the respondent’s appeal. Although her Honour’s reasons do not refer to the grant of leave before dismissing the appeal, the formal order of the Court is that the appeal is dismissed.
[4] On 20 June 2003 the respondent filed an application for leave to appeal against the judgment of Thomas J. The application was in accordance with Form 85A which is the form prescribed by O 85.04 for an application for leave to appeal. Accompanying that application was an affidavit of a legal practitioner acting for the respondent to which was annexed a proposed notice of appeal against the whole of the judgment. The proposed grounds in the notice of appeal were misconceived. Each of those grounds asserted that the Magistrate had erred. There was no ground asserting any error on the part of Thomas J.
[5] In addition to filing an application for leave to appeal, on 20 June 2003 the respondent filed a notice of appeal. That notice was identical to the proposed notice annexed to the affidavit of the respondent’s solicitor. It was in accordance with Form 85B which is the form prescribed by O 85.09 as applicable for the institution of an appeal as of right.
[6] Before continuing with the chronological order of events, it is appropriate to identify the particular proceedings which are before this Court. The Magistrate refused to extend time in respect of 14 separate applications. Each application was given a separate Local Court file number. Two of those applications were subsequently withdrawn.
[7] When the respondent’s solicitors sought to file an application for leave to appeal against the decision of the Magistrate, they presented only one application to the Supreme Court. The Registrar of the Court determined that if the respondent wished to appeal against the decisions with respect to each of the 14 applications before the Magistrate, a separate process was required to be filed in respect of each of those proceedings. Notwithstanding that ruling, the respondent’s solicitors filed only one application being an application in respect of Local Court file number 20207688.
[8] Counsel for the respondent submitted to Thomas J that notwithstanding the filing of only one application and the attributing of file number 20207688 to that application, the application before the Judge was in respect of the decision of the Magistrate on all 14 applications. Although it is not expressly stated in her Honour’s reasons, it appears that the respondent sought to amend the single application for leave to appeal to include the other 11 applications that the respondent still wished to pursue.
[9] Thomas J determined that there was no power to amend the single application because there was no power to extend time for leave to appeal under s 19(3) of the Local Court Act. Her Honour relied upon the decision of Mildren J in Patterson v Northern Territory of Australia (2001) 165 FLR 296.
[10] The Judge determined that she could only grant leave to appeal and proceed to hear the appeal in respect of the single matter contained in Local Court file number 20207688 which was the subject of the single application for leave to appeal. However, her Honour decided that she would consider the merits of the appeal in respect of all 12 of the applications. It is apparent from her Honour’s reasons that in dismissing the appeal she would have dismissed the other 11 appeals if they had been before her.
[11] The application for leave to appeal and the notice of appeal sought to appeal against the whole of the judgment of the Judge. However, the grounds contained in the notice of appeal did not include any reference to the decision of the Judge that she was only able to grant leave to appeal and proceed to hear the appeal in respect of the single application contained in file number 20207688. When an amended notice of appeal was eventually filed in January 2004, while the grounds did not specifically complain that her Honour erred in determining that she could only grant leave to appeal and proceed to hear the appeal in respect of the one matter, ground five complained that her Honour erred in following the decision in Patterson v Northern Territory of Australia.
[12] The amended notice of appeal seeks orders that the decisions of the Magistrate and Judge be “overturned” and “that leave be granted to extend the time in which the appellant may file applications for crimes (victims assistance)”.
[13] As will appear later in these reasons, the conduct of those representing the respondent has been less than satisfactory. The history of the matter relating to single and multiple applications is another example of that conduct. The Registrar correctly ruled that individual applications were required. Solicitors for the respondent chose to ignore that ruling. Faced with the decision of the Judge that she could only hear and determine the single application, the notice of appeal made no complaint that her Honour was in error in reaching that decision. The amended notice of appeal similarly fails to complain that her Honour erred in reaching that decision. Presumably ground five of the amended notice was intended by those preparing the notice to represent a complaint that the Judge erred in this regard. The orders sought do not identify the particular applications in respect of which the respondent seeks orders of the Court of Appeal extending the time within which the applications for assistance may be filed.
[14] I return to the chronology of events. As mentioned, both the application for leave to appeal and the notice of appeal were filed on 20 June 2003. Those filings were within the time prescribed by the Supreme Court Rules. However, neither process was served upon the first or second respondents within the time prescribed. The notice of appeal was served on the applicant on 28 July 2003. Order 85.12 provides that a notice of appeal shall be filed and served within 28 days after the material date. The parties agree that the material date was 26 May 2003.
[15] Order 85.05 provides that an application for leave to appeal and the accompanying affidavit or notice of appeal shall be served upon each person who was a party to the proceedings within two days after filing. The application was not served on the applicant until March 2004. It was not until March 2004 that both processes were served upon the Adult guardian for Mr Ebatarinja.
[16] On 8 August 2003 the applicant filed an appearance which included the following paragraph:
“The First Respondent objects to the competency of the appeal, the Notice of Appeal not having been served in accordance with Rule 85.12(1) of the Supreme Court Rules.”
[17] Commencing on 30 September 2003 Mr Heitmann, the solicitor for the applicant, wrote to the solicitors for the respondent on a number of occasions concerning various matters associated with the respondent’s “appeal”. Until March 2004 the correspondence related only to the notice of appeal. The application for leave to appeal was not served until March 2004.
[18] In letters dated 3 and 18 March 2004, Mr Heitmann observed that the respondent had not taken any action to validate the proceedings which Mr Heitmann asserted were incompetent. By letter of 13 April 2004, solicitors for the respondent wrote as follows:
“In respect of your assertion that the appeal is incompetent, we do not intend addressing this as a preliminary point and will be making application at the hearing.”
[19] On 27 April 2004 the applicant filed an application seeking orders that the appeal be dismissed as incompetent or, in the alternative, that it be dismissed for want of prosecution. As to the competence of the proceedings, the applicant asserts that the application for leave to appeal is incompetent because s 51 of the Supreme Court Act (“the Act”) gives the respondent a right of appeal. The respondent contended that as the decision of the Judge was made in respect of an appeal from an interlocutory decision of the Magistrate, the decision of the Judge is an interlocutory judgment and, by reason of s 53 of the Act, leave is required.
[20] As to the notice of appeal, the applicant advanced the proposition that because the notice of appeal was not served upon the applicant within the time prescribed by the Rules, the appeal is incompetent. The same argument would apply if, contrary to the applicant’s submission, the appropriate proceeding is by way of application for leave to appeal. In response, the respondent submitted that a failure to comply with the Rules was not a matter affecting the competence of the appeal. Rather it was a matter of irregularity in respect of which provision is made in the Rules empowering the court to remedy the irregularity.
The Nature of the Proceedings
[21] There is no dispute that the order of the Magistrate was in the nature of an interlocutory order. His Worship’s refusal to extend the time within which to commence the applications for assistance did not finally determine the legal rights of the parties. The applicant submits, however, that although the appeal to the Judge related to a decision of a Magistrate concerning an interlocutory matter, nevertheless the order of the Judge is a final order.
[22] A brief statement of the principle was given in the joint judgment of McHugh, Kirby and Callinan JJ in Bienstein v Bienstein (2003) 195 ALR 225 at 230 [25]:
“The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them. Accordingly, orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success.” (Footnotes omitted)
(my emphasis).
[23] As is implicit in that summary of the principle, is the legal effect of the judgment that must be considered: re Luck (2003) 203 ALR 1 at 2[4].
[24] The principal cause between the parties is a claim for assistance and involves a determination of the respondent’s rights to assistance under the Crimes (Victims Assistance) Act. Neither the decision of the Magistrate nor the order made by the Judge finally determined those rights in that principal cause. The issues before the Judge were not concerned with the merits or otherwise of the respondent’s claim for assistance: Brereton v Sinclair [2000] VSCA 211 [21]. The order of the Judge was in the nature of an interlocutory judgment.
Competence
[25] As the order of the Judge was in the nature of an interlocutory judgment, the respondent may not appeal against that judgment except with the leave of the Court of Appeal constituted by not less than three Judges: ss 51 and 53 of the Act. The notice of appeal which purports to institute an appeal as of right is, therefore, incompetent. The respondent followed the correct procedure in filing the application for leave to appeal against the decision of the Judge.
[26] Having reached the view that the notice of appeal is incompetent, it is unnecessary for me to determine whether an otherwise competent notice of appeal filed within the time prescribed by O 85.12 is incompetent if not served within the prescribed time or whether the failure to serve within the prescribed time is merely an irregularity.
[27] Similarly, it is unnecessary for me to decide whether a single Judge has the power to determine an application made under O 84.16 for an order dismissing an appeal as incompetent. The respondent seeks to proceed by way of application for leave to appeal. I will make orders requiring that the proceedings progress as an application for leave to appeal. The notice of appeal will lapse into disuse unless activated by an order of the Court of Appeal.
[28] In brief reasons given in Bilioara Pty Ltd v Leisure Investments Pty Ltd [2001] NTCA 2, Mildren J concluded that a single Judge did not have the power to exercise the jurisdiction of a Court of Appeal to dismiss an appeal as incompetent. His Honour said he reached that conclusion “somewhat reluctantly”. Like Mildren J, I would be reluctant to conclude that a single Judge does not have the power to dismiss an appeal as incompetent. There are sound policy and practical reasons why such a power should reside in a single Judge. However, as I have said, it is unnecessary for me to explore this question further.
[29] As to the competence of the application for leave to appeal, the failure of the respondent to serve that application within two days after filing is a breach of O 85.05. However, contrary to the applicant’s submission, in my opinion that breach does not affect the competence of the application for leave to appeal.
[30] Order 82.02 provides that, “with the necessary changes”, O 2 applies to the Appeal Rules contained in Chapter 2. Order 2.01(1) provides that a failure to comply with Chapter 1 is an “irregularity” and does not render a proceeding a nullity. That Rule applies to the failure of the respondent to serve the application for leave to appeal within the time prescribed by O 85.05.
[31] Although the application for leave to appeal is a competent application, it cannot proceed unless accompanied by an application to extend the time within which the application is to be served. That application was filed on 15 June 2004.
Want of Prosecution
[32] In the alternative, pursuant to O 84.13 the applicant seeks an order dismissing the appeal for want of prosecution. Order 84.13 provides that where an appellant has not done an act required to be done for the purpose of prosecuting the appeal or otherwise has not prosecuted the appeal with due diligence, “the Court” may order that the appeal be dismissed for want of prosecution. “Court” is defined in O 82.01 as the Court of Appeal or Court of Criminal Appeal as the case requires. Section 52 of the Act expressly provides that a single Judge may exercise the appellate jurisdiction of the Court of Appeal to dismiss an appeal for want of prosecution.
[33] It is necessary to set out the history of the matter in some detail.
[34] Following the filing of the application for leave to appeal and notice of appeal on 20 June 2003, by letter of 23 June 2003 the Court advised the respondent that an appointment to settle the appeal papers had been scheduled for 22 July 2003. Service had not been effected upon the applicant by 22 July 2003. By letter dated 22 July 2003 the Registrar of the Court advised the respondent that the appointment had been rescheduled for 29 July 2003.
[35] By letter dated 25 July 2003 the respondent’s solicitors forwarded a draft appeal index and the notice of appeal to the applicant’s solicitor together with confirmation of the appointment before the Registrar on 29 July 2003. According to the affidavit of Mr Heitmann that letter and those documents were not received by him until 28 July 2003.
[36] The respondent did not send a copy of the application for leave to appeal to the applicant’s solicitor with the letter of 25 July 2003. A copy of the application for leave to appeal together with the affidavit sworn in support of the application was not forwarded to the applicant’s solicitor until 11 March 2004. According to an affidavit of Ms Alison Phillis, a solicitor with the firm of solicitors acting for the respondent, service by way of the letter of 11 March 2004 occurred after it had been drawn to the attention of the respondent’s solicitors that the application had not been served on the applicant.
[37] The appointment before the Registrar to settle appeal papers scheduled for 29 July 2003 was adjourned to 3 September 2003. According to the affidavit of Ms Phillis, that adjournment was at the request of the applicant. A note by the Registrar on the court file indicates that a draft index of appeal papers had not been received by the court. By letter of 31 July 2003 the respondent’s solicitors forwarded to the court a draft index for filing.
[38] The appointment to settle the appeal papers was adjourned from 3 September 2003 to 1 October 2003. By letters dated 19 September 2003 the respondent’s solicitors filed an amended draft index and forwarded a copy of that amended draft to the solicitor for the applicant.
[39] Mr Heitmann was on leave from 19 to 29 September 2003 and did not receive the amended draft index until 29 September 2003. By letter of 30 September 2003 Mr Heitmann advised the respondent’s solicitors and the court of a number of concerns about the draft index. Speaking generally, those concerns were of substance and included the absence of a transcript of the hearing before the Judge. The observation was made that Mr Heitmann had no knowledge of items 8 and 9 of the draft index which referred to the application for leave to appeal and the affidavit in support of that application.
[40] On 1 October 2003 the respondent’s solicitors failed to appear at the appointment before the Registrar to settle the appeal papers. The appointment was adjourned to 27 October 2003. On 1 October 2003 Mr Heitmann advised Mr Stirk of the solicitors acting for the respondent that the appointment had been adjourned to 27 October 2003 and requested that Mr Stirk deal with the matters outlined in the letter of 30 September 2003. In addition, Mr Heitmann requested that Mr Stirk provide grounds of appeal which would enable the appeal papers to be settled. At that time the notice of appeal which had been provided to the applicant’s solicitor did not contain any grounds which alleged errors on the part of the Judge.
[41] On 27 October 2003 both Mr Heitmann and Mr Stirk attended the appointment before the Registrar. According to the affidavit of Mr Heitmann, the respondent’s solicitors had taken no action with respect either to the matters raised in the letter of 30 September 2003 or the grounds of appeal. That statement is not contradicted by any material filed by the respondent. The appointment was further adjourned to 10 December 2003 to enable the respondent’s solicitors to attend to those matters.
[42] On 27 November 2003 Mr Heitmann wrote to the respondent’s solicitors in the following terms:
“Notwithstanding your assurances that you would attend to the Index and address the matters detailed in my facsimile transmission to you of 30 September 2003, I have heard nothing further from you.
In these circumstances and with reference to point 1 of the Form 85B as served, I would be pleased for you to provide particulars in writing detailing the Applicant’s grounds of appeal from the decision of Thomas J delivered 26 May 2003. Please let me have the same within seven days.”
[43] Both Mr Heitmann and Mr Stirk attended the appointment before the Registrar on 10 December 2003. According to the affidavit of Mr Heitmann, he had not received any response to the matters raised in his letter of 30 September 2003 and no grounds of appeal had been provided. Mr Heitmann states that Mr Stirk “undertook to provide the outstanding materials by 19 December 2003”. The appointment to settle the papers was adjourned to 13 January 2004.
[44] On 12 January 2004 the respondent’s solicitors forwarded an amended draft appeal index to the court. On the same day, following receipt of a telephone message from Mr Stirk, Mr Heitmann attended at the office of Mr Stirk and collected the further amended draft appeal index. The affidavit of Mr Heitmann then describes the following conversation that he had with Mr Stirk:
“15. At that time I spoke with Mr Stirk in the presence of Mr Khan seeking the particulars of the grounds of appeal but which had not been prepared and pointed out that in the absence of which the appeal papers could not be settled. I complained of the Appellant’s delay and in particular of Mr Stirk’s failure to honour his undertaking and advised Mr Stirk that by rights the First Respondent ought to apply to have the appeal struck out for want of prosecution. In the end Mr Stirk undertook to provide me with the particulars of the grounds of appeal within 14 days and pending this to appear in my absence on 13 January 2004 and have the appointment to settle the appeal papers herein adjourned.
16. On 12 February 2004 I spoke with Mr Stirk at the Alice Springs courthouse and noting that I had not received any grounds of appeal, threatened to apply that the Appeal herein be dismissed for want of prosecution if this was not attended to forthwith. Mr Stirk stated that he thought Mr Kahn had sent the amended appeal index to me the week before. I advised Mr Stirk that I had not received any further amended appeal index since that referred to in paragraph 15 above and that same was not the issue, it being the particulars of the grounds of appeal that he had undertaken to provide me with that had not been received.”
[45] On 13 January 2004, by agreement, Mr Heitmann did not appear at the appointment to settle the appeal papers. The appointment was adjourned to 13 February 2004.
[46] On 27 January 2004 the respondent’s solicitors forwarded an amended notice of appeal to the court. That amended notice was received on 28 January 2004. It was not until 12 February 2004 that the amended notice was posted to Mr Heitmann.
[47] The court file indicates that on 13 February 2004 the appointment to settle the appeal papers was adjourned to 24 February 2004 because the amended notice of appeal had not yet been served on the applicant. On 19 February 2004 Mr Heitmann wrote to the respondent’s solicitors raising a number of objections to the draft index. Some of those objections were the same objections advised in the letter of 30 September 2003.
[48] On 24 February 2004 there was no appearance by anyone on behalf of the respondent at the appointment to settle the appeal papers. The appointment was adjourned to late April.
[49] One of the matters raised in the letter of 30 September 2003 was the omission from the draft index of the transcript of the proceedings before the Judge. In his letter of 3 March 2004, Mr Heitmann requested that the respondent comply with O 84.09(2). Order 84.09(1) provides that before the date appointed for the settling of appeal papers, an appellant shall obtain and file a copy of the transcript of the proceedings before the court from which the appeal is taken. Order 84.09(2) requires that an appellant shall afford the respondent a reasonable opportunity to examine the transcript and any corrections made to it by the appellant.
[50] The letter from Mr Heitmann concluded with an observation that the respondent had still not taken any action to validate the proceedings which otherwise remained incompetent. Reference was made to the terms of the conditional appearance dated 8 August 2003.
[51] On 11 March 2004 the respondent’s solicitors forwarded a further draft index to appeal to Mr Heitmann. That letter was also accompanied by the application for leave to appeal dated 20 June 2003 and the affidavit filed in support of the application. As mentioned, the request for service of those documents was first made in a letter of 30 September 2003.
[52] By letter of 18 March 2004 Mr Heitmann again raised the matter of compliance with O 84.09(2) and observed that the respondent had not taken any action to validate the proceedings. In the absence of a reply, Mr Heitmann again wrote on 29 March 2004 seeking a reply to his letter of 18 March 2004. The letter concluded with a request for a response forthwith and the statement that in the absence of a response forthwith “it would seem appropriate that I make Application that the proceeding be dismissed.”
[53] On 13 April 2004 the respondent’s solicitors replied to the letter of 29 March 2004. An amended appeal index was enclosed with the letter. As to other matters raised in the correspondence, the letter stated as follows:
“In respect of your assertion that the appeal is incompetent, we do not intend addressing this as a preliminary point and will be making application at the hearing.
We further confirm that we are not relying on a transcript of Supreme Court proceedings as such proceedings contained no evidence. Furthermore, the Appeal Papers have not been settled as yet. You can raise the issue at the settling of the Appeal Index.”
[54] The further draft appeal index was forwarded to the court by letter of 14 April 2004. On 27 April 2004 the applicant filed the application that the appeal be dismissed as incompetent or, in the alternative, for want of prosecution. The application first came before me for mention on 27 May 2004 when the hearing date of 8 June 2004 was fixed. On that occasion I made the observation that the respondent should consider applying for an extension of time within which to serve the notice of appeal. No such application has been made. At the hearing of the application Mr Stirk indicated that, if necessary, an application would be filed.
[55] The appointment for settling the appeal papers had been rescheduled for 10am on 28 April 2004. Mr Heitmann did not appear. In his affidavit of 21 May 2004 Mr Heitmann states that he was occupied in hearings before the Family Matters Court and, on completion of those matters, he immediately went to the conference room where he met Mr Kahn who was just leaving. Mr Kahn informed him that the appointment had been adjourned to 7 May 2004.
[56] On 7 May 2004 Mr Heitmann submitted to the Registrar that the appeal index could not be settled until the appellant had first complied with r 84.09 by obtaining the transcript of the proceedings before the Judge. On that basis Mr Heitmann sought that the appointment be adjourned. According to the affidavit of Mr Heitmann, which is not contradicted by any affidavit in response, Mr Kahn advised the Registrar that the respondent had no intention of obtaining the transcript of the hearing before the Judge. The appointment was adjourned to 31 May 2004.
[57] On the hearing of the application before me, Mr Stirk initially maintained the position that it was not necessary for the respondent to obtain the transcript of the proceedings before the Judge. He submitted that the question as to whether the transcript should be included in the appeal papers was a matter to be settled by the Registrar.
[58] Order 84.09 is not concerned with whether the transcript of proceedings should be included in the appeal papers. It is a requirement that prior to the appointment for settling the appeal papers, an appellant obtain and file the transcript and afford the respondent a reasonable opportunity to examine the transcript. This procedure enables the respondent to consider what materials the respondent wishes to have included in the appeal papers and it affords the respondent the opportunity of deciding whether to ask the Registrar to include in the appeal papers all or part of the transcript.
[59] If an appellant wishes to be relieved of the responsibility of complying with O 84.09, an appellant can seek the consent of the respondent or, in the absence of such consent, can make application pursuant to O 2.04 for an order dispensing with compliance with O 84.09. No such application has been made.
[60] When it was pointed out to Mr Stirk that O 84.09 was concerned with providing a respondent with the opportunity of perusing the transcript prior to settling the index, Mr Stirk said that if the matter proceeded forward he would ensure that the transcript was obtained. He urged that this was not a matter in which the court should exercise its power to dismiss the appeal for want of prosecution. If the court was of the view that irregularities had occurred or that the appeal had not been prosecuted with due diligence, the court could make appropriate orders under O 84.13 and direct that on non-compliance the appeal would stand dismissed for want of prosecution. Mr Stirk acknowledged that costs, and perhaps costs against the respondent’s solicitors personally, was another option available to the court.
[61] The applicant submitted that the respondent’s solicitors have continuously and deliberately ignored the numerous defects in the proceedings that have been brought to their attention over many months. He submitted that deliberate delaying tactics had been employed which were coupled with a refusal to comply with the Rules of Court, particularly O 84.09. In addition, counsel pointed out that it was in the letters of 30 September 2003 and 3 March 2004 that the applicant raised the question of service of the appeal papers upon the second respondent to the appeal, Mr Ebatarinja, and it was not until 19 March 2004 that service was effected on the adult guardian for Mr Ebatarinja.
[62] There can be no doubt that the excessive delay in this matter is highly unsatisfactory. The respondent’s solicitors have made no attempt to explain the delays nor to explain their repeated failures to attend to the numerous matters of substance raised by the applicant. Notwithstanding the absence of such explanations, I am not prepared to draw the inference that the respondent’s solicitors have deliberately set about to delay the process of the appeal. However, in the absence of such explanations, I am satisfied that the conduct of those persons who had the carriage of the matter on behalf of the respondent has been seriously lacking in diligence and application. I am satisfied that on occasions some of those persons have shown a contumelious disregard for both the rights of the applicant and the interests of the respondent in pursuing her appeal diligently and with a reasonable degree of efficiency. The rules of this Court have been ignored. There has been a significant departure from the standard of conduct which is reasonably expected and required of practitioners of this Court.
[63] If the proceedings are dismissed for want of prosecution, the rights of the respondent will be adversely affected in a very significant manner. There is no evidence that the respondent has directly or indirectly influenced the conduct of those representing her to which I have referred.
[64] From the perspective of the applicant, the delay has been highly undesirable and, should the matter ever proceed to trial, there is always the possibility that the excessive delay will impact adversely upon the applicant’s ability to defend the proceedings. However, as counsel for the applicant acknowledged during the hearing, the delay has not occasioned any immediate prejudice which cannot be remedied by appropriate orders.
[65] In all the circumstances, and notwithstanding the views I have reached about the conduct of those representing the respondent, I am not satisfied that this is an appropriate case in which to exercise my discretion to dismiss the proceedings for want of prosecution. I am satisfied that the appropriate course is to put in place orders which will ensure that the proceedings are progressed efficiently and that the costs of the applicant incurred as a consequence of the conduct to which I have referred are adequately met.
[66] As to the question of costs, counsel for the respondent relied upon O 63.18 and the decision of Martin J (as he then was) in TTE Pty Ltd & Anor v Ken Day Pty Ltd (1990) 2 NTLR 143. He submitted that there was nothing exceptional in the circumstances to justify the making of any order as to costs. He also pointed out that the Rules already provide for costs in respect of some of the steps taken in this matter such as amending the notice of appeal.
[67] Order 63.18 does not in its terms require that a court be satisfied that there is something exceptional about the circumstances of an interlocutory application before it is appropriate to order costs on the application. This was a view expressed by Martin J in TTE v Ken Day. It is unnecessary for me to determine whether I agree with that view.
[68] In my opinion, the circumstances to which I have referred lead inevitably to the conclusion that the circumstances of the application before me are exceptional. It is now only a few days short of 12 months since the application for leave to appeal and notice of appeal were filed. By reason of the conduct of the solicitors for the respondent, not even the preliminary step of obtaining the transcript of the proceedings before the Judge has been taken. No meaningful discussion has occurred at any appointment with the Registrar as to the settling of the appeal papers. In substance, the proceedings have not advanced in any significant way for a period of nearly 12 months.
[69] As to the question of who should pay the costs, it is a serious step to order that solicitors for a party personally pay the costs of an opposing party. However, in the absence of any suggestion that the respondent has personally been responsible for or contributed to the failures and delays to which I have referred, and bearing in mind the conduct of the respondent’s solicitors, in my opinion there are powerful reasons why costs should be awarded against the respondent’s solicitors personally.
[70] As to the costs of the application before me, notwithstanding that the applicant has failed to obtain an order dismissing the appeal proceedings in their entirety, I have determined that it is appropriate to take the exceptional course of requiring that the respondent’s solicitors pay the applicant’s costs of the proceedings. The history of this matter demonstrates that the applicant was continually frustrated by the conduct of the respondent’s solicitors in attempting to progress the proceedings to the hearing of an appeal. The applicant identified the areas of concern and gave more than ample warning that if the respondent did not cooperate the applicant would be left with no alternative but to apply to this Court for an order dismissing the proceedings. The applicant made out its case in almost every respect. My decision not to dismiss the appeal for want of prosecution was not made on the basis that the applicant failed to establish relevant facts or because those facts did not justify such a course. The decision was primarily based upon a recognition that the fault does not lie with the respondent personally and that unless absolutely necessary her rights should not be adversely affected in a very significant way by the conduct of her solicitors.
[71] I make the following orders:
(i) The application to dismiss the application for leave to appeal is dismissed.
(ii) The proceedings before the Court of Appeal in which the respondent seeks to appeal from the judgment of Thomas J will proceed as an application for leave to appeal.
(iii) By not later than 5pm on Wednesday 23 June 2004 the respondent shall request from the Court Reporting Branch of the Supreme Court a copy of the transcript of the proceedings before the Judge.

(iv) Within seven days of receipt of advice from the Court Reporting Branch as to the cost of the transcript, the respondent shall pay that cost to the Court Reporting Branch.

(v) Within seven days of receipt of the transcript from the Court Reporting Branch, the respondent shall file and serve upon the applicant a copy of the corrected transcript together with a list of corrections in accordance with O 84.09(2)(a) and (b).

(vi) At the time of filing the copy of the transcript of the proceedings, the respondent shall request of the Registrar an appointment to settle the appeal papers as soon as an appointment is reasonably available before the Registrar, but at a time not less than seven days after service of the copy of the transcript upon the applicant.

(vii) By no later than 5pm on Friday 25 June 2004 the respondent shall file and serve upon the applicant an amended application for leave to appeal specifying the particular applications in respect of which the respondent seeks orders of the Court of Appeal extending the time within which the applications for assistance may be filed.
(viii) If the respondent fails to comply with any of orders (iii) – (vii) both inclusive, the application for leave to appeal shall stand dismissed for want of prosecution.
(ix) The respondent’s solicitors shall personally pay to the applicant’s solicitors the costs of the applicant on an indemnity basis in connection with the notice of appeal, application for leave to appeal and application before this Court to dismiss for want of competence and want of prosecution. Such costs are to be taxed or agreed and, pursuant to O 63.04(2), such costs may be taxed immediately upon application by the applicant.
(x) Subject to the availability of court time and other direction by a Judge of this Court, the application for leave to appeal shall be listed for hearing during the sittings of the Court of Appeal in August 2004.

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