HIND v WARRINGAH SHIRE COUNCIL [1993] NSWCA 136

HIND v WARRINGAH SHIRE COUNCIL [1993] NSWCA 136

Where delay in prosecution is due to a misunderstanding regarding the availability of transcript and summary inquiries could have remedied the delay, it is not appropriate to dismiss the appeal, but costs may be ordered against the responsible solicitor.

Parties
Claimant: Hind; Opponent/worker: Warringah Shire Council
Jurisdiction
Australia
Judgment Date
01 March 1993
Procedural Posture
Appeal / Motion for Dismissal for Want of Prosecution
Outcome
Motion for dismissal dismissed; costs ordered personally against solicitor for opponent/worker; directions given for settlement of appeal papers.
Legal Topics
Dismissal for Want of Prosecution, Discovery of Transcript, Solicitor's Personal Liability for Costs
Practice and Procedure Dismissal for Want of Prosecution Discovery of Transcript Solicitor's Personal Liability for Costs

Case Brief

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Parties

Hind

Claimant

Warringah Shire Council

Opponent/worker

Procedural Posture

Appeal / Motion for Dismissal for Want of Prosecution

Legal Issues

  1. 1 Whether the appeal should be dismissed for want of prosecution given the delay was due to failure to locate transcript
  2. 2 Whether costs should be ordered personally against the solicitor

Ratio Decidendi

Where delay in prosecution is due to a misunderstanding regarding the availability of transcript and summary inquiries could have remedied the delay, it is not appropriate to dismiss the appeal, but costs may be ordered against the responsible solicitor.

Court Disposition

Motion for dismissal dismissed; costs ordered personally against solicitor for opponent/worker; directions given for settlement of appeal papers.

Orders

  • Appeal be listed before the Registry for call over for settlement of the index of the appeal papers at 2.30 pm on Thursday 4 March 1993.
  • Motion for dismissal of the appeal for want of prosecution dismissed.