JOHN BARRY MAXWELL THOMAS v THE COMMONWEALTH OF AUSTRALIA [1993] NSWCA 267

JOHN BARRY MAXWELL THOMAS v THE COMMONWEALTH OF AUSTRALIA [1993] NSWCA 267

Despite extraordinary delay and lack of diligence on the appellant's side, striking out an appeal is only appropriate in extraordinary cases; specific prejudice must be demonstrated, and while the passage of time causes prejudice, the court is loath to deprive a party of appeal rights without clear cause.

Parties
Appellant: John Barry Maxwell Thomas; First Respondent: The Commonwealth of Australia; Second Respondent: Botany Municipal Council
Jurisdiction
Australia
Judgment Date
15 February 1993
Procedural Posture
Appeal / Application to Strike Out Appeal for Want of Prosecution
Outcome
orders to be made after further hearing
Legal Topics
Strike Out for Want of Prosecution, Delay in Prosecution, Appeal, Prejudice Due to Delay
Civil Procedure Strike Out for Want of Prosecution Delay in Prosecution Appeal Prejudice Due to Delay

Case Brief

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Parties

John Barry Maxwell Thomas

Appellant

The Commonwealth of Australia

First Respondent

Botany Municipal Council

Second Respondent

Procedural Posture

Appeal / Application to Strike Out Appeal for Want of Prosecution

Legal Issues

  1. 1 Whether the appeal should be struck out due to appellant's failure to prosecute with diligence
  2. 2 Whether the delay has caused prejudice to the respondents
  3. 3 Effect of missing transcript of trial judge's summing-up

Ratio Decidendi

Despite extraordinary delay and lack of diligence on the appellant's side, striking out an appeal is only appropriate in extraordinary cases; specific prejudice must be demonstrated, and while the passage of time causes prejudice, the court is loath to deprive a party of appeal rights without clear cause.

Court Disposition

orders to be made after further hearing

Orders

  • Orders accordingly