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[2004] FCA 1271
Federal Court of Australia
2004-09-29
Sackville J, Conti J, Jacobson J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The respondent moves on a notice of motion filed on 19 August 2004 to dismiss this appeal for want of prosecution. The motion is brought pursuant to order 52, rule 38(1)(a). 2 The motion was supported by an affidavit sworn by Mr Ian McNeilly on 19 August 2004. 3 Mr McNeilly points to two reasons why the appeal ought to be dismissed for want of prosecution. 4 Firstly, the appellant has not complied with order 1 of the orders made by Sackville J on 28 July 2004. On that date his Honour made the following orders:
"1. The Appellant file and serve within twenty on (21) days an amended Notice of Appeal specifying the grounds of appeal and errors of law alleged to have been made by the trial judge.
5 Secondly, Mr McNeilly deposes to a conversation which he heard take place between a Registrar of the Court and the appellant on 18 August 2004 when the matter was before the Registrar to settle the appeal papers. 6 On that occasion the Registrar inquired of the appellant as to his intention regarding the filing and serving of the amended notice of appeal. The appellant stated that he had been depressed of late and that it was not possible for him to prepare an amended notice of appeal. He also stated that he did not then wish to proceed with the appeal and that he did not have the resources or will to prepare a notice for discontinuance. 7 However, on 16 September 2004 the appellant filed a document entitled 'Notice of Motion'. The document does not spell out any proper orders which the Court would have power to make but it is plain from the terms of the document that the appellant now wishes to prosecute the appeal. I have treated the notice of motion as in effect the appellant's submissions on this motion. Paragraph 1 of the document states that the appellant has recovered from his illness and intends and wants to prosecute the appeal with vigour. 8 It is well established that the court's power to dismiss for want of prosecution is a drastic step which would only be justified by the grossest or most contumelious delay; see Birkett v James [1978] AC 297. That case has been followed in the Federal Court; see Van Reesema v Giameos (1979) 27 ALR 525. 9 Whilst it is regrettable that the appellant has not complied with the order made by Sackville J, I do not think that in the light of what the appellant has said about his intention to prosecute the appeal that the draconian power to dismiss for want of prosecution is justified. That is particularly so in this case where the appellant was found guilty of contempt of court by Conti J and was sentenced to a term of imprisonment of six months. The appellant wishes to appeal against his conviction for contempt. 10 It is true, as Ms Liavis who appeared for the respondent told me, that the notice of appeal as presently drafted does not disclose any proper grounds of appeal or errors of law. Nevertheless, in light of what the appellant has said in his document I do not see that it is appropriate to, as I have said, exercise the power to dismiss the appeal. For those reasons the notice of motion filed on 19 August 2004 is dismissed I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.
Associate: Dated: 30 September 2004 Counsel for the Applicant: The Respondent appeared in person
Solicitor for the Respondent: Australian Government Solicitor
Hughes
Australian Competition and Consumer Commission
(1979) 27 ALR 525