Latrobe Country Credit v Smith & Ors [1998] VSCA 74

[1998] VSCA 74

8. The appellant accepted (as it had to) that, since its appeal was from an exercise of discretion, its first task was to establish error below, according to the well-known statement in House v. R. [1936] HCA 40; (1936) 55 C.L.R. 499 at 405 per Dixon, Evatt and McTiernan, JJ. and Australian Coal & Shale Employees' Federation v. Commonwealth [1953] HCA 25; (1953) 94 C.L.R. 621 at 627 per Kitto, J. Yet it was not submitted that Harper, J. made any error so far as concerned the principles affecting an application to dismiss for want of prosecution. Those principles were canvassed in Masel v. Transport Industries Ins. Co. Ltd. [1995] VicRp 59; [1995] 2 V.R. 328 and more recently in Spitfire Nominees Pty. Ltd. v. Ducco [1998] 1 V.R. 242 at 245-6. In line with the judgment of Hedigan, A.J.A. in Spitfire, a judgment in which the other members of the Court of Appeal agreed, Harper, J. adopted as a sufficient statement of the principle the following from the speech of Lord Griffiths in Department of Transport v. Chris Smaller (Transport) Ltd. [1989] 1 A.C. 1197 at 1203:-