WEST v CAMPBELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 13 November 1989 [1989] NSWCA 229 PRACTICE and PROCEDURE — appeal to Court of Appeal unrepresented litigant — seeks expedition, order declaring nature of proceedings and damages — held: Expedition inappropriate because of non compliance with the Rules as to filing of appeal papers — other orders inappropriate until hearing of appeal — motion dismissed. Supreme Court Act 1970, s46. Kirby P This is the second time in recent days that these proceedings have been before the Court. On this occasion the application is for several orders: for the abridgment of time for the service of the appeal, the expedition of the hearing of the appeal, for a statement by the Court of the nature of the proceedings, and for an order by the Court that the respondents to the appeal pay a very large sum to the appellant. The appellant, who is the claimant in the motion, appears before the Court unrepresented. I am dealing with this matter pursuant to s46 of the Supreme Court Act 1970. The proceedings arise out of a judgment given by David Hunt J on 17 March 1989. That judgment has been placed before the Court. It appears that, as a result of that judgment, two of the parties to the proceedings, namely Northern Star Limited and Murrumbidgee Irrigation Pty Limited and Murrumbidgee Irrigation Pty Limited (the third and fourth respondents to the appeal and the third and fourth opponents in these proceedings) were ordered by his Honour to be removed from the proceedings. The claimant has appealed. Unfortunately, however, he has not complied with the Rules of the Court relating to the filing of the appeal papers. I have endeavoured to explain those rules to him today. The matter will be listed before the Registrar for the settlement of the appeal papers on Friday 17 November 1989 at a time to be notified to the other opponents and to be notified, upon enquiry, to the claimant. The purpose of that listing will be to allow the claimant to present to the Registrar the compilation of all relevant papers for the appeal which he wishes to bring from the judgment and orders of Hunt J. It is not appropriate to expedite the hearing of the appeal, as the claimant seeks in the first order sought in the motion filed. This is because, had the claimant proceeded in accordance with the Rules, the appeal would now have been heard or at least would be shortly awaiting hearing. It may be that the claimant misunderstood the requirements that rest upon him. It may also be, at some later time, when the appeal papers have been prepared, paid for and filed, that some measure of expedition will be granted if a ground can be demonstrated. But no such ground is demonstrated at this stage. The delay has been occasioned entirely by the failure of the claimant to comply with the Rules. Nor is it appropriate to make an order as to the nature of the proceedings. That nature may emerge from the appeal when, in due course, it is heard. 2 UNREPORTED JUDGMENTS It is also inappropriate in this Court, and in default of a trial, and at this stage in the proceedings, to make an order for the payment of costs and damages. Indeed, the only order for costs that must be made is an order for the claimant to pay the costs of the opponents who have been brought to Court today to deal with a matter which ought not to have arisen and would not have arisen had the claimant complied with the Rules. Ihave said that certain opponents are before the Court. There is one exception. George Henry Taylor, trading as Harold W Taylor is not before me. Service of the notice of motion upon that party was proved by two documents, an affidavit sworn by Mr West dated 8 November 1989 and a certified mail posting receipt which states that a document was sent by certified mail to the second opponent on 6 November 1989. The actual affidavit of the claimant states that the document was posted on 6 September 1989. He has told me this was a mistake. I accept that the notice of motion was in fact sent to the second respondent on 6 November 1989 as confirmed by the certified mail posting receipt. The other opponents received their copies of the motion at about that time. It will be appropriate for the Registrar to inform the second opponent, or its solicitor, of the listing of the matter before him for the settlement of the appeal papers. The orders which I will make are made without finally determining whether there is in fact an appeal as of right against the orders made by David Hunt J in respect of the first opponent or whether the grounds of appeal which are set out in the notice of appeal presently filed properly raise matters which can be the subject of appeal. No application has been made to the Court to deal with either of these matters. I therefore refrain from dealing with them now. They can be dealt with in due course either by the Court constituted to hear the appeal (or purported appeal) or, if notices of motion are filed, by a Judge of Appeal dealing with such motion. The orders I make are therefore: 1. Stand over to the Registrar on Friday 17 November 1989, at a time to be notified, the settlement of the appeal papers herein; 2. Order the claimant to pay the costs of the first, third and fourth opponents of and incidental to the motion; and 3. Direct the Registrar to notify the second opponent or this solicitor of the above orders. I shall place the certified mail posting receipt, which I will mark as Ex A, with the papers of the Court. The judgment of David Hunt J will also be placed with the papers too. They are the orders of the Court.