WEST v CAMPBELL [1989] NSWCA 230

WEST v CAMPBELL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 9 October 1989

[1989] NSWCA 230

Mahoney JA The matter that comes before the Court this morning is a notice of motion dated 18 September 1989 filed by Raymond Stanley West, the plaintiff. The notice of motion asks for relief of various kinds. By way of example, I note that the first paragraph asks, "That the plaintiff be awarded maximum damages for abuse of legal process, malicious prosecution from the first defendant". The motion purports to be filed in Matter No 40193 of 1989.

It appears from the papers which are before the court and from what has been put before the court in the presence of Mr West by Mr Lerve, counsel for the second defendant Mr Taylor, that on 23 March 1989 Hunt J made orders dealing with the pleadings filed in that matter. In substance the learned judge ordered - I state the matter broadly and therefore somewhat inaccurately - that particular portions of the Statement of Claim be struck out or not proceed. There is before the court a notice of appeal dated 12 April 1989 apparelltly lodged against what his Honour did. It purports to relate to matters decided on 17 March 1989 but I assume that the orders against which the appeal is brought are the orders to which I have referred, or similar orders.

The relief sought in the notice of motion is relief which clearly cannot be granted upon a motion in this matter.

The plaintiff, Mr West, has filed, as he has said, four affidavits of 18 September 1989, each directed apparently to a particular defendant or groups of defendants.

The court does not have the power or, if it has the power, will not make orders of the kind that are sought in the notice of motion. In the circumstances, therefore, the proper order is that the notice of motion be dismissed with costs. The application is misconceived. I have indicated to Mr West that if he desires to pursue the proceedings under appeal he may do so. If he does not desire to do so, he should take whatever steps he may be advised are proper in relation to the proceedings, consequent upon the order of Hunt J or he may take whatever other proceedings he feels entitled to take. I do not suggest by this that he has any rights worth pursuing in the matter, but these are matters to be decided by him.