OLDS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1989] NSWCA 158

OLDS vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope JA 6 February 1989, 6 February 1989 [1989] NSWCA 158

Hope JA The present application is to extend the time for the filing of a notice of appeal from a decision given by his Honour Judge Freeman in the District Court, Broken Hill, on 15 November 1988. On the material before the court I think it is appropriate to extend time.

A form of notice of appeal has been filed, the ground of appeal being that "his Honour erred in finding a verdict for the Defendant in that the finding was against the evidence and the weight of evidence". The second part of that ground is one that the court has commented upon on innumerable occasions. On an appeal from a finding of fact by a judge which an appellant wishes to challenge it is not permissible to state as the ground that the finding was against the evidence and the weight of evidence. Quite apart from this problem, the ground which I have read does not reveal in any way the matters that are to be argued on the appeal. The purpose of giving grounds in a notice of appeal is to give notice to the other side of the matters which the appellant relies upon and as to the matters upon which argument is going to take place in the Court of Appeal. The ground in the notice which has been filed is quite inappropriate. In my view, if an application were made to the Court, the ground might well be struck out.

However, I propose to give leave to extend time to appeal to and including 20 February 1989. That will give the claimant an opportunity to file a proper notice of appeal. The claimant is to pay the opponent's costs of the application.