WEST v HAWES [1990] NSWCA 186

WEST v HAWES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 2 April 1990, 2 April 1990 [1990] NSWCA 186

PRACTICE and PROCEDURE — incompetent appeal — District Court judgment for $50 — appeal brought to Court of Appeal, purportedly as of right — objection lodged to competency of appeal — objection to joinder in appeal of party not joined below — appellant appears in person — held: Purported appeal incompetent and dismissed.

District Court Act, 1973, s128. Supreme Court Act, 1970, s46. Supreme Court Rules, Pt20, R2A.

Kirby P The appellant, Raymond Stanley West, has brought what purports to be an appeal by notice of appeal to this Court from orders made by Judge Flannery in the District Court on 5 September 1985. I do not have the orders of Judge Flannery before me, nor the judgment which his Honour entered. However I am assured by counsel for the respondents (who is also counsel for the claimants on the motion) that judgment was entered in the sum of $50. Mr West does not contest that fact. He therefore agrees that the judgment was below $5,000.

Under s128 of the District Court Act, 1973 the appellant requires leave of the Court to appeal from a judgment in such a small sum. No such leave has ever been sought. Instead, the appellant, who appears in person, has proceeded as if he has an appeal as of right. He does not have such an appeal.

To support his purported appeal, the appellant referred me to Pt20 R2A of the Supreme Court Rules. However, that provision, which deals with amendments to a statement of claim, has no application to the present case, as I think the appellant ultimately appreciated.

The purported appeal is plainly incompetent. It should, for that reason, be dismissed. Because the appellant has appeared in person it may be understandable that he did not know the procedure that he should have pursued having regard to the terms of s128 of the District Court Act. I make no judgment on that. However, I do indicate that the dismissal of the appeal is not ordered on the merits. I have drawn to the attention of the appellant, whilst not necessarily wishing to encourage him to do so, the fact that if he wishes to have reviewed the decision of Judge Flannery he may bring a belated application seeking leave to the Court for that purpose, although out of time. In that connection the fact that he brought his notice of appeal within the time allowed for an appeal as of right would doubtless be a matter considered by the Court in any such application.