ANDREW WILLIAM MORISON v STATE TRANSIT AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and MEAGHER JJA 3 December 1990, 3 December 1990 [1990] NSWCA 127 PRACTICE and PROCEDURE — Court of Appeal — application for discharge of order of single Judge of Appeal sitting alone under s46 Supreme Court Act — necessary to show that order made was wrong — unrepresented litigant — order that appeal be dismissed as frivolous or vexatious — serious step to dismiss claim without hearing on merit — application to bring fresh evidence including from Prime Minister — held: (1) No error having been shown in the order made application to discharge it dismissed; (2) Application to call fresh evidence dismissed as ancillary to such appeal. Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235 referred to. Supreme Court Act 1970, s46. Kirby P Before the Court is a motion. It seeks in substance two forms of relief. The first is an order from the Court as presently constituted discharging or varying a judgment earlier given by a Judge of Appeal sitting alone. Clarke JA for reasons stated by him on 29 October 1990 dismissed the claimant's appeal. The claimant wishes to challenge that order. The second is that part of the motion by which the claimant seeks leave to produce fresh evidence. So far as the motion for an order for discharge of the earlier order of Clarke JA is concerned, the power of the Court to discharge the order made by a single Judge of Appeal exercising the powers of the Court under s46 of the Supreme Court Act 1970 cannot be doubted. It is provided by the terms of s46(4) of the Act. However, it would seem to me that it is necessary for the applicant for an order of discharge to show some error of the part of the judge sitting alone to warrant the relief sought. The Court has had the opportunity of considering Clarke JA's decision and the reasons which he gave for his decision which ordered that the purported appeal filed by the complainant be dismissed on the grounds that it was vexatious or frivolous and that there were no grounds of appeal shown in it. The Court has examined the notice of appeal for itself. It is not necessary to repeat the grounds of appeal stated in it. They are sufficiently referred to in the reasons for judgment of Clarke JA. It is my opinion that they fully sustain the order which his Honour made. On their face, they show that the appeal was vexatious or frivolous. Clarke JA took into account the serious step that was involved in dismissing an appeal without a hearing on the merits. His Honour also took into consideration the fact that the claimant was unrepresented before him, as indeed he has been before us. Nonetheless he came to the view which was formulated in his order. He did so in the exercise of a discretion reposed in him by law. His order has not been shown to be wrong. On the contrary, on the basis of the document purporting to be the notice of appeal, it is my opinion that the order was inevitable, and was right. 2 UNREPORTED JUDGMENTS Secondly, the notice of motion also seeks leave to file fresh evidence. When it is examined this is said to be evidence which was not available at the time of the hearing on September 3, 1990. This was the date upon which the judgment at first instance was delivered by Loveday J. It is that judgment which was the subject of the purported appeal. This Court has established extremely stringent conditions for admitting fresh evidence on appeal, for reasons which is stated in Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235. It is sufficient to state that none of the fresh evidence which is referred to in the notice of motion, which relates the Prime Minister and other such people, would be relevant to any proceedings of the claimant before this Court. In any case, the notice of motion is, in this regard, ancillary to the appeal. As the appeal has properly been dismissed, it is unnecessary to deal with the application to bring fresh evidence in support of it. The order which I would, for these reasons, propose is that the motion for an order for discharge of the order of Clarke JA and to bring fresh evidence, be dismissed. The claimant must pay the opponent's costs. Samuels JA I agree. Meagher JA I also agree. The order which I would, for these reasons, propose is that the motion for an order for discharge of the order of Clarke JA and to bring fresh evidence, be dismissed. The claimant must pay the opponent's costs. Counsel for Applicant: In person Counsel for Opponent: P Sternberg Solicitors for Applicant: In person Solicitors for Opponent: Kennedy and Co