MALAN v SILVAS [NO 2] [1991] NSWCA 184

MALAN vy SILVAS [NO 2] SUPREME COURT OF NEW SOUTH WALES

KirBY P 26 August 1991, 26 August 1991 [1991] NSWCA 184

PRACTICE and PROCEDURE — Court of Appeal — unrepresented litigant — desire for access to unincumbered property — writ of fi fa issued by District Court in respect of judgment debt — held: Order made varying the operation of the District Court order to permit claimant to raise up to $12,000 to pay legal costs of appeal.

Kirby P Before the Court are motions referred to in reasons given by me earlier today in the proceedings between Mr Malan and Mr Silvas. By his motion, Mr Malan seeks an order annulling, in effect, the writ issued by Davidson DCJ on 24 June 1991 which restrains his use of his interest in the land comprising folio identifier 39/3/351 being Lot 39, s3, deposited plan 751 in the Municipality of Auburn, known as 9 Livingstone Road Lidcombe. It appears that such land is held by Mr Malan as registered proprietor as a joint tenant with his wife. It seems that it is unencumbered.

By virtue of the order of Davidson DCJ, Mr Malan cannot have access to his interest in the land for the purpose of raising upon it the funds necessary to provide for the costs of his appeal to this Court. Mr Malan has sought legal aid. The Legal Aid Commission has refused legal aid. He appealed but the appeal was dismissed.

As I have observed today and on previous occasions, Mr Malan would be at a marked disadvantage in prosecuting his appeal to this Court by reason of the fact the he is unrepresented, his first language is Romanian and he is unfamiliar with the procedures of the Court and the requirements for prosecution and presentation of the appeal.

Clearly it is in his interests, probably in the interests of the opponent, and certainly in the interest of the Court and the due administration of justice that he should be legally represented in the appeal, if at all possible. Accordingly, it is desirable to make provision so that he can have access to his property if his wife as joint tenant consents and if he desires to raise the funds for that purpose, ie for paying for the printing of appeal books and for the fees of a legal representative.