MALAN v SILVAS [NO 1] [1991] NSWCA 185

MALAN vy SILVAS [NO 1] SUPREME COURT OF NEW SOUTH WALES

KirBY P 26 August 1991

[1991] NSWCA 185

PRACTICE and PROCEDURE — Court of Appeal — unrepresented litigant — application for extension of time — observation by Kirby P on the need to preserve and protect the right of appeal in the case of unrepresented litigants — extension of time for bringing appeal ordered and hearing expedited.

Kirby P Before the Court are three motions. One of them is brought by Mr JohnMalan seeking an extension of the period within which to lodge an appeal against a judgment of the District Court, (Levine DCJ), given on 5 May 1991.

The second, also by Mr Malan, asks, in effect, for a stay of proceedings of the District Court and for what is described as an "annulation", but I take it to be an annulment, of a writ issued by the District Court following the application by the opponent, the successful judgment creditor in that court.

The third motion is a motion for orders protecting the opponent, Mr Theodore Silvas, who was the successful plaintiff in the court below.

For the moment I intend to deal only with the first motion, the other two being stood down for mention later in the day or, if it be so ordered, on a later day when material will be placed before the Court in relation to the stay and any annulment of the writ of fi fa which was issued by the District Court.

So far as the extension of the period for the lodgment of the appeal against the judgment of the District Court is concerned, the facts are these. On 7 June 1991, the claimant filed a notice of motion for extension of time in this Court. Had the claimant at that time, or just shortly before, filed a notice of appeal in proper form, he would have been within time to appeal from the judgment of Levine DCJ.

It has not been suggested that the opponent has been prejudiced by the delay in the filing of the notice of appeal. He has been aware, indeed only too aware, that Mr Malan challenges his judgment in this Court and intends to bring an appeal to this Court for determination.