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. The difficulty that Mr Malan faces, and has faced, is the lack of legal training. He is unrepresented. This has led to certain difficulties in his preparing a notice of appeal in proper form I interpolate that Nr Malan sought legal aid to fund his appeal. However, this was refused. He appealed against that refusal. The appeal was unsuccessful. Accordingly, the matter is before the Court today with Mr Silvas represented by counsel and Mr Malan once again appearing for himself. It is easy in these circumstances to become impatient with a litigant in person. However, the test of our courts is the way in which they deal with such cases. Litigants who are not represented by the legal profession have just as much right to come to the courts for justice according to law as anyone else has. I intend to preserve and protect that right in the case of Mr Malan, because I can do so without any relevant prejudice to Mr Silvas. 2 UNREPORTED JUDGMENTS The application for an extension of time will be granted. I proposed to provide some degree of expedition in the hearing of the appeal. This expedition is sought by Mr Silvas. Quite understandably, he is anxious to have this protracted and expensive litigation brought to a speedy close. Accordingly, the orders which I make on the first motion (which is entitled a "summons" because it is the only originating procedure of Mr Malan properly before the Court), are as follows: 1. Give leave to the claimant, John Malan, to file in Court this day the 10 notice of appeal in the form of the document which I initial and which will be placed with the papers. This filing will be deemed to be within time. To that intent, an extension of time for the filing of the appeal, although otherwise out of time, is granted by the Court; 2. Order that the appeal have expedition, category C, to the intent that it 15 will be heard in February 1992 or shortly thereafter, on a date fixed by the Registrar, provided that in the meantime the Rules of Court have been complied with relation to filing of the appeal books and the payment for the appeal books by the appellant; 3. Order written submissions; and 20 4. Order that the costs of the motion be costs in the appeal The other two motions will be stood down in the list. They may be mentioned later in the day. Claimant appeared in person 25 Counsel for Opponent: JS Wheelhouse Solicitors for Opponent: Ternes and Salier