BUCKINGHAM v KURING-GAI MUNICIPAL COUNCIL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA 11 November 1991 [1991] NSWCA 37 Mahoney JA. This matter comes before the court on a summons. The summons has been issued by William Alfred Buckingham as claimant against Kuring-gai Municipal Council and the Legal Aid Commission of New South Wales. It is not clear from the summons what the basis of it is or what is the relief which is sought. Rather than dismiss the proceeding as an abuse of process, as I have been asked to do, I have taken the course of, perhaps informally, enquiring as to what the substance of it is. Mr Buckingham has told me the basis of it and this, in substance, has been confirmed by Mr Abramowicz for the Council and Mr Agius for the Legal Aid Commission. I have been informed from the Bar table by the parties that the genesis of this lies in a notice to carry out work upon Mr Buckingham's property which was issued by the Council. It is said from the Bar table that the notice was given on or about 7 December 1990. The notice was not complied with andproceedings were taken against Mr Buckingham in a Local Court. I am informed the validity of the notice was then litigated and the Local Court made orders against Mr Buckingham. There was an appeal to the District Court and I am informed the matter was disposed of on 17 October 1991. The decision of the Local Court was confirmed. The present summons raises matters which are not properly for the decision of this Court. The terms of it make this clear. The other parties have, with a view to avoiding costs and therefore without the necessity of a formal application supported by affidavits and the like, asked that I order the summons be dismissed as an abuse of process. I have had in mind the desirability of avoiding further costs to Mr Buckingham and wasting public time: for this reason I have enquired into the basis of the matter as I have. In the circumstances I do not think that this is a matter which should proceed further in this Court. The proper order is in my opinion that the summons be dismissed. There is no alternative but to dismiss it with such costs as that may entail. Mr Buckingham has, in response to my enquiry, indicated that he has paid the sum of $1500 filing fee. Apparently that is the normal filing fee upon the filing of this application. The application is, as I have said, misconceived and must be struck out. But I am concerned that Mr Buckingham may be inappropriately out of pocket in relation to the matter. I understand that an application can be made to the ChiefExecutive Officer of the Court for the return of the filing fee or, it may be, some portion of it. As I have said, Mr Buckingham has obviously misconceived this proceeding and the proceeding should not have been brought in this Court. It would be unfortunate if he lost the benefit of $1500 when the matter has only been within the Court for a comparatively short time. It is not for me to pre-empt the decision of the person 2 UNREPORTED JUDGMENTS or persons who may be able to order a refund of the $1500 but it would appear that this might be a case where some appropriate refund should be granted. I indicate that in case my remarks may be of some assistance to those who have to make the decision. 5 The only order that I make is that the summons is dismissed with costs. Orders accordingly.