WEST v ATTORNEY GENERAL FOR NEW SOUTH WALES [1991] NSWCA 284

WEST v ATTORNEY GENERAL FOR NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and MEAGHER JJA 22 April 1991

[1991] NSWCA 284

Mahoney JA This matter comes before the Court in an unusual way and, because of the unusual nature of it, I shall indicate what, in my opinion, the position is and what should be done.

On 23 November 1990 there came before Loveday J a summons by the Attorney General seeking - I put the matter broadly - an order that Mr West be declared a vexatious litigant. On that occasion no final orders were made. The only orders that were made were:

"1. That the proceedings be expedited.

2. That an interlocutory order be made that until further order the defendant be restrained himself, or by his servants and/or agents, from instituting or continuing any legal proceedings whether civil or criminal in any Court of this State without the leave of the Supreme Court.

3. An order for costs."

Those orders were 1, 2 and 3 as set out in the Notice of Motion dated 9 October 1990 referred to in his Honour's judgment of 23 November 1990.

On 21 December 1990 apparently Mr West filed in the Court a Notice of Appeal against the orders made on 23 November. As those orders were interlocutory orders, a Notice of Appeal was inappropriate. The application to contest those orders should have been by way of an application for leave to appeal made to this Court.

It appears that on 18 February 1991 the proceedings came before Handley JA. His Honour, in my respectful opinion correctly, pointed out that the appeal was incompetent and that application should have been made for leave to appeal. His Honour does not appear, as far as I can see from the transcript, formally to have struck out the appeal although both Mr West and Mr Lakatos for the parties here join in the view that what was then done was the formal dismissal of the appeal.