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. What comes before the Court here today on a Notice of Motion bearing date 15 April 1991 is primarily an application for leave to appeal from the decision of Loveday J given on 23 November 1990. This was no doubt pursuant to the indication which Handley JA gave on 18 February 1991. The Court has considered the terms of the judgment of Loveday J. It is informed that the formal proceeding has not yet been disposed of. In my opinion this is not a matter in which leave to appeal should be granted. It is an interlocutory matter and nothing which has been said indicates either that there is any doubt about the correctness of his Honour's order or that for other reasons it is an appropriate matter for leave to appeal to be given. The order which I would propose, therefore, is that the application for leave to appeal against the decision of Loveday J of 23 November 1990 be dismissed and that that dismissal be with costs. 2 UNREPORTED JUDGMENTS I should add this. The Notice of Motion on which this application comes before the Court, that is, of 15 April 1991, asks also for an order that the appellant be given back the $900 he says he paid for this second appeal in accordance with Ptsl. Mr West has said from the Bar table something to the effect that amounts of money have been paid to the Court, no doubt in relation to the appeal or appeals which he has sought to bring and he is - perhaps understandably - seeking the return to him of these moneys if the effect of what has taken place is that the appeal or appeals will not proceed. There is no evidence before the Court in relation in particular to those matters. In my opinion, if the appeals have been disposed of in a way which would entitle him to repayment of the moneys then, of course, he should have the moneys returned to him. But, speaking for myself, I do not see sufficient evidence before the Court to enable this Court to deal with that aspect of the matter. I would not wish to preclude Mr West from obtaining the recovery of any moneys to which he may be entitled. If, in the light of what has been done today, he desires to make further application for return of moneys and if it is necessary for him to do so, then he may make application in that regard in the proper form. I have in mind the terms of his Honour's interlocutory order which otherwise might, on one view, be thought to preclude even an application for return of such moneys. I would not wish to pre-empt the decision of the Court before which the matter would come. But, in my opinion, if, following what is done today, it is proper that an application be made to obtain the return of those moneys, then no doubt that application should be accompanied by an application for the necessary consent of the Court to bring the particular proceeding. However, in my opinion, that would not be a matter on which an order should be made at this stage. The order I would propose is that the application for leave to appeal be dismissed with costs. Clarke JA I agree. Meagher JA I agree. Appeal dismissed with costs.