NURIO v NAYLOR [1994] NSWCA 246

NURIO v NAYLOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and HANDLEY JJA 8 August 1994 , 8 August 1994

[1994] NSWCA 246

PRACTICE & PROCEDURE — Court of Appeal — failure to provide proper address for service — failure to clear mail in posse restante — application to strike out appeal — appellant unaware of motion — held: Appeal struck out — appellant cannot put itself beyond orders of the Court by failure to provide and to maintain a proper address for service.

PRACTICE & PROCEDURE — Court of Appeal — purported appeal by unrepresented litigant — litigant for second time fails to appear — fails to clear correspondence in posse restante address given by him — litigant unaware of motion to strike out appeal — inconvenience to opposing party — held: (Kirby P; Priestly JA and Handley JA concurring): The purported appeal should be struck out. A party cannot, by failing to give a proper address for service, effectively put itself beyond the orders of the Court providing relief to the opposing party which is troubled and inconvenienced by the litigation.

ORDERS 1. Purported appeal struck out; and 2. Opponent to pay the claimant's costs of the motion.

Kirby P Before the Court is a motion to strike out an appeal brought by Thrllama Nurio against orders made by Windeyer J on 24 February 1994. The proceedings came before Windeyer J by way of appeal from a motion which was earlier heard and determined by Master McLaughlin on 7 October 1993. On that day the Master ordered that the claim made by the present opponent, Thrllama Nurio, be dismissed.

It was the Master's order which led to the filing of a notice of appeal against the decision of the Master. The appeal initiated the proceedings which came before Windeyer J on 24 February 1994.

Mr Nurio did not appear on that appeal. The appeal was dismissed with costs. A cross-appeal which was filed was not then dealt with. The present claimant Damian Perrignon, a barrister, was sought to be joined to the proceedings by way of notice of motion which was dealt with in the way that I have indicated.