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. Mr Nurio then sought to appeal to this Court. He ought to have done so by summons seeking leave to appeal. He purported to appeal as of right. Again, he did not appear today before the Court, although he has been called outside the door of the court. However, the reason for his non-appearance has been explained. Mr Nurio did not, in accordance with the Supreme Court Rules, give an address for service in the appeal within the metropolitan area of Sydney. He first nominated a Member of Parliament in Canberra who was not, thereafter, willing to receive his documents. Later, he nominated the Legal Aid Office of the Australian Capital Territory. That office was asked to give assistance to him by way of providing Mr Nurio with a posse restante address. A letter from the Chief 2 UNREPORTED JUDGMENTS Executive Officer of the Office indicates that, in the "exceptional circumstances", the Office was prepared to agree to the arrangement suggested by Mr Nurio. However, when a telephone inquiry was made today, it emerged that the letter notifying Mr Nurio of the fact that the proceedings were before the Court today, was still awaiting his attention. It had not been picked up. It must therefore be assumed that Mr Nurio is not aware that the proceedings are before the Court today. That explains his absence. At first, I was inclined to stand the matter over with a view to asking that steps be taken to provide personal or other service on Mr Nurio. It is a serious matter to make any order of a court and particularly in the absence of the party and in the knowledge of the fact that the party is unaware that the proceedings are before the court. On the other hand, it is also a serious matter to appeal to the Court. It occasions costs and inconvenience to the opposing party. It is a serious matter to provide an address for service which does not conform to the Rules and does not provide an efficient means by which the "appellant" can be notified of the state of the proceedings and date of the hearing. In effect, Mr Nurio has put himself outside notification of these proceedings. It seems to me that the claimant is entitled to the relief which he has sought. To the extent that Mr Nurio is unaware of the proceedings, that is as a consequence of his own failure to provide an appropriate address for service and/or his failure to check on his correspondence at the address which he did provide for the receipt of correspondence notifying him of the hearing. I take into account that this is not the first time that Mr Nurio has failed to pursue litigation which he has set in train. In my view, he cannot take that course when it inconveniences and troubles others. I also take into account the apparent lack of merit of his claim, at least on the face of the documents before the Court. In my view, an order should be made that the purported appeal of Mr Nurio to this Court (which appears to be misconceived) should be struck out. Mr Nurio should be ordered to pay the costs of the motion. Priestley JA I agree. Handley JA I agree. Kirby P: Such are the orders of the Court. Appeal allowed and Mr Nurio to pay the costs of the motion. Counsel for the Claimant: EM Davies No appearance for the Opponent Solicitors for the Claimant: Chris Stoniforth