WALTON v HEWATT; WALTON v HEWATT [1995] NSWCA 491

WALTON v HEWATT; WALTON v HEWATT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA

3 July 1995

[1995] NSWCA 491

Clarke JA. This is an application for expedition of an appeal which, I regret to say, has a very sorry history. The interlocutory proceedings in the District Court, prior to the hearing before Holt DCJ and including, as well as the parties, the nominal defendant, seem to have become enmeshed in confusion. Counsel made a number of statements in court which suggested that his clients had been the victim of a great injustice. Those statements, however, have not been borne out to the full or even substantially by the evidence that has been tendered to this court. Nonetheless, I am left with a very uncomfortable feeling that either through confusion, or ineptitude on the part of the lawyers, it may very well be that the appellants in the present case have not received a just hearing. In saying that, I do not wish it to be thought for one minute that I am suggesting Judge Holt did other than give them a just hearing. As far as I can see he determined the case in the appropriate manner on the evidence before him. Whether he is right or wrong in the determination is a matter for the court to determine on the hearing of the appeal.

Apparently because of some earlier confusion, directions were sought but they are not now pressed. I should add I never became aware of the precise directions that the claimant sought. It is not, however, necessary to take time on that matter because the directions application is not pressed.

There is a claim for expedition based upon a possible need to commenceproceedings, or endeavour to commence proceedings against the nominal defendant, which I do not find a very impressive ground, and the psychiatric condition of one of the appellants, that is Vicky Fay Walton. I have been told that she needs psychiatric attention urgently and that she has not got the money to undergo it. The evidence that has been tendered supports the view that in May 1994 the psychiatrist thought she had significant mental problems and that she should seek some treatment. There is no evidence as to the present situation, nor is there any evidence as to her financial situation.