BABANA v HANNA [1995] NSWCA 36

BABANA v HANNA

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBY P, MAHONEY JA and MEAGHER JA 27 February 1995

[1995] NSWCA 36

PRACTICE AND PROCEDURE — discontinuance of appeal — order correct when made — claimant demonstrates that, unknown to primary judge, notice of appeal filed — held: Claimant allowed in to defend — no question of principle.

Kirby P. Before the Court is an application pursuant to s 46(4) of the Supreme Court Act 1970. By that section the Court is empowered to discharge, or vary, a judgment given by a Judge of Appeal or an order made or direction given by a Judge of Appeal.

On 31 January 1995, Cole JA, exercising the powers of a single judge, pursuant to s 46 of the Act, and sitting in the practice list of the Court of Appeal, made an order pursuant to Part 51 rule 5(4) of the Supreme Court Rules to the effect that the appeal of the claimant should be taken to have been discontinued.

The claimant is now before the Court, as presently constituted, seeking to be allowed in to proceed with her appeal.

It appears from an affidavit of Mr Ian Bryden, solicitor, which has been read before the Court today, that the claimant filed a notice of appeal without appointment on 28 September 1994. This was done pursuant to leave granted on 26 September 1994. Thereafter, on 21 December 1994, the claimant filed a notice of appeal with appointment. She was given an appointment to settle the index to the appeal book on 28 February 1995 at 10.30 a.m. Because of the Long Vacation the notice of appeal was not served immediately. The fact of its non-service came to the attention of Mr Bryden on 1| February 1995.

On 5 January 1995, Mr Bryden received a notice of callover of the claimant's appeal. He briefed counsel to appear. According to his affidavit, Mr Bryden was advised by Mr J.H. Reimer of counsel, who appeared at the callover, that he believed that the solicitor for the opponent sought, and obtained, an order that by operation of Pt 51 r 4 SCR, the appeal was deemed to be discontinued. This is the order which Cole JA made and to which I have earlier referred.