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. Mr Bryden's affidavit proceeds: Tam further so informed and believe that at the callover the solicitor of the opponent stated to the Court that the claimant had failed to lodge a notice of appeal with appointment within the prescribed time. That statement was not true. The affidavit of Mr Bryden deposes to the fact that the notice of appeal with appointment was eventually served upon the opponent on 2 February 1995. However, the affidavit does not explain how the notice of appeal was not served, save for a reference to the Long Vacation. Mr Bryden does not depose to Mr Reimer's having been properly instructed on the matter, nor to Mr Reimer's having informed the Court of the true position in relation to the notice of appeal with appointment. It is unsurprising, in the material which is now before us, that Cole JA made the order which he did. 2 UNREPORTED JUDGMENTS However, by reason of the facts subsequently discovered and now revealed to this Court, it does appear that, in fact, the claimant had filed her notice of appeal with appointment. She should therefore be allowed to proceed with her appeal. The claimant sought indemnity costs against the opponent. I infer that this was upon the basis that the opponent stated to Cole JA facts which 'were not true'. However, the opponent being apparently completely unaware of the fact that the notice to appeal with appointment had been filed (and no such notice having apparently been served upon her) was entitled to make the statement which was reported to Cole JA. The affidavit of Mr Bryden fails completely to give any basis upon which indemnity costs should be ordered against the opponent. To the contrary it fails to demonstrate that at the time it was made, Cole JA's order was not an entirely rational, just and appropriate order to make in the facts disclosed to his Honour. The only basis upon which I would set aside his Honour's order is that further facts have now been placed before the Court which, in justice, require that the claimant should be allowed in to proceed with her appeal. The order which I propose is that the claimant be permitted to proceed with the appeal which has been filed herein. Such appeal shall be deemed to have been filed within time. The claimant must pay the opponent's costs, both of the proceedings before this Court and of the proceedings before Cole JA. Mahoney JA. I agree. Meagher JA. I also agree. Kirby P. Such are the orders of the Court. Orders accordingly. Counsel for the appellant: J Ryan Solicitors for the appellant: J and R Brydens Counsel for the respondent: ME Field (solr) Solicitors for the respondent: Solicitor for New South Wales Insurance Ministerial Corporation