MARSHALL v BROOKES [1995] NSWCA 275

MARSHALL v BROOKES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P 6 March 1995

[1995] NSWCA 275

PRACTICE AND PROCEDURE — service of documents — address for service — necessity to provide — aborted hearings before Registrar — costs and delays incurred by failure to provide address for service — held: Appellant ordered to pay such costs.

Kirby P. Mr Brookes is prosecuting his appeal on his own behalf and on behalf of his wife. However, he has not done so efficiently. He has not conformed to the Rules of Court. This has involved many abandoned, or useless, appointments before the Registrar for the purpose of settling the appeal index and otherwise. Part of the problem has arisen from the apparent disinclination of Mr Brookes to give an address for service. Whilst a litigant in person is entitled to prosecute his own appeal, that being an important civil right, he cannot do so in a way which causes delay, cost and inconvenience to his opponents. He must give an address for service which is within the distance of 3 kilometres from the General Post Office in Sydney or at a document exchange or otherwise as the Rules require. See Supreme Court Rules Pt 9 r 4. See also SCR Pt 65 r 1(7).

On 27 February 1995, Mahoney JA did not make orders as to costs. He left it until this day and to the judge hearing the proceedings today. That duty has now fallen to me. Unfortunately, I have not had the benefit of any submissions from Mr Brookes or from Mrs Brookes. Their names were called outside the court. They did not appear. On the basis of the material placed before me it does seem clear, however, that costs have been needlessly incurred for which Mr and Mrs Marshall should now be protected.

The orders which I therefore make are that the opponents, Mr and Mrs Brookes, pay the costs of Mr and Mrs Marshall of the first appointment to settle the appeal index on 20 April 1994; the second appointment on | July 1994; the third appointment on 21 July 1994; the fourth appointment on 1 September 1994; the fifth appointment on 20 September 1994; the sixth appointment on 8 November 1994; the seventh appointment on 8 December 1994; the hearing before Mahoney JA on 27 February 1995; and the application for substituted service which was made to the Registrar on 1 February 1995. This last hearing was occasioned by Mr Brookes" failure to provide an addressfor service complying with the Rules. The opponents must also pay the costs of the proceedings before the Court today.