MULVIHILL v STATE BANK OF NSW LIMITED [1996] NSWCA 375

MULVIHILL v STATE BANK OF NSW LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 28 March 1996

[1996] NSWCA 375

Priestley JA. On 1 September 1995 Rolfe J entered judgment against AW and EA Mulvihill. By notice of appeal filed 11 November 1995 the Mulvihills appealed against the decision of Rolfe J. How that notice came to be filed at that time does not appear in the papers before me, but is not relevant to today's proceedings.

A letter dated 9 February 1996 was addressed to the Mulvihills at 5S Nenagh Street North Manly New South Wales 2100. This was the address given in the notice of appeal as the appellants" address for service. This complied with Pt 65 r 1 (8) of the Supreme Court rules as the appellants were not represented by a solicitor in the lodgment of the notice of appeal.

The letter of 9 February said that the appeal was listed for an appointment to settle the appeal index at 9.30 am on 8 February 1996 but neither party then appeared. The letter also noted failures to comply with rules relating to appeals.

The letter continued that the appointment to settle the index had been adjourned to 15 March 1996 at 10.00 am. It further continued that if theappellants failed to appear on the adjourned appointment the matter would be referred to a Judge of Appeal to have the appeal dismissed for want of prosecution.

The letter concluded by saying it was a notice pursuant to Pt 51 r 22 (2) of the Supreme Court rules. This rule refers to the procedure involved in the settling of indexes.

I assume that the original of this letter was duly posted. That seems to be a legitimate inference from the state of the file before me.

The next document in the file is a letter dated 15 March 1996, again addressed to the appellants at the address for service given in their notice of appeal. I likewise am prepared to infer that the original of this letter was duly posted and went to the place to which it was addressed. This letter was headed "Dismissal of the Appeal" and referred to the previous letter of 9 February 1996. It went on that since that letter no documents had been filed, nor had there been any appearance at the appointment to settle the index on 15 March 1996. It concluded by saying the matter had been listed for mention at 9.30 am on Thursday 28 March 1996 for the purpose of dismissing the appeal. There is no response in the file to this letter.