BUDD v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1996] NSWCA 74

BUDD v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER, COLE JJA and ABADEE AJA 9 September 1996

[1996] NSWCA 74

Sheller JA. This is an appeal by Marie Antoinette Budd from a decision of Sully J of 19 March 1992. Mrs Budd was the plaintiff in those proceedings. His Honour gave judgment for the defendant, Government Insurance Office of New South Wales, and ordered the plaintiff to pay the defendant's costs.

The notice of appeal filed by Mrs Budd had only one ground, namely that she had fresh evidence available that was not available to her at the time of the hearing. The progress of the appeal has been delayed up until 1993. The reasons for that are set out in an affidavit, sworn on 3 November 1993, filed on behalf of the respondent by Elizabeth Ramsay.

After that time an index was settled and an appeal book prepared and the appeal was fixed for hearing on 11 July 1996 when it came before a Court consisting of the President, Handley JA and Rolfe AJA. On that occasion the appellant was present in person, unrepresented but accompanied by her son. The President said that the formal order of the Court was that within 21 days of that date the appellant was to file and serve affidavits as to fresh evidence designed to be brought on the hearing of the appeal within Part 51 rule 13A. His Honour said if that was not done within that time the appeal would be peremptorily dismissed with costs without further order. The matter was again listed for hearing today.

Mrs Budd is present in Court and her son has spoken on her behalf from the Bar table. The only document that has been filed in purported compliance with what the President said is a hand-written document on a printed form headed "Affidavit? which was filed in Court. That hand-written document does not comply with Part 51 rule 13A.