HOWARD v COLLIER SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL COLE JA 6 May 1996 [1996] NSWCA 254 Cole JA. Before the Court today is a notice of motion filed in proceedings number 40173/96. On 22 February 1996 in an appeal from a decision of Master Malpass, who had granted summary judgment for possession pursuant to Pt 13 r 2, Dunford J affirmed the order of Master Malpass except as to the orders relating to the writ of possession. His Honour granted leave to issue a writ of possession, permited such writ to issue forthwith but ordered that the writ was not to be executed before 21 March 1996. So far as the material before me extends, and I draw this from an affidavit filed by Ms Ellena Howard of 3 April 1996, some further order was made by Dunford J for the writ of possession to be executed at 12 noon on Tuesday, 2 April 1996. Also according to that affidavit, an application was made to Brownie J for a stay of that order and a stay wasinitially granted until 4 April 1996, but par 10 of Ms Howard's affidavit states that an ex parte application for variation of that stay was made to Brownie J such that the order granting a stay to 4 April was vacated and the stay continued only to 3 April. Be that as it may, on 3 April there was filed in this Court two documents which apparently commenced proceedings number 40173/96. The first document is entitled, 'Notice of Appeal' and purports to appeal from the proceedings decided on 22 February 1996. That apparently relates to the judgment of Dunford J which bears that date although the certified copy of reasons is dated 5 March 1996. The second document filed was a notice of motion. That notice of motion in the same proceedings seeks four forms of relief. The relief sought is that: (1) That the plaintiffs claim for summary judgment be dismissed; (2) Costs of the motion be reserved; (3) That the writ for possession be stayed until the determination of the appellant's cross-claim; (4) That leave be granted to file the notice of appeal out of time. So far as the material before me extends, there does not and has not existed from the 4th and probably 3 April 1996 any stay of the writ of possession which Dunford J, on 22 February 1996, directed could issue but not be executed before 21 March 1996. The notice of motion came before Handley JA in the single Judge Motions List on 15 April 1996. His Honour indicated to Ms Howard who was present that her document entitled, 'Notice of Appeal' was incompetent because she did not have the leave of the Court to commence the appeal. His Honour further indicated to Ms Howard that onlythree judges could grant leave to appeal. Leave to appeal was necessary because of the provisions of s 101 subs (2)(1) which requires that leave be obtained to appeal from judgments or orders of the Court in a Division of an application for summary judgment under the rules. The application before Master Malpass and subsequently Dunford J was an application for summary 2 UNREPORTED JUDGMENTS judgment in accordance with the rules and accordingly, leave was required; not having been obtained the notice of appeal is of no effect. The relief fourthly sought in the notice of motion did not seek leave to appeal. It sought that leave be granted to file the notice of appeal out of time. It is clear that Handley JA was of the view which, if I may respectfully say so is correct, that leave to appeal was required. It was not sought in the notice of motion before his Honour and could not be so sought before a single Judge. His Honour adjourned the matter until 6 May in order that Ms Howard, if she wished to proceed with the matter, could seek, by an application, leave to appeal. His Honour said: If you wish to proceed you ought to get an application on for leave to appeal as quickly as possible. Nothing can be done for you until you have done that. In the matter of Howard and Collier the present appeal to this Court is incompetent and I cannot grant any relief to the claimant at this stage. Three weeks have passed and no application for leave to appeal has been filed. There came back before me again today the notice of motion. Ms Howard has sought that the notice of motion be adjourned for some period of time. That is said to be based upon the circumstance that she has sought legal aid, I presume, in relation to an appeal. She has informed the Court that her application for legal aid has been refused but that she has, by some document, sought to appeal against that refusal of grant of legal aid. She has handed to the Court a handwritten document on the letterhead of Legal Aid dated 10 April 1996 which reads: This is to certify that we have received an application for notice of appeal for the Legal Aid Review Committee from Ms Ellena Howard together with the further request for further legal aid. It is signed, 'Marva, Ground Floor Inquiry Desk'. I shall place a copy of that document with the file. Accordingly, Ms Howard has contended that pursuant to s 57 of the Legal Aid Commission Act, 1979 the notice of motion should be adjourned until some date after either 9 May or 23 May, which is the date on which she says she has been informed the appeal to the Legal Aid Review Committee will be determined. Section 57 of the Legal Aid Commission Act provides: Where it appears to a Court or Tribunal on any information before it: (a) that a party to any proceedings before the Court or Tribunal either has appealed in accordance with s 57 or intends to appeal to the Legal Aid Review Committee; and (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings; and (c) that there are no special circumstances that prevent it from doing so; the Court shall adjourn the proceedings to such date on such terms and conditions as it thinks fit. The position before me is thus as follows: first, there is a notice of appeal which has been filed but, as Handley JA indicated, that appeal is incompetent. Second, in that incompetent appeal there is filed a notice of motion. That notice of motion seeks a stay, inessence, of the effect of the judgment delivered by Dunford J in respect of which, at this point of time, there is filed an incompetent appeal. It also seeks that leave be granted to file a notice of appeal out of time but no application has been made for leave to appeal. URJ HOWARD v COLLIER (Cole JA) 3 Ihave read the decision of Dunford J. It seems to me that the prospect of leave to appeal being granted, if any proper application were made, would be slight. In those circumstances, all that is before the Court is an incompetent notice of appeal and a motion in that incompetent appeal. Handley JA three weeks ago granted an adjournment to enable Ms Howard to rectify the position by filing an application seeking leave to appeal. She has not done so. My disposition in those circumstances is to strike out the notice of motion which is the only matter before me. The question is whether I am constrained from doing that by the provisions of s 57 of the Legal Aid Commission Act. The only proceedings presently before this Court in matter number 40173 is an incompetent appeal and a notice of motion in that incompetent appeal. An opportunity of three weeks has been granted to Ms Howard to endeavour to rectify the incompetence of that appeal, but she has not availed herself of that opportunity. My reading of the judgment of Dunford J indicates that her prospect of obtaining leave to appeal is slight. In the circumstances of this case, in my opinion s 57 does not operate as a constraint to restrain this Court from dismissing the notice of motion filed in the presently incompetent appeal. That is because, at least in part, there is no valid proceedings by way of appeal presently before the Court. In those circumstances, I propose to dismiss the notice of motion which was filed on 3 April 1996. The applicant of that notice of motion is to pay the respondent's costs. I will simply note that there remains on the Court file a notice of appeal which, as Handley JA indicated, is at present incompetent. Orders accordingly.