PEDEN v DANE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MASON P and HANDLEY JA 23 June 1997 [1997] NSWCA 245 Mason P. Mr Peden filed a summons in which he sought leave to appeal and an extension of time in which to challenge a decision of Acting Judge Hughes in the District Court in proceedings which were heard and decided on 24 February 1997. The summons originally came before the Court of Appeal on 28 April 1997 when I sat with Mr Justice Priestley. At that stage a notice of appeal had not been filed, and because Mr Peden was then indicating that he challenged the fairness of the proceedings, the matter was stood over to enable Mr Peden to obtain a copy of the transcript of the trial and to draft a notice of appeal. Mr Peden has now filed a notice of appeal and he has today handed up to the Court a transcript together with a number of other documents some of whichwere put in evidence before Judge Hughes, others of which were documents which Mr Peden has obtained and would wish to rely upon. When the matter started today, Mr Peden indicated that he wished, for reasons which are understandable, not to proceed to challenge anything except the order for costs that was made by Judge Hughes. In the course of indicating why he wants to make that challenge, Mr Peden has taken us in part to some of the matters of substance which concern him. Mr Peden's wife died on 2 November 1989. It is obvious that he was very attached to her and that he was and remains very concerned about the cause of her death. To this day, the Court was informed, Mr Peden is unaware of the cause of his wife's death. Nevertheless in 1995 he commenced proceedings in the Supreme Court in which he alleged that Dr Dane had been negligent in the treatment of Mrs Peden. Those proceedings were remitted to the District Court and were set down for hearing in that Court. On 18 September 1996 the solicitor acting for Dr Dane wrote to Mr Peden offering to discontinue the proceedings on the basis that there be no order as to costs. That offer was not accepted and the matter went to trial beforeJudge Hughes on 24 February of this year. Mr Peden represented himself. He gave evidence. He called Dr Owen who was his late wife's rheumatologist and he called a police officer, Constable Surplice, from whom he sought to obtain an opinion as to the cause of death. Judge Hughes gave judgment immediately at the conclusion of the hearing and held that there was no evidence suggesting that there was a link between the Methotretate treatment with which Dr Dane was involved, and the death of the late Mrs Peden. In the absence of that evidence, it was inevitable that the proceedings had to be dismissed. It made any investigation of an allegation of negligence irrelevant. 2 UNREPORTED JUDGMENTS His Honour indicated he was going to dispose of the proceedings with costs but when his attention was drawn to the letter of 18 September 1996 to which I have already referred, the judge, after having heard what Mr Peden wished to say on the matter, ordered that as and from 18 September 1996 the plaintiff had to pay the defendant's costs on an indemnity basis. As I have indicated, it is from that last-mentioned order and that alone that Mr Peden has today said he wishes to appeal. Leave is necessary, both because of the delay in filing the notice of appeal and because of the now limited matter in issue. In my view no basis has been shown of any miscarriage or error in the way in which Judge Hughes dealt with the matter of costs. For that reason alone I would propose that the present application be refused. In the course of today's hearing and on the previous occasion when the matter was before Mr Justice Priestley and myself, Mr Peden made statements to the effect that there had been tampering with the transcript, allegations of conspiracy and other allegations of misconduct. Suffice it to say that none of the material to which we have been taken today shows any support for those very serious allegations. I propose that the application be refused with costs. Handley JA. I agree. Mason P. That is the order of the Court. I return copies C and D and the letter to Mr Waller dated 18 February 1996 which was handed up. One copy will remain with the Court papers. Orders accordingly.