STANTON v SILLAR [1997] NSWCA 293

STANTON v SILLAR

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

REGISTRAR Jupp 7 April 1997

[1997] NSWCA 293

Registrar Jupp. (on delivery up of exhibits — Common Law summons was transferred to the Court of Appeal to be considered as an interlocutory application in Court of Appeal proceedings STANTON -v- REIBELT & Ors CA40454/96)

In this matter a summons was filed in the Common Law Division by the appellants in the Court of Appeal proceedings against Michell Sillar, who were the former solicitors of the plaintiffs. The summons seeks an order that the defendant deliver up to the plaintiff the original documents which comprise the exhibits tendered in the proceedings in the District Court which are the subject of the appeal. The defendant is holding those documents subject to a lien on the basis that their costs have not yet been paid.

It has always been my view for the purposes of collecting papers for preparing appeal books in appeal proceedings, that exhibits are not documents over which a lien can be held. Otherwise, a lien could indefinitelyfrustrate the prosecution of the appeal and in certain cases frustrate parties who are not the subject of the lien.

Part 51 of the rules of the Supreme Court Rules covers the collection of relevant papers from the Court appealed from and, where necessary, from other sources. In the ordinary course and pursuant to the rules, exhibits are held by the Court appealed from for 28 days after the material date. In this case it appears that the Judge at first instance authorised the return of the exhibits immediately after the judgment had been delivered. As can be seen, this can cause problems if exhibits are mislaid, have to be returned to third parties, or if there is a dispute, over costs.

Part 51 rule 19 states that:

Where an exhibit is not available from the lower Court Registry, the officer of the that court shall state the circumstances and give such information as they can to enable the Registrar of the Court of Appeal to cause that exhibit to be available to the Court of Appeal.