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. What is relevant is that the exhibit is being made available to the Court of Appeal and not to the party. It appears to me that to complete the Court record and so that the appeal can be prosecuted, it is essential that the exhibits be made available to the Court of Appeal. If they were returned to the parties at the conclusion of the hearing, it appears to me implicit that if those exhibits were necessary, the solicitor as an officer of the Court,would be required to relodge those exhibits, either with the District Court or the Court of Appeal. In this case I will direct that the defendant Michelle Sillar, solicitors, lodge the exhibits which they are currently holding with the Court of Appeal Registry by 4.00pm on 11 April 1997 and if the defendant doesn't have custody of a particular exhibit which in the ordinary course would have been returnable to those solicitors as the solicitors for the plaintiffs in the District Court, I further direct that they advise the plaintiff that they do not have custody of that exhibit. DISCUSSION AS TO COSTS 2 UNREPORTED JUDGMENTS REGISTRAR: In my opinion the defendant should pay the plaintiff's costs of the summons. I will note, however, that it will not be improper to delay the payment of those costs until there is some agreement between the parties as to their liability on the dispute of costs below. This would then be a matter taken 5 into account as to the ultimate liability of the parties. Orders accordingly.