ALFARO v MONTI [1998] NSWCA 10

ALFARO v MONTI

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

COLE JA and STEIN JA 9 March 1998

[1998] NSWCA 10

Cole JA. This is an application brought by Mr Pedro Alfaro who is acting in person for himself and also for his wife. The proceedings come before this Court in the following way. On 1 August 1996 Mr Alfaro and his wife filed a statement of claim. An amended statement of claim was filed on 4 March 1997, and on 13 March 1997 a further amended statement of claim was filed.

Application had been made on at least one, and I think more than one occasion, to strike out those various amended statements of claim and on 7 May 1997 Master Greenwood made an order which struck out the further amended statement of claim, that is the third edition as it were, of the statement of claim. In so doing Master Greenwood said that the plaintiffs should be given one further chance to endeavour to file a statement of claim that would withstand challenge as being defective.

A document called a second further amended statement of claim was filed on 10 June 1997 and that generated an application on behalf of the various defendants to strike it out. On 24 July 1997 Master Malpass struck out that document as not disclosing a proper cause of action. When he did so he recorded the fact that Mr Alfaro left the Court declining to take any further part in the proceedings, just as he has done today.

From Master Malpass" decision, Mr Alfaro appealed. The matter came before Graham AJ on | September 1997. Graham AJ gave a judgment in which he upheld the decision of Master Malpass. His view was that Master Malpass was correct in striking out the second furtheramended statement of claim because it did not disclose a reasonable cause of action.

Application was then made to Graham AJ for leave to file yet a fifth edition of the statement of claim, but that was refused. Accordingly, Mr Alfaro was in the position where the second further amended statement of claim had been struck out. On 26 September 1997 notice of appeal without appointment was filed. It was pointed out to Mr Alfaro by solicitors acting for the various defendants, that that document was defective because leave to appeal was required. That resulted in there being filed on 29 December a document entitled notice of appeal with appointment.