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. The difficulty with each of the documents is that no leave was obtained for the filing of either. Secondly, the notice of appeal with appointment was filed out of time and thirdly, neither document disclosed proper grounds of appeal or the basis upon which the appeal could be maintained. This has resulted in notices of motion being filed on behalf of the first and second defendants, that is Smith Monti & Costa, Solicitors andnotices of motion being filed on behalf of Mr Meehan, another defendant, and notices of motion being filed on behalf of Cecil Nieve Giandinoto and Sonia Giandinoto, the fourth and fifth defendants, each seeking to have the various notices of appeal which had been filed struck out. 2 UNREPORTED JUDGMENTS In my view those notices of motion should be granted and the notice of appeal without appointment should be struck out with costs. When the Registrar indicated to Mr Alfaro that he did require leave to appeal, he filed today a document called summons for leave to appeal. I indicated at the commencement of the proceedings that whilst, if Mr Alfaro was successful in persuading the Court that leave to appeal should be granted that may cure any problem concerning time in relation to the notice of appeal previously filed, but it would not cure the substantive defects apparent in each document and invited Mr Alfaro to, in the first instance, seek to persuade the Court that leave to appeal should be granted. In the course of dealing with that matter, Mr Alfaro commenced to take the Court to that portion of the document entitled summons for leave to appeal commencing on page 5 which sets out what he said were the questions involved. A reading of that and the followingpages in the summons for leave to appeal makes it apparent that the manner in which Mr Alfaro has approached the matter is simply to set out paragraphs in Graham AJ's judgment and then suggest that there has been some denial of natural justice because Graham AJ queried the integrity of the statement of claim which Master Malpass struck out without querying the various defendants concerning the allegations in the document which was struck out., I endeavoured to make clear to Mr Alfaro that the proper processes of the Court required, in the first instance, for the plaintiff to file a proper statement of claim which could be sustained in the sense of not being struck out, and that there was, in those circumstances, no call on either Master Malpass or Graham AJ to question the various defendants concerning the allegations in the statement of claim. That is in fact the only matter which is raised in the summons for leave to appeal, namely repetition of various paragraphs in Graham AJ's judgment and an allegation that in respect of each, he failed to question the various defendants concerning those allegations. It is apparent, in my view that the summons for leave to appeal proceeds on a misconception. It did not set out any proper basis forappeal from the decision of Graham AJ. In those circumstances I would not grant leave to appeal and I would dismiss the summons for leave to appeal with costs. Stein JA. I agree. Cole JA. Those will be the orders. The Court will make an order that Pedro Alfaro and Sylvia Alfaro not be permitted to file any further documents in these proceedings without leave of a judge being previously obtained. Orders accordingly.