Mishra v University of Technology, Sydney [2000] NSWCA 312

New South Wales Court of Appeal

CITATION : Mishra v University of Technology, Sydney [2000] NSWCA 312 FILE NUMBER(S) : CA 40480/00 HEARING DATE(S) : 25 October 2000 JUDGMENT DATE : 25 October 2000

PARTIES : Ram B Mishra v University of Technology, Sydney JUDGMENT OF : Priestley JA at 1; Giles JA at 9; Rolfe AJA at 10

LOWER COURT JURISDICTION : Supreme Court LOWER COURT 30109/98 FILE NUMBER(S) : LOWER COURT Kirby J JUDICIAL OFFICER :

COUNSEL : Claimant in person Opponent - Ms J. Oakley SOLICITORS : Claimant in person Opponent - Minter Ellison CATCHWORDS : Appeal against Registrar's costs order LEGISLATION CITED : Supreme Court Act DECISION : Dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40480/00 PRIESTLEY JA GILES JA ROLFE AJA

Wednesday, 25 October 2000

MISHRA v UNIVERSITY OF TECHNOLOGY OF SYDNEY

1 PRIESTLEY JA: A short time ago I indicated to Mr Mishra and also to his opponent that, in my view, the appeal against the Registrar's costs order would fail. Mr Justice Giles agreed and briefly gave reasons relating to the what I will call "time point". Mr Justice Rolfe also agreed. 2 Mr Mishra then drew to the court's attention that his appeal against the Registrar's costs order had been based on two grounds, one the time ground and the other a procedural ground. I will say a little more about the time ground and then mention briefly why I do not think the procedural ground is effective. 3 The time ground comes about this way. Mr Mishra filed a notice of appeal. The University some time later filed a notice of motion seeking to have the appeal struck out as incompetent. In due course the Registrar struck out the appeal as incompetent. The incompetency lay in the fact that the appeal could only proceed by leave and leave had not been obtained. The Registrar ordered Mr Mishra to pay the University's costs. Mr Mishra appealed against the Registrar's order only so far as it related to costs. His point was that, pursuant to Pt 51 r 25, the University was required to file any notice of motion claiming incompetency within twenty-one days after the filing and service of the notice of appeal and that it had not done so. 4 The notice of appeal was filed on 8 March. It was posted by registered post by way of service on 9 March. It was received by the University on 10 March. The University served its notice of appeal, having earlier filed on Mr Mishra on 31 March. 5 Mr Mishra's argument on the time point was that that was more than the twenty-one days allowed by the Rules. However, when Pt 2 r 2 (2) of the Rules is taken into account in reckoning the time the result is that the University served Mr Mishra on the twenty-first day and was within the Rules so that his time point failed. 6 The procedural point concerned the fact that the Court of Appeal Registry had accepted the filing of what is called in the Rules, the red appeal book. Mr Mishra, so far as I could follow, was saying the way in which the appeal was dealt with meant that he had been misled into thinking that he had a valid appeal on file and that any fault relating to his leave application was the fault of the court and not his fault. 7 However, the fact is that the Supreme Court Act and the Rules required that leave be obtained before the appeal could be filed. The Registry of the Court of Appeal accepts documents lodged for filing. The fact that they are accepted does not mean that the Court is acknowledging that they are filed in accordance with the Rules. Nor can it bind the other party to the proceedings in any way, so that the procedural point is of no relevance to the question whether the notice of motion of the University was filed and served within the time stipulated by the Rules. 8 As both points fail Mr Mishra's appeal against the Registrar's costs order must be dismissed with costs. 9 GILES JA: I agree with those reasons. 10 ROLFE AJA: I also agree with the reasons of Mr Justice Priestley. **********