De Maria v Phipps

[1999] QCA 152

[1999] QCA 152

COURT OF APPEAL

PINCUS JA
MOYNIHAN J

ATKINSON J

Appeal No 7922 of 1998

CLAUDIA DE MARIA	Respondent (Plaintiff)
v.
GREGORY JOHN PHIPPS	Appellant (Defendant)
BRISBANE
DATE 04/05/99
JUDGMENT

PINCUS JA: This is an application to amend a notice of appeal. The matter has previously

been before the Court on an application for a stay which was rejected. The notice of motion

asked that the appellant be granted leave to file an amended notice of appeal. It does not specify

any additional ground of appeal.

When asked about the matter today, Mr Phipps said that the additional grounds of appeal were

in substance, firstly, the trial Judge erred in law and the judgment was obtained by fraud in that

all the evidence adduced was misleading. Secondly, he says that he was ill at the time.

It is worth mentioning that Mr Phipps has made complaint of the fact that he was given to

understand by a firm of solicitors that the filing of a notice of appeal would achieve a stay in the proceedings against him. That this is so fairly clearly appears from the documents which

are on the Court file and it is a disturbing aspect of the case, in my view. That is, it is perfectly

clear from the rules of the Supreme Court that there is no provision in them for an automatic

stay on the filing of a notice of appeal.

That however is by the way. The question we have to consider is whether or not the additional

grounds which Mr Phipps wishes to add to his very general notice of appeal should be added.

In my opinion the answer must be in the negative. The purpose of grounds of appeal is to focus

attention upon the particular points with which the appeal is concerned. Neither of the grounds

which he has advanced achieves that result.

The Court always has difficulty dealing with the apparently increasing number of persons such

as Mr Phipps who attempt to bring their proceedings before the Court without legal assistance.

He may have good reason to be rather disillusioned with the assistance he has had to date.

Nevertheless the Court cannot act as lawyer for either party. It is a matter for Mr Phipps to

prepare grounds of appeal, being specific complaints about the judgment. He has not managed

to do that and we cannot do it for him.

In my opinion the application for leave to amend the notice of appeal should be refused and the

costs of that application should be respondent's costs in the appeal.

MOYNIHAN J: I agree.

ATKINSON J: I agree.

PINCUS JA: Those will be the orders. The Court will now adjourn.