Wride v Werner - [2004] SASC 211

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Civil)
WRIDE v WERNER
Judgment of The Honourable Justice White
19 July 2004
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
JUDGMENT AS TO COMPETENCY OF APPEAL

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY
JURISDICTION - CONCURRENT ACTIONS IN FEDERAL COURT AND STATE SUPREME COURT - ABUSE OF PROCESS - APPROPRIATE ORDER
Application for extension of time in which to lodge and prepare appeal books - Application to have appeal dismissed or struck out as incompetent - Appellant failed to file notice of appeal complying with rules - Power of single judge to determine application for extension of time to appeal to Full Court - Power of single judge to determine competence of appeal - Proceedings instituted concurrent in Federal Court - Appeal to Full Federal Court pending - Same defendants and subject matter - Effect of unsatisfied costs order from previous proceedings - Appropriate order - Appeal struck out as incompetent.
Limitations of Actions Act 1936 (SA) s 48; Supreme Court Rules r 46A, r 95, r 97, r 106; Federal Court of Australia Act 1976 (SA) s 32; , referred to.
Miss v Rothmore Farms Pty Ltd (2002) 221 LSJS 306; Dagenham v Shanks (2003) 227 LSJS 70; Le Poidevin Industries Pty Ltd v Mid North Animal and Plant Control Board (Olsson J, 13 November 1991, Jud No 3122, Unreport; Steamship Company of New Zealand Ltd v The Caradale (1937) 56 CLR 277; Moore v Inglis (1976) 50 ALJR 589; Henry v Henry (1986) 185 CLR 571, applied.
Van Vliet v Griffiths (1979) 20 SASR 52; TRAMS Pty Ltd v The Grand Hotel Pty Ltd (1993) 170 LSJS 312; Wickstead v Brown (1992) 30 NSWLR 1; Little v Victoria (1998) 4 CR 596; Meredith v Commissioner of Taxation (2002) 125 FCR 308; Boase v Jones (1925) VLR 465; Hutchison v Nominal Defendant [1972] 1 NSWLR 443; Wride v Schultz (2004} FCA 281, considered.

WRIDE v WERNER
[2004] SASC 211
Magistrates Appeal
WHITE J
Introduction

This decision concerns three applications: one by the Appellant seeking an extension of time in which to prepare and lodge appeal books, and two by the Respondents to have the appeal dismissed, pursuant to SCR 95.08, as incompetent, or, in the alternative, to have the notice of appeal struck out.
Background
The inter partes summons instituting these proceeding was filed on 17 October 2003. The Defendant to the action was named as Janet Werner, Commissioner of Patents, IP Australia. I take this to be a single Defendant identified by name, the office held by her and the body corporate of which that office forms part.
The relief then sought by the Appellant was an order requiring the Defendant, as Commissioner of Patents, to issue to him “a legal Deed” in respect of Australian Patent 472, 935. I understand the Appellant’s reference to a “legal Deed” to be a reference to a duplicate Deed for Australian Patent 472, 935.
The Appellant alleges that Ms Werner, in her capacity as the Acting Commissioner of Patents at IP Australia, had, on 15 October 2002, issued a duplicate deed. This deed, so the Appellant alleged, was incomplete and fraudulent. The Appellant alleges that he had paid the requisite fee for the issue of the duplicate deed. His complaint in substance appeared to be that he had not received from IP Australia the document to which he says he was entitled.
On 3 November 2003, the Appellant filed, without leave, an amended inter-partes summons together with an amended document headed “Statement of Claims/Orders Sought”. Insofar as it amended the “Statement of Claim” filed on 17 October 2003, it did not require leave (SCR 53.01), but the document went beyond that. It purported to add additional defendants being the National Australia Bank, Collison & Co (a firm of Patent Attorneys), Messrs G F Habel and H K Schulze (members of the firm of Collison & Co), the State and Federal Liberal Parties, and the Government of Australia. The Appellant has informed me that the only “service” on the National Australia Bank which he has effected has been by providing a copy to the suburban branch of the National Australia Bank at which he is accustomed to perform his day to day banking. This is not effective service. The Appellant informed me that no service at all has been effected on either the State or Federal Liberal Parties. None of the National Australia Bank, the State Liberal Party or the Federal Liberal Party has entered an appearance, nor an address for service, and none of them have appeared at any hearing.
The allegations in the amended document are various. Against Collison & Co, there is an allegation of conspiracy and breach of fiduciary duty. It is alleged that the conduct (said by the Appellant to be corrupt and fraudulent) of Collison & Co deprived the Appellant of the benefit he would otherwise have derived from certain of his inventions relating to razors, a can opener and possibly to a hydraulic jack. I do not propose to attempt a complete summary.
Against the State and Federal Liberal Parties, the allegations concern the conduct of Sir Robert Menzies (at the time when he was Prime Minister of Australia), and of Sir Thomas Playford (at the time when he was Premier of the State of South Australia). The Appellant alleges wrongful action by Sir Robert Menzies which deprived him of the benefit of an invention or inventions made by him. The Appellant wishes to complain of conduct of Sir Thomas Playford in relation to the acquisition of land, apparently in the 1950’s or in the 1960’s. The claims include allegations of fraud, conspiracy, and abuse of public office.
Against the National Australia Bank, the Appellant’s pleads a complaint that it (the National Australia Bank) has given unauthorised access to safety deposit security bags held by it for him to the Federal Government.
The Appellant gives his occupation as inventor.
Given the nature of the allegations made, a properly pleaded and particularised statement of claims is essential.
In addition, many of the allegations appear to raise matters in respect of which proceedings would now be barred by the Limitations of Actions Act 1936. There is no plea for an extension of time pursuant to s 48 of the Limitations of Actions Act. Given the antiquity of some of the conduct alleged there must be a real doubt that any extension of time could, as a matter of law, be granted: Van Vliet v Griffiths (1979) 20 SASR 524.
Each of the allegations is made on a printed document headed “Statement of Claim/Orders Sought”. It purports to provide pleadings in conformity with SCR 46A.02, 46A.03 and 46A.04. Apart from the printed words, the document has been completed in handwriting. The Appellant says he has a lack of familiarity with the requirements for legal procedures and, with all respect to him, that is quite apparent from the documents which he has filed.
The document headed “Statement of Claim/Orders Sought” does not comply with Rule 46A, in particular, Rules 46A.02 and 46A.03 which specify the requirements for a statement of claim. On 12 January 2004, Judge Kelly as Master, ordered the Appellant to file and serve, within four weeks, a statement of claim which complied with the Rules. On 12 February 2004 the Appellant filed and served a document headed “Index”. This document describes in chronological order various events. It has attached to it a document headed “Summary” as well as various of the documents referred to in the “Index”. Judge Kelly was not satisfied that this document complied with the Rules for a statement of claim, nor with his order.
On 16 April 2004, Judge Kelly dismissed the Appellant’s action. He did so for two reasons. First, the Appellant’s non-compliance with his order of 12 January 2004. Secondly, because His Honour considered that the proceedings are an abuse of the process of this Court. The abuse lies in the fact that many of the claims which the Appellant wishes to agitate in this Court have previously been sought to be raised by him in proceedings in the District Court, and in the Federal Court in Action No S175 of 2002.
Judge Kelly’s reasons were expressed as follows:
“It now appears that the essential issues in this case have been before the Federal Court for some little time and that the Federal Court has dismissed the claim. The plaintiff has sought leave to appeal and that will be heard shortly. It must also be remembered that again the essential aspects of the claim have been before the District Court, again unsuccessfully.
The plaintiff has in a confused way told me that there is another document involved which has not been the subject of the two other court matters. This may be so but he can raise [this] before the Federal Court on his application for leave to appeal and I have no doubt that this aspect will be fairly dealt with.
I can see no reason to allow this man to continue in this Court given the cost that he is causing to the various defendants. In addition I ordered him to file a Statement of Claim. He has not done so. He has served what he calls an index and on a brief view of that document it appears to be illogical, non-understandable and far from short. I gave a warning last time that I would dismiss the action on that ground also, namely, failure to file a statement of claim as ordered.”
On 30 April 2004 the Appellant filed a Notice of Appeal against the decision of Judge Kelly.
Also on 30 April 2004 the Appellant filed a Notice for Specific Directions seeking an extension of time for preparation of the appeal books. When that Notice for Specific Directions came on before the Chief Justice in the Chambers List on 14 May 2004, issues about the competence of the appeal and the sufficiency of the grounds contained in the notice of appeal were raised. The Appellant was given an opportunity to file a further document which did comply with the requirements of the Rules with respect to a notice of appeal. On 26 May 2004 the Appellant filed and served an untitled document in an apparent attempt to take advantage of the opportunity given to him by the Chief Justice.
On 28 May 2004 the matter came on before me in the Chamber List. I was told by the Respondents that they wished to submit that the appeal ought be dismissed as incompetent and/or because it was non-compliant with the Rules, and/or because it was an abuse of process of the Court. I indicated that if applications to have the appeal dismissed as incompetent were to be pursued, they should be filed and served on the Appellant. At the same time, I indicated to the Appellant that the document he had filed on 26 May 2004 was not a document which could be regarded as a proper notice of appeal, nor did it set out proper grounds of appeal in compliance with the Rules. I told the Appellant that if he wished to file a notice of appeal which did comply with the rules, and did set out proper grounds, he should do so quickly. I adjourned the matter into the Chamber List for 4 June 2004.
The Respondents Janet Werner and the Commonwealth of Australia filed a Notice for Specific Directions on 31 May 2004 seeking dismissal of the appeal. The Respondents Schulze and Habel also filed a Notice seeking the striking out of the Notice of Appeal and an order dismissing the appeal.
On 4 June 2004, Mr Giannantonio, counsel for the Respondents indicated (in the presence of the Appellant) three bases for the Respondents’ applications, viz:
1The notice of appeal did not comply with SCR 95.01;
2Given a “parallel” appeal by the Appellant in the Federal Court, the prosecution of an appeal in this Court was an abuse of this Court’s process;
3The Appellant should not be permitted to prosecute an appeal in this Court whilst he had not satisfied cost orders made against him in the District Court in favour of Messrs Schulze and Habel.
On 10 June 2004, the Appellant lodged a further handwritten document which was untitled, undated and unsigned. It appears in substance to restate many of the underlying claims and allegations which the Appellant wishes to agitate if a trial of the issues he raises does occur. It does not purport to comply with the Rules concerning notices of appeal.
Appeals From a Master
Section 50(2) of the Supreme Court Act 1935 provides for appeals from judgments and orders of a Master. It provides:-
“Subject to the Rules of court, an appeal shall lie to a Judge against a judgment, order, direction or decision of a Master.”
An appeal from a decision of a Master lies as of right, even where the decision appealed from is interlocutory in nature: Mills v Rothmore Farms Pty Ltd (2002) 221 LSJS 306. Appeals against decisions from Masters are governed by SCR 106.05, which provides:-
“(1)Subject to sub-rule (2) below an appeal from any assessment or award of damages or any other finding, decision, direction, award or judgment, arrived at, made, given, directed or entered on the trial or hearing of any proceedings or of any question or issues by a Master lies to the Full Court and is to be governed by Rule 95.
(2)Any appeal from a Master:
(a)    in relation to an order made under the Real Property Act 1885 or under Rule 60;
(b)    from an order, decision or judgment to which sub-rule (1) does not apply;
(c)    where the parties consent to being dealt with by a single Judge;
is to be to a single Judge and is to be governed by Rule 97.
(3)An appeal under sub-rule (2) is to be instituted within 7 days of the order, decision or judgment appealed from.”
Thus it can be seen that if the decision appealed against in the present case is a final judgment or order, the appeal lies to the Full Court and is governed by SCR 95. If it is not a final order the appeal lies to a single Judge and is governed by SCR 97. Furthermore, appeals to a single Judge must be instituted within 7 days from the judgment appealed against.
The Institution of the Appeal
Each of the Respondents accepts that Judge Kelly’s order dismissing the action was a final order for the purposes of SCR 106.05(1). Each accepts that the Appellant’s appeal lies to the Full Court and is governed by SCR 95. I will proceed, for the time being, on the assumption that this view of the matter is correct, but point out that there is authority which may support a contrary view. See, for example: TRAMS Pty Ltd v The Grand Hotel Pty Ltd (1993) 170 LSJS 312; Wickstead v Brown (1992) 30 NSWLR 1; Little v Victoria [1998] 4 VR 596; Meredith v Commissioner of Taxation (2002) 125 FCR 308.
On the assumption that the appeal does lie to the Full Court, the Appellant had 14 days in which to institute the appeal: SCR 95.02. SCR 95.01 provides:-
“(1)All appeals to the Full Court as of right or after leave has been granted shall be instituted by filing and serving a notice of appeal which shall set out:
(a)a brief statement of the decision appealed from;
(b)the grounds of appeal and sufficient detail to enable the Full Court to know what points are being relied on in support of each ground;
(c)whether all or part only, and if so which part, of the decision is complained of;
(d)the order sought by the Appellant;
(e)in the case of an appeal brought by leave, state that fact
and unless the Court otherwise directs, an Appellant may not rely upon any grounds which are not set out in the notice of appeal. A notice of appeal shall be in the form 38A except where these Rules otherwise provide.”
Both the filing and the service of the notice of appeal are required for the institution of an appeal to the Full Court. In the present case, the notice of appeal was filed in the Court on 30 April 2004 (within the specified 14 days). However the Respondents Werner and the Commonwealth of Australia, and the Respondents Schulze and Habel were not served until 14 May 2004. Thus the appeal has not been instituted within the specified 14-day period.
The notice of appeal uses a pro forma document issued by the Court’s Registry. The pro forma contains a space in which the grounds upon which an application for extension of time within which to institute the appeal may, in an appropriate case, be specified. In that space, the Appellant has handwritten:-
“As I need to prepare appeal books to the requirements of the Supreme Court and have no legal representation I will need as much time as possible for this appeal to be successful.”
This handwritten endorsement appears to me to be an application for an extension of the time within which to set the appeal down for hearing rather than an application for an extension of time in which to institute the appeal. This seems to be confirmed by the fact that the Appellant, also on 30 April 2004, issued a notice for specific directions, seeking an extension of the time within which the appeal books may be prepared and lodged. Nevertheless, each of the Respondents was prepared to accept that the notice of appeal was endorsed with an application for an extension of time in which to institute the appeal. I will therefore proceed on that basis. An application for an extension of time in which to appeal cannot be determined by a single Judge: Dagenham Nominees Pty Ltd v Shanks (2003) 227 LSJS 70. It would be inappropriate for me, sitting as a single Judge, to dismiss the appeal as incompetent when it is endorsed with an application for an extension of time for its institution.
The Power of a Single Judge Concerning Incompetent Appeals
The competence of an appeal may be decided either by a single Judge or by the Full Court. SCR 95.08 provides:-
“(1)A Respondent may make application at any time to the Full Court or a Judge for an order dismissing an appeal as incompetent.
(2)Upon the hearing of an application, the burden of establishing the competence of the appeal is on the Appellant.”
It has been held that an appeal may be dismissed as incompetent if, amongst other things, its prosecution would constitute an abuse of the process of the court: Le Poidevin Industries Pty Ltd v Mid North Animal and Plant Control Board (Olsson J, 13 November 1991, Jud No 3122, Unreported).
Compliance with SCR 95.01
The Respondents submit that the notice of appeal does not comply with SCR 95.01 in that it does not set out “the grounds of appeal in sufficient detail to enable the Full Court to know what points are being relied on in support of each ground” contrary to the requirements of Rule 95.01(b).
The handwritten grounds of appeal in the pro forma notice of appeal are as follows:
“(1)A statement of claim was submitted as ordered therefore I did comply with HH orders;
(2)Judge Kelly relates that the case in the Federal Court is similar. However they are dissimilar in that this case relates to fraud which is not in the jurisdiction of the Federal Court;
(3)HH only briefly viewed this very serious case and admitted he had no knowledge of patent law. This is far too serious to be treated so lightly.”
The Respondents submitted, in effect, that ground 1 is no more than bare assertion of a fact which does not meet the basis upon which Judge Kelly determined the matter. There is substance in this submission. Judge Kelly’s dismissal of the action was not because of the failure of the Appellant to file a statement of claim at all; it was because of his failure to file and serve a statement of claim which complied with the Rules. If the Appellant wishes to contend that Judge Kelly’s decision was wrong, it is incumbent upon him to identify the respects in which the conclusion that Judge Kelly formed about the adequacy of the statement of claim was wrong. This is particularly so given the nature of various of the allegations made, being, as outlined above, allegations as to abuse of office, conspiracy, fraud and so on. In addition, because many of the claims appear to be barred by virtue of the Limitation of Actions Act 1936, a properly pleaded statement of claim is required for that reason also.

The notice of appeal does not contain any detail showing the respects in which it is said that Judge Kelly’s decision about the adequacy of the Statement of Claim was wrong. If this appeal proceeded, neither the Respondents nor the Full Court will know the points relied on by the Appellant until the hearing of the appeal. It is not to the point that some detail may be provided in an outline of argument. An outline of argument should address the issues raised by the grounds of appeal, rather than containing the grounds themselves.
In my opinion therefore, the notice of appeal is non-compliant with the requirements of SCR 95.01.
The Appellant has been given additional opportunities to file a notice of appeal which does comply with the Rule: first, by the Chief Justice on 14 May 2004, and secondly by me on 28 May 2004. Neither of the documents filed by the Appellant on 26 May 2004 and on 2 June 2004 remedies the deficiency. The Appellant told me on 11 June 2004 that he had not read SCR 95.01, and was not familiar with its requirements. This was notwithstanding a specific reference to SCR 95.01 on 4 June 2004 and previous repeated references to the need for the notice of appeal to comply with the requirements of the Rules..
In these circumstances, the prospects of the Appellant providing an amended notice of appeal in proper form seems remote.
Abuse of Process
Prior to the institution of proceedings in this Court on 17 October 2003, the Appellant had, on 19 July 2002, instituted proceedings in the Federal Court in two separate actions, being Actions S175 and S176 of 2002.
In Action number S176 of 2002, the present Appellant is the Applicant and IP Australia is the Respondent. The nature of the claim made in those proceedings can be seen in the relief claimed:-
“Compensation for loss of income from patent rights that were fraudulently taken away from inventor D C Wride by his patent Agents, Mr J C Schmidt and G E Habel in collusion with IP Australia who the Commissioner, Mr K B Petersson, was at that time, who were in turn in collusion with the Federal Liberal Party and Government.”
I have not been provided with the application in Action number S175 of 2002. I have however been provided with a document entitled “Amended Statement of Claim” which relates to both actions numbered S175 of 2002 and S176 of 2002. The Respondents to the action are shown collectively as:-
“IP Australia, Collison & Co, G E Habel and H K Schulze, State and Federal Liberal Parties and Government.”
These are (relevantly) the same persons and entities who are Defendants for the proceedings in this Court. The judgment of Lander J in Wride v Schulze [2004] FCA 281 contains a summary of the claims made in those proceedings. This includes claims that the Government of Sir Robert Menzies colluded with others to prevent the Australian people from knowing they were using the Applicant’s inventions, that there was collusion between Sir Robert Menzies and Dr Petersson to steal the inventions of the Applicant, that the Commissioner of Patents had issued bogus provisional patents for two of the Applicant’s inventions, that the Gillette company had stolen his patent for a twin blade razor and that his Attorneys had in some way allowed provisional patents for other inventions to lapse. This is not a complete detail of the various claims made in those proceedings.
The allegations made in the proceedings in this Court are substantially the same as those summarised by Lander J. I note that in addition to the matters summarised by Lander J, a “Statement of Facts” filed by the Applicant on 22 December 2003 in the Federal Court raises a claim in relation to a “duplicate Deed” which appears to be the same as the Appellant’s complaint on this topic in this Court.
On 23 March 2004, Lander J made orders in the Federal Court striking out the amended statement of claim (on the grounds that it did not disclose a reasonable cause of action) and dismissing the Appellant’s respective applications to that Court.
On 30 March 2004, the Appellant filed in the Federal Court two notices of motion each of which seeks leave to appeal to the Full Court from the decision of Lander J. Each notice of motion is a different action being Actions numbered S49 and S50 respectively of 2004. Although entitled “Notice of Motion” and with new action numbers, these documents have apparently been treated as notices of appeal from the decision of Lander J. I was informed that both appeals are scheduled for hearing before the Full Federal Court in August 2004. These appeals were on foot at the time of Judge Kelly’s order, and at the time of the institution of the present appeal.
The Respondents submit that the simultaneous prosecution of claims for relief in these circumstances in two different courts is an abuse of the process of at least one of those courts. They rely on the principle enunciated in Union Steamship Company of New Zealand Ltd v The Caradale (1937) 56 CLR 277 at 281 (per Dixon J); Moore v Inglis (1976) 50 ALJR 589 at 591-592 (per Mason J); Henry v Henry (1986) 185 CLR 571 at 590 (per Dawson, Gaudron, McHugh and Gummow JJ).
The Appellant seeks to justify the two sets of proceedings by submitting that this Court has jurisdiction with respect to the allegations of fraud which he makes, whereas the Federal Court does not. Notwithstanding this, I observe that the Appellant does, in the Federal Court proceedings, pursue the allegations of fraud which are made in the current proceedings. There has not been a judicial determination that these allegations may not be heard by the Federal Court pursuant to s 32 of the Federal Court of Australia Act 1976 as part of the associated jurisdiction of that Court. It was not part of the reasoning of Lander J in Wride v Schulze (2004) FCA 281 that the substance of these allegations was not within the jurisdiction of the Federal Court. The Appellant has not abandoned his pursuit of these allegations of fraud in the Federal Court: I observe that they are pursued in the notices of motion seeking leave to appeal.
In these circumstances, I am not satisfied that the claim raised by the Appellant can only be made in this Court so that there is no multiplicity of actions. On the contrary, I am satisfied that the Appellant is pursuing in two different courts substantially the same causes of action, and substantially the same claims for relief. I am satisfied that the Respondents have made good their claim of abuse of process.
Generally, abuse of process occasioned by pursuit of concurrent proceedings for the same relief on the same causes of action will be prevented by an order for a stay, including, where appropriate, an order for a permanent stay. However, proceedings which are an abuse can also be dismissed as incompetent: Le Poidevin Industries Pty Ltd v Mid North Animal and Plant Control Board (Olsson J, 13 November 1991, Jud No 3122, Unreported), and, in the circumstances of this case, it is, in my opinion, appropriate to do so.
Unsatisfied Costs Orders
The Respondents also rely on the fact that the Appellant has not satisfied costs orders made in favour of Messrs Schulze and Habel in the District Court in Action No 1749 of 1998. I do not consider that this is a fact which can be relied upon in support of the submission as to the incompetence of the appeal. It is of course open to a court to stay a second proceeding brought between the same parties and in respect of the same subject matter whilst the costs order in respect of earlier proceedings remains unsatisfied: Boase v Jones (1925) VLR 465; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443. However, there is no principle of which I am aware which suggests that non-payment of the costs in the earlier proceedings renders the later proceedings incompetent. Furthermore, even if the point be good, it is available only to the Respondents Schulze and Habel and not to Ms Werner nor to the Commonwealth of Australia.
Conclusion as to Competence of the Appeal
Although pursuant to Rule 95.08 the burden of establishing the competency of the appeal is on the Appellant, I am satisfied that the Respondents have established that the appeal is incompetent for the two reasons which I have discussed, namely, non-compliance with the requirements of Rule 95.01 and because the pursuit of these proceedings constitutes an abuse of the process of this Court. I will therefore make an order dismissing the appeal as incompetent.
If Judge Kelly’s Decision is Interlocutory
In case this matter goes further, I indicate that my view as to the competence of the appeal would have been the same even had I proceeded on the basis that the appeal, pursuant to Rule 106.05(2), was to a single Judge. The decision to which I have come would have been the same had I been considering the matter pursuant to SCR 97.11, bearing in mind the requirements as to the institution of an appeal imposed by Rule 97.03.
Application for Extension of Time in Which to Prepare Appeal Books
Given the conclusion which I have reached above, it is strictly speaking unnecessary to consider the Appellant’s application for an extension of time in which to prepare and lodge appeal books. However, I do state briefly my view. The Appellant sought an extension of time in which to prepare appeal books because, being unrepresented, he expected to have difficulty in complying with the requirements to have the appeal set down within two months of its institution.
However, in my opinion, the preparation of the appeal books in this case should not have been a difficult process. The documentation to be included in the appeal books is of a limited kind. I am not satisfied that it is of such a kind that it could not be completed within the two months which the Rules permit. Had it been a live issue, I would have refused the application for extension of time in which to prepare and lodge the appeal books.
Order
The order of the Court is that the appeal filed on 30 April 2004 be dismissed as incompetent.
I will hear the parties as to costs.