Olsen v Mentink

The rules regulating the commencement and timing of an appeal

1. Section 101 of the Supreme Court Act 1970 (NSW) gives Ms Mentink a right of appeal from the orders made by the primary judge. The Uniform Civil Procedure Rules, in particular Part 51 which is directed to the Court of Appeal, qualify that statutory right, including in relation to time. It has long been thus. Part 51 of the rules made pursuant to the Supreme Court Act 1970 (NSW), which were initially Schedule 4 to that statute, likewise regulated the commencement and timing of appeals to the Court of Appeal, although there were some significant differences, to which I shall return.
2. The current Pt 51 was only made in 2007, by the Uniform Civil Procedure Rules (Amendment No 16) 2007 (NSW), with effect from 1 January 2008 (statutory rule 448 of 2007).

The current regime

1. An appeal is to be commenced by the filing of a notice of appeal. Rule 51.16(1)(c) provides that a notice of appeal is to be filed and served within 28 days after the material date or such other time as the Court may fix. That rule applies if a notice of intention to appeal has not been filed. However, r 51.6 identifies a "notice of intention to appeal", which, if it is to be relied upon, must be filed and served on each prospective respondent within 28 days after the material date (r 51.8). It is common ground that the material date for any appeal by Ms Mentink is 25 October 2019; appeals lie from judgments or orders, not reasons. In some cases, there is no facility to extend the time for an appeal by the filing of the notice of intention to appeal (r 51.7), but it is not suggested that r 51.7 is applicable. Where a notice of intention to appeal is filed then r 51.9, which is central to this application, has effect. That rule provides as follows: "51.9 Effect of service of notice of intention to appeal (cf SCR Part 51, rules 4(3)-(7), 4A(2) and 6(2) and (4)) (1) An applicant who has filed and served a notice of intention to appeal must file and serve the relevant originating process on each necessary party - (a) within 3 months after the material date, or (b) within such other period as the Court may order. (2) An application under subrule (1)(b) may be included in the originating process. (3) The filing and service of a notice of intention to appeal does not operate to commence proceedings in the Court."
2. The commentary to that rule contained in the New South Wales Civil Procedure Handbook 2019 (Thomson Reuters 2019) states that the rule: "broadly reproduces the substance of SCR Pt 51 rr 4(3) - 4(7), 4A(2) and r 6(2) and (4), although the time within which a summons for leave to appeal or notice of appeal must be filed has been reduced to a maximum of three months after the material date, unless the court extends time."
3. The commentary contrasts the total of three months now provided where a notice of intention to appeal has been filed and served, with the position under the former Supreme Court Rules Pt 51 r 4 and r 6 in relation to a holding summons or notice of appeal without appointment, when the further three months period was calculated from the date of filing the holding summons or the notice of appeal without appointment.

The former regime

1. It is helpful to contrast the current regime with the regime under rules made under the Supreme Court Act 1970 (NSW) in the form they took in 2007. Former Pt 51 r 6 permitted a litigant who enjoyed a right of appeal to file either a notice of appeal without appointment or a notice of appeal with appointment. The latter corresponds to a notice of appeal. The former engaged Pt 51 r 6(2): "An appellant who files a notice of appeal without appointment shall within: (a) 3 months after filing the notice of appeal; or (b) such shorter period as the Court of Appeal may in special circumstances order, file and serve on each necessary party a notice of appeal with appointment ..."
2. Materially identical provision was made, by former Pt 51 r 4, for applications for leave to appeal, save that the "notice of appeal without appointment" was replaced by a "holding summons for leave to appeal". In all cases, the time for filing an originating process was 28 days after the "material date".
3. It may readily be seen that: 1. A disappointed litigant had, under the former regime, a period of 28 days ordinarily followed by a further three months - almost four months in all - within which to commence a fully-fledged appeal, if the litigant took full advantage of the "notice of appeal without appointment" regime. Under the current regime, a notice of intention to appeal requires a notice of appeal to be filed within three months of the material date. 2. Under the former regime, the filing of a notice of appeal without appointment nonetheless was an originating process, giving rise to proceedings in the Court of Appeal. Under the current regime, filing a notice of intention to appeal does not commence proceedings. 3. Under the former regime, power was conferred upon the Court in special circumstances to shorten the 3 months for filing a notice of appeal without appointment. Whether or not that is so is in issue in this proceeding.
4. The primary basis on which Mr Olsen relied was r 51.9 and in particular the words "within such other period as the Court may order". If necessary, he also relied upon UCPR r 1.12, which states that: "1.12 Extension and abridgment of time (cf SCR Part 2, rule 3; DCR Part 3, rule 2; LCR Part 4, rule 2) (1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court. (2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires."
5. That rule applies to proceedings in the Court of Appeal by reason of r 51.1(3). However, that rules applies "Subject to this Part" and only "so far as applicable". Ms Mentink denied that r 1.12 was available to Mr Olsen.
6. Mr Olsen relied upon a series of cases where criticism has been expressed for litigants failing to commence proceedings in the Court of Appeal until the last available day, namely, Dillon v Boland; Dillon v Cush [2012] NSWCA 364 at [9], Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188 at [27]-[28], El-Hanania v Vella [2019] NSWCA 167 at [42] and Kalache v Local Court of New South Wales (No 2) [2017] NSWSC 1736 at [15].

The nature of Mr Olsen's application

1. The position, accordingly, is that save for Mr Olsen's summons, there are no proceedings in this Court, and indeed there may never be any appeal brought by Ms Mentink. Nonetheless, Mr Olsen seeks to alter the incidents pertaining to any such appeal, if indeed one is brought by Ms Mentink. Mr Brown confirmed that the order that he sought was not one which would preclude the Court of Appeal varying it, or granting a further extension of time, upon cause being shown. He eschewed any suggestion that the order sought by him was in the nature of an injunction, with the consequence that Ms Mentink and her legal practitioners would be in contempt if an appeal was sought to be filed outside the period specified.
2. Of course, putting to one side his present application, even after 25 January 2020, Mr Olsen faces the possibility of an out of time notice of appeal from Ms Mentink. However, it would be necessary for her to establish why a discretion to extend time should be exercised in her favour, whereas, aside from the orders which are sought in his summons, she may as of right file a notice of appeal until 25 January 2020.
3. Thus, what is sought is more precisely identified as restricting the period within which Ms Mentink may as of right file an appeal. Mr Olsen does not propose any order which will prevent his being faced with the possibility of an out of time appeal in the future, either after 25 January 2020, or such earlier time as this Court may order.

The parties' submissions on the facts

1. The evidence upon which Mr Olsen's application was based was concise. Mr Olsen is presently 91 years old with health problems relating to his heart. A medical practitioner has prepared a letter which states that the litigation gives rise to stress and that prolonging the time during which the litigation continues will only further burden his physical and mental wellbeing. Ms Mentink tendered, in response, a very similar letter from the same practitioner which had been relied on earlier this year in support of expedition at first instance.
2. Further, Mr Olsen contends that the transcripts of the six-day hearing were available to the parties, there were no obstacles to the preparation of the appeal books and that Ms Mentink's legal representatives would have been able to start providing advice about the prospects of appeal from 27 September 2019, when reasons for judgment were delivered.
3. Mr Olsen's solicitor asserted that "The matter, if the court has availability, could be heard before the end of term in my opinion". No basis was given for that opinion. In answer to my query, Mr Brown sought to explain how that could be achieved. He had in mind that if Ms Mentink filed a notice of appeal on 22 November, she would be directed to file submissions ten days later (rather than the 6 weeks for which r 51.37 provides). He volunteered to supply submissions in response within a matter of a handful of days thereafter. He downplayed the possibility of a notice of contention, without renouncing his client's right thereby to expand the issues on appeal if so advised, and passed over the prospect of written submissions in reply. If there were no notice of contention, it was suggested that this highly abridged timetable would leave scope for the appeal to be listed in the week commencing 16 December 2019, which is the final week of term.
4. Mr Wilson said that that could not be done in a way that was fair to his client. Against this, Mr Brown observed that Ms Mentink had adduced no evidence of impossibility or difficulty.
5. Ms Mentink pointed to evidence to the effect that Mr Olsen was not in immediate need of the benefit of the judgment in his favour, and his acceptance in cross-examination of the proposition that in all likelihood, the beneficiaries of the litigation would be his family.
6. As a fall-back position, Ms Mentink proposed that if a notice of appeal was to be filed and made returnable before the Registrar late at the end of term, a hearing date could be allocated early in 2020, with the parties providing submissions working backwards from that date.

The practicality of Mr Olsen's application

1. There seem to be at least five things which are absent from the calculations of Mr Olsen's lawyers, in the event than an appeal is filed.
2. First, appeal books will need to be prepared at some stage. It is impossible to know what should be included in the books until the way in which the appeal is to be formulated is known. I apprehend that Mr Olsen may have had in mind that Ms Mentink would simply include the entirety of the record in the appeal books, and I was told that that was not especially burdensome. In some circumstances, that may be an appropriate course, although there is no way of knowing in advance whether that would be so in the case of any appeal filed by Ms Mentink.
3. Secondly, in the last twenty days of term, practitioners are busy. There is no evidence of that, but the proposition is incontestable. The ordinary scope to find time for urgent unexpected matters by delaying attention to existing commitments is much less available in late November and December, because few matters can be postponed to beyond the end of term. This has a powerful bearing on the practicality of the course proposed by Mr Olsen. For one thing, it is not unreasonable for a litigant disappointed by the outcome of a trial to seek a second opinion on prospects before commencing an appeal, or indeed to brief different lawyers to run the appeal; they will require time to familiarise themselves with the litigation. For another, even if the same lawyers are retained, it will take time to advise on the prospects of an appeal, and to draft and settle a notice of appeal and submissions in support. It is entirely plausible that the time required will not be available at the end of term.
4. Thirdly, it is not unknown for attempts to be made to settle a dispute during the time pending judgment and the commencement of an appeal. A successful litigant may see merit in compromising his or her full rights at first instance in order to avoid the cost and risk of an appeal. Indeed, the only way Mr Olsen can obtain certainty in the near term that he not be subject to the stress of an appeal is by taking that course. The timetable Mr Olsen proposes very significantly curtails the period for a settlement to be reached before a fresh proceeding by way of appeal is commenced.
5. Fourthly, if there is an appeal, at least one of the parties will be disappointed by its outcome. What is involved are very serious findings of wrongful conduct, and a multimillion dollar judgment against Ms Mentink. It is important that the ultimately unsuccessful litigant have no well-founded sense of grievance that he or she has not had a fair opportunity to prosecute or defend the appeal. Suppose that an appeal is filed, the timetable proposed by Mr Brown occurs and the appeal is dismissed. It is easy to see how Ms Mentink might have cause to complain about the process. Or suppose the appeal is allowed, in accordance with the timetable proposed by Mr Olsen to respond to Ms Mentink's case on a handful of days' notice, instead of the four weeks which is usual, and there is no notice of contention. It is easy to see how Mr Olsen might in those circumstances have cause for complaint.
6. Fifthly, suppose the highly abbreviated period for the exchange of submissions and the preparation of appeal books in fact leads to a final hearing in the last week of term. What then? Mr Olsen's case is based on stress caused by the prolonged uncertainty of litigation. I can well understand his position; it is no different from that faced by many litigants in this Court. But it is most unlikely that this Court could deal with any appeal without reserving its judgment (plainly there will be very limited time for the members of the Court to familiarise themselves with the appeal books in advance of the hearing). Even on the extremely abbreviated timetable proposed by Mr Olsen, resulting in an appeal being heard in the last week of term, which Mr Wilson says is impossible and I would regard at best as highly doubtful, the most likely outcome, by far, is that judgment will be reserved until at least early 2020.
7. On the other hand, in the absence of order sought by Mr Olsen, Ms Mentink will have to file and serve any notice of appeal by late January 2020. It is to be expected that on the first return date of that notice of appeal, which is likely to be in the first half of February 2020, the Registrar will allocate a date for its hearing. (If for some reason a later date is given, it is open to Mr Olsen to apply to vary the return date.) Litigants in the New South Wales Court of Appeal have the advantage of a Court which regularly provides hearing dates for appeals shortly after they are commenced (with the consequence that applications for expedition are, generally speaking, unnecessary in this Court).
8. I mention those matters, before turning to the purely legal questions of jurisdiction and power, in order to put in context what in reality is the practical effect of the application made by Mr Olsen. The difference between the relief which he seeks on his summons, and the position that would obtain if Ms Mentink delayed until the last possible day in commencing an appeal, is not so great, once there are borne in mind considerations as to the practicalities of availability in the last four weeks of term, the possibility that Mr Olsen himself may wish to expand the issues by notice of contention, and the overwhelming likelihood that the Court of Appeal will reserve its decision.

Jurisdiction and power

1. It is common ground that there was no proceeding in the Court of Appeal until Mr Olsen filed his summons. Mr Olsen says that his summons was appropriately in the Court of Appeal, consistently with s 48(2)(j) of the Supreme Court Act, which allocates to that Court proceedings "for such matters as are necessary or convenient for the discharge of the functions of the Court of Appeal." He further says that a single Judge of Appeal has power to make the orders sought in his motion, which in substance amount to orders or directions "concerning the institution of an appeal or other proceedings in the Court of Appeal": s 46(2)(a). Ms Mentink did not cavil with those propositions.
2. Mr Olsen says that the reference to "Court" in r 51.9 is a reference to the Court of Appeal, and the words "within such other period as the Court may order" in r 51.9(1)(b) permit an abridgement of the 3 months mentioned in the r 51.9(1)(a).
3. Ms Mentink maintains that r 51.9(1)(b) does not permit a shortening of time, as opposed to the extension of time. She reads r 51.9 with r 51.16(1) and (2), which provides: "51.16 Time for filing and service of notice of appeal (cf SCR Part 51, rules 5 and 6 (1) and (3)) (1) A notice of appeal must be filed and served on each necessary party: (a) if the notice of appeal is filed pursuant to leave to appeal - within 7 days after leave is given or such other time as the Court may fix, or (b) if a notice of intention to appeal has been filed and served under this Part and the notice of appeal is not filed pursuant to leave - as allowed under rule 51.9, or (c) if a notice of intention to appeal has not been filed and served under this Part and the notice of appeal is not filed pursuant to leave to appeal - within 28 days after the material date or such other time as the Court may fix. (2) The Court may extend time under subrule (1) (a) or (c) at any time."
4. She points to the inconsistency which would result if Mr Olsen's construction is accepted. In the cases addressed by r 51.16(a) and (c), the power is only available to extend the time for filing a notice of appeal.
5. Mr Olsen submitted that the provisions in r 51.16 permitting only extensions of time was a "red herring", because (a) r 51.9 referred to "such other period", without using the language of "extension", (b) that in any event, r 1.12 was not excluded, (c) there was a "qualitative" difference between the 7 and 28 days periods in r 51.16(a) and (c), and the 3 month period presently in issue, and (d) there is "nothing controversial about a Court abridging a limitation period for the service of a pleading", which regularly occurs in cases of short service.

Consideration

1. The premise of all these provisions is that until an originating process has been filed, there is no proceeding in the Court of Appeal, as an incident of which an application varying the time specified by the rules might be made.
2. The ordinary and natural reading of r 51.9 is that it identifies the time within which an appellant may commence an appeal. It does not mention the party who will become the respondent to the appeal when and if a notice is filed. It speaks of an earlier period of time, when there is no appeal and thus no respondent to an appeal. The construction for which Mr Olsen contends, whereby r 51.9 confers a right upon a person who is not and may never be party to proceedings which are presently non-existent is, to say the least, quite strained. I reach that conclusion without relying on r 51.16, but that rule does not detract from it.
3. In particular, the "Court" in r 51.9 is defined to mean the Court of Appeal: see r 51.2. It is the Court of Appeal which may make an order for "such other period" for the filing and service of a notice of appeal. It is easy to see how that makes sense when an appellant has commenced proceedings in the Court of Appeal. But in those circumstances, r 51.9 can only operate by way of extension - ex hypothesi, when a notice of appeal has been filed. Only when a notice of appeal has been filed (albeit late) is there a proceeding in the Court of Appeal within which application may be made to make some other order for the period within which it is to be filed and served.
4. Only a litigant who is dissatisfied with an order may appeal. "An appeal is the formal proceeding by which an unsuccessful party seeks to have the formal order of the Court set aside or varied in his favour by an appellate court": Commonwealth v Bank of New South Wales [1950] AC 235 at 294. It strikes me as somewhat circular, to say the least, that a litigant who is not entitled to invoke the jurisdiction of the Court of Appeal to hear and determine an appeal, can nonetheless file a summons in that Court and thereby alter the incidents of the right of appeal enjoyed by a litigant who is entitled to invoke the jurisdiction of the Court of Appeal. Test the matter this way. Take a different case from the present, where the litigants enter into a separate agreement after a dispute has arisen between them to litigate their dispute in the Supreme Court, such that while both are entitled to appeal, they will do so within no more than 28 days, and neither will rely on a notice of intention to appeal. Conceivably, relief would be available in order to enforce that agreement (which is analogous to an exclusive jurisdiction clause in that is a binding bargain as to the timing (as opposed to the forum) of any appeal). But while I can readily see how relief could be sought in the Equity Division to enforce that agreement, I struggle to see how the Court of Appeal would ordinarily have jurisdiction to do so.
5. Secondly, the history of the rules tells against Mr Olsen's construction. In the regime which prevailed before 2008, when there was actually a proceeding in the Court of Appeal (a "notice of appeal without appointment", often referred to colloquially as a "holding appeal") there was an express power conferred to abridge time, but only in "special circumstances". There is no counterpart in the present form of the rules. Either Mr Olsen is right, and there is a similar power in the Uniform Civil Procedure Rules, or Ms Mentink is right and the power no longer exists because the notice of intention to appeal does not commence a proceeding. A weakness in Mr Olsen's construction is that if the power exists, it is no longer expressly circumscribed by the need to find "special circumstances". There is no reason to conclude that the rewrite somehow expanded the capacity of putative respondents to abridge the time within which an appeal was to be brought. A deal of attention was drawn to one aspect of the new regime which cut back on the rights of potential appellants, namely, the shrinking of the four month period to a period of three months, but none so far as I am aware (and the parties did not contend otherwise) to this further inroad into a disappointed litigant's appellate rights.
6. Thirdly, I would infer that one purpose of replacing the former "notice of appeal without appointment" (which did commence proceedings) by a notice of intention to appeal (which did not) was to reduce costs and to reduce the scope for interlocutory applications by avoiding proceedings in the Court of Appeal. To that extent, Mr Olsen's summons proceeds on a construction of the rules which is inconsistent with that purpose.
7. Fourthly, Mr Olsen's construction faces another obstacle. If as he contends there is power to reduce the time to 28 days after the notice of intention to appeal was filed, there must also be power to reduce that time to a lesser period of time. As it happens, Ms Mentink filed her notice of intention to appeal very promptly, on the very day orders were made. On any view of the matter, she was entitled to delay doing so. (Mr Olsen does not contend that there is power to reduce the time before a notice of intention to appeal has been filed.) It strikes me as most unlikely that (a) a disappointed litigant could delay 28 days before filing a notice of appeal, but (b) if that litigant promptly filed a notice of intention of appeal, there would be power on the application of the putative respondent to reduce the time for the filing of any notice of appeal to less than the 28 days which would otherwise be enjoyed. Of course, that is not what Mr Olsen seeks, which is a prudent course for him to take. But at the level of construction of the rules, it is necessary to have regard to the consequences of his submission.
8. Mr Olsen places great weight on a series of decisions which have disapproved litigants waiting until the last moment to file an application for leave to appeal. His submissions reproduced a sentence from Dillon v Boland; Dillon v Cush [2012] NSWCA 364 at [9]: "I should also add that although a notice of intention to appeal is available for those seeking leave to appeal, when a matter is urgent, it is, as a matter of practice, self-evidently quite inappropriate to allow a significant period of time to elapse by using a notice of intention to appeal and then an application for leave to appeal."
9. That was a late application for leave to appeal, brought on the last possible day, from a decision to allow amendments to the pleading which affected a trial which was to commence less than a fortnight after the leave application was heard. Notwithstanding the doubts evidently held by Allsop P of the correctness of the ruling, leave was refused because of the delay. It was of the essence of the decision that it was a discretionary application for leave, rather than an appeal as of right. As much is plain not only from the facts of that case, but from the sentence which immediately followed that on which Mr Olsen relied: "Leave to appeal is required in a variety of matters - some simple procedural matters where timeliness is of the essence, and other matters which are interlocutory and to all intents and purposes final. An example of the latter is an appeal under $100,000, but for procedural applications for leave to appeal such as this, especially where there is a hearing date involving the resources of both the parties and the courts, it is absolutely essential that parties exercise their rights timeously."
10. Reasons for judgment must always be read in context. When the nature of the application in Dillon v Boland is appreciated, it does not assist Mr Olsen.
11. Likewise, Moubarak was an application for leave from an interlocutory ruling, made shortly before the hearing date. El-Hanania v Vella [2019] NSWCA 167 was a case where reference was made to inability to obtain a transcript as being an inadequate explanation for delay; it is to be expected after all that counsel or instructing solicitors will in such cases have taken a sufficient note of oral reasons for judgment. Practitioners after all "have a responsibility to take a proper note of proceedings": see for example Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287 at [14]. Further, El-Hanania was a case where the time limits had been exceeded. The final decision on which reliance was placed, Kalache v Local Court of New South Wales (No 2) [2017] NSWSC 1736, falls into the same category (see at [15]).
12. It is self-evident that, as Allsop P said in Dillon v Boland, where a litigant does not enjoy a right of appeal, but needs to seek leave, that litigant's delay, and any explanation for delay, will be relevant to the question of leave. That is especially the case where, as in Dillon v Boland, there could be an appeal as of right on the same point after the trial, because the interlocutory decision is material to the final judgment: see Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22. The same is true where an unsuccessful litigant seeks a stay pending appeal. But those discretionary applications are far removed from Mr Olsen's application, which seeks to curtail what would otherwise be Ms Mentink's right to commence an appeal within 3 months from orders being made.
13. I conclude that Mr Olsen's construction of the rules is not sound. Rule 51.9(b) authorises an application to be made for a period other than 3 months for filing and service when an appeal has been commenced. It does not authorise a person who is not now and may never be a respondent to apply to abridge the time within which a notice of appeal may be filed.
14. Rule 1.12 is subject to Pt 51. I consider that Part 51 speaks clearly to this point. The general power to abridge time in r 1.12 is not available to undercut the provisions made by Pt 51.
15. That is not to say that in some truly exceptional case, there might not be power in the inherent jurisdiction of this Court to achieve the result for which Mr Olsen contends. "The basic principle [is] that the rules of the court are to be the servant of justice, not its master": Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 at [38], and ultimately statute confers power to dispense with their requirements in a particular case pursuant to s 14 of the Civil Procedure Act 2005 (NSW). However, no part of Mr Olsen's application sought to rely upon a power outside the rules, and as presently advised, a truly exceptional case would be required in order to cut back from the rights of appeal against a final judgment enjoyed by an unsuccessful litigant.
16. If I were wrong about the construction of the rules, I would nonetheless refuse the application. The evidence on which Mr Olsen relies does not establish anything like a powerful case. The only suggestion that is made is stress. Mr Olsen will not be cross-examined on appeal, nor will be need to give instructions as to the cross-examination of Ms Mentink on appeal. Indeed his involvement in giving instructions for the defence of the appeal need not be great. The position is quite different from the position at trial. A deficiency in the short letter from a medical practitioner is that it treats all litigation as equally stressful.
17. The only stress to which Mr Olsen points is the familiar stress associated with uncertainty in the outcome of litigation. With that I am entirely sympathetic. But I regard it as being of little weight, for these reasons.
18. First, Mr Olsen chose to commence proceedings, a course which carried with it the stress of a trial and the possibility of an appeal (and indeed of any application for special leave to appeal to the High Court after any appeal is determined). The prospect of an appeal which Mr Olsen now faces is the ordinary incident of a trial.
19. Secondly, the stress to which Mr Olsen points will not be resolved until well after the Court of Appeal delivers its judgment and makes orders (because thereafter the loser may seek special leave to appeal to the High Court). It would be to take an unduly circumscribed approach to look only to the period during which the appeal is prepared and heard.
20. Thirdly, the practical analysis summarised at paragraphs 25-32 above suggests that the acceleration for which Mr Olsen contends is unduly optimistic, and is accompanied by the possibility of unfairness, while the ordinary course will result, if indeed there is an appeal, in a date being given for that appeal in the first half of February, which might only be in the order of two or three months later than the highly abridged timetable which he seeks.
21. Fourthly, I must consider the position of Ms Mentink. She faces a multimillion dollar judgment debt, and most serious adverse findings. Mr Olsen seeks an order which will take away from her the right to appeal if she delays more than a handful of days from today. True it is that he submits, correctly, that there is no evidence relied on by her to the effect that it is difficult or impossible to determine whether or not to appeal. Even so, I think that in the circumstances of this case, the scope for material prejudice to her is real.

Orders

1. It follows that paragraph 1 of the summons should be dismissed. Both parties accepted that costs should follow the event.
2. I have considered whether the whole of the summons should be dismissed for want of jurisdiction. Incompetent appeals may be dismissed pursuant to r 51.41, and it follows that a single Judge of Appeal has power to dismiss such a notice of appeal: Supreme Court Act, s 46(1)(b); McGinn v Cranbrook School [2016] NSWCA 226 at [9] and [40]. I am presently of the view that a single Judge of Appeal has power to dismiss the novel summons filed by Mr Olsen.
3. However, the balance of the summons seeks expedition, and in the event that a notice of appeal is filed, it could readily be treated as an application for expedition of that appeal. On that basis, I think it is preferable to stand the balance of the summons over into the Registrar's list in February 2020. If an appeal has been filed, it may stand as an application in that appeal, and my expectation is that it would be addressed then and there by the Registrar in allocating a hearing date and setting a timetable. If no appeal has been filed, then as presently advised the balance of the summons should be dismissed.
4. Accordingly, I shall make the following orders:
5. Dismiss paragraph 1 of the summons filed 5 November 2019, with costs.
6. Stand over the balance of the summons into the Registrar's list on Monday 3 February 2020, to be treated as a notice of motion for expedition in the event that an appeal has been filed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2019