Basha v Basha

Case [2010] QCA 123

SUPREME COURT OF QUEENSLAND

CITATION:

Basha v Basha [2010] QCA 123

PARTIES:

MOHAMMED ASLAM BASHA
(plaintiff/appellant)
v
MOHAMMED ASHRAF BASHA
(defendant/respondent)

FILE NO/S:

Appeal No 11193 of 2009
DC No 474 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


District Court at Brisbane

DELIVERED ON:

25 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2010

JUDGES:

Holmes and Fraser JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal dismissed with costs to be assessed on the standard basis.
CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the appellant applied for leave to appeal against the order of a District Court judge dismissing the appellant’s claim for want of prosecution – where the primary judge found that the appellant’s case should be dismissed as it had no reasonable prospect of success, was marked by lengthy delays, shifting allegations and lost records – whether the primary judge erred in dismissing the appellant’s claim – whether rule 5(4) of the Uniform Civil Procedure Rules 1999 (Qld) authorises the dismissal of a proceeding in the absence of an identified breach of the rules or order of the Court

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where the appellant applied to adduce new evidence – where the evidence was available to the appellant at the time of hearing and the evidence was not compelling – whether leave should be granted

District Court of Queensland Act 1967 (Qld), s 69(1)
Supreme Court of Queensland Act 1991 (Qld), s 85
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 5(3), r 5(4), r 280, r 371(2), r 389, r 389(2), r 766(1)(c), r 766(2)

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited
Basha v Basha unreported, Clare SC DCJ, District Court of Queensland, No 474 of 2000, 11 September 2009, cited
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27, cited
Hall v RH & CE McColl P/L[2007] QCA 182, cited
Newcastle City Council vBatistatos [2005] NSWCA 20, cited
Page v The Central Queensland University[2006] QCA 478, cited
Quinlan v Rothwell [2002] 1 Qd R 647; [2001] QCA 176, cited
Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455; [2000] QCA 292, cited
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, cited

COUNSEL:

R Clark for the appellant
A Lyons for the respondent

SOLICITORS:

Roberts and Kane for the appellant
J C Lawyers for the respondent

  1. HOLMES JA:I have had the advantage of reading the reasons of Fraser JA. I agree with his Honour’s conclusion…

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AGLC
Basha v Basha [2010] QCA 123
Case
[2010] QCA 123
Decision Date

CaseChat Overview and Summary

In the case of Basha v Basha, the appellant sought to appeal against the dismissal of their claim by a District Court judge, who dismissed the case for want of prosecution. The primary judge found the case to be marked by lengthy delays, shifting allegations and lost records, concluding that the case had no reasonable prospect of success. The appellant contested the dismissal and sought leave to appeal, arguing that the primary judge erred in dismissing the claim and that the relevant rule did not permit dismissal in the absence of an identified breach of the rules or order of the Court.

The court considered whether the primary judge erred in dismissing the appellant’s claim and whether the relevant rule authorised the dismissal of a proceeding in the absence of an identified breach of the rules or order of the Court. The court found that the primary judge's decision was not in error and that the rule in question did permit dismissal in the absence of an identified breach of the rules or order of the Court. The court also considered the appellant’s application to adduce new evidence, which was available at the time of the hearing and was not compelling, and found that leave should not be granted.

The appeal was dismissed, with the court ordering that the costs be assessed on the standard basis. The court held that the primary judge's decision was sound, and that the appellant's arguments did not warrant a departure from the usual rules regarding the admission of new evidence. The appellant's application for leave to appeal was therefore dismissed, and the decision of the primary judge was upheld.

Orders

Orders of the court

Appeal dismissed with costs to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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