Bell v Beattie

[2004] QCA 131

[2004] QCA 131
COURT OF APPEAL

McMURDO P

No 9982 of 2003

IAN BRUCE BELL  First Applicant/Applicant

and

TREVOR JOHN MAHAFFEY               Second Applicant/Applicant

v.

PETER DOUGLAS BEATTIE             First Respondent/Respondent

and

ANNA MARIA BLIGH                 Second Respondent/Respondent

and

THOMAS ALFRED BARTON              Third Respondent/Respondent

and

STEPHEN DOMINIC BREDHAUER         Fourth Respondent/Respondent

and

JUNITA IRENE CUNNINGHAM            Fifth Respondent/Respondent

and

WENDY MARJORIE EDMOND             Sixth Respondent/Respondent

and

MATTHEW JOSEPH FOLEY               Seventh Respondent/Respondent

and

PAUL THOMAS LUCAS                  Eighth Respondent/Respondent

and

TERENCE MICHAEL MACKENROTH         Ninth Respondent/ Respondent

and

ANTHONY McGRADY  Tenth Respondent/Respondent

and

GORDON RICHARD NUTTALL             Eleventh Respondent/Respondent

and

HEINRICH PALASZCZUK                Twelfth Respondent/Respondent

and

MICHAEL FRANCIS REYNOLDS           Thirteenth Respondent/Respondent

and

STEPHEN ROBERTSON                  Fourteenth Respondent/Respondent

and

MERRI ROSE  Fifteenth Respondent/Respondent

and

ROBERT EVAN SCHWARTEN              Sixteenth Respondent/Respondent

and

JUDITH CAROLINE SPENCE             Seventeenth Respondent/Respondent

and

RODNEY JON WELFORD                Eighteenth Respondent/Respondent

and

DEAN MacMILLAN WELLS              Nineteenth Respondent/Respondent

BRISBANE

..DATE 23/04/2004

ORDER

THE PRESIDENT:  This appeal was filed on 5 November 2003, against an order of the Supreme Court made on 8 October 2003.  Since the filing of the appeal the appellant or applicant,
Mr Bell, who also acts for the other appellant, Mr Mahaffey, was advised at one of his appearances at the Registry that he would need leave to appeal under the Judicial Review Act 1991 Queensland.

The matter was mentioned on 19 December 2003, before me, I think, as the appellants had not filed the application for leave to appeal until 5 p.m. two days before the mention, and the respondents wanted the matter mentioned to ask for an order for costs in relation to preparation for the mention.  At that time an order for costs was made in the respondents' favour.

On 6 January 2004, a letter was sent to the appellants/ applicants directing them to lodge their bundle of documents by 19 January 2004.  The bundle was not received and a further letter was sent to the appellant on 20 January 2004, advising him that the appeal would be listed for mention on 6 February 2004, and warning them of the potential of a costs order being made against them at that mention.

The appellants/applicants did not comply with the Registry requirements and the matter was again mentioned on 6 February 2004, where the Court made this order:  "The applicants are to prepare an indexed paginated bundle of documents and file three copies with the Registry and serve one copy on the respondents by 4 p.m. on 27 February 2004."  In case of non- compliance the matter was to be listed before the Court of Appeal on Monday, 1 March 2004, for the applicants to show cause why the matter should not be struck out for want of prosecution.  The applicants were ordered to pay the respondents' costs of and incidental to the proceedings.  The applicants did comply with that order by filing the paginated bundle on 27 February 2004.

On 3 March 2004 the application was listed for hearing on
28 April 2004.  On 7 April 2004 Mr Bell, on behalf of the applicants, advised that the application and appeal had been settled.  The respondents confirmed this.  The application was delisted from 28 April 2004, pending finalisation of the settlement of the matter.

The respondents' representatives later advised the Registry that the terms provided by the applicants were wider than first agreed and that settlement had not been reached.

When no consent order to withdrawing the application for appeal had been received by the Registry on 15 April 2004, the matter was listed for hearing on 24 May 2004 and the applicants were advised that they were required to lodge their outline by noon on 21 April 2004 or the matter would be mentioned on 23 April without further notice.  The outline has not been provided.

In those circumstances, unless you wanted to add anything,
Mr McLeod, I was inclined to now strike out the application and appeal for want of prosecution, with costs.

...

THE PRESIDENT:  In the circumstances set out by me above, the only appropriate order to make today, when the applicants have not attended at Court to explain their dilatoriness, is that the application and appeal be struck out for want of prosecution, with costs to be assessed, and I so order.

-----