Burmingham v Hynes - [2005] QCA 274

SUPREME COURT OF QUEENSLAND

CITATION:

Burmingham & Anor v Hynes & Ors [2005] QCA 274

PARTIES:

DAVID GEORGE PETER BURMINGHAM
(first plaintiff/applicant/appellant/cross-respondent)
WOOLLY BULL ENTERPRISES PTY LTD
ACN 050 235 311 (deregistered)
(second plaintiff)
v
ROBERT MARK HYNES and BEAU TIMOTHY JOHN HARTNETT trading as HYNES HARTNETT LAWYERS
(first defendants/first respondents)
ANDREW MUSGRAVE
(second defendant/second respondent/cross-appellant)

FILE NO/S:

Appeal No 1934 of 2005
SC No 11290 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time
General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2005

JUDGES:

de Jersey CJ, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Applicant granted an extension of time in which to file the amended notice of appeal marked as exhibit      “DGPB-13” to his affidavit sworn 2 June 2005
2.    Appeal against order No 1 made on 8 February 2005       on application filed 10 August 2004 dismissed
3.    Appeal against order No 2 made on 8 February 2005       on application filed 10 August 2004 allowed to the       extent of adding “until 21 December 2004 but not       thereafter”
4.    Appeals against orders No 2, 4 and 5 made on 8       February 2005 on application filed 17 December 2004       dismissed
5.    Appeal against dismissal of application to join other       firms of solicitors as defendants dismissed
6.    Cross-appeal dismissed with no order as to costs
7.    Appellant to pay one half of the first respondents’       costs of the appeal assessed on the standard basis

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – REFUSAL OF ADJOURNMENT – first and second plaintiffs filed claim against first defendants for alleged negligence and other breaches arising out of first defendants’ representation of second plaintiff company in Federal Court proceedings – first plaintiff sought various further orders including joining counsel who appeared for the second plaintiff in the Federal Court proceedings – first defendants sought to strike out the second plaintiff company’s claim and statement of claim on the ground that it had been deregistered – applications heard together on 8 February 2005 – first plaintiff a self-represented litigant – first plaintiff complained of ill health but proceeded to make submissions on applications – first plaintiff did not actually ask for an adjournment – whether judge erred in not granting adjournment

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS – first plaintiff asserted at 8 February 2005 applications hearing that he had only been provided with authorities regarding the necessity of striking out the second plaintiff’s claim on the morning of that hearing – first plaintiff made submissions on costs – judge ordered first plaintiff to pay first defendants’ costs thrown away in prosecution of the claim in the name of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burmingham v Hynes

Details

AGLC: Burmingham v Hynes [2005] QCA 274
Case: [2005] QCA 274
Decision Date: 5 August 2005

CaseChat Overview and Summary

The case before the court involved an appeal by the plaintiffs against certain orders made by the primary judge in the Supreme Court of New South Wales. The plaintiffs alleged negligence and other breaches arising from the defendants' representation of a company in Federal Court proceedings. The first plaintiff, appearing as a self-represented litigant, sought various further orders including the joining of counsel who appeared for the second plaintiff in the Federal Court proceedings. The first defendants sought to strike out the second plaintiff company's claim and statement of claim on the ground that it had been deregistered. The applications were heard together on 8 February 2005. The first plaintiff complained of ill health but proceeded to make submissions on the applications without actually asking for an adjournment. The court was required to determine whether the judge erred in not granting an adjournment and whether the costs order should be amended to account for the possibility that the first plaintiff would have continued proceedings if advised of their futility earlier.

The court examined the principles of interfering with the discretion of the court below and found that the judge did not err in refusing an adjournment. The first plaintiff's complaint about ill health did not automatically warrant an adjournment, especially since the plaintiff proceeded to make submissions on the applications. The court also considered the issue of costs, noting that the first plaintiff asserted at the 8 February 2005 applications hearing that he had only been provided with authorities regarding the necessity of striking out the second plaintiff's claim on the morning of that hearing. The court found that the first plaintiff would likely have continued proceedings if advised of their futility earlier, but this did not warrant an amendment to the costs order. The appeal against the order No 1 made on 8 February 2005 was dismissed, and the appeal against order No 2 was allowed to the extent of adding "until 21 December 2004 but not thereafter". The appeals against orders No 2, 4 and 5 were dismissed, and the appeal against the dismissal of the application to join other firms of solicitors as defendants was also dismissed. The cross-appeal was dismissed with no order as to costs. The appellant was ordered to pay one half of the first respondents' costs of the appeal assessed on the standard basis.

Orders

Orders of the court

1. Applicant granted an extension of time in which to file the amended notice of appeal marked as exhibit “DGPB-13” to his affidavit sworn 2 June 2005

2. Appeal against order No 1 made on 8 February 2005 on application filed 10 August 2004 dismissed

3. Appeal against order No 2 made on 8 February 2005 on application filed 10 August 2004 allowed to the extent of adding “until 21 December 2004 but not thereafter”

4. Appeals against orders No 2, 4 and 5 made on 8 February 2005 on application filed 17 December 2004 dismissed

5. Appeal against dismissal of application to join other firms of solicitors as defendants dismissed

6. Cross-appeal dismissed with no order as to costs

7. Appellant to pay one half of the first respondents’ costs of the appeal 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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CITATION:	Burmingham & Anor v Hynes & Ors [2005] QCA 274
PARTIES:	DAVID GEORGE PETER BURMINGHAM (first plaintiff/applicant/appellant/cross-respondent) WOOLLY BULL ENTERPRISES PTY LTD ACN 050 235 311 (deregistered) (second plaintiff) v ROBERT MARK HYNES and BEAU TIMOTHY JOHN HARTNETT trading as HYNES HARTNETT LAWYERS (first defendants/first respondents) ANDREW MUSGRAVE (second defendant/second respondent/cross-appellant)
FILE NO/S:	Appeal No 1934 of 2005 SC No 11290 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	20 July 2005
JUDGES:	de Jersey CJ, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Applicant granted an extension of time in which to file the amended notice of appeal marked as exhibit “DGPB-13” to his affidavit sworn 2 June 2005 2. Appeal against order No 1 made on 8 February 2005 on application filed 10 August 2004 dismissed 3. Appeal against order No 2 made on 8 February 2005 on application filed 10 August 2004 allowed to the extent of adding “until 21 December 2004 but not thereafter” 4. Appeals against orders No 2, 4 and 5 made on 8 February 2005 on application filed 17 December 2004 dismissed 5. Appeal against dismissal of application to join other firms of solicitors as defendants dismissed 6. Cross-appeal dismissed with no order as to costs 7. Appellant to pay one half of the first respondents’ costs of the appeal assessed on the standard basis
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – REFUSAL OF ADJOURNMENT – first and second plaintiffs filed claim against first defendants for alleged negligence and other breaches arising out of first defendants’ representation of second plaintiff company in Federal Court proceedings – first plaintiff sought various further orders including joining counsel who appeared for the second plaintiff in the Federal Court proceedings – first defendants sought to strike out the second plaintiff company’s claim and statement of claim on the ground that it had been deregistered – applications heard together on 8 February 2005 – first plaintiff a self-represented litigant – first plaintiff complained of ill health but proceeded to make submissions on applications – first plaintiff did not actually ask for an adjournment – whether judge erred in not granting adjournment APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS – first plaintiff asserted at 8 February 2005 applications hearing that he had only been provided with authorities regarding the necessity of striking out the second plaintiff’s claim on the morning of that hearing – first plaintiff made submissions on costs – judge ordered first plaintiff to pay first defendants’ costs thrown away in prosecution of the claim in the name of…