Conde v Hunter

[2009] QCA 305

SUPREME COURT OF QUEENSLAND

CITATION:

Conde v Hunter [2009] QCA 305

PARTIES:

MILTON ARNOLDO CONDE
(applicant)
v
JOHN HUNTER
(respondent)

FILE NO/S:

Appeal No 7008 of 2009
DC No 395 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time
General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 October 2009

JUDGES:

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

ORDERS:

1.   Application refused.

2.   Applicant to pay the respondent’s costs fixed in the sum of $11,000.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant brought a defamation action against the respondent – where applicant’s statement of claim struck out below and he was given leave to re-plead – where other orders below that the applicant pay the respondent’s costs and that proceedings were stayed until payment was made – where applicant seeks to appeal these other orders and such appeal is out of time – whether an extension of time in which to appeal should be granted – whether costs of this application should be fixed and in what amount

COUNSEL:

The applicant appeared on his own behalf
M J Foley for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Connor Hunter Solicitors for the respondent

1. KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Fraser JA.  I agree with those reasons and with the orders proposed by his Honour.

1. FRASER JA: The applicant sued the respondent in the District Court for damages for defamation.  In the applicant’s amended statement of claim filed on 4 August 2008 the applicant alleged that the respondent abused and insulted the applicant at various places and on various dates between 9 March 2007 and 20 April 2007.  The pleading did not properly plead the intended causes of action in defamation because it did not allege that on each occasion the respondent’s allegedly defamatory remarks were published to someone other than the applicant.  The pleading also lacked some necessary details and contained various other defects.  After the applicant failed to rectify deficiencies alleged by the respondent in his solicitor’s letter, the respondent applied to strike out the pleading and for other orders.

1. On 14 November 2008 a District Court judge acceded to the respondent’s application and made the following orders:

“1.         The Amended Statement of Claim be struck out;

2.That the Plaintiff be given leave to replead within twenty-one (21) days;

3.Order that Plaintiff pay Defendant’s costs of today’s application to be assessed on the standard basis; and

4.Order that proceedings be stayed pending payment of the Defendant’s costs of today’s application by the Plaintiff.”

1. On 1 July 2009 the applicant filed an application in this Court seeking leave to appeal from orders 3 and 4.  The time…