Farnan and Farnan v Adcock
[1998] QCA 365
•13/11/1998
IN THE COURT OF APPEAL [1998] QCA 365 SUPREME COURT OF QUEENSLAND Appeal No. 8455 of 1998
Brisbane
[Farnan & Anor. v. Adcock]
BETWEEN:
PATRICK FRANCIS FARNAN and
PAULA JANE FARNAN
(Respondents) Applicants
AND:
ROBERT THOMAS ADCOCK (Liquidator)
(Applicant) Respondent McMurdo P.
Judgment delivered 13 November 1998
Judgment of the Court
APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL FROM THE ORDERS OF WILLIAMS J. ON 13 AND 20 JULY 1998 ON SUPREME COURT APPLICATION NO. 6344 OF 1998 IS REFUSED.
APPEALS FROM THE ORDERS OF WHITE J. ON 27 AUGUST 1998, OF WILSON J. ON 4 SEPTEMBER 1998 ON SUPREME COURT APPLICATION NO. 7570 OF 1998 AND OF WILLIAMS J. ON 8 OCTOBER 1998 ON SUPREME COURT APPLICATION NO. 6344 OF 1998 ARE ADJOURNED TO A DATE TO BE FIXED.
CATCHWORDS:
CIVIL - application for extension of time refused - no good reason shown for failure to lodge an appeal within time - no error below - no injustice will flow from refusal of application
Counsel: Mr. P.F. Farnan (not of counsel) for the applicants
No appearance for the respondentSolicitors: Mr. P.F. Farnan (not a solicitor) for the applicants
No appearance for the respondentHearing Date: 26 October 1998 IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 8455 of 1998
Brisbane
Before McMurdo P. [Farnan & Anor. v. Adcock]
BETWEEN:
PATRICK FRANCIS FARNAN and
PAULA JANE FARNAN
(Respondents) Applicants
AND:
ROBERT THOMAS ADCOCK (Liquidator)
(Applicant) Respondent
REASONS FOR JUDGMENT - McMURDO P.
Judgment delivered 13 November 1998
The applicants appeared for themselves with the male applicant speaking on behalf of both.
There was no appearance for the respondent.
The applicants relied on a number of written submissions prepared for them by a person
identified on the papers as “Don Cameron Q.C. (person not fit and proper)”. Regrettably, these
written submissions and the oral submissions made by the applicants were not as clear as they
should have been. As a result, it was initially difficult to understand the nature of the application
before the Court. It seems not all relevant material had been supplied from the file to the judges prior to hearing, but as the material is so unclear, this is hardly surprising. After questioning the
applicants, it finally emerged that this was an application for an extension of time within which to
appeal from orders of the Supreme Court under O. 70 r. 23 of the Rules of the Supreme Court.
The applicants initially stated that the order in respect of which they sought an extension
of time in which to appeal was that of 20 July 1998. They said that they became aware of that
order on 20 July 1998. During the hearing of this application, it appeared that no application or
appeal was filed in this Court until 13 October 1998. The applicants seemed to accept this.[1]
Although the applicants initially said there was no appeal in respect of Wilson J.’s order on 4
September 1998[2], they later said they were also appealing against this order.[3]
[1] Transcript, p. 6.
[2] Transcript, p. 11.
[3] Transcript, pp. 18 and 22.
I have since searched the file and found a notice of motion filed on 14 September 1998
seeking leave to appeal (under an incorrect statute) in respect of the orders of Williams J. made on
13 and 20 July 1998 and from the orders of White J. made on 27 August 1998 and Wilson J. made
on 4 September 1998.
An amended notice of motion filed by the applicants and dated 3 October 1998 purports
to be an application for leave to appeal under s. 169A of the Supreme Court Act 1991 (I presume
this is meant to refer to s. 69(a) of the Supreme Court of Queensland Act 1991 which provides
for an appeal from “any judgment or order of the court in the Trial Division”) from all the previously
mentioned orders and additionally from the further order of Williams J. made on 8 October 1998. As the time limit had not expired in respect of the orders made by White J. on 27 August 1998 and
by Wilson J. on 4 September 1998 at the time of filing the first notice of motion on 14 September
1998 and in respect of the order of Williams J. on 8 October 1998 at the time of filing the amended
notice of motion on 13 October 1998, those appeals are within time and are not the subject of this
application.
Paragraph 1 of the amended notice of motion dated 13 October 1998 refers to an appeal
from an order made by Senior Deputy Registrar McNarmara (sic) on 20 July 1998. No material
has been placed before this Court in respect of any such order.
This, then, is an application for an extension of time in which to appeal from the orders of
Williams J on 13 and 20 July 1998. Order 70 r. 23 and O. 70 r. 37(1)(d) of the Supreme Court
Rules provide that such an application may be heard by a single Judge of Appeal. Once the nature
of the application before this Court became clear, it was not necessary for Pincus J.A. and Muir J.
to constitute the Court and the matter proceeded before me sitting alone.
The applicants are shareholders of the company Shellbeach Pty Ltd and the male applicant
is the sole director. The applicants are also shareholders of Community Planning Concepts Pty Ltd
and again the male applicant is its sole director. The latter company has been in voluntary
administration since 3 July 1998 and in liquidation pursuant to a creditors’ resolution on 20 July
1998. The liquidator of that company is the respondent. A child care centre was operated by
Community Planning Concepts Pty Ltd at the premises owned by Shellbeach Pty Ltd and this
business has been conducted by the voluntary administrator since early July. A dispute has arisen
as to whether the child care centre was licensed to be operated by the applicants personally or by
their company, Community Planning Concepts Pty Ltd and this was argued in subsequent hearings
which are not the subject of this application. It is unnecessary to determine that matter for the
purposes of this application, beyond pointing out that the uncontroverted material before his Honour
on 20 July 1998 was that the licence under the Child Care Act 1972 (Cth) necessary to run the
business had been granted to Community Planning Concepts Pty Ltd, that the licence could not be
assigned without the consent of the relevant Government department and that Community Planning
Concepts Pty Ltd were at that time the licensed operators.
On 13 July 1998, on an application by the liquidator, the following orders were made by
Williams J. (ex parte):
“1. that Shellbeach Pty Ltd ACN 056 548 808 the registered proprietor and landlord of premises situated at 70 Condamine Street, Runcorn be restrained from withholding possession of the premises to the said Administrator;
2. that Bruce A. Smith and/or All Business & Finance Management Services
forthwith hand to the Administrator all the books and records of the company held
by it together with all cheques and cash taken from the premises;3. that Patrick Francis Farnan forthwith give to the Administrator all cash and cheques and books of account of the company taken by him from the company’s premises at 70 Condamine Street, Runcorn or elsewhere on or about 8 July 1998;
4. that the said Patrick Francis Farnan be restrained from attending at or upon the premises at 70 Condamine Street, Runcorn;
5. that Bruce A. Smith, Paula Farnan and Leslie Smith be restrained from attending at the premises at 70 Condamine Street, Runcorn;
6. notice of motion be adjourned until Monday, 20 July 1998;
7. that this order and supporting material be served forthwith on Bruce A. Smith, Patrick Francis Farnan, Paul Farnan and Leslie Smith;
8. costs reserved.”
On 20 July 1998, the matter came on again before Williams J. and his Honour ordered:
“1. that Shellbeach Pty Ltd ACN 056 548 808 the registered proprietor and landlord of premises situated at 70 Condamine Street, Runcorn be restrained from withholding possession of the premises to the said Administrator during the administration of the company.
2. that Bruce A. Smith and/or All Business & Finance Management Services forthwith hand to the Administrator all books and records of the company held byit together with all cheques and cash taken from the premises;
3. that Patrick Francis Farnan forthwith give to the Administrator all cash and cheques and books of account of the company taken by him from the company’s premises at 70 Condamine Street, Runcorn or elsewhere on or about the 8th day of July 1998;
4. that the said Patrick Francis Farnan be restrained from attending at or upon the premises at 70 Condamine Street, Runcorn;
5. that Bruce A. Smith, Paula Farnan and Leslie Smith be restrained from attending at the premises at 70 Condamine Street, Runcorn;6. that Patrick Farnan, Paula Farnan, Bruce A. Smith and Leslie Smith pay the applicant’s costs of and incidental to the notice of motion to be taxed.”
The applicants claim these orders were made ex parte and as they had not been served,
they were denied natural justice. The only order made ex parte was that of 13 July 1998. That
order was plainly justified on the material before the learned judge and was made only until
Monday, 20 July 1998, the application being adjourned to that date. The order required service
of the order and the supporting material forthwith on, inter alia, the applicants.
On 20 July 1998, when the matter came on again for hearing, the order sheet notes the
applicants were represented by Mr R. Ward, a barrister who filed material on their behalf, including
an affidavit from the male applicant, together with five exhibits attached and an affidavit of Bruce Anthony Smith, a certified practising accountant, with two exhibits attached. In his reasons for
judgment in the application of 8 October 1998, his Honour referred to the proceedings of 20 July
1998 and notes: “they were represented by a barrister and an affidavit by Mr Farnan was relied
on”. It cannot be said the order of 20 July 1998 was ex parte or that the applicants were not
served or were not legally represented. There was ample material before Williams J. to justify the
orders made by him in each instance.
The applicants have given no good reason beyond their ignorance of the 28 day time limit
for their failure to lodge a notice of appeal within time. This Court would not let that be a bar to an
extension of time within which to appeal if in all the circumstances it was just to extend time here:
Queensland Trustees Limited v. Fawckner.[4]
[4] [1964] Qd.R. 153 at 163-164, approved in Horne v. Commissioner of Main Roads [1991] 2 Qd.R. 38 at 41.
There is nothing in the arguments either in their written form or as developed before me to
suggest that there has been any error below or breach of natural justice such as would justify the
extension of time within which to appeal. The proposed appeal has no merit and no injustice will
flow from a refusal of the application. The application for an extension of time within which to
appeal from the orders of Williams J. on 13 and 20 July 1998 is refused.
The appeals from the orders of White J. on 27 August 1998, of Wilson J. on 4 September
1998 and of Williams J. on 8 October 1998 are adjourned to a date to be fixed.
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