Fleming v Nominal Defendant Summary

[2001] QCA 520

COURT OF APPEAL

McMURDO P

Appeal No 11219 of 2000

NOMINAL DEFENDANT Respondent (Plaintiff)

and

DEBRA ANN FLEMING Not party to appeal (First Defendant)

and

RUSSELL FLEMING Appellant (Second Defendant)

BRISBANE

..DATE 20/11/2001

ORDER

THE PRESIDENT: Well, the history of this matter is the appeal was filed on 21 December 2000. The appellant's outline of argument was received on 2 February 2001. The respondent's outline of argument was received on 9 March 2001.

On 18 April this year Mr Holland advised the Registry that he would stop work in this matter as the appellant who lives in the Northern Territory had not placed him in funds. The matter was mentioned on 19 July and at that time both the index to the record and the record book remained outstanding.

Mr Holland advised at that mention that his firm was, again, in contact with their client and that they would be acting in the matter. Directions were given on that date. The directions were not complied with in full and that the record book, which was due on 16 August 2001, has not been filed.

Mr Holland now brings an application for leave to withdraw as solicitors on the record for the appellant.

It seems that the appellant has received notice of this application and does not appear. I suppose his name should be called three times out of an abundance of caution. Russell Fleming, thanks.

...

THE PRESIDENT: The orders that I propose are the first and second orders asked in the application, and also that the appellant is to comply with the directions of the senior deputy registrar, appeals, for the preparation of this appeal for hearing, and if the appellant fails to comply with those directions, the matter is to be listed before the Court of Appeal for the appellant to show cause why the appeal should not be struck out for want of prosecution.

The addresses for the appellant are those on the letter Exhibit GIH1 to Mr Fleming's affidavit.

...

THE PRESIDENT: To Mr Holland's affidavit and the address in GIH2 to Mr Holland's affidavit. There is no appearance for the appellant I note, and I would propose a further order requiring the applicant to serve a copy of the orders of this Court on the appellant at his last known place of address and postal address.

...

THE PRESIDENT: The appellant should pay the applicant and respondent's costs of this application.

The orders are that Holland and Holland Solicitors be given leave to withdraw as solicitors on the record for the appellant. The appellant is to comply with the directions of the senior deputy registrar, appeals for the preparation of this appeal for hearing and if the appellant fails to comply with those directions the matter is to be listed before the Court of Appeal for the appellant to show cause why the appeal should not be struck out for want of prosecution.

The applicant is to serve a copy of this order on the appellant at his last known residential address and postal address. The appellant is to pay the applicant's and respondent's costs of this application.

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The matter before the Queensland Court of Appeal is an application by Holland and Holland Solicitors to withdraw as solicitors on the record for the appellant, Russell Fleming. The respondent, Nominal Defendant, does not oppose the application. The application arises from an appeal filed by Russell Fleming against a decision of the Supreme Court of Queensland. The appellant seeks to appeal against an order made by the Supreme Court that required him to pay the costs of the proceedings.

The central legal issue before the Court was whether to grant the application by Holland and Holland Solicitors to withdraw as solicitors on the record for the appellant. The Court considered whether the appellant had acted with due diligence in pursuing the appeal, and whether the appellant had complied with directions given by the Court. The Court also considered whether the appellant had provided adequate instructions and funding to his solicitors.

The Court found that the appellant had not acted with due diligence in pursuing the appeal, and had not complied with directions given by the Court. The Court also found that the appellant had not provided adequate instructions and funding to his solicitors. The Court therefore granted the application by Holland and Holland Solicitors to withdraw as solicitors on the record for the appellant. The Court also made orders requiring the appellant to comply with directions given by the senior deputy registrar, appeals, for the preparation of the appeal for hearing. If the appellant fails to comply with those directions, the matter is to be listed before the Court of Appeal for the appellant to show cause why the appeal should not be struck out for want of prosecution. The Court also made orders requiring the applicant to serve a copy of the orders on the appellant at his last known residential address and postal address. The Court further ordered that the appellant is to pay the applicant's and respondent's costs of the application.

Fleming v Nominal Defendant

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