Harrington v Newman

[2016] QCA 187

[2016] QCA 187

COURT OF APPEAL

GOTTERSON JA
MORRISON JA
PHILIPPIDES JA

Appeal No 719 of 2016
DC No 3822 of 2013

PATRICK JOHN HARRINGTON  Applicant

v

DOREEN NEWMAN  Respondent

BRISBANE

THURSDAY, 21 JULY 2016

JUDGMENT

GOTTERSON JA:  This matter is listed for hearing today.  When the matter commenced, Mr Clough, who has acted for the applicant, advised the court that he had contact with his client up to about eight weeks ago.  Prior to that time, the client had provided him with funds from time to time for steps in the application.  The applicant, however, had not provided sufficient funds for argument of the application, either by Mr Clough or by counsel.  Furthermore, Mr Clough acknowledged that his attempts to contact his client in the last eight weeks had been resisted.  His impression is that it was because of a lack of funds on the client’s part.

Mr Clough informed the Court that he did not have instructions of any kind. In particular, he did not have instructions to ask for an adjournment of the hearing of the application. He canvassed the possibility that the Court may make such an order and suggested that it could well be that in three months time his client would have sufficient funds to proceed with argument of the application. However, there is no evidence before the Court to that effect and speaking for myself, I would be reluctant to act upon that factual hypothesis without evidence. Mr Reilly, who appears for the respondent, has reminded the Court that it has power under r 766 of the Uniform Civil Procedure Rules to dismiss the application in circumstances where there is no formal application for an adjournment.  The matter is duly listed for hearing and no evidentiary basis for concluding that at some later point after an adjournment, the applicant would be in a position to proceed.  My view is that this application for leave to appeal should be refused.

MORRISON JA:  I agree and would only add this:  even if embarrassed by funds, a party may not ignore the court processes.  The application has been set.  Not even the record has been done and that speaks of want of prosecution.  I agree with the presiding judge.

PHILIPPIDES JA:  I also agree with the presiding judge.

GOTTERSON JA:  The orders of the Court are:

1.Application for leave to appeal refused.

2.The applicant is to pay the respondent’s costs of the application, to be assessed on the standard basis.