Harrington v Newman Summary

[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

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.

CaseChat Overview and Summary

The Court of Appeal considered an application for leave to appeal from the decision of a trial judge who dismissed the applicant's proceeding due to lack of prosecution. The applicant, Patrick John Harrington, sought leave to appeal against the dismissal of his proceeding against the respondent, Doreen Newman. The appeal was heard by Gotterson, Morrison, and Philippides JJA. The primary issue before the Court was whether the applicant had demonstrated sufficient grounds to grant leave to appeal the dismissal of his proceeding for lack of prosecution.

The Court focused on the applicant's failure to provide adequate funds to proceed with the case, leading to a lack of prosecution. The applicant's solicitor, Mr Clough, stated that he had not received instructions from the applicant for several weeks and did not have funds to proceed with the case. The Court considered the possibility of an adjournment but found no evidence to support the notion that the applicant would have sufficient funds to proceed at a later date. The Court concluded that the applicant had not demonstrated a sufficient basis for granting leave to appeal, and the application was dismissed.

In the judgment, Gotterson JA noted that the application was listed for hearing, and the applicant had not provided sufficient funds for argument, leading to a lack of prosecution. Morrison JA added that the applicant's failure to participate in court processes despite financial difficulties did not justify the dismissal of the proceeding. Philippides JA concurred with the other two judges, agreeing that the application for leave to appeal should be refused.

The Court's orders were that the application for leave to appeal was refused, and the applicant was to pay the respondent's costs of the application, to be assessed on the standard basis.

Harrington v Newman

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established