Heilbronn v Magistrates Court of Queensland

[1998] QCA 384

COURT OF APPEAL	[1998] QCA 384
McPHERSON JA AMBROSE J CULLINANE J
Appeal Nos 7134 of 1998 & 7722 of 1998
GREIG RONALD HEILBRONN	Appellant
and
MAGISTRATES COURT OF QUEENSLAND
AND B M WILLIAMS SM	First Respondent
and
ROBERT A MEEK	Second Respondent
BRISBANE
..DATE 25/09/98 250998 T9/10 JB M/T COA241/98

CULLINANE J: There are two applications by the applicant, in each of which he seeks an extension of time within which to appeal against an order of a Judge of the Supreme Court. In addition, the Court has before it applications by the second respondent seeking orders that the two appeals which the appellant has filed be struck out.

The first of the applications concerns Appeal No 7134 of 1998 whilst the second concerns Appeal No 7722 of 1998. In each case the appeals concern a judgment obtained in the Small Debts Court at Inala in the sum of $2,210.95. The amount of the judgment related to the cost of telephone calls incurred by the second respondent by reason of the appellant's use of their telephone.

The appellant wishes to challenge, by way of appeal, two judgments of the Court. His affidavit material relates to various difficulties which he claims to have encountered and which he advances as explanations in relation to delay in bringing the proceedings in the Supreme Court.

So far as the first of the appeals is concerned, he says he prepared a notice of appeal between Monday 26 July and Monday 3 August, and that on 1 August 1998 when his former wife visited he asked if she could obtain the funds to allow the filing fee for the notice of appeal to be paid. According to an affidavit of the appellant's former wife, she said that she had no money but would borrow the moneys from a daughter. At the same time he asked her to collect the notice of appeal - this is in No 7134 of 1998 - on 3 August 1998 and to file it at the Registry and serve it upon the respondents. This was the second last day for the filing of the notice of appeal.

She was not able to do so because of some commitments which she had but made arrangements for another daughter to collect the documents on the afternoon of 3 August together with the moneys which had apparently been borrowed. She attended at the Registry but the documents were not accepted for filing as some further matters needed to be attended to. She, that is, the daughter, travelled back to the Moreton Correctional Centre but was unable to speak to the appellant. Rather, she left a note for him and the documents, together with a pro forma sheet provided to her by a clerk to whom she had spoken at the Registry, which set out certain matters which had to be inserted in the notice of appeal.

On 4 August she drove from the Gold Coast to Brisbane and obtained a copy of the amended notice. On this occasion when she attended at the Registry it was necessary for some parts of the document which had been prepared to be deleted before it was filed. The document was filed on that day but could not be served for reasons which are explained in the affidavit of the appellant's daughter. His former wife was asked by him to effect service of the documents but she was unable to collect them until 7 August.

The first respondent, who is a Stipendiary Magistrate, was served on that day. She says that she attended at the residence of the second respondent on that day but there was nobody there and that this was the case on the following day. She left the notice of appeal with the second respondent's wife on 10 August 1998.

The appellant had earlier instituted proceedings for a review of the judgment and an order had been made that upon payment of the sum of $2,210.95 into Court within three months of the making of the order, the proceedings in the Small Debts Court be removed into the Supreme Court and quashed and the proceedings be remitted to the Small Debts Court to be heard and determined by law. No such moneys were paid.

It appears then that the second respondent commenced further proceedings in the Court at Inala in
respect of the same claim and obtained judgment on 14 May 1998. An order, the subject of
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Appeal No 7134 of 1998, was made on an application by the appellant for a stay of the second judgment obtained by the second respondent. It seems that the applicant, upon the hearing of the matter, also asked for an order that the original judgment in the Small Debts Court at Inala be stayed. The applicant, it appears, on that day filed an application for extension of time to appeal to the Court of Appeal against the order of the Supreme Court of 5 January 1998.

The order, the subject of this appeal, that is No 7134 of 1998, was an order granting the stay sought by the appellant in respect of what I might describe as the second judgment but refusing a stay in respect of the first judgment. The grounds of appeal are that the learned trial Judge erred in law in declaring the second judgment a nullity whereas it should have been declared irregular and that the learned Judge erred in

law and in fact in failing to make an order for costs in favour of the appellant. The document seeks an order that the judgment be quashed and the judgment of the Small Debts Court of 14 May 1998 be ruled as irregular.

Here the notice of appeal was filed on the last day and service effected some days later. It can, I think, be accepted that no significant prejudice as such will have been suffered by either respondent, and particularly the second respondent.

However, when it is borne in mind that the application relates to an order which was the very order sought by the applicant on the application for the review, that apparently the motivation for this appeal is to seek an order for costs, an order from which there can only be an appeal upon the granting of leave, I am quite unpersuaded that the interests of justice in this case favour the granting of an extension of time within which to appeal. The prospects of success on any such appeal can only be described, in my view, as remote in the extreme.

Appeal No 7722 of 1998 is an appeal from a judgment of the Supreme Court refusing to grant a stay of execution of the judgment of 18 August 1997 and also a stay of an order for examination issued by the first respondent. The appellant had sought an extension of time within which to appeal against the order of 1 January 1998 to which I have already referred.

The order dismissing the application and refusing the stay sought was made on 22 July 1998. The last day for the filing and service of the notice of appeal was 18 August 1998. The appeal was not filed until 21 August 1998 and served some days later.

Again an account is given of the circumstances in which the appeal was filed and served out of time.
It again involves the difficulties said to have been encountered by the applicant's ex-wife in
attempting to file and effect service of this notice of appeal. At least part of the explanation is said to
be accounted for by the fact that the prisoners at the correctional centre were kept in lock-down

conditions on one of the relevant dates.

Again I do not think the circumstances in which the notice of appeal was filed and served outside of
the statutory period would alone constitute a bar to the granting of extension of time. In this case,
His Honour, Mr Justice Byrne, whose judgment is the subject of this appeal, expressed the view that
no sufficient reason had been shown for the delay in applying for an extension of time by notice of
motion of 6 July 1998 against a judgment of 5 January 1998, and secondly, there were no
reasonable prospects of success on appeal.
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Various grounds are included in the notice of appeal including a claim that fresh evidence exists, that
His Honour misdirected himself in determining the matter in taking into account the reasons of the
Judge from whose judgment appeal was being sought, and that His Honour failed to take certain
things into account and that he erred in law in certain respects. No material was placed before us in
support of the claim of fresh evidence.

It will therefore be understood that this is an application for an extension of time in which to file and serve a notice of appeal against a judgment of the Supreme Court refusing to extend the time in which to file and serve a notice of appeal against a judgment of the Supreme Court made many months earlier.

It is, in my view, impossible to disagree with the view that His Honour expressed that there were no reasonable prospects of success on this appeal also. In my view, the proper course to take in relation to each of the applications is to refuse an extension of time within which to appeal and to accede to the applications of the second respondent and order that the appeals in each case be dismissed.

McPHERSON JA: I agree. It is not uncommon for the Court to overlook default in filing or serving appeal process within the time specified by the rule; but, before that is done the Court looks at the prospects of success, if any, of the subject appeal.

We have had an opportunity to examine the matters under appeal in these applications and, indeed, two of us have done so twice, both on this occasion and on an earlier occasion when the applications came before the Court in early September.

We have also heard Mr Heilbronn, who is the respondent to the applications to dismiss these appeals, and have taken account of the matters he has raised. Everything I have seen and heard in the course of this process combines to confirm that the appeals are misconceived and that they have no prospects of success whatever. It would be a pointless waste of time and costs to extend the time for doing anything in relation to either of them.

Accordingly, I would refuse applications to extend time that are sought by the appellant and would accede to the applications by the second respondent to the appeals to strike out or dismiss the two appeals which Mr Heilbronn has sought to bring before this Court.

AMBROSE J: I agree with the orders proposed and the reasons that my brothers have advanced in support of those proposed orders.

McPHERSON JA: The order of the Court is that the applications to extend the time within which to appeal to this Court are refused. The application to strike out the appeals is granted, and the appeals are accordingly struck out and dismissed.

Now, what about costs; do you wish to ask for costs?

MRS MEEK: Costs only as a litigant in person of what we incurred in preparing for this.

McPHERSON JA: All we do is to make an order for costs. Whether in fact you are able to get
any of the costs you have outlaid or something in respect of your own time, I can't say, but the order
enables you to get whatever you are entitled to if we make an order in your favour. What have you
to say about that, Mr Heilbronn? Why should you not pay the costs of this exercise?
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APPELLANT: Your Honour, in relation to Appeal No 7134 of 1998, the original action taken by the appellant was filed for a statutory order or review. That was done purely as a result of the fact that the judgment - a misconceived judgment of 14 May was issued on the request of the second

respondent by the first respondent and that the first respondent did not reply - that service wasn't
effected for about 19 days thereafter.

There were two requests made by the appellant to the first respondent for information and the basis and the material on which that relied. It was not forthcoming and, as a result, the appellant, to protect his position, had no alternative but to file within 28 days on that matter or would have been in the same situation as he is here now and has incurred those costs in the matter which was the originating matter to 7134 of '98.

And, as Your Honour has indicated, even though the stay was granted in relation to 14 May, whether a nullity or not, no order for costs was given on that occasion in favour of the appellant who was successful in obtaining the order sought, and again, on 17 July the actual application was not heard because the mater was ruled to be a nullity.

All costs that the applicant suffered in that respect were as no result of anything he did or failed to do which brought that matter on.

AMBROSE J: Mr Heilbronn, you have failed in your two applications in Court today. Why should you not pay the costs of the other side attending to argue against you?

APPELLANT: Well, based on a matter of fairness in relation to the proceedings that preceded this that were being appealed. There was no order for costs in any of those respects yet successful orders were granted. The appellant has suffered those costs and is fairly poorly placed to suffer those costs and it is submitted that it would be unjust that he suffers any further costs in the matter.

In relation to 7722 of '98, that matter is on appeal. The appeal has been dismissed and Your
Honours have decided that there should not be an appeal to hear the matter of the fresh evidence.
As a result the original judgment prevails for the second respondent, and again, in the proceedings of
that matter Mr Justice Fryberg, on 5 January 1998, gave the order sought, albeit with a condition, to
the appellant and, in such case, did not award costs against either the first or second respondent
notwithstanding that the appellant had done
nothing - had nothing done or nothing failed to be done by the appellant brought about the need for
that matter to be reviewed and ultimately the order that was given by Mr Justice Fryberg as some

vindication of that position.

The appellant has, at all times, sought to have the matter re-heard in the Small Debts Court at no
real cost to any of the parties and have the matter determined fairly and according to law. That now
is not the case and it is suggested that the appellant has suffered financially throughout the whole

process.

AMBROSE J: The short point that I really asked you about five minutes ago was that you have lost
the applications that have been argued today. The respondents have succeeded and you have
failed. The ordinary rule is that a person who fails to pay the costs of the person who succeeds. Is
there any reason, apart from what you have already told us, any other reason why you should not
pay the costs of the applications you have lost?
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APPELLANT: No, Your Honour, other than to cite those instances I have given as similar fact.

McPHERSON JA: Yes. The order I would make is as follows. Order that the appellant Greig Ronald Heilbronn pay the costs to be taxed of and incidental to the application of the second respondent Robert A Meek to dismiss the appeals, and also the costs of and incidental to the appellant's applications for extension of time, such costs also to be taxed.

AMBROSE J: I agree.

CULLINANE J: I also agree.

McPHERSON JA: The order as to costs will be as I have stated it. The Crown has not asked for
costs in relation to its appearance in respect of the first respondent, that is the Magistrates Court,
and there is no occasion for making an order for costs against it. So there will be no costs in relation

to that appearance.

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