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Hoefler v Tomlinson

Hoefler v Tomlinson

Case [1995] FCA 1105 9 November 1995

Appeal

Want of Prosecution

Limitation Periods

Admissibility of Evidence

Without Prejudice Communications

Civil Litigation & Procedure

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CATCHWORDS

APPEAL - want of prosecution - no step taken beyond filing notice of appeal - appeal dismissed

EVIDENCE - 'without prejudice' communications - privilege - letter marked 'without prejudice' containing settlement offer - relevance in proceedings where delay is an issue - what use could properly be made of the communication.

Federal Court Rules O 52 r 38
Evidence Act 1995 (Cth) ss 131, 133

Van Reesema v Giameos (1979) 27 ALR 525
Simaan General Contracting Co v Pilkington Glass Ltd [1987] 1 All ER 345
Walker v Wilsher (1889) 23 QBD 335

PETER HOEFLER v PETER JOHN TOMLINSON & ORS
No. QG 139 of 1995

SPENDER, SACKVILLE & KIEFEL JJ
BRISBANE
9 NOVEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) No. QG 139 of 1995
GENERAL DIVISION )

BETWEEN: PETER HOEFLER
Appellant

AND: PETER JOHN TOMLINSON
First Respondent

AND : JEAN TOMLINSON
Second Respondent

AND : ENZO SGAMBELLONE
Third Respondent

CORAM:    SPENDER, SACKVILLE & KIEFEL JJ
PLACE:    BRISBANE
DATE:     9 NOVEMBER 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

the appeal No QG139 of 1995 be dismissed;

the appellant pay the respondents' costs of the appeal, including any reserved costs, to be taxed if not agreed; and

(iii)the appellant pay the respondents' costs of this motion, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) No. QG 139 of 1995
GENERAL DIVISION )

BETWEEN: PETER HOEFLER
Appellant

AND: PETER JOHN TOMLINSON
First Respondent

AND : JEAN TOMLINSON
Second Respondent

AND : ENZO SGAMBELLONE
Third Respondent

CORAM:     SPENDER, SACKVILLE & KIEFEL JJ
PLACE:     BRISBANE
DATE:      9 NOVEMBER 1995

REASONS FOR JUDGMENT

SPENDER J: By a notice of motion filed on 10 October 1995, the respondents to an appeal by Peter Hoefler, namely, Peter John Tomlinson and Jean Tomlinson, seek that the appeal be dismissed for want of prosecution pursuant to O 52 r 38(1) of the Federal Court Rules. That rule provides that:

"Where an appellant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted his appeal with due diligence, the Court may -

(a)order that the appeal shall be dismissed for want of prosecution... "

Sub-rule 2 provides that:

"A respondent may move on notice for an order under sub-rule (1), and the Court, after notice to the appellant has been given by the Registrar, may make orders in accordance with sub-rule (1) of its own motion. "

In this particular case, apart from the filing of a notice of appeal, no further step has been taken by Mr Hoefler in the prosecution of his appeal. The chronology of events indicates that there has been no attempt to appear at the appointment to settle the appeal papers. Nothing has been done to prosecute the appeal further. In Van…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hoefler v Tomlinson

Details

AGLC: Hoefler v Tomlinson [1995] FCA 1105
Case: [1995] FCA 1105
Decision Date: 9 NOVEMBER 1995

CaseChat Overview and Summary

Hoefler v Tomlinson is a case concerning an appeal dismissed for want of prosecution. The appellant, Peter Hoefler, filed an appeal against the respondents Peter John Tomlinson, Jean Tomlinson, and Enzo Sgambellone. The appeal was dismissed by the Federal Court of Australia, Queensland District Registry, as no further steps were taken by Hoefler beyond filing a notice of appeal. The respondents filed a motion to dismiss the appeal for want of prosecution, citing O 52 r 38(1) of the Federal Court Rules, which allows the court to dismiss an appeal if the appellant has not prosecuted the appeal with due diligence.

The court was required to determine whether the appeal should be dismissed for want of prosecution and if so, what the appropriate orders should be. The court noted that no steps had been taken by Hoefler to prosecute the appeal beyond filing the notice of appeal, and there was no intention on his part to proceed with the appeal. The court also considered the admissibility of a "without prejudice" letter, which contained a settlement offer. The court found that the letter should not have been exhibited in the motion as it contained privileged information, and the use of such information in the proceedings was contrary to the Evidence Act.

The court found that the appeal should be dismissed for want of prosecution, as there had been no effort to prosecute the appeal. The court ordered that the appeal be dismissed and that Hoefler pay the respondents' costs of the appeal, including reserved costs, and the costs of the motion to dismiss the appeal, to be taxed if not agreed. The judges unanimously agreed on the outcome and orders of the case.

Orders