Ketchell v Wynch Summary

[2002] QCA 86

COURT OF APPEAL

McMURDO P
MUIR J
PHILIPPIDES J

Appeal No 11624 of 2001

GLENN ROBERT KETCHELL Applicant (Appellant)

and

GARY EDWARD DONALD WYNCH Respondent (Respondent)

and

OFFICIAL TRUSTEE IN BANKRUPTCY Respondent (Respondent)

BRISBANE

..DATE 18/03/2002

ORDER

THE PRESIDENT: The applicant who is represented by counsel today, Mr Robert Butler, has requested an adjournment of this application for leave to appeal and has in a letter to the Registrar of 14 March 2002 foreshadowed that he will seek to file a new ground of appeal.

The Magistrates Court ordered the applicant to forfeit goods, namely a Scania truck and a refrigerator trailer, under the Excise Act 1901 Commonwealth, and that pursuant to section 9(2)(a) Crimes Act 1914 Commonwealth those articles be condemned.

After an aborted attempt to appeal from that decision to the Court of Appeal, the applicant appealed to the District Court at Townsville. The appeal was unsuccessful and was dismissed with an order that each party bear their own costs.

The applicant requires leave to appeal under section 118(3) District Courts Act 1967.

Mr Butler has today produced a medical certificate from
Dr David Raine, a general practitioner in Caloundra, dated 14 March 2002 which states that Mr Butler's health is such that he will be unable to work efficiently for some months, and he has strongly advised him to cease work immediately. Until he responds to treatment he should abstain from work. He expects a full recovery but the time interval is indeterminable at this stage.

The application for leave to appeal has not been prepared because of Mr Butler's illness. The application is not in a proper state to proceed today. In the circumstances an adjournment must be granted today.

The applicant must understand, however, that if Mr Butler is not well enough to prepare and argue the application when it is next listed for hearing, then the application will proceed at that time, regardless of whether the applicant has legal representation. The adjournment is not an open- ended one. The matter must be relisted in a timely fashion.
In the circumstances I would order that this application be adjourned to a date to be fixed by the Registry. The parties are to follow the directions for the progression of this appeal given by the Acting Deputy Registrar Appeals, and the costs of today's hearing are reserved.

MUIR J: I agree.

PHILIPPIDES J: I agree.

THE PRESIDENT: Those are the orders of the Court.

‑‑‑‑‑

CaseChat Overview and Summary

Glenn Robert Ketchell, the applicant, appealed against a Magistrates Court decision ordering him to forfeit certain goods under the Excise Act 1901 and for the goods to be condemned under the Crimes Act 1914. The respondent to the appeal was Gary Edward Donald Wynch, and the Official Trustee in Bankruptcy was also involved. The appeal was initially dismissed by the District Court, and the applicant sought leave to appeal to the Court of Appeal. The application for leave was adjourned due to the illness of the applicant's counsel, Mr. Robert Butler.

The legal issues before the Court of Appeal included whether the applicant should be granted leave to appeal, given the unavailability of his counsel due to illness. Another issue was the proper procedure for handling the adjournment of the application and the implications for the applicant's right to be represented by counsel. The Court had to determine whether the adjournment should be open-ended or set for a specific future date.

The Court of Appeal, consisting of McMurdo P, Muir J, and Philippides J, decided to grant an adjournment for the application for leave to appeal. The adjournment was necessary because Mr. Butler, the applicant's counsel, was unable to work due to health issues, as confirmed by a medical certificate. The Court emphasized that the adjournment was not indefinite and instructed that the matter should be relisted in a timely fashion. The Court also directed that the parties follow the procedural guidelines provided by the Acting Deputy Registrar Appeals and reserved the costs of the hearing. All judges agreed on the orders of the Court.

Ketchell v Wynch

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established