Law Coast Mortgages P/L v Perdon P/L; Perdon P/L v Law Coast Mortgages P/L

[2001] QCA 232

[2001] QCA 232

COURT OF APPEAL

McMURDO P
THOMAS JA
ATKINSON J

CA No 305 of 2001

LAW COAST MORTGAGES PTY LTD
(ACN 065 050 473)  Plaintiff/Respondent

and

PERDON PTY LTD
(ACN 010 089 960)  Defendant/Applicant

CA No 3481 of 2000

PERDON PTY LTD  Plaintiff/Appellant

and

LAW COAST MORTGAGES PTY LTD  
KIM CHRISTIE, ALAN CHARLES PARRY,
IAN CHARLES GRIFFITHS,
CHRISTINE MATSINGER,
MALCOLM DONALD McCOLM              Defendants/Respondents

BRISBANE

..DATE 14/06/2001

JUDGMENT

THE PRESIDENT:  I will just set out something of the history of this matter.

An appeal was originally filed in 3481 of 2000 on 18 April 2000, almost 14 months ago.  Now, appeals are generally heard by the Court of Appeal within six months of filing.

The appellant failed to comply with a number of practice direction requirements and directions issued by the acting senior deputy registrar. The matter was listed for the hearing of an application for leave to appeal under section 118 of the District Court Act on 21 March this year before a Court comprising of the Senior Judge Administrator,
Justice Dutney and me, and at that time the application for leave to appeal which was connected to the appeal was adjourned to be heard with the appeal and directions were given then that the record book in appeal number 3481 of 2000 was to be filed by 12 May, if it had not been filed the matter was then to be listed at first available opportunity for the appellant to show cause why it should not be struck out.

The appellant failed again to comply with that direction.  The matter was listed before the Court of Appeal on 22 May, a Court comprising of Justice of Appeal Thomas, Justice Helman and me, and the further directions were given requiring the outline of argument and the record book to be filed, and non-compliance by the appellant was ordered to result in the matter being listed to show cause why the appeal should not be struck out for want of prosecution.

The appellant who was represented by one of the directors, Mr Rogers, was told in no uncertain terms that he was running out of opportunities and that non-compliance would be looked at strictly by the Court.  The appellant has failed to comply with the directions given on 22 May.

Mr Rogers was contacted and informed the matter would be listed for hearing today and the registry received a fax from Mr Rogers.

Have you got a copy of that fax, Mr Conrick?

MR CONRICK:  I don't, President.

THE PRESIDENT:  You don't.

The fax reads,

"Advised of hearing Thursday, I am in Victoria re family until 30 June, request opportunity to appear to

explain circumstances and intentions.

Conrick's stated intention to oppose leave for me to appear at all future hearings necessitates reality check re cost of continuing compensations.

In my statement of 4714 of '99 I can be immune to economic warfare."

It does not make a great deal of sense to me, but it might make more sense to you, Mr Conrick, but the essence of it is that he has not complied with the practice directions.  I understand there's been some verbal communication with the registry that he needs more time, but no formal communication - no written communications as to how much time or when the practice directions are likely to be complied with have been given.

...

THE PRESIDENT:  I have stated the background to this matter at the commencement of these proceedings.  That statement should be incorporated in these reasons.

The appellant/applicant has been given every opportunity to comply with the practice directions and has had significant extensions both from the registry and from the Court.

On the last occasion it was made very plain to Mr Rogers, who was appearing on behalf of the appellant/applicant, that non-compliance would result in the matter being struck out, or could result in the matter being struck out. 

He has given no explanation to the Court, or to the registry as to why he has not complied with those requirements.  In the circumstances the delay has been such that in my view the matter should be struck out for want of a prosecution.

THOMAS JA:  I agree.

ATKINSON J:  I agree.

THE PRESIDENT:  The order is appeal number 3481 of 2000 and application 305 of 2000 be struck out for want of prosecution.

...

THE PRESIDENT:  With costs to be assessed.

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