LMS Energy Pty Ltd v Kinsella Summary

[2016] QCA 178

COURT OF APPEAL

MARGARET McMURDO P

Appeal No 2931 of 2016
SC No 5010 of 2013

LMS ENERGY PTY LTD Appellant
ACN 059 428 474

HELEN BARBARA KINSELLA First Respondents
PETER LOUIS KINSELLA

GOLD COAST CITY COUNCIL Second Respondent

ENERGEX LIMITED Third Respondent

BRISBANE

FRIDAY, 24 JUNE 2016

JUDGMENT

THE PRESIDENT: This matter is an application for leave to appeal, filed on the 18th of March 2016, from an order of a Supreme Court judge delivered on 19 February 2016. As it turns out, the application for leave to appeal is misconceived, in that an appeal lies of right from an order of a Supreme Court judge to this court, even an interlocutory order.

The matter has some history. On the 1st of April 2016 the appellant requested a stay of the preparation timetable in this matter, because the matter was proceeding to mediation. On the 13th of May the appellant requested a further stay, pending mediation, stating that the outcome would be known by the 17th of June. On the 23rd of May the deputy registrar advised the parties that the matter had been referred to the court and listed for mention today should the further directions of the deputy registrar not be complied with. On the 20th of June the appellant advised that the mediation appeared to have been successful, but requested the matter be stayed pending application to the court for the sanctioning of the settlement. The correspondence from the appellant did not outline any timeframe within which that was to happen.

At this hearing lawyers for the parties have indicated that there would be no utility in the appeal proceeding for about six months. The difficulty, of course, is that the originating document is inappropriate, and what is now needed is an application for an extension of time to appeal, bearing in mind that the proper originating document, a notice of appeal, was not filed within time. Of course, it seems obvious that the parties, having been notified of the applicant’s wish to exercise its appeal rights, have not suffered any prejudice from this. Nevertheless, it is the practice of the court not to grant extensions of time unless the proposed appeal has sufficient merits to warrant it.

The appropriate course, in all the circumstances, is to strike out the misconceived application for leave to appeal, and to reserve costs. That way, if the anticipated settlement does not proceed, and the applicant decides it does wish to exercise its appeal rights, it can file an extension of time for leave to appeal, and place the relevant facts before the court by way of affidavit. I, therefore, order that the application for leave to appeal is struck out. Costs are reserved. A transcript is required.

CaseChat Overview and Summary

LMS Energy Pty Ltd, an appellant, filed an application for leave to appeal against an order made by a Supreme Court judge on February 19, 2016. The respondents were Helen Barbara Kinsella, Peter Louis Kinsella, Gold Coast City Council, and Energex Limited. The appeal related to an interlocutory order, and the Court of Appeal determined that an appeal lies of right from such an order to this court. The case involved mediation proceedings and a request for a stay of the preparation timetable. The appellant had sought to stay the matter pending mediation, and later requested a further stay pending the outcome of the mediation. The mediation appeared to have been successful, and the appellant requested the matter be stayed pending application to the court for the sanctioning of the settlement.

The legal issues before the Court of Appeal involved the appropriateness of the originating document, which was a misconceived application for leave to appeal, and the necessity of an extension of time to appeal. The Court considered the practice of not granting extensions of time unless the proposed appeal has sufficient merits to warrant it. The Court also noted that the parties had not suffered any prejudice from the misconceived application for leave to appeal. The Court concluded that the appropriate course was to strike out the misconceived application for leave to appeal, and to reserve costs. The Court further ordered that a transcript was required.

The Court of Appeal struck out the misconceived application for leave to appeal and reserved costs. The Court considered that if the anticipated settlement did not proceed, and the appellant decided it did wish to exercise its appeal rights, it could file an extension of time for leave to appeal, and place the relevant facts before the Court by way of affidavit. The Court's decision highlights the importance of using the appropriate originating document when filing an appeal and the necessity of considering the merits of the appeal before granting an extension of time.

No final orders were made in this case as the appeal was struck out. However, the Court's decision provides guidance on the appropriate procedure for filing an appeal and the importance of using the correct originating document. The Court's decision also highlights the need for parties to consider the merits of an appeal before seeking an extension of time.

LMS Energy Pty Ltd v Kinsella

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established