Mantonella Pty Ltd v Thompson

[2008] QDC 35

[2008] QDC 35

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

Appeal No 288 of 2007

MANTONELLA PTY LTD	Appellant
and
MYLES THOMPSON	Respondent

CAIRNS

..DATE 03/03/2008

JUDGMENT

HIS HONOUR:  This appeal has been brought on for mention by the respondent, indeed my understanding is that the hope was to have it argued this morning.  That is not possible; the appellant is not here.  Further, the appellant has not filed the outline of argument which, under the Practice Direction, was probably required some time in November 2007, the appeal having been commenced on the 16th of October 2007.

The respondent is unable to properly prepare for the appeal which follows a lengthy hearing in the Magistrates Court that generated hundreds of pages of transcript.  In the absence of the outline of argument which the Practice Direction calls for, the respondent is justified in saying he does not know what the appeal is about and that is indeed corroborated by what Mr Delaney, a solicitor recently brought into the matter to represent the appellant, has said in the course of his participation by telephone here this morning.  He requires consultation with Mr Alan Jorgensen who, for practical purposes, is the appellant, the Court understands, before he can confidently formally file and serve the draft outline of argument he says he has got.  Mr Jorgensen, who I am sure knows about today, is said to be in China attending to important business matters, but returning at 10 a.m. tomorrow.  Mr Delaney has volunteered that the outline of argument should be ready shortly after that consultation and the hearing got to‑‑‑‑‑

MR DELANEY:  Your Honour, I can't hear you.

HIS HONOUR:  Sorry.  Well - I'm sorry.  I'll try to get closer to the microphone.

I have observed, Mr Delaney, that you said the outline of argument is expected to be ready for formal distribution after the consultation happens with Mr Jorgensen tomorrow.  In those circumstances, relying on rule 775 which applies in this appeal by reason of rule 785, the Court will order that the appeal be struck out with costs to be assessed, if not agreed, for want of prosecution as from the start of business on Thursday, the 6th of March 2008, unless the appellant has filed and served his outline of argument by then, electronic means of service being permitted.

I adjourn the appeal for mention at 9.30 a.m. on the 7th of March 2008.  I grant liberty to the parties to apply.  The appellant must pay the respondent's costs of today, to be assessed, if not agreed.

There are other matters Mr Sumner-Potts wanted covered, including some application of the substantial amount of security for costs of the appeal which has been provided so that that security would cover the costs of the Magistrates Court trial.  It seems to me those are matters that cannot conveniently be argued today.  Mr Delaney would certainly need instructions about them.

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