McDowall v Reynolds

[2004] QCA 245

SUPREME COURT OF QUEENSLAND

CITATION:

 McDowall v Reynolds [2004] QCA 245

PARTIES:

ALBERT THOMAS McDOWALL
(applicant)
v
JOHN KEITH REYNOLDS

(respondent)

FILE NO/S:

Appeal No 3179 of 2004

MRAA 10 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for extension of time

ORIGINATING COURT:

Land and Resources Tribunal

DELIVERED ON:

23 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2004

JUDGES:

Davies JA, McPherson JA and Mullins J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application dismissed;

2.   Applicant to pay respondent’s costs of and incidental to the application. 

CATCHWORDS:

APPEALS – EXTENSION OF TIME – where applicant appealed to wrong body – extension of time applied for three months late – unexplained delay of six weeks after being told of mistake – whether extension of time should be given

REAL PROPERTY – EASEMENTS – where applicant’s right of way under mining lease over respondent’s property was obstructed by respondent digging a ditch – whether cause of action is trespass or nuisance – whether there is any evidence of quantum of damage

PROCEDURE – COSTS – whether if nominal damages were awarded to applicant that would be a basis to make costs order in applicant’s favour

Land and Resources Tribunal Act 1999 (Qld), s 50

Beaumont v Greathead (1846) 2 CB 494, cited
Holford v Bailey (1850) 13 QB 426; 116 ER 1325, cited
Moreland Timber Co v Reid [1946] VLR 237 applied

Paine & Co v St Neots Gas & Coke Co [1939] 3 All ER 812 applied

COUNSEL:

C J Ryall for the applicant

R M Treston for the respondent

SOLICITORS:

Bottoms English (Cairns) for the applicant

Murray Lyons (Cairns) for the respondent

1. DAVIES JA:  I agree with the reasons for judgment of McPherson JA and with the orders he proposes.

1. McPHERSON JA: This is an application for an order extending the time within which to file a notice of appeal from the decision of a Deputy President of the Land and Resources Tribunal given on 5 December 2003. Rule 748 of the UCPR provides for the notice of appeal to be filed within 28 days, which was not done in this case. In fact, it was not until 8 April 2004 that the application to extend time was filed and not until June that it was served on the respondent.

1. In the past the Court has not been unduly strict about extending time limits for appealing especially when the respondent suggests nothing in the way of prejudice arising from delay of a few days. Here, however, the delay since the decision has been not inconsiderable and no explanation for it is provided for the period from 23 February 2004. In these circumstances it is appropriate to examine the issues likely to arise on the appeal and to make some sort of assessment of the prospects of success of the appeal if it is allowed to proceed.

1. The defendant Reynolds, who…