McElligott v McElligott

[2015] QCA 228

[2015] QCA 228

COURT OF APPEAL

MARGARET McMURDO P

Appeal No 9024 of 2014
DC No 52 of 2014

LORAIN RONDA McELLIGOTT  Appellant

v

ADRIAN EDWIN McELLIGOTT  Respondent

Appeal No 11519 of 2014
DC No 9888 of 2014

LORAIN RONDA McELLIGOTT  Appellant

v

ADRIAN EDWIN McELLIGOTT  Respondent

BRISBANE

FRIDAY, 13 NOVEMBER 2015

JUDGMENT

THE PRESIDENT:  On 24 September 2014, the appellant filed a notice of appeal against orders made in the District Court on 28 August 2014 at Maroochydore.  These orders dismissed the appellant’s application to the District Court judge which the appellant had filed on behalf of her two children in a further attempt to obtain a benefit from her late-mother’s estate for her children.  All her involvement in litigation in recent years seems to have stemmed from a decision of Justice Philip McMurdo on an application brought by the executor of her late-mother’s estate for construction of the will.  Justice Philip McMurdo declared that clause 6 of the will gave the appellant’s children a right to reside.  Although the appellant was not a party to the proceedings before Justice Philip McMurdo, she was heard and his decision dealt with the matters she raised.

The appellant lodged an appeal from Justice Philip McMurdo’s orders on 7 January 2014.  The matter came before Holmes JA, as her Honour the Chief Justice then was.  Holmes JA struck out the appeal on 24 March 2014 for a number of reasons, including that the appellant had no standing and that the appeal was out of time.  It is not entirely clear on the material before me today whether Holmes JA also dealt with the merits of the proposed appeal.

She then brought District Court proceedings on 14 January 2014 which were subsequently dismissed with costs on 17 January 2014.  She then brought Magistrates Court proceedings on 12 March 2014 seeking a domestic violence order against the second respondent personally.  Ultimately, that matter was also dismissed.  She then brought further District Court proceedings in the Maroochydore District Court on 20 March 2014 which were dismissed with costs on 28 August 2014.  Appeal number 9024 of 2014 is the appeal from those orders.  Her notice of appeal in that matter is some nine pages long, is discursive and includes allegations of fact.

On 4 November 2014, Chief Justice Carmody made a number of orders which included an order declaring the appellant a vexatious litigant and prohibiting her from instituting any proceedings in any Queensland court, (apart from the appeal in that proceeding) against either the estate of her late-mother or the second respondent acting in his capacity as executor of the will of her late-mother, without prior leave of a judge of the Supreme Court of Queensland.  His Honour also stayed appeal number 9024 of 2014.

On 1 December 2014, the appellant filed a notice of appeal from Carmody CJ’s orders, appeal number 11519 of 2014.  On 12 February 2015, the respondents filed an application to strike out appeal number 11519 of 2014, alternatively that security for costs be provided, and applied for a stay of appeal number 9024 of 2014.  On 20 February 2015 the respondents filed an application in appeal number 9024 of 2014 for an order that the notice of appeal be struck out.  All applications were listed for hearing on 11 March 2015.  The matter was heard by a Court consisting of Holmes, Gotterson and Philippides JJA.  The Court noted that it wasn’t appropriate at that point to determine either application to strike out the notice of appeal.  In respect of appeal number 9024 of 2014, the Court considered the application to strike out could not meaningfully be considered in the absence of the material that was before the District Court, in particular the judgment under appeal, and the fact that the appeal had been stayed did not, of itself, justify striking out the appeal in circumstances where the stayed order itself was subject to appeal.  Their Honours determined, however, that there were compelling reasons for making an order for security for costs in appeal number 11519 of 2014.  The Court adjourned both applications to a date to be fixed but ordered that the appellant provide security for costs in appeal number 11519 of 2014 on or before 8 April 2015 and ordered that costs of the application for security for costs be costs in the cause.  The Court noted that if the security for costs was not paid as ordered, the second respondent would be at liberty to relist their application in the vexatious litigant appeal (appeal number 11519 of 2014) for the purposes of having it struck out on that basis. 

The security for costs has not been paid.  Ms Downes, who appears for the respondents today, informed me that the reason they have not relisted the application for the purpose of having it struck out is that the registry told them this would involve a further filing fee; the estate has already spent a great deal on litigation costs arising from applications and appeals brought by the appellant.

The matter was listed today at the direction of the registry for further orders.  The appellant was informed that the matter was listed today.  She asked for an adjournment of the matter as she hoped that she might in the future be able to obtain a pro bono barrister to appear for her.  She has not provided the Court with details of who that pro bono barrister might be.  She emailed material to the registry in the early hours of this morning, some of which has been passed onto me.  At about 9.30 this morning, it seems she may also have emailed the registry but that material has not come to me.  It was, however, copied to the respondents’ solicitor and Ms Downes read that material into the Court record.  In essence, Ms McElligott was asking for an adjournment for these reasons.  She stated that it was very difficult for her to attend court today, because she had no childcare, had to look after her children, had had a car accident and her car was not functioning.  She did not explain, however, why she did not apply to appear by telephone.  Given the unsatisfactory history of this matter, it is not appropriate to grant the adjournment of today’s hearing.

The question for this Court is what to do with these appeals which are now very old indeed.  It seems to me that, on the material before me, including the material placed before me by the appellant, that her prospects of success in either appeal are not promising.  It is in the interests of justice that there now be some finality to this litigation, which has resulted in a disproportionate amount of the assets of the estate, a relatively modest one, being dissipated in legal costs.  The appellant has not paid the costs in the amount of the security ordered by this Court earlier this year in appeal number 11519 of 2014 and she has not demonstrated she has any prospects of doing so.  In those circumstances, it is in the interests of justice that appeal number 11519 of 2014 be struck out.

Once that appeal is struck out, the order of Carmody CJ staying appeal number 9024 of 2014 remains in force.  Having looked at the reasons of the primary judge in that matter and having considered the history of this saga which I have outlined, I am satisfied that the interests of justice are now best served by striking out that appeal, which in any case is stayed.  I also note that the appellant who, for much of the period of this litigation, has been an undischarged bankrupt, has now been discharged from bankruptcy. 

In light of the long history of this matter, it is entirely appropriate that the appellant pay the respondents’ costs in both appeals.  The orders, therefore, are: in appeal number 9024 of 2014, the appeal is struck out with costs; in appeal number 11519 of 2014, the appeal is struck out with costs.  A transcript is required of today’s hearing to be placed on the file.  Adjourn the Court.