Merrin v Cairns Port Authority

COURT OF APPEAL

McMURDO P

Appeal No 4851 of 2006

ANNETTE ELIZABETH MERRIN	Appellant/Plaintiff
and
THOMAS WILLIAM MERRIN	Appellant/Plaintiff

and

CAIRNS PORT AUTHORITY Respondent/Defendant

and

GUTTERIDGE HASKINS & DAVEY PTY LTD Not a party to the
Appeal/Third Party

and

MARPRO (AUST) PTY LTD Not a party to the
Appeal/Third Party

and

PAUL MATTHEWS Not a party to the
Appeal/Third Party

and

PACIFIC MARINA DEVELOPMENTS PTY LTD Not a party to the
Appeal/Third Party

and

SINCLAIR KNIGHT MERZ PTY LTD Not a party to the
Appeal/Third Party

and

STATE OF QUEENSLAND Not a party to the
Appeal/Third Party

and

THOR EARTHMOVERS PTY LTD Not a party to the
Appeal/Third Party

BRISBANE

..DATE 10/11/2006

ORDER

No Appearance for or on behalf of Appellant

MR M P AMERENA (instructed by MacDonnells) for the respondent

THE PRESIDENT: This appeal arises from a decision in the Cairns District Court and an order there of 16 May 2006. The notice of appeal was filed on 13 June 2006. The grounds of appeal primarily allege bias on the part of the trial judge.

The Deputy Registrar (Appeals) in accordance with the usual practice and this Court's practice directions prepared a timetable applicable to both parties for the preparation of the appeal for hearing. The appellants were directed to file and serve their outline by 4 July 2006 by a letter from the Deputy Registrar to the appellants of 13 June 2006. That time was extended to 22 September 2006. Then a further direction was given when that was not complied with that the appellants provide their outline of argument and draft index by 11 October 2006 and the appellants were informed that if that was not done the appeal would be mentioned before me for directions.

The appellants failed to comply with any of the Deputy Registrar's directions and the matter was listed before me for further directions on 13 October 2006. At that time the appellants did not appear although they had been informed of the mention before me.

I made a number of orders including an order that the appellants' outline of argument be filed and served by 31 October 2006. At that time I also ordered that if the orders I made were not complied with the Deputy Registrar was to again mention the matter before me. The Deputy Registrar wrote to the appellants on 1 November 2006 informing them that they had not complied with the order of the Court and telling them the matter would be listed at 9.30 a.m. this morning and that they are required to appear.

They have not appeared again and they have consistently failed to comply with the directions of the Court and the directions of the Registrar in the progression of this appeal. It can only be assumed from their conduct that they do not wish to prosecute this appeal in a timely fashion, if at all. In the circumstances they have had every opportunity to explain any good reason they might have for their tardiness in the progression of this matter but they have not.

I am satisfied that this appeal should be dismissed for want of prosecution.

I order accordingly that this appeal is dismissed for want of prosecution with costs of and incidental to the appeal.

‑‑‑‑‑

The appeal before the Court of Appeal was brought by Annette Elizabeth Merrin and Thomas William Merrin against the Cairns Port Authority. The matter originated from a decision made by the Cairns District Court, and the appellants were challenging that decision. The primary grounds for the appeal were allegations of bias on the part of the trial judge in the original court. The respondent was represented by Mr. M. P. Amerena, instructed by MacDonnells, while the appellants did not appear or provide representation.

The Court of Appeal had to determine whether the appellants had valid grounds for alleging bias on the part of the trial judge, which could potentially invalidate the original court's decision. Additionally, the court had to consider the appellants' failure to comply with the procedural requirements and deadlines set forth by both the Court and the Deputy Registrar. The appellants' persistent non-compliance with court orders and directions raised questions about their commitment to prosecuting the appeal.

The Court of Appeal concluded that the appellants had not demonstrated any valid reason for their failure to comply with the procedural requirements and deadlines. The court noted that the appellants had consistently neglected to file the necessary documents and had failed to appear at the scheduled hearings despite multiple opportunities to do so. Given the appellants' conduct, the Court was satisfied that the appeal should be dismissed for want of prosecution. The court found that the appellants' lack of engagement in the proceedings indicated that they did not wish to continue with the appeal. As a result, the appeal was dismissed, and the appellants were ordered to pay the costs associated with the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established