MQ v SC

Case [2019] ACTCA 29 20 September 2019

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	MQ v SC
Citation:	[2019] ACTCA 29
Hearing Dates:	6 June 2018 and 20 September 2019
DecisionDate:	20 September 2019
Before:	Loukas-Karlsson J
Decision:	The appeal is dismissed.
Catchwords:	APPEAL – PRACTICE AND PROCEDURE – application to dismiss appeal for want of prosecution – where appellant ordered to progress appeal but no further action taken – where there is an absence of satisfactory reasons for delay – appeal dismissed for want of prosecution
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 5191, 5603 Supreme Court Act 1933 (ACT) s 37J
Cases Cited:	Davis Samuel Pty Ltd v Commonwealth of Australia [2016] ACTCA 22 Greenwood v Irving [2018] ACTSC 310; 86 MVR 406 MQ v SC [2017] ACTSC 221
Parties:	MQ ( Appellant) SC ( Respondent)
Representation:	Counsel No appearance ( Appellant) Rachel Bird ( Respondent)
Solicitors No appearance ( Appellant) Rachel Bird & Co ( Respondent)
File Number:	ACTCA 41 of 2017
Decision under appeal:	Court: ACT Supreme Court Before: Elkaim J Date of Decision: 14 August 2017 Case Title: MQ v SC Citation: [2017] ACTSC 221 Court File Number: SCA 62 of 2014

LOUKAS-KARLSSON J:

Introduction

This matter was listed for directions on 20 September 2019 in light of orders made on the last occasion regarding the progress of the appeal. Specifically, Order 4, made on 6 June 2018, was as follows:

In the event that the appellant does not progress the appeal proceedings with appropriate effort, the matter will be referred to the Court of Appeal pursuant to rule 5603 of the Court Procedures Rules 2006 – Want of Prosecution of Appeal.

Other orders that were made on that date included a requirement that the respondent file and serve a Notice of Intention to Respond within 7 days and for the appellant to comply with a number of requirements under Practice Direction No 1 of 2016 (the Practice Direction).

On 14 June 2018, the respondent filed a Notice of Intention to Respond.

The appellant did not file any of the documents required by the 6 June 2018 orders, nor any other document or application since that date.

When this matter came before me on 20 September 2019 for directions, it had been 1 year, 3 months and 15 days since the above orders were made.

The directions listing was originally set down for 30 August 2019. On 27 August 2019, the Registry was copied in on an email from the appellant stating she had received legal advice but did not have legal representation and therefore requested an adjournment. On 28 August 2019, in order to allow time for the appellant to gain legal representation for the matter, an adjournment was granted until 20 September 2019.

Since the notification of the adjourned listing, the appellant has sent various emails both to the Registry and to my chambers, which include the following:

(a) a request that “the employment of the Court Magistrates, Judges, Judiciary Council, principal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MQ v SC

Details

AGLC: MQ v SC [2019] ACTCA 29
Case: [2019] ACTCA 29
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by a single judge, heard an appeal concerning the dismissal of an appeal for want of prosecution. The appellant, MQ, sought to appeal a decision of the ACT Supreme Court which had itself dismissed an earlier appeal from a Magistrate's decision. The respondent was SC.

The central legal issue before the Court was whether the appeal should be dismissed for want of prosecution, pursuant to rule 5603 of the Court Procedures Rules 2006 (ACT). This rule allows for the dismissal of an appeal if the appellant has not taken required steps within a specified period or has otherwise not prosecuted the appeal with appropriate effort. The Court was required to consider the principles governing the exercise of discretion in such matters, including the length of delay, the explanation for the delay, and any prejudice to the parties.

The Court applied the principles established in cases such as *Davis Samuel Pty Ltd v Commonwealth of Australia* and *Weston v Publishing and Broadcasting Ltd*, which emphasise that the power to dismiss for want of prosecution is a discretionary one to be exercised judicially. The Court noted that the appellant had failed to progress the appeal proceedings with appropriate effort following orders made on 6 June 2018, which required the appellant to comply with certain procedural steps and warned that failure to do so would lead to referral for want of prosecution. Despite being granted an adjournment to secure legal representation, the appellant continued to engage in correspondence that did not advance the appeal, including requests for the termination of judicial officers and dismissal of all prior orders. The Court found no satisfactory reasons for the prolonged delay and the lack of progress.

Consequently, the appeal was dismissed for want of prosecution.

Orders