Quaresmini v Western Suburbs Taxi Depot Pty Ltd

[2000] QCA 119

[2000] QCA 119
COURT OF APPEAL

de JERSEY CJ
THOMAS JA
AMBROSE J

[QUARESMINI v WESTERN SUBURBS TAXI DEPOT PTY LTD]

Appeal No 388 of 2000

LAURENCE JOHN QUARESMINI                   Appellant   (Defendant)

and

WESTERN SUBURBS TAXI DEPOT PTY LTD          Respondent (Plaintiff)

BRISBANE

..DATE 06/04/2000

JUDGMENT

THE CHIEF JUSTICE:  The Court convened this morning to deal with an application by Western Suburbs Taxi Depot Pty Ltd to have the proceeding dismissed for want of prosecution.  The "proceeding", as I call it, is styled "an appeal" but in that character was incompetent.  It involves a challenge to a District Court Judge's discretionary ruling on an application for extension of time within which the other party, Mr Quaresmini, might appeal from a Magistrate's ruling. 

It was, therefore, on any view necessary for
Mr Quaresmini, in approaching this Court, first to seek leave to appeal.  I should note that on my analysis the learned District Court Judge appears to have dealt with the matter unexceptionally.

Mr Quaresmini is now, as I say, in the position not only of having to seek leave to appeal from the District Court Judge's decision, but an extension of time within which to do so because he is out of time.  That emerges from the circumstance that the document he has filed purports to launch an appeal as of right.

When Mr Griffin's attention was drawn to that,he was provoked to seek leave to amend the notice of appeal so that it might appropriately claim leave to appeal, with which would need to be associated an application for an extension of time within which that might be sought.

In seeking leave to amend the notice of appeal,
Mr Quaresmini faces considerable hurdles, delay, the apparently regular manner in which the learned District Court Judge dealt with the matter and, to my mind, his overall prospects are so unpromising on a number of fronts as to warrant this Court now effectively terminating the proceedings.

I would, on those discretionary grounds, refuse leave to amend the notice of appeal as sought by Mr Griffin and I would consequently dismiss the appeal as being incompetent with costs to the respondent, Western Suburbs Taxi Depot Pty Ltd to be assessed.

The application brought on behalf of Western Suburbs Taxi Depot Pty Ltd for the dismissal of the proceedings for want of prosecution was really misconceived and I would simply dismiss in consequence that application in addition.

THOMAS JA:  I agree.

AMBROSE J:  I agree.

THE CHIEF JUSTICE:  The orders are as I indicated.

MR GRIFFIN:  Your Honours, could I just clarify that matter.  On this morning's application your Honours have not granted costs; is that the position?

THE CHIEF JUSTICE:  Yes.  There is no grant of costs with relation to the application to dismiss for want of prosecution, however the intention is that Western Suburbs Taxi Depot Pty Ltd be entitled to its costs of this morning's proceeding with, I suppose, the saving that any costs strictly allocated to the dismissal for want of prosecution application would not be allowed to them, but I will observe, for my part anyway, if it is going to assist the taxing officer that most of this morning's proceeding has related to the question of the competence of the appeal and how it should be disposed of.

MR GRIFFIN:  Your Honour, might I be heard on that issue?

THOMAS JA:  Before you do, I want to clarify the actual orders that we are making.

THE CHIEF JUSTICE:  I would, for my part, add an order, that what has, on one view, been the character of this morning's proceeding, that is an application for an extension of time within which to seek leave to appeal from the District Court order, I would order that that application, which has effectively also been made before us by Mr Quaresmini, be refused.  Now, you wanted to say something?  I confirm that my colleagues agree with that additional order.

MR GRIFFIN:  Your Honour, we can't oppose the order that the applicant be granted its costs generally in relation to the proceedings, however we would submit that it is not appropriate for the applicant to have the costs of this application including the proceeding today, because we came here today on the applicant's application to strike the matter out for want of prosecution.

THE CHIEF JUSTICE:  That is so but then we uncovered the fact that the proceeding - your whole proceeding was incompetent and you were emboldened to take the only course you could which was to seek the requisite extension of time and leave to amend and that was the substance, surely, of what happened here.

MR GRIFFIN:  But that wasn't the application that the applicant made.

THOMAS JA:  As I understand it, Mr Griffin, we have made no order on the application to dismiss for want of prosecution so that there is no order for costs against you on that application.  You want to be sure that those costs are not included in the general costs of the appeal‑‑‑‑‑

MR GRIFFIN:  Yes, your Honour.

THOMAS JA:  And you'd ask us to perhaps declare or direct to that effect?

MR GRIFFIN:  That is the case, yes.

THE CHIEF JUSTICE:  Well, that is the case I confirm.

THOMAS JA:  Yes.

AMBROSE J:  Yes

MR FISHER:  I am sorry, your Honour, just for my clarification as well.

THE CHIEF JUSTICE:  The costs which are going to Western Suburbs Taxi Depot Pty Ltd - I am using the names of the parties because there is otherwise great capacity for confusion.  The costs that are going to that party are the consequence of the dismissal of the proceeding, the refusal of your application, Mr Griffin, for leave to amend the notice of appeal and, as I said just a moment ago, the refusal of an at least implicit application for an extension of time within which to seek leave to appeal.  They are the costs that Mr Quaresmini is being ordered to pay Western Suburbs Taxi Depot.

AMBROSE J:  And the costs of the appeal, I suppose, in so far as‑‑‑‑‑

THE CHIEF JUSTICE:  Yes, and the costs of the appeal.

THOMAS JA:  And those costs do not include the costs attributable to the application to dismiss for want of prosecution.

THE CHIEF JUSTICE:  That is so.  It is a matter now for the taxing master.

MR FISHER:  Yes, thank you, your Honours.

THE CHIEF JUSTICE:  I would think - I mean,. when we talk about the application to dismiss for want of prosecution, you have got your application and you have got some supporting affidavits.  It will be a matter for him or her to determine how that is pieced out.

MR FISHER:  So the original appeal - the appeal  that has been lodged is now dismissed.  Matters are settled in the Court of Appeal.  Costs of the appeal to Western Suburbs Taxi.  No further costs.

THOMAS JA:  Costs of the appeal not including any costs relating to your application to strike out.  You took the wrong point.

THE CHIEF JUSTICE:  All right, thank you.

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