Quarmby v Oakley

Case •

[2013] TASFC 3

•

7 February 2013

[2013] TASFC 3

COURT:  SUPREME COURT OF TASMANIA (FULL COURT)

CITATION:                 Quarmby v Oakley [2013] TASFC 3

PARTIES:  QUARMBY, Alan
  v

OAKLEY, Barrie Graeme
  HARPER, Noel Geoffrey

FILE NO/S:  1122/2011

1123/2011

JUDGMENT

APPEALED FROM:  Quarmby v Oakley and Harper (No 2)  

unreported, 13 December 2011

DELIVERED ON:  7 February 2013
DELIVERED AT:  Hobart
HEARING DATE:  19 October 2012
JUDGMENT OF:  Crawford CJ, Porter and Wood JJ

CATCHWORDS:

Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Powers of court – Other matters – Power to dismiss appeal for want of prosecution – Failure by appellant to file and deliver appeal book – Whether error in exercise of discretion by single judge to dismiss appeals.

Supreme Court Rules 2000 (Tas), r669.
Aust Dig Appeal and New Trial [392]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondents:  T Williams
Solicitors:
             Appellant:  In person
             Respondents:  Gunson Williams

Judgment Number:  [2013] TASFC 3
Number of paragraphs:  56

Serial No 3/2013

File Nos 1122/2011

1123/2011

ALAN QUARMBY v BARRIE GRAEME OAKLEY
and NOEL GEOFFREY HARPER

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD CJ

PORTER J
WOOD J

7 February 2013

Orders of the Court

Appeals dismissed.

Serial No 3/2013

File Nos 1122/2011

1123/2011

ALAN QUARMBY v BARRIE GRAEME OAKLEY
and NOEL GEOFFREY HARPER

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD CJ

7 February 2013

  1. On 13 December 2011, Tennent J ordered that two appeals by the appellant, one against the first respondent and the other against the second respondent, be dismissed for want of prosecution.  The orders were made pursuant to the power in the Supreme Court Rules 2000, r669(2), to dismiss an appeal for want of prosecution for an appellant's failure to comply with the requirements of r669(1) to file and deliver an appeal book.

  1. From that order, the appellant appealed to this Court on a number of grounds.  There are two appeals, one from each order made in each of the appeals the subject of her Honour's consideration.  To understand these appeals, it is necessary to also understand a little of the history of the two actions that led to the first two appeals, and then the history of those two appeals leading to the order of dismissal. 

  1. At the trial of the actions from which the appeals were brought, the appellant was represented by counsel.  He has not been represented by a legal practitioner since then.  It is obvious that without competent legal representation he is in the situation he now finds himself to be in.

The actions

  1. The two actions were commenced by the appellant in 2002.  One was against Mr Oakley and the other against Mr Harper.  The three men were neighbours at Southport.  The appellant was in dispute with them concerning a thin strip of land between the appellant's land and Mr Oakley's land in part, and the appellant's land and Mr Harper's land in another part.  The trial judge, Evans J, found that for much of the relevant time, up until an order of the Recorder of Titles on 11 October 2004, to which I will refer in more detail in due course, none of them owned the strip of land.  It was still owned by a subdivider, Barrie Wallis, who had disposed of the surrounding land but, by mistake, the strip remained in his ownership. 

  1. On 17 January 2002 arguments occurred between the appellant and Mr Harper and the appellant, and Mr Oakley when they were on or about the strip of land and the adjoining lands they respectively owned.  In one action, the appellant sued Mr Harper for three assaults, the first two by bumping his shoulder into the appellant's shoulder, and the third by making a threatening gesture with a steel fence post driver.  In the other action, the appellant sued Mr Oakley for damages for one assault by bumping him with his belly.  As will be seen, a number of other claims were made by the appellant, and a number of counterclaims were made against him by both Mr Harper and Mr Oakley. 

  1. The actions were tried together by Evans J on 12 different dates in February and March 2011.  Their outcomes included the following:

1The appellant's claims against Mr Harper for the three assaults were dismissed because they were not proved.  It was found that Mr Harper pushed the appellant in the chest with his hands, but it amounted to no more than reasonable force to remove the appellant from Mr Harper's land, upon which the appellant was trespassing.

2The appellant also made claims, that included trespass, against Mr Harper, the success of which depended on him proving that he owned certain land.  It was found that at no time had he owned the land.  The claims were dismissed. 

3The appellant's claim against Mr Oakley for assault was dismissed.  It was found that Mr Oakley did belly bump the appellant, but lawfully in self-defence.

4A claim by the appellant that Mr Oakley trespassed onto his land was dismissed, because he did not own the land in question. 

5Claims by the appellant that Mr Oakley trespassed on other land of the appellant were dismissed, because he did not own that land. 

6A claim by the appellant against Mr Oakley for assaulting him on 24 March 2002 was dismissed as there was no evidence of it.

7A counterclaim by Mr Harper against the appellant for trespass onto Mr Harper's land on 17 January 2002 was found proved.  It was found to be the justification for Mr Harper pushing the appellant in the chest.

8Counterclaims by Mr Harper against the appellant for trespassing on the strip of land on 17 January 2002 and 8 December 2003 were dismissed because on those dates Mr Harper had no interest in the strip that entitled him to bring a claim for trespass against the appellant.

9A counterclaim by Mr Harper against the appellant that on 7 November 2004 the appellant trespassed on that part of the strip of land that was by then owned by Mr Harper was found proved.  On the applications of Mr Harper, Mr Oakley and others, the Recorder of Titles had made a final order under the Land Titles Act 1980, s142, on 11 October 2004, determining that through error the subdivider had omitted to dispose of the strip of land, correcting and rectifying the boundaries between the strip of land and Mr Harper's and Mr Oakley's lands respectively, and issuing new titles to their lands so that their titles included those respective parts of the strip that had adjoined their land in their previous titles.

10A counterclaim by Mr Harper against the appellant for trespassing on Mr Harper's section of that strip of land on 4 December 2004 was dismissed as unproved. 

11A counterclaim by Mr Harper against the appellant for trespassing on Mr Harper's section of that strip of land on 6 December 2004 was dismissed as unproved. 

12For the two trespasses referred to in items 7 and 9, it was ordered that the appellant pay to Mr Harper $400 damages in total.

13A counterclaim by Mr Oakley against the appellant for trespassing on that section of the strip of land that came to be owned by Mr Oakley by virtue of the order of the Recorder of Titles was dismissed because it was not proved that the appellant's entry onto that land was after Mr Oakley's title had been rectified to include that section.

14Another counterclaim by Mr Oakley against the appellant for trespassing on that section of the strip of land on 8 December 2003 was also dismissed because Mr Oakley was not the owner of that section at that time. 

15Both Mr Harper and Mr Oakley sought injunctions preventing the appellant from entering their sections of the strip of land.  Evans J found that they were entitled to injunctive relief. 

The first appeal

  1. The orders of Evans J were made on 3 May 2011.  On 24 May 2011, the last day for appealing under the Supreme Court Rules, r659, the appellant filed two notices of appeal. They were identical. They named the appellant as such, Mr Oakley as the first respondent and Mr Harper as the second respondent. As there had been two separate actions, one against Mr Oakley and the other against Mr Harper, the registry treated one of the notices as an appeal from the result of the action concerning Mr Oakley, giving it file number 367/2011, and the other notice as an appeal from the result of the action concerning Mr Harper, giving it file number 368/2011.[1]  In each notice the appellant sought to have "the decision of the learned Judge set aside" and "the matter be remitted for a new trial".  There were four identical grounds of appeal in each. 

    [1]     No point has been taken by the respondents that the notices of appeal named both of them as respondents in the same document.

  1. On 30 May 2011, the appellant lodged two more documents.  Each was entitled "AMENDED NOTICE OF APPEAL", one in respect of the appeal from the result of each action respectively.  One, that was filed on file number 367/2011, named the appellant as such and Mr Oakley as the sole respondent.  The other, which was filed on file number 368/2011, named the appellant as such and Mr Harper as the sole respondent.  Each of the documents sought the same outcomes as before.  However, the grounds of appeal differed in each, and they also differed from the grounds of appeal in the original notices of appeal filed on 24 May 2011.  In the Oakley appeal (367/2011) there were five grounds of appeal, none of which were identical to the original grounds of appeal although three had some similarities.  In the Harper appeal (368/2011) there were only three grounds of appeal, the first and third of which were similar to, but not identical with, the first and third grounds in the original notice of appeal, and the second ground was a completely new one.

  1. Under the Supreme Court Rules, the appellant had no right to rely on those amended documents. If he wished to amend a notice of appeal, including the grounds of appeal, he first needed an order of the Full Court under the power to amend in r672(3). For that reason, the so-called amended notices of appeal had no status.

  1. Under r665(2), the appellant was required, within seven days of the time limited for an appeal, in this case within seven days of 24 May, to deliver to the Principal Registrar a list of the documents he proposed should be included in the appeal book, which had to be prepared before the appeals could be set down for hearing.   

  1. Rule 665(3) prescribed the documents to be included in the list in the following terms:

"(3)   The list of documents is to consist of any of the following as are required for the appeal:

(a)    the notice of appeal;

(b)    the formal judgment appealed from;

(c)    the reasons for judgment, if given in writing;

(d)    any pleading;

(e)    any affidavit;

(f)     any notice of cross-appeal;

(g)    the transcript of the proceedings or, if there is no transcript, the judge's notes taken at the trial."

  1. On 6 June 2011, the appellant lodged a document he described as the "Appellant's List of Documents Rule 665".  The fact that it was lodged six days later than that the rules required is not an issue.  However, the fact that the list did not comply with r665(3) became a major issue.  In particular, it contained numerous documents falling outside the subrule, including many that were not tendered at the trial and others in respect of which, it was arguable, were not relevant to any of the grounds of appeal in the original notices of appeal. 

  1. Rule 666 provided for the settlement of the list of documents for the appeal book.  In accordance with subr(1), the then Deputy Registrar, Mr Walker, wrote to the parties advising them of an appointment to settle the list on 18 July 2011.  With his letter, Mr Walker provided to the parties a copy of the exhibit lists from the trial, and indicated it would assist if the appellant identified those exhibits he considered relevant.  He also raised an issue arising out of the appellant's proposed list of documents for the appeal book, pointing out that some of the documents in the appellant's list were not documents that were tendered at the trial.  He also observed that, while there appeared to be an amended notice of appeal on each file, there was no application to amend the original notice, nor any order granting leave to amend. 

  1. On 15 July 2011, Mr Walker wrote to the appellant in the following terms:

"It is difficult for me to say with certainty how long the appointment to settle the contents of the appeal book on Monday might take.

In part, that uncertainty arises from the issues you have raised about amending the grounds of appeal and the documents which you seek to include in the appeal book which I understand were not before the trial judge.  I am not aware of the attitude of Mr Williams [the respondents' solicitor] to either issue.

However, as things stand, I see the position as follows:-

1         I ought settle the contents of the appeal book on the basis of the grounds of appeal as unamended.

2         I ought settle the contents of the appeal book on the basis of the evidence before the trial judge.

I consider it is up to you to demonstrate, by reference to legal authority, why this is not the correct way to proceed.  You do not have an unfettered right to either amend or to rely on, before the Full Court, evidence which was not before the trial judge.  It seems to me that until orders on those issues have been made in your favour points 1 and 2 above apply."

  1. The appellant and the solicitor for the respondents, Mr Williams, attended Mr Walker for the appointment to settle the list on 18 July 2011.  It lasted for nearly an hour.  During it, the solicitor for the respondents drew to the appellant's attention the provisions of the Supreme Court Rules, r672(3), and the Supreme Court Civil Procedure Act 1932, s48. Rule 672(3) provides that a notice of appeal may be amended at any time as the Full Court thinks fit. Section 48(1) provides that on the hearing of any appeal the Full Court shall have power to receive further evidence upon questions of fact. Subsection (3) provides that upon appeals such as these, such further evidence (except as to matters which have occurred after the date of judgment) shall be admitted only by special leave of the Full Court, which shall only be granted in cases in which the evidence was not in the possession of the party seeking to have it admitted, and could not by proper diligence have been obtained by him before the termination of the trial, or there is some other special circumstance which, in the opinion of the Full Court, justifies the admission of it. No doubt those provisions were drawn to the appellant's attention because he had made no application to amend the original notices of appeal and he was seeking to have included in the appeal book evidence that was not presented at the trial.

  1. At the appointment, the appellant did not agree with the approach being taken by Mr Walker to the settling of the contents of the list.  On 22 July 2011, Mr Walker wrote again to the appellant.  He said:  "You will see from the email below that Mr Williams is of the view that at the appointment on 18 July I correctly identified the pleadings for inclusion in the appeal book for the two appeals.  Before I sign the list, I wish to give you the opportunity of either agreeing with Mr Williams or identifying the error he and I have made.  Please do this by Wednesday, 27 July 2011 at 5.00pm."

  1. Further correspondence followed.  Mr Walker was not prepared to include many documents the appellant wanted in the appeal book, such as documents upon which the appellant wished to rely as evidence which were not in evidence before the trial judge.  Concerning his failure to apply to amend the grounds of appeal, the appellant indicated that correctly processing any amendment might not be straightforward because he was yet to determine a ground of appeal relating to the determination made by the Recorder of Titles.  It is evident that the appellant was endeavouring to obtain evidence, not produced at the trial, in an attempt to demonstrate that the determination made by the Recorder of Titles was erroneous.  It is also evident that he wished to put off applying to make amendments to his notices of appeal until such time as he knew what further evidence he had obtained, and what amendments he wished to make. 

  1. The appellant not having made an application to amend his grounds of appeal, on 25 August 2011 Mr Walker signed the lists of documents for each appeal as he foreshadowed he would.  For the Oakley appeal, the list itemised the pleadings, particulars of loss, transcript of the evidence, all the exhibits tendered at the trial, the reasons for judgment, the judgment, a costs order, the notice of appeal and the certificate as to the contents of the appeal book that is required by r668(9).  For the Harper appeal, the list was similar. 

  1. Preparation of the appeal book in accordance with the settled lists became the responsibility of the appellant. The appeal book had to comply with r668. Under r669(1), the appellant was required to file an examined copy of the appeal book, together with three copies for the use of the judges of the Full Court, and to deliver a copy to the respondents, within 42 days after the settlement of the list of documents, in this case 42 days after 25 August 2011, which was 7 October 2011, the day after the 42nd day which happened to be a Sunday.[2]

    [2]     See Supreme Court Rules, r51.

  1. At no time did the appellant prepare and file the appeal book.  In a letter dated 7 September 2011, he advised Mr Walker that Mr Walker's task was not to dictate the substance or direction of the progress of the appeals, and he required the documents to be in accordance with his own list and not in accordance with the list prepared by Mr Walker.  He stated that he would complete the appeal book in accordance with the documents he wanted in it, and mentioned that "the Notice of Appeal/Amended Notice would be discarded in favour of a Further Amended Notice". 

  1. Mr Walker responded by letter dated 6 September 2011.  He suggested that the appellant give further consideration to the Supreme Court Rules, Pt27, and in particular rr666(5) and (6) and 669. Rule 666(5) provides that the Registrar is to direct that the appeal book contain any document or material that the Registrar, or the judge from whom the appeal is brought, thinks necessary for the hearing and determination of the appeal. Subrule (6) provides that the Registrar is to exclude from a list of documents for an appeal book the whole or part of any document or material not required for the purpose of hearing and determining the appeal. Rule 669(1) imposes the obligation on the appellant to file the appeal book and deliver a copy to each respondent, and subr(2) provides that if an appellant does not comply with that obligation, the Court or a judge on the application of a respondent, may order that the appeal be dismissed for want of prosecution. Mr Walker made it clear that he had "no further role to play".

The application to dismiss for want of prosecution

  1. The appellant not having complied with the rules concerning the filing of the appeal book,[3] on 14 October 2011 the respondents filed applications in each appeal to have them dismissed for want of prosecution.  The hearing of the application was allocated before a judge on 5 December 2011. 

    [3]     It is common ground that there is a need for only one appeal book to serve both appeals.

  1. On 23 November 2011, the appellant filed in each appeal an application that the respondents' applications be adjourned sine die and what was described as an application for directions.  It sought an order in the following terms:

"That pursuant to Rule 415 3(a)(b)(c)(d) and Rule 459, the Recorder of Titles Alice Kawa provide the Court with affidavits answering the following questions:

Qu 1: Did you the Recorder in your determination of the Application No C352556 under Section 142 of the Lands Titles Act deliberately and consciously intend that the alteration of the documentary title SP8341/ 10 should affect the parcel of land Lot 0 of SP8341?

Qu 2:  Was that determination backdated by you, the Recorder, to be effective before October 2004?"[4]

[4]     That was the order sought in the appeal against Mr Harper.  The order sought against Mr Oakley was almost identical, but the sealed plan number was 8341/9.

  1. The hearing of the applications proceeded on 5 December 2011 and the learned judge reserved her decision. It is unnecessary to relate much of the arguments advanced by the appellant and counsel for the respondents to her Honour, but I will mention some. The respondents sought to have the appeals dismissed for want of prosecution under r669(2) because the appellant had failed and refused to file and deliver an appeal book that accorded with the list settled by the Deputy Registrar under r666. The appellant maintained his argument that he was the person who would decide what should go in the appeal book for his appeals and not the Deputy Registrar. So far as he was concerned, the Deputy Registrar had erred and the appellant's attitude was that he could ignore the settlement of the list of documents by the Deputy Registrar. Patently, there was no merit in his arguments about those matters.

  1. Counsel for the respondents made the point that the appellant had sought to include documents as evidence in the appeal book which were not tendered at the trial.  The respondents had opposed that course upon the basis that the appeal book should contain only documents that were before the trial judge.  Counsel submitted that if fresh evidence was sought to be adduced, the grounds of the appeal would have to be amended first, and an application would have to be made to the Full Court, supported by affidavit, seeking leave to adduce the fresh evidence.  Counsel said that the Deputy Registrar had accepted those matters and declined to include in the list documents other than those normally required to be in an appeal book. 

  1. In the course of his submissions, the appellant conceded to the learned judge that he was not suggesting that the Full Court should hear the appeals without an appeal book.  He also conceded that on 31 May 2011, he had filed amended notices of appeal containing new or amended grounds of appeal, but he had not obtained the leave of the Full Court in that regard.  He stated that he had informed the Deputy Registrar that he could not settle the list of documents until the final form of the notice of appeal had been "done" by amendment.  He said that he had every intention to further amend the notices of appeal.  When the notices of appeal were in the final form he wanted them to be in, the list of documents could be settled, he said.  The form of the further amended notice of appeal would depend on what information he could obtain from the Recorder of Titles and it would also depend on other evidence he had been seeking.  He conceded that a lot of the new evidence upon which he would seek to rely was available at the trial of the action, but had not been put into evidence by his counsel.  He said that at the trial he had unsuccessfully challenged the correctness of the final order of the Recorder of Titles made on 11 October 2004, and that he wished on the hearing of the appeal to maintain that challenge with the assistance of evidence that was available at the trial but not tendered by his counsel and with the assistance of further evidence, once he had obtained it.  He said there was no point in amending the notice of appeal when there were further matters which would have to be put into a further amended notice of appeal. 

  1. In reply, counsel for the respondents submitted that the appellant "ought not, even with the best intentions in the world, bumble his way through the process while the respondents are left in a stressful state of limbo; they are entitled to have the litigation and the appeal conducted fairly, properly and in accordance with the rules".  Counsel submitted that the appellant's insistence that he had got it right and the Deputy Registrar had got it wrong, had caused prejudicial delay; the appellant had been on clear notice to prepare and file the appeal book and allow the appeals to come before the Full Court and "for these long suffering respondents to get some finality ... to this litigation"; but instead, the appellant had made a deliberate decision to pursue a strategy which involved not filing the appeal book, notwithstanding being put on notice concerning applications to dismiss the appeal for want of prosecution.

The judge's reasons for dismissing the appeal for want of prosecution

  1. On 13 December 2011, the learned judge ordered that the appeals were dismissed for reasons she published to the parties. The learned judge said that no application had been made by the appellant to amend his notices of appeal, and in those circumstances the Deputy Registrar had no alternative but to settle the contents of the appeal book on the basis of the original notices of appeal. That was plainly correct. The learned judge held that upon settling and signing the list of contents for the appeal book on 25 August 2011, the provisions of r669 were activated. The appellant then had an obligation to prepare an appeal book but he failed to do so within the timeframe provided by the rules. The relevant period had expired about two months earlier and it was clear from the approach the appellant took at the hearing of the application to dismiss, "that he has no intention of preparing a final appeal book until he achieves the outcome he wants as to its contents and as to the finalization of notices of appeal". The learned judge made the point that the preparation and lodgement of an appeal book would not in itself preclude the appellant from either applying at some later stage to amend his grounds of appeal or applying to the Full Court for leave to present further evidence to it.

  1. The learned judge concluded her reasons as follows:

"The respondents were successful at trial.  While the appellant has every right to mount an appeal against the decision of the learned trial judge, he has an obligation to abide by the Rules, insofar as they regulate the preparation for, and ultimate hearing of, an appeal.  He has not done so, and, over six months after the notices of appeal were filed, he is no nearer completing his articulation of the grounds of appeal he wishes to pursue or ensuring the appeals are otherwise readied for hearing.  While the Court is mindful that the appellant is unrepresented, and the Court needs to take care to ensure his rights are preserved, such care does not extend to permitting the appellant to disregard the requirements of the Court and continue to delay proceedings to try to achieve an end he wants to achieve, irrespective of whether it is an end which is achievable.

There is no reasonable prospect that the impasse which now exists will be resolved in the foreseeable future because of the position the appellant has taken.  It is an unreasonable impost on the respondents to expect them to have these appeals remain unresolved more or less indefinitely because of the appellant's behaviour.

In all the circumstances I am satisfied it is appropriate that the appeals filed by the appellant in these matters on 24 May 2011 be dismissed, and the order of the Court is that they are dismissed."

The grounds of the appeal to this Court

  1. I will deal with the grounds.  There are eight of them for each appeal.  They are identical and so the applications to dismiss each appeal can conveniently be dealt with together.

  1. Grounds 1 and 2 raise an argument that the learned judge was in error in concluding that the operation of r669 was "triggered" on 25 August 2011 by the Deputy Registrar settling a list of documents for the appeal book. The grounds are in the following terms:

"1that Her Honour erred in fact and law in finding in effect that the Appeal Book Settlement List made by the Deputy Registrar on 25th August 2011 was a trigger for Rule 669 in that the Deputy Registrar had wrongfully omitted certain documents being pleadings which were required by Rule 665 to be included in that List.

2that Her Honour erred in fact and law in finding in effect that the Appeal Book Settlement List made by the Deputy Registrar on 25th August 2011 was a trigger for Rule 669 in that the Deputy Registrar had wrongfully omitted certain documents required for consideration by the Full Court pursuant to Section 48 of the Supreme Court Civil Procedures (sic) Act."

  1. There is no merit in either ground.  The responsibility under the Supreme Court Rules for the settlement of a list of documents for the appeal books rested with the delegate of the Principal Registrar, in this case the Deputy Registrar. Upon the settlement of the list on 25 August 2011, the provisions of r669(1) commenced to operate, and the appellant had 42 days in which to file the necessary copies of the appeal book and deliver a copy to each respondent. The provisions of r669 commenced to operate even if the Deputy Registrar had erroneously omitted documents from the list.

  1. In any event, the appellant has not demonstrated that any document was erroneously omitted.  By ground 1 he asserts that pleadings were omitted from it.  They were not.  They were included as items 1 to 3 in the list for the Oakley appeal, and items 1 to 4 for the Harper appeal.  The ground fails.  By ground 2, he asserts that the Deputy Registrar erroneously omitted documents the appellant required for consideration by the Full Court pursuant to the power of that Court to receive further evidence under the Supreme Court Civil Procedure Act 1932, s48. The Deputy Registrar had no obligation to include whatever documents the appellant demanded in the appeal book. The appellant submitted that no discretion was reposed in the Deputy Registrar to exclude whatever documents the appellant required. That submission is contrary to the rules.

  1. The appellant had no right to have included in the appeal book documents that were relevant to grounds of appeal he had not formulated, or in respect of which he had made no application for leave to amend.  Nor did he have any right to have included in the appeal book evidence that was not presented at the trial.  Ground 2 fails.

  1. It is worth noting that notwithstanding what may have been included in the appeal book in accordance with the settled list, the appellant would not have been prevented from applying under r672(3) to amend the grounds of appeal at or before the hearing of the appeals and from applying pursuant to s48(1) to have the Full Court receive further evidence.

  1. I also mention that at the hearing of the appeals to this Court, the appellant continued to maintain that the list of the contents of the appeal book could not be settled until he had finished collecting further evidence, he had filed affidavits containing further evidence, and he had decided what further grounds of appeal he wanted.  He was obdurate against the operation of the rules so long as he considered they should not apply to his case. 

  1. It is also to be noted that he could have applied to the Court or a judge under r38 for directions as to what should be included in the list of documents, but did not do so.

  1. Grounds 3 and 4 of the appeal are as follows:

"3that the Order was prejudicial to the Appellant's right to have Appeal 367/2011 heard under Section 40(3) of the Act, whether or not the Rules of court had or had not been complied with.

4that the Order was prejudicial to the facility afforded to the Appellant in 367/2011 under rule 670 to have the Appeal 367/2011 set down for Hearing, whether or not the time limit of Rule 669 had been complied with."

  1. It is correct that the order dismissing the appeal for want of prosecution has prejudiced the appellant.  It is inevitable that the dismissal of a proceeding for want of prosecution will have such an effect.  The learned judge acknowledged that when she referred to the right of the appellant to mount an appeal against the decision of the trial judge but pointed out that the appellant had an obligation to abide by the rules.  The grounds fail.

  1. Ground 5 is in the following terms:

"5that the Order was prejudicial to the Application for leave to amend Notice of Appeal in 367/2011 currently before this Court made out on 7th December 2011 and lodged by post on 12th December 2011."

  1. I mentioned earlier that the hearing of the applications to dismiss the appeals for want of prosecution was conducted on 5 December 2011 and the learned judge reserved her decision.  On 13 December 2011 she ordered that the appeals be dismissed for want of prosecution, publishing her reasons for doing so to the parties.  At the outset of the hearing on 13 December, the learned judge mentioned that she had become aware shortly before that the appellant had filed an interlocutory application.  It had been received in the Registry the previous day.  Its terms were:  "The Appellant begs leave to amend the Notice of Appeal in this matter, which Notice was lodged on 24th May 2011, to validate the Amended Notice of Appeal lodged 30th May 2011, which was made without such leave."  Counsel for the respondents knew nothing of the application.  The learned judge asked the appellant whether there was anything he wished to say to her in relation to the question whether, irrespective of the application, she should hand down her decision concerning the applications to dismiss the appeals for want of prosecution.  The appellant did not oppose that course, saying that he would "leave it to your Honour to decide ... I can't make any submission because I just don't know".  The learned judge then decided that she should publish her decision in relation to the application she had heard.

  1. The ground must fail.  The appellant did not oppose the course the learned judge followed.   Having had the opportunity to argue against it, he should not be permitted to do so on appeal. 

  1. Ground 6 is in the following terms:

"6that the restriction imposed by the Settlement List made out by the Deputy Registrar on 25th August 2011 prejudiced the right of the Appellant under 367/2011 to have the Full Court consider any point of fact under Section 47(2) of the Act."

  1. There is no merit in the ground.  The omission from the appeal book of the documents the appellant maintains should have been included in it would not have prejudiced the hearing by the Full Court of his appeals. 

  1. Ground 7 is in the following terms:

"7that the dismissal is contrary to natural justice in that the delay in completing the Appeal Book is not caused by deliberate neglect or other fault of the Appellant under 367/2011 and which delay could have been accommodated by a grant of extension of time."

  1. There is no merit in the ground.  There was no denial of natural justice to the appellant.  He was afforded ample opportunity to comply with the rules and to advance his arguments.  He made no application for an extension of time.  The ground fails.

  1. The eighth ground of appeal is in the following terms:

"8that the grounds 2 and 3 of the Amended Notice of Appeal in 367/2011 are of considerable public interest as points of law."

  1. The ground refers to grounds 2 and 3 in his proposed amended notice of appeal that was lodged with the Court on 30 May 2011 without the leave of the Full Court being obtained for the amended grounds.  As expressed, they were as follows:

"2Erred in fact and law in finding that the Contract for Sale from W W & I C Hay to the Appellant in February 1981 was not effective to pass their interest therein under General Law in a certain parcel of land, being part of the curtilage of No 2 Wilsons Road, Southport, to the Appellant.

3Failed to consider the correctness at law of the determination made by the Recorder of Titles dated 11th October 2004 as to the title and ownership of the Appellant."

  1. Neither ground would raise a point of law of considerable interest to the public.  The eighth ground fails.

  1. The final ground of appeal was added by the leave of this Court at the outset of the hearing of the appeal.  It is in the following terms:

"That Her Honour erred in law in finding that Division 1 of part 14 of the Court Rules did not apply to the proceedings."

  1. In par[23] I referred to the application filed by the appellant on 23 November 2011 in which he sought orders under rr415 and 459 that the Recorder of Titles provide affidavits to the Court answering certain questions.  Rule 415 is contained in Pt14, Div1, of the Supreme Court Rules and concerns the power of a judge to give directions as part of case management of an action before it is tried.  Rule 459 concerns the giving of evidence by affidavit on the trial of an action. 

  1. The learned judge made the point in her reasons for judgment that the two rules deal with matters arising before an action is heard, and that as the application of the appellant was made after the hearing and determination of the actions, they did not apply.

  1. The learned judge was correct.  There is no merit in the ground and it fails.

Conclusion

  1. I have dealt with all of the grounds of the appeal to this Court.  For the reasons I have given, they fail.  As a result, the appeals must be dismissed.  It should be ordered accordingly.

    File Nos 1122/2011

    1123/2011

ALAN QUARMBY v BARRIE GRAEME OAKLEY
and NOEL GEOFFREY HARPER

REASONS FOR JUDGMENT  FULL COURT

PORTER J
7 February 2013

  1. I agree with the reasons for judgment of Crawford CJ.  The appeals should be dismissed.

    File Nos 1122/2011

    1123/2011

ALAN QUARMBY v BARRIE GRAEME OAKLEY
and NOEL GEOFFREY HARPER

REASONS FOR JUDGMENT  FULL COURT
  WOOD J
  7 February 2013

  1. I agree that for the reasons given by Crawford CJ the appeals should be dismissed.


Key Legal Topics

Areas of Law

  • Civil Procedure

Legal Concepts

  • Appeal

  • Costs

  • Jurisdiction

  • Procedural Fairness

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