Re R G Kilner and Black

[1996] QCA 570

[1996] QCA 570

COURT OF APPEAL

McPHERSON JA
DAVIES JA

AMBROSE J

Appeal No 626 of 1996
R G KILNER & BLACK (a firm) BILLS OF COSTS
and

THE COSTS ACT 1867 Sections 22,25,26 & 33

BRISBANE
..DATE 22/07/96
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McPHERSON JA: This is an application to extend time within
which to appeal against a judgment or an order made by a
Judge in Chambers in the Supreme Court on 7 December 1995.
Proceeding from that date, it is plain that the notice of
appeal which was filed on 19 January 1996 was some two weeks
out of time, given that the Rules allow 28 days within which
to lodge an appeal.

The question before us is whether there is anything to displace this provisional conclusion; or, if not, to justify the exercise of this Court's discretion to extend the time for appealing.

The judgment was given on 7 December 1995. It was given on an application by Mr Stubberfield, the present applicant, for an order for taxation of bills of costs delivered by his former solicitors. The procedure adopted by the parties at the hearing before the learned Judge was to pose certain agreed questions to which the Judge gave answers in her considered reasons.

Her Honour then made orders for taxation in respect of some of the challenged bills but not others. The formal order which emerged gave liberty to the parties to apply on three days notice. The applicant then took it upon himself to write a letter dated 12 December 1995 to the Judge's associate, asking if the associate would please raise with the Judge aspects of the orders made.

220796 D.1 T4-5/96 M/T COA164/96
I have some doubt whether an order in the form that was made
on 7 December 1995 was one in which liberty to apply was
appropriate. It was a final order which did not require
superintendence for the purpose of carrying it into effect.

However that may be, the matters raised in the applicant's letter of 12 December were not within the limits of the jurisdiction conferred by that common form of liberty to apply. They amounted in substance to an attempt by the applicant to re-argue various points in the reasons for judgment with which he was dissatisfied.

The order being final, her Honour had no jurisdiction to entertain an attempt to vary the orders she had made. She rightly, in my opinion, perceived this to be so; and, concluding that there was no basis for any further order or direction, rejected the attempt to make further submissions on a matter on which she had given judgment. So much was intimated to the applicant by further reasons provided by her Honour on 11 January 1996.

I do not think that the fact that the applicant might have been mistaken about the date from which the time for appealing would run could materially affect the Court's discretion to extend the time in a case like this. In any event, that has not been advanced as a reason for not appealing in time. The only reason offered for the delay is that the vacation intervened after the judgment was given.

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That reason is given only in the written notice of appeal
and is not sworn to by affidavit. Apart from that, under
Order 70 Rule 4(2), vacation times are to be reckoned in the
computation of the time for appealing.

The applicant is not a practitioner and one would not, in the ordinary course, expect him to be affected by the exigencies of Court vacations. He does not tell us in what respect he was prejudiced or disadvantaged by the advent of the vacation to which the notice of appeal refers.

In any event, on what we have heard today, I am not persuaded that her Honour may have made any appealable errors of law or fact. The matter is not one that presents any serious question of law or matter of importance calling for the intervention of this Court.

If it were, the present proceedings would probably not be a satisfactory medium for identifying and ruling on them. The amounts involved are relatively small and, as presented in written and oral submissions before us, the complaints are large in detail without really disclosing issues of substance.

For these and other reasons, I would refuse the application to extend time to appeal.

DAVIES JA: I agree.

AMBROSE J: I agree.
220796 D.1 T4-5/96 M/T COA164/96
McPHERSON JA: The order of the Court is that the
application to extend time for appealing is dismissed.
Costs, Mr Plater?
MR PLATER: I ask for costs, Your Honour.
McPHERSON JA: Yes. Can you resist an order for costs,
having regard to the order that's been made, Mr
Stubberfield?

APPLICANT: Only on the basis that if in effect there was a bona fide reason for believing that the appeal was incompetent, as you find, then it was the duty of the solicitor to make application to have it struck out at an early stage, not having encouraged the amount of expense that's already been spent on the compilation of the record,

et cetera, et cetera.
McPHERSON JA: Yes, thank you. I can see no substance in
that point. I would order that the applicant pay the
respondent's costs of and incidental to the application to

be taxed.

DAVIES JA: I agree.

AMBROSE J: I agree.

McPHERSON JA: That will be the order of the Court.

MR PLATER: Your Honour, it may be that a security has been paid and if so, I would ask for an order that the security be paid out to the respondents' solicitors.

McPHERSON JA: Yes. Very well. Insofar as it is necessary to do so, I would also order that any security paid into Court to answer the costs of this appeal be applied to the payment of the costs and paid out to the successful respondents.

220796 D.1 T4-5/96 M/T COA164/96

To the extent that any balance remains, it will be returned to the applicant.

DAVIES JA: I agree.

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