Sharples v O'Shea & Hanson

[2002] QCA 200

[2002] QCA 200 

COURT OF APPEAL

McMURDO P

No 3836 of 2001

TERRY PATRICK SHARPLES              Appellant (Plaintiff)

and 

DESMOND J O'SHEA       First Respondent (First Defendant)

and

PAULINE LEE HANSON   Second Respondent (Second Respondent)

BRISBANE

..DATE 06/06/2002

ORDER

1

06062002  T03/IK29 M/T COA130/2002 

THE PRESIDENT:  This appeal is from the order of Justice

Atkinson made on the 2nd of April 2001 when her Honour

refused the appellant's application for leave to appeal

against her costs order made on 12 November 1999. 

The appellant had previously sought to appeal from that

order on the 12th of November but because he failed to seek

leave of the primary Judge under Section 253 of the Supreme

Court Act 1995, that appeal was struck out as incompetent by

me. (See Sharples v. O'Shea & Anor [2000] QCA 481, CA No

306 of 2000 delivered 23 November 2000.)  The appellant then

applied to Justice Atkinson seeking leave to appeal the

costs order.  Her Honour refused to give leave and this

appeal is an appeal against her Honour's decision refusing

leave.  

The appeal was filed on the 30th of April 2001.  On the 19th

of November 2001 the appellant was declared a bankrupt.

The respondent applies today to have the appeal dismissed on

the grounds that, because the appellant is a bankrupt, he

has no standing to bring such an appeal.  Alternatively, the

appellant has an application for security for costs of the

appeal under Rule 772 of the UCPR.

The appellant's right to bring the present appeal is a

personal, not a property right, and accordingly the right to

appeal does not automatically vest in the trustee in

bankruptcy under s 116 Bankruptcy Act 1966 (Cth).

2  ORDER

06062002  T03/IK29 M/T COA130/2002 

Nevertheless, the appeal commenced by the appellant as a

bankrupt is stayed until the trustee makes an election to

prosecute or discontinue the appeal.  (See s 62 Bankruptcy

Act 1966 (Cth).)

Here the trustee has elected not to continue with the

appeal, writing to the Registrar in the following terms:

"My examination of the material does not disclose any
      benefit to creditors which can be obtained from
      continuing with the matter."

The appellant has not demonstrated any right to bring the

appeal in his own right.  The result is the appellant has no

standing to bring the present appeal and the appeal should

be struck out. 

Before I make that order I should deal with some other

matters raised orally by the respondent today.

First, he challenges my jurisdiction on the same basis

which he has previously challenged the jurisdiction of me

and a number of other Judges of this Court.  That argument

has been determined against him by the Court of Appeal and

it is unnecessary, therefore, for me to consider it 

further.

Second, he claims I have no authority to strike out an

appeal as a single Judge of Appeal and that this is reserved

for the Court of Appeal.  I do have the authority to make

such an order under UCPR Rule 767(a) and s 43(1)(b) Supreme

3                  ORDER

06062002  T03/IK29 M/T COA130/2002

Court of Queensland Act 1991 (Qld) in circumstances where

the appeal is incompetent because the appellant has been

declared a bankrupt, at least in the circumstances of this

case.

His final argument is that s 253 Supreme Court Act 1995

(Qld) offends s 73 of the Constitution. Although that

argument has not been developed in any detail before me, I

can see no substance in that contention in the circumstances

of this case.  

In my view, the application to dismiss the appeal on the

grounds that the appellant has no standing to bring it

should be granted.  I order the appeal is dismissed and that

the appellant pay the costs of the first respondent of this

application‑‑‑‑‑

MR KELLY:  Your Honour, may I make a submission before you
  make that costs order?

THE PRESIDENT:  Yes.

...

THE PRESIDENT:  I have listened to what Mr Kelly has

submitted in respect of costs.  It seems to me appropriate

that the costs of today's hearing should be made against

him.  Today's hearing has little to do with the last mention

of the matter when the matter was adjourned at the request

of the trustee in bankruptcy.

‑‑‑‑‑

4  ORDER