St Clair v Timtalla Pty Ltd - [2010] QCA 304

[2010] QCA 304

COURT OF APPEAL

McMURDO P

Appeal No 10865 of 2010
SC No 5637 of 1996

ARCHIE STEPHEN ST CLAIR Applicant

and

TIMTALLA PTY LTD Respondent

BRISBANE

DATE 29/10/2010

JUDGMENT

THE PRESIDENT: Yes, would you announce your appearances.

MR GRIFFIN: Yes, if your Honour pleases, my name is Griffin, initials J A. I'm appearing with my learned friend, Mr Egan, initials G N, and we appear for the applicant Archie Stephen St Clair, and we're instructed by Messrs. Clearly and Lee.

THE PRESIDENT: Yes. Yes, Mr Newton.

MR NEWTON: Yes, good morning, your Honour. May it please the Court, my name is Newton, initials G C, senior counsel for the respondent Timtalla Pty Ltd, and I appear for that party with Mr Michael Trim of counsel and instructed by CLS Lawyers, your Honour.

...

THE PRESIDENT: The applicant, the plaintiff at first instance, applies for a declaration that the time within which he might file a notice of appeal against the decision of Justice Martin in the Trial Division of this Court on 20th August 2010 dismissing the applicant's claims against the respondent in Supreme Court proceedings number BS 5637 of 1996 has not expired. Alternatively, he applies for an extension of time to appeal in that matter.

In respect of the first application for a declaration, the applicant makes the remarkable contention that under the Uniform Civil Procedure Rules (UCPR) rule 748, time did not commence to run at the time Justice Martin pronounced the order on 20 August 2010 because his Honour adjourned the question of costs and received further submissions on them. Justice Martin has not yet handed down his decision in respect to costs, and also, the contention goes, the appeal period has not yet commenced to run.

Rule 748 provides "A notice of appeal must, unless the Court of Appeal orders otherwise, (a) be filed within 28 days after the date of the decision appealed from; and (b) be served as practicable on all other parties to the appeal."

The recognised appellate practice in this jurisdiction is well-established. It is that an order of the kind made by Justice Martin is considered as a decision from which time runs under rule 748 from the time of pronouncement of the order.

Justice Martin ordered that the claim against the first defendant be dismissed and it is in respect of that order that this application is made.

Rule 748 is contained in UCPR chapter 18, which deals with appellate proceedings. "Decision" in rule 748 is relevantly defined in rule 744 as meaning "an order, judgment, verdict or an assessment of damages." As I have said, it is accepted appellate practice that, for the purpose of rule 748, time runs from the pronouncement of an order of this kind.

The applicant contends that rule 748 and the definition of "decision" in rule 744 should be read subject to UCPR rule 659 and rule 765.

Rule 765 is contained in chapter 18 of the UCPR, but in…

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 St Clair v Timtalla Pty Ltd

Details

AGLC: St Clair v Timtalla Pty Ltd [2010] QCA 304
Case: [2010] QCA 304
Decision Date: 29/10/2010

CaseChat Overview and Summary

The case of St Clair v Timtalla Pty Ltd involves a legal dispute between Archie Stephen St Clair and Timtalla Pty Ltd. The applicant, St Clair, seeks a declaration that the time within which he might file a notice of appeal against a decision of Justice Martin, dismissing his claims against Timtalla Pty Ltd, has not expired. Alternatively, he applies for an extension of time to appeal in that matter. The case was heard in the Court of Appeal in Brisbane.

The legal issues the court was required to decide pertain to the interpretation of the Uniform Civil Procedure Rules (UCPR) rule 748, which governs the time within which a notice of appeal must be filed. The applicant argues that the time did not commence to run at the time Justice Martin pronounced the order on 20 August 2010 because his Honour adjourned the question of costs and received further submissions on them. The applicant contends that rule 748 and the definition of "decision" in rule 744 should be read subject to UCPR rule 659 and rule 765. The court had to determine whether the applicant's interpretation of the rules was correct and whether an extension of time should be granted.

The court found that rule 748 is clear in stating that time runs from the pronouncement of an order. The court rejected the applicant's interpretation of the rules and held that the 28-day time limit for filing a notice of appeal runs from the time of the decision. The court granted the application for an extension of time to appeal, considering the short time involved and the fact that the applicant was successful in his claim against another defendant. The court also ordered that the costs of this application be the respondent's costs in the appeal on an indemnity basis, given the applicant's unimpressive and disingenuous explanation for the late appeal.

In summary, the Court of Appeal granted the applicant's alternative application for an extension of time to appeal but denied the application for a declaration. The court also ordered that the respondent's costs in the appeal be paid by the applicant on an indemnity basis.

Orders