Thomas v Westpac Banking Corporation

[2015] QCA 23

[2015] QCA 23

COURT OF APPEAL

HOLMES JA

Appeal No 6614 of 2014
SC No 4868 of 2014

PETER MAXWELL THOMAS  First Appellant

ROBYN LESLEY THOMAS  Second Appellant

MATTHEW PETER THOMAS  Third Appellant

v

WESTPAC BANKING CORPORATION  Respondent

BRISBANE

FRIDAY, 27 FEBRUARY 2015

JUDGMENT

HOLMES JA:  The appellants’ appeal is against a decision of 19 June 2014 by a judge in applications, ordering substituted service of an originating application and supporting affidavits in relation to the respondent mortgagee’s application for an order for possession of two properties.  It is possible that they meant to appeal the order for possession itself, which was made on 8 July 2014, but, if that is so, they would require an extension of time to mount that appeal, and nothing of the sort is before me.  The appeal itself was filed on 17 July 2014.  It is listed for hearing on 11 March 2015.  There is no settled index and there is no record book.  This mention was brought on because of that fact.

I will set out the history of the dealings of the Registry and the parties.  The Registrar provided a timetable on 22 October 2014, pursuant to which the appellants were to provide to the respondent a draft record book index by 18 November 2014, to deliver the draft for approval to the Registrar on 6 January 2015 and to provide the record book on 20 January 2015.  Somewhat late but, nevertheless, on 25 November 2014, the appellants provided a draft index.  It is a list of affidavits, eight of which bear dates long after either the application for substituted service or the order for possession were dealt with, and an affidavit of BG Watkins, undated, and another of Walker F Todd, the connection of which with the proceedings is entirely mysterious.  There is a list, also, of exhibits to those affidavits and the notice of appeal.  None of the material relied on by the respondents in its application for substituted service or possession is listed and there are no transcripts or copies of the orders below.

On 4 December 2014, there were some variations to the timetable.  The Registry advised that the settled and agreed index to the record book was due on 9 January 2015 and the record book itself was due on 23 January 2015.

On 12 December 2014, the respondent’s solicitors wrote to each of the appellants advising, unsurprisingly, that the index did not comply with the requirements of the Court of Appeal guidelines for preparation of appeal record books, and that it contained references to affidavits not before the primary judge and not apparently relevant to any consideration by him or to any ground of appeal.  It annexed the respondent’s draft index, asked that the documents in it be included in the appeal record index to be prepared by the appellants and requested that an updated draft index be provided.  It does not appear that that letter met with any response.  I might say that the respondent’s draft index was in an entirely conventional form, containing the transcripts of the hearing, what appeared to be the affidavits relied on, the application, submissions, exhibits, reasons, and so on.

Nothing further seems to have happened on the appellants’ part.  On 7 January 2015, the respondent wrote again advising that, as previously outlined, it did not agree with the form of the draft appeal record index and asking for it to be amended.

On 23 January 2015, the Registry sent another email to all the parties, advising that the settled index and record book were now overdue and allowing a further extension until 2 February 2015 for the settled index to be provided.

On 29 January 2015, the respondent sent another email to the appellants asking for urgent provision of an amended appeal record index and, on 2 February 2015, advised the Deputy Registrar that no response had been received to that or earlier letters.

On 19 February 2015, the Deputy Registrar sent another letter by registered post and email to all three appellants in relation to the timetable, adverting to the appellants’ continuing non-compliance with directions, requiring the provision, by midday yesterday, 26 February 2015, of an index to the record book agreed by the parties and advising that the matter would be mentioned today.

And, finally, on 25 February 2015, the respondent’s solicitors sent a letter by express post and email to each of the appellants noting the history, noting that the matter was listed today and advising that the respondent reserved its rights to seek to have the appeal struck out for non-compliance.

Ms Rouyanian today says that there is some hesitation on the part of the respondent to seek to have the appeal struck out because the appellants are unrepresented. That is always a consideration, but what is glaringly apparent in this case is that the appellants long ago lost interest in pursuing this appeal: their last action, it seems, occurred in mid-December 2014, when they sent an email to the Registry attaching copies of what seems to have been the same affidavit twice.  They have not responded to correspondence or directions since.  The appeal is listed less than two weeks away.

There seems no point in wasting the Court’s time or the respondent’s time further.  In all the circumstances, it seems to me an entirely appropriate case to strike the appeal out for want of prosecution.  I make that order.  The appeal is struck out for want of prosecution.  Do you have any other applications?

MS ROUYANIAN:  Your Honour, we would seek costs to be ordered against the appellants.

HOLMES JA:  The order is the appellants are to pay the respondent’s costs of the appeal.