Tudehope v Magistrate Braes

[2005] QCA 320

COURT OF APPEAL

McMURDO P

Appeal No 5289 of 2005

GREGORY JOHN TUDEHOPE	Appellant (Plaintiff)
and
MAGISTRATE TOM BRAES	First Respondent (Defendant)
and
SERGEANT MARK HARVEY REG NO 9197	Second Respondent (Defendant)
and
KERRY JOHN DANIEL McFADDEN	Third Respondent (Plaintiff)
and
THE COMMISSIONER OF THE QUEENSLAND POLICE SERVICE	Fourth Respondent (Defendant)
and
ROD WELFORD ATTORNEY-GENERAL AND MINISTER FOR JUSTICE	Fifth Respondent (Unknown or n/a)

BRISBANE

..DATE 26/08/2005

ORDER

THE PRESIDENT: There is no appearance for the appellant. The appellant was also in the previous matter just mentioned. His name was called in respect of that matter three times in the Cairns Courthouse where the respondent appeared through his lawyers by telephone link. There was no appearance of Mr Tudehope in Cairns at that time. I should also mention that the matter was listed in the Cairns law list and in the local Cairns newspaper this morning.

...

THE PRESIDENT: This appeal was filed on 30 June 2005 against an order of a Supreme Court judge made on 3 June 2005. It was listed for mention today because the appellant has not complied with the Practice Direction and has not progressed the preparation of the appeal.

His outline was due on 21 July 2005. On 27 July 2005 the Registry sent him a letter reminding him of his obligation to provide an outline and that he was to do so within four days of the receipt of that letter. No outline was received.

The Registry sent a further letter on 12 August 2005 advising the appellant that if the outline was not received by 4.00 pm on 24 August 2005 the appeal would be listed for mention today at 9.30 am. The letter also informed him that the Court may strike out the appeal and an order for costs could be made against him.

...

THE PRESIDENT: The appellant, as in the previous case, has had very firm warnings and has been given more than adequate notice that his failure to comply would result in the matter being mentioned today and that this could result in his appeal being struck out with costs.

He has not appeared today. I can only assume that he is not intending to prosecute the appeal. In the circumstances, his failure to comply with the Practice Direction, despite the warnings given to him by the respondent and by the Registry, demonstrates that he does not wish to prosecute the appeal. In the circumstances, the appeal is struck out for want of prosecution and for want of compliance with the Practice Direction and the directions from the Registrar, with costs to be assessed.

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CaseChat Overview and Summary

In the case of Tudehope v Magistrate Braes, the appellant, Gregory John Tudehope, sought to appeal an order made by a Supreme Court judge on 3 June 2005. The first respondent was Magistrate Tom Braes, while the second respondent was Sergeant Mark Harvey. Other respondents included the Commissioner of the Queensland Police Service and the Attorney-General and Minister for Justice. The appeal was dismissed by the Court of Appeal due to the appellant's failure to comply with the Practice Direction and to progress the preparation of the appeal. The appellant was warned multiple times by the respondent and the Registry, yet he failed to submit the required outline of the appeal within the specified deadlines.

The legal issues before the Court of Appeal revolved around the appellant's non-compliance with the Practice Direction and the directions from the Registry, as well as his failure to prosecute the appeal. The Court had to determine whether the appellant's persistent failure to meet the necessary requirements justified the striking out of the appeal. The Court also had to consider the implications of the Practice Direction and the directions from the Registry, which were intended to ensure the efficient and effective administration of justice.

The Court of Appeal found that the appellant's repeated failure to comply with the Practice Direction and the directions from the Registry demonstrated that he did not wish to prosecute the appeal. The appellant had been given more than adequate notice that his failure to comply would result in the matter being mentioned before the Court. Despite this, he had not appeared before the Court on the scheduled date. The Court held that the appellant's lack of compliance with the Practice Direction and the directions from the Registry, coupled with his failure to prosecute the appeal, warranted the striking out of the appeal with costs to be assessed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established