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Ban v The Public Trustee of Queensland

 

[2012] QCA 93

 

 SUPREME COURT OF QUEENSLAND

 

CITATION:

Ban v The Public Trustee of Queensland as Litigation Guardian for TAA [2012] QCA 93

PARTIES:

HAJNAL DAHLIA BAN
(appellant)
v
PUBLIC TRUSTEE OF QUEENSLAND as litigation guardian for TAA
(respondent)

FILE NO/S:

Appeal No 2154 of 2012

SC No 13246 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

13 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2012

JUDGES:

Margaret McMurdo P and Mullins and A Lyons JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Delivered ex tempore on 13 April 2012:

Appeal No 2154 of 2012 and the application filed on 19 March 2012 are dismissed with costs to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JUDGMENTS AND ORDERS – OTHER MATTERS – where the appellant did not comply with timelines with respect to filing an outline of argument – where the appellant was given several extensions of time by the Registry within which to file material – where a judge of this Court gave the a appellant further extension within which to file outline of argument and an Amended Notice of Appeal – where the Court of Appeal gave a further extension and ordered that in default the appeal be struck out without further order – where the appellant did not comply with those timeframes and the appeal was dismissed with costs – whether the appellant can appeal from an order granting her an extension of time within which to file material in an appeal that has already dismissed

Uniform Civil Procedure Rules 1999 (Qld), r 775

The Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban [2011] QSC 380, related

COUNSEL:

The appellant appeared on her own behalf

A P J Collins for the respondent

SOLICITORS:

The appellant appeared on her own behalf

The Official Solicitor of the Public Trustee (Qld) for the respondent

THE PRESIDENT:  The appellant, Hajnal Dalia Ban, is self-represented.  She is, however, admitted as a barrister although she has never held a practising certificate.  In her Appeal No 2154 of 2012 she appeals from Justice Muir's interlocutory order on 17 February 2012 that she file any proposed amendment to her Notice of Appeal in Appeal No 105 of 2012 and her outline of argument in that appeal, within 10 days.  His Honour also ordered her to pay the costs of that hearing of the present respondent, the Public Trustee of Queensland. 

 

Ms Ban's original appeal (No 105 of 2012) filed on 4 January 2012, was from Boddice J's orders in the Trial Division on 7 December 2011 giving summary judgment in part of the Public Trustee's claim against Ms Ban.  See: The Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban [2011] QSC 380.  Ms Ban was required under Practice Direction No 2 of 2010 to file her outline of argument in Appeal No 105 of 2012 by 1 February 2012.  The Deputy Registrar (Appeals) gave her an extension of time to file the outline until 7 February 2012, and then a further extension of time until 20 February 2012.  She did not comply with any of those time requirements.  As T was an elderly man in ill health, there was some urgency in having the appeal determined.  The matter was mentioned before Muir JA on 17 February 2012 at the request of the Deputy Registrar (Appeals) for directions and the orders the subject of the present appeal (No 2154 of 2012) were made.

 

Ms Ban's task in seeking to successfully appeal from Muir JA's routine and unremarkable interlocutory orders in a directions hearings was always challenging.  But her task has since become even more daunting.  She did not comply with Muir JA's orders and the Public Trustee brought an application to have Appeal No 105 of 2012 struck out or dismissed for want of prosecution under r 775 Uniform Civil Procedure Rules 1999 (Qld).  That application was heard on 8 March 2012 before the Court of Appeal, constituted by Muir, Chesterman and Daubney JJ.  The Court ordered that if Ms Ban failed to file and serve an amended Notice of Appeal and outline of argument in Appeal No 105 of 2012 before 4.00 pm on Friday, 16 March 2012, that appeal was to be dismissed with costs without further order.  Ms Ban did not comply with that order.  She did send material seeking an extension of time in respect of those orders, to the Registry electronically at 1.50 pm on 16 March but, in the end, she did not bring an application for an extension of time.  On 19 March 2012, the Deputy Registrar (Appeals) notified the Public Trustee that she had not filed an amended Notice of Appeal and outline of argument before 4.00 pm on Friday, 16 March 2012 and, in accordance with this Court's order of 8 March 2012, her appeal was dismissed with costs without further order. 

 

This is most unfortunate.  Ms Ban's incompetence has meant her appeal was dismissed without a determination on the merits.  Her appeal was not without some prospects.  She should seek competent legal advice as to the best method of now proceeding.

 

But this means that the present appeal (No 2154 of 2012) is from an interlocutory order made at a directions hearing in a proceeding relating to an appeal which has now been dismissed, namely Appeal No 105 of 2012.  There is, therefore, no utility in proceeding to determine her appeal in No 2154 of 2012. 

 

In any case, Ms Ban's contentions in her 16 page amended Notice of Appeal in the present matter, which is more akin to an outline of argument, do not disclose any error in Muir JA's reasons for giving her a further extension of 10 days in which to file and serve her proposed amended Notice of Appeal and outline of argument in Appeal No 105 of 2012.

Her principle complaint is that Muir JA did not make an order for disclosure of documents.  She unsuccessfully tried to file an application for disclosure electronically on 16 February 2012 but was told by the Registry she should seek leave to file it before Muir JA the following day.  She did not seek leave to file the application before Muir JA but she raised the matter of disclosure and this question was discussed at some length in Court.  His Honour was clearly unpersuaded that it was appropriate for him to order disclosure as the appeal was from an order giving summary judgment involving legal, not factual questions.  She had access to everything which was before Boddice J.  His Honour's view seems plainly right.  His Honour's order that Ms Ban pay the Public Trustee's costs of the hearing was also entirely appropriate in circumstances where Ms Ban's dilatory approach to her obligations to the Court in progressing her appeal was the sole reason necessitating the directions hearing.  It was not in the interests of justice that the estate of T be depleted through the fault of Ms Ban, without a compensating costs order.  For those reasons, this appeal (No 2154 of 2012) must be dismissed with costs. 

 

Ms Ban has also brought an application seeking the following orders:

 

"A.Directions with regards to Appeal CA 105/12 as the orders of the Court of Appeal 8th March 2012 are invalid as Justice Muir should not have sat on the Court of Appeal as his decision on the 17th February 2012 was subject to appeal, CA 2154/12 [section 70 of the Supreme Court of Queensland Act 1991 (Qld)]

 

B.Stay of proceedings in the Supreme Court in relation to S 13246/10 until the appeals CA 105/12 and CA 2154/12 are heard.

 

C.Stay of Proceedings in the Beenleigh Magistrates Court including stay of any further proceedings, stay of judgment and stay of arrest warrant.

 

D.An order restraining Magistrate Morgan from taking any further action against me and that the Court of Appeal hear the matter as it relates to S 13246/10 and the appeals.

 

E.Leave to read and file and serve my Amended Notice of Appeal and outline of argument for Appeal No CA 105/12 in Court due to the interference of the Court of Appeal Registry."

 

As to proposed order A, Ms Ban made no application on 8 March 2012 for Muir JA to recuse himself.  I am not persuaded that his Honour was precluded from giving further directions in Appeal No 105 of 2012 simply because he had made earlier unexceptional directions from which Ms Ban chose to appeal.

 

As to proposed order B, even accepting this Court has power to make such an order, Ms Ban has not provided any reasons to justify a stay of the action S13246 of 2010 in the Trial Division.  The same can be said about the proposed orders C and D. 

 

As to proposed order E, she cannot file any further material in Appeal No 105 of 2012 as it presently stands dismissed. 

 

Ms Ban's application filed on the 19th of March 2012 must, therefore, be refused with costs. 

 

The Public Trustee submits that it should have those costs on an indemnity basis as Ms Ban has continued to waste the Court's time and resources and further deplete T's estate through a futile appeal.  There is some force in that submission, especially when Ms Ban, as a barrister, although without a practising certificate, is an officer of the Court.  I am not, however, fully persuaded that Ms Ban's unimpressive conduct in this saga has been caused by a deliberate intent to deplete T's estate or to abuse the processes of the Court, rather than by poor decision-making and time management under stress.  Although an order for indemnity costs would be open in this case, I would order costs on the standard basis.

 

MULLINS J:  I agree.

 

A LYONS J:  I agree.

 

THE PRESIDENT:  The orders are that Appeal No 2154 of 2012 and the application filed on 19 March 2012 are dismissed with costs to be assessed on the standard basis.

 

Close

Editorial Notes

  • Published Case Name:

    Ban v The Public Trustee of Queensland as Litigation Guardian for TAA

  • Shortened Case Name:

    Ban v The Public Trustee of Queensland

  • MNC:

    [2012] QCA 93

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Mullins J, A Lyons J

  • Date:

    13 Apr 2012

Litigation History

Event Citation or File Date Notes
QCA Interlocutory Judgment [2012] QCA 93 13 Apr 2012 -

Appeal Status

No Status