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Ban v Dunne

 

[2015] QCA 147

 

COURT OF APPEAL

 

HOLMES JA

MORRISON JA

PHILIPPIDES JA

 

CA No 312 of 2014

DC No 204 of 2014

 

BAN, Hajnal Dalia (aka BLACK, Hajnal Dalia)Applicant

v

DUNNERespondent

 

BRISBANE

 

FRIDAY, 14 AUGUST 2015

 

JUDGMENT

 

HOLMES JA:  This is an application for an extension of time for leave to appeal the refusal of an application for an extension of time in the District Court.  The matter, of course, was listed for hearing today.  Some material has been forwarded to the registry.  There is a medical certificate from the Queen Elizabeth II Hospital, which certifies that Ms Ban was admitted there as an outpatient on 13 August 2015, suffering from a medical condition.  She was totally incapacitated for work and was discharged on 13 August 2015.The certificate does not, so far as I can read it, indicate whether she is to attend the outpatient department again, although there is an entry which entails striking out “is or is not”, and the practitioner signing it says she will be unfit for duty up to 14 August 2015 and including 14 August 2015. 

The certificate is issued for the information of an employer.  It does not identify what the medical condition is.  There is no explanation of the reason for the incapacity in terms of what the ailment is or whether the incapacity is because it would be inadvisable for Ms Ban to carry out physical activity, for example.  It is not in any way addressed to her ability to appear in Court, either to argue the matter or to seek an adjournment of it.

Ms Ban has sent an email to the registry.  It was received at 5.22 am this morning.  It says that she had hoped to attend personally today, but she had been up all night, not having slept.  She still had some mild abdominal pain, having taken strong pain relief.  She says that the doctor at the QEII Hospital told her that it might be one to two days before her samples were returned, so she says:

“We are unsure whether the abdominal pain was caused due to a burst ovarian cyst or appendicitis or something else.”

Of course, that medical opinion is not expressed by anybody with expertise.  There is, then, a long section of the email about her preparation of authorities and so on.  Then Ms Ban requests an adjournment of today’s matter, given her medical issues.  She wants a relisting in two weeks’ time.  That is the extent of the material.  Ms Ban does not, it seems, even contemplate the possibility of a phone application for an adjournment.

In my view, there is not any proper basis for an adjournment in that material.  I have already described the deficiencies of the medical certificate.  Speaking for myself, I have a suspicion that Ms Ban may be seeking to manipulate the Court timetable and to procure an adjournment by the simple means of not turning up here today.  However that may be, I am not satisfied that there is any proper basis for the adjournment.

One possibility would be to deal with the application in her absence; another, which would afford her the opportunity to renew her application if there is substance in it, would be to dismiss the application for want of prosecution by virtue of her non-appearance today either to seek an adjournment or to argue the matter.  That is the alternative I would incline to, and I would dismiss the application for want of prosecution.

MORRISON JA:  I agree.

PHILIPPIDES JA:  I also agree.

HOLMES JA:  The application is dismissed. 

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Editorial Notes

  • Published Case Name:

    Ban v Dunne

  • Shortened Case Name:

    Ban v Dunne

  • MNC:

    [2015] QCA 147

  • Court:

    QCA

  • Judge(s):

    Holmes JA, Morrison JA, Philippides JA

  • Date:

    14 Aug 2015

Litigation History

Event Citation or File Date Notes
Primary Judgment - - QDC
Appeal Determined (QCA) [2015] QCA 147 14 Aug 2015 -

Appeal Status

{solid} Appeal Determined (QCA)