Sharples v O'Shea[2002] QCA 200

COURT OF APPEAL

McMURDO P

No 3836 of 2001

TERRY PATRICK SHARPLESAppellant (Plaintiff)

and

DESMOND J O'SHEAFirst Respondent (First Defendant)

and

PAULINE LEE HANSONSecond Respondent (Second Respondent)

BRISBANE

DATE 06/06/2002

ORDER

THE PRESIDENT: This appeal is from the order of Justice Atkinson made on the 2nd of April 2001 when her Honour refused the appellant's application for leave to appeal against her costs order made on 12 November 1999.

The appellant had previously sought to appeal from that order on the 12th of November but because he failed to seek leave of the primary Judge under Section 253 of the Supreme Court Act 1995, that appeal was struck out as incompetent by me. (See Sharples v. O'Shea & Anor [2000] QCA 481, CA No 306 of 2000 delivered 23 November 2000.) The appellant then applied to Justice Atkinson seeking leave to appeal the costs order. Her Honour refused to give leave and this appeal is an appeal against her Honour's decision refusing leave.

The appeal was filed on the 30th of April 2001. On the 19th of November 2001 the appellant was declared a bankrupt. The respondent applies today to have the appeal dismissed on the grounds that, because the appellant is a bankrupt, he has no standing to bring such an appeal. Alternatively, the appellant has an application for security for costs of the appeal under Rule 772 of the UCPR.

The appellant's right to bring the present appeal is a personal, not a property right, and accordingly the right to appeal does not automatically vest in the trustee in bankruptcy under s 116 Bankruptcy Act 1966 (Cth).

Nevertheless, the appeal commenced by the appellant as a bankrupt is stayed until the trustee makes an election to prosecute or discontinue the appeal. (See s 62 Bankruptcy Act 1966 (Cth).)

Here the trustee has elected not to continue with the appeal, writing to the Registrar in the following terms:

"My examination of the material does not disclose any benefit to creditors which can be obtained from continuing with the matter."

The appellant has not demonstrated any right to bring the appeal in his own right. The result is the appellant has no standing to bring the present appeal and the appeal should be struck out.

Before I make that order I should deal with some other matters raised orally by the respondent today.

First, he challenges my jurisdiction on the same basis which he has previously challenged the jurisdiction of me and a number of other Judges of this Court. That argument has been determined against him by the Court of Appeal and it is unnecessary, therefore, for me to consider it further.

Second, he claims I have no authority to strike out an appeal as a single Judge of Appeal and that this is reserved for the Court of Appeal. I do have the authority to make such an order under UCPR Rule 767(a) and s 43(1)(b) Supreme Court of Queensland Act 1991 (Qld) in circumstances where the appeal is incompetent because the appellant has been declared a bankrupt, at least in the circumstances of this case.

His final argument is that s 253 Supreme Court Act 1995 (Qld) offends s 73 of the Constitution. Although that argument has not been developed in any detail before me, I can see no substance in that contention in the circumstances of this case.

In my view, the application to dismiss the appeal on the grounds that the appellant has no standing to bring it should be granted. I order the appeal is dismissed and that the appellant pay the costs of the first respondent of this application-----

MR KELLY: Your Honour, may I make a submission before you make that costs order?

THE PRESIDENT: Yes.

  ...

THE PRESIDENT: I have listened to what Mr Kelly has submitted in respect of costs. It seems to me appropriate that the costs of today's hearing should be made against him. Today's hearing has little to do with the last mention of the matter when the matter was adjourned at the request of the trustee in bankruptcy.