LMS Energy Pty Ltd v Kinsella
[2016] QCA 178
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- LMS Energy Pty Ltd v Kinsella[2016] QCA 178
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LMS Energy Pty Ltd v Kinsella[2016] QCA 178
LMS Energy Pty Ltd v Kinsella[2016] QCA 178
COURT OF APPEAL
MARGARET McMURDO P
Appeal No 2931 of 2016
SC No 5010 of 2013
LMS ENERGY PTY LTDAppellant
ACN 059 428 474
v
HELEN BARBARA KINSELLAFirst Respondents
PETER LOUIS KINSELLA
GOLD COAST CITY COUNCILSecond Respondent
ENERGEX LIMITEDThird Respondent
BRISBANE
FRIDAY, 24 JUNE 2016
JUDGMENT
THE PRESIDENT: This matter is an application for leave to appeal, filed on the 18th of March 2016, from an order of a Supreme Court judge delivered on 19 February 2016. As it turns out, the application for leave to appeal is misconceived, in that an appeal lies of right from an order of a Supreme Court judge to this court, even an interlocutory order.
The matter has some history. On the 1st of April 2016 the appellant requested a stay of the preparation timetable in this matter, because the matter was proceeding to mediation. On the 13th of May the appellant requested a further stay, pending mediation, stating that the outcome would be known by the 17th of June. On the 23rd of May the deputy registrar advised the parties that the matter had been referred to the court and listed for mention today should the further directions of the deputy registrar not be complied with. On the 20th of June the appellant advised that the mediation appeared to have been successful, but requested the matter be stayed pending application to the court for the sanctioning of the settlement. The correspondence from the appellant did not outline any timeframe within which that was to happen.
At this hearing lawyers for the parties have indicated that there would be no utility in the appeal proceeding for about six months. The difficulty, of course, is that the originating document is inappropriate, and what is now needed is an application for an extension of time to appeal, bearing in mind that the proper originating document, a notice of appeal, was not filed within time. Of course, it seems obvious that the parties, having been notified of the applicant’s wish to exercise its appeal rights, have not suffered any prejudice from this. Nevertheless, it is the practice of the court not to grant extensions of time unless the proposed appeal has sufficient merits to warrant it.
The appropriate course, in all the circumstances, is to strike out the misconceived application for leave to appeal, and to reserve costs. That way, if the anticipated settlement does not proceed, and the applicant decides it does wish to exercise its appeal rights, it can file an extension of time for leave to appeal, and place the relevant facts before the court by way of affidavit. I, therefore, order that the application for leave to appeal is struck out. Costs are reserved. A transcript is required.