Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc
[2023] QCA 164
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- Unreported Judgment
- Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2023] QCA 164
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Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2023] QCA 164
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2023] QCA 164
SUPREME COURT OF QUEENSLAND
CITATION: | Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc & Anor [2023] QCA 164 |
PARTIES: | JAMES BOYD THOMPSON (applicant) v CAVALIER KING CHARLES SPANIEL RESCUE (QLD) INC (first respondent) KATHERINE LEPELAAR (second respondent) |
FILE NO/S: | Appeal No 3409 of 2023 SC No 9148 of 2013 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension of Time |
ORIGINATING COURT: | Supreme Court at Brisbane – [2022] QSC 82 (Jackson J) |
DELIVERED ON: | 18 August 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 April 2023 |
JUDGES: | Morrison and Dalton JJA and Henry J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – ATTEMPTS TO RELITIGATE – where the applicant had previously brought an appeal where the notice of appeal was struck out as defective because it failed to comply with r 747 of the Uniform Civil Procedure Rules 1999 (Qld) – where the applicant delivered a revised notice of appeal which was also defective for the same reason, and the Court of Appeal dismissed the proceedings summarily – where the applicant filed an application for an extension of time which sought to extend the time for filing a notice of appeal in respect of the original decision – where the applicant argued that, in dismissing the appeal summarily, his matter had not been adjudicated “on its merits”, and that this was a new and separate appeal – whether the new application was an abuse of process Uniform Civil Procedure Rules 1999 (Qld), r 747 Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (2022) 10 QR 588; [2022] QSC 82, related Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc & Anor [2022] QCA 149, related Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc & Anor [2023] QCA 21, explained |
COUNSEL: | The applicant appeared on his own behalf |
SOLICITORS: | The applicant appeared on his own behalf ACLG Lawyers for the first respondent IP Link Lawyers for the second respondent |
- [1]THE COURT: The applicant seeks an extension of time within which to appeal against orders made on 9 May 2022. On that day, the learned primary judge dismissed the applicant’s claim against the second respondent, and permanently stayed the applicant’s claim against the first respondent.[1]
- [2]For the reasons which follow, the application for an extension of time should be refused, with costs.
- [3]On 6 June 2022, the applicant filed a notice of appeal, challenging the decision of the learned primary judge. Both respondents applied to strike out the appeal on the basis that it did not properly articulate any comprehensible grounds of appeal. That application was successful and, on 12 August 2022, this Court (constituted by Bond JA) struck out the notice of appeal on the basis that it was defective.[2]
- [4]At that time, the applicant indicated to Bond JA that he intended to revise the notice of appeal. Accordingly, he was directed to deliver a draft notice of appeal to the respondents within 21 days of the hearing.[3] It was further ordered that, “[i]n the event that either respondent advises that they oppose [the filing of a revised notice of appeal], the [applicant] must file an application for leave to file the revised notice of appeal within a further seven days of that date”.
- [5]The applicant delivered a revised notice of appeal, and both respondents notified their opposition to that document being filed. The applicant then filed an application for leave to file the revised notice of appeal.
- [6]On the hearing of that application, this Court[4] held that the revised notice of appeal “suffer[ed] from the same defects identified ... in respect of the first notice of appeal”, and, rather than improving on the first, further derogated from a standard which is to be expected from a litigant. Leave to file the revised notice of appeal was refused, and the appeal was dismissed.[5]
- [7]That decision was handed down on 17 February 2023. This application is in response to that decision, but it seeks an extension of time within which to once again appeal the decision of the learned primary judge. It is self-evident that the application faced considerable difficulty in that, as explained, the original notice of appeal was struck out and this Court refused permission to file another notice of appeal, at the same time dismissing the appeal.
- [8]In his affidavit in support of this application, the applicant contended that “the appeal was dismissed without ... having been adjudicated on its merits”.[6]
- [9]On 18 April 2023, Morrison JA reviewed the matter. At that time, it was ordered that the application be set down before the coram who had heard the application for leave to file the revised notice of appeal, on the basis that the applicant was required to show cause why the application should not be dismissed as an abuse of process.
- [10]In the reasons handed down on 17 February 2023, this Court took the deliberate step of dismissing the appeal, observing:[7]
- “[16]This Court has in the past brought appeals to a summary end by ordering the striking out of a notice of appeal and dismissal of the appeal. Merely refusing leave to file the revised notice will not bring the finality of a dismissal because there would remain the possibility of another notice of appeal being filed.”
- [11]In doing so, the Court canvassed the law relating to the summary dismissal of appeals, and ultimately concluded that the applicant’s continued failure to comply with the rule relating to the required content of notices of appeal[8] meant that he was in contravention of the “rules designed to facilitate the just and expeditious resolution of the real issues”.[9]
- [12]What was then said by the Court is still apt:[10]
- “[18]Mr Thompson’s right of appeal is, like any litigant’s, subject in its exercise to compliance with rules designed to facilitate the just and expeditious resolution of the real issues. A proper statement of grounds of appeal, in accordance with the rules binding all appellants, is fundamental to a just appeal process. Mr Thompson cannot succeed in an appeal which he cannot properly advance. The appeal should be dismissed.”
- [13]The applicant has twice advanced defective notices of appeal which do not meet the requirements of r 747 of the UCPR. As a result, the respondents have been compelled to expend time and effort dealing with the defective notices of appeal. The procedural missteps have been significant and persistent.
- [14]On 21 April 2023, at the show-cause hearing, the applicant conceded that he understood that this Court’s decision in Thompson v Cavalier [No 2] had the effect of finally determining his appeal.[11] He articulated no basis upon which leave should be granted to allow him to begin another appeal against the same decision. Notwithstanding the applicant’s submission that this is a “new appeal ... a distinct thing”,[12] in substance it is not. It is an attempt to relitigate the matters already finally decided, and which the applicant concedes were finally decided.
- [15]This Court’s decision in Thompson v Cavalier [No 2] to dismiss the appeal was reached on the basis that the applicant had no prospects of succeeding in an appeal because he could not articulate any viable grounds of appeal. No application was made to challenge that decision by way of proceedings in the High Court. This application is, therefore, an abuse of process.
- [16]For the foregoing reasons, we order that:
- The application for an extension of time within which to appeal is dismissed.
- The applicant pay the respondents’ costs of the application.
Footnotes
[1]Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc (2022) 10 QR 588.
[2]Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc & Anor [2022] QCA 149 at [36], [45]–[46]; (Thompson v Cavalier [No 1]).
[3]Thompson v Cavalier [No 1] at [57].
[4] Then constituted by Morrison and Dalton JJA and Henry J.
[5]Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc & Anor [2023] QCA 21 at [6]–[7]; (Thompson v Cavalier [No 2]).
[6] Affidavit of Mr Thompson, paragraph [16].
[7]Thompson v Cavalier [No 2] at [16]. Internal footnote omitted.
[8]Uniform Civil Procedure Rules 1999 (Qld) r 747.
[9]Thompson v Cavalier [No 2] at [18].
[10]Thompson v Cavalier [No 2] at [18]. Internal footnote omitted.
[11] Transcript 1-3 line 48 to 1-4 line 2; 1-5 lines 7–8, 23–25.
[12] Transcript 1-3 line 48 to 1-4 line 1.