Jilly's Perfumery Pty Ltd v Bortoli
[2002] QDC 57
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Jilly's Perfumery Pty Ltd v Bortoli[2002] QDC 57
Jilly's Perfumery Pty Ltd v Bortoli[2002] QDC 57
DISTRICT COURT | No D5069 of 1999 |
APPELLATE JURISDICTION
JUDGE BRABAZON QC
JILLY's PERFUMERY PTY LTD ACN 005 043 676 | Appellant |
and
GINO BORTOLI | Respondent |
BRISBANE
DATE 13/03/2002
JUDGMENT
HIS HONOUR: This is an application in a familiar form. That is to say, a litigant who has been slow wants an indulgence with an order that it might proceed despite undue delay, and the other side responds by saying that the proceedings should be struck out because of want of prosecution.
The matter began with a plaint in the Magistrates Court on 14 July 1997. It involved differences about work done on some motor vehicles. The learned Magistrate gave judgment and a long, written judgment on 26 November 1999. The disappointed party, Jilly's Perfumery, appealed on 24 December 1999. After that, there were the delays that brine the parties here today.
In effect, there are two reasons given by the solicitor for the appellant. First, it took three months to obtain a transcript of the Magistrates Court proceedings. That was finally available in 2000. Then, the brief to settle the notice of appeal and the outline was given to counsel who appeared at the trial. Even though he had the further brief for 20 months, nothing was done.
...
After a final urging by the solicitors, counsel at last settled the appropriate documents after the long delay. The position is that the two years now allowed by the rules of court expired on 24 December last year. The respondent to the appeal by his solicitors wrote shortly after that but, regrettably, received no response from the solicitors for the appellant. Overall, from the procedural point of view, the matter reflects no credit on the appellant's solicitors and former counsel (not counsel who appears here today).
The Court of Appeal is still required to pronounce from time to time on matters of this kind despite the fact that they have a long history. It is useful to refer to a recent decision of Tyler v Custom Credit Corp Ltd and Others (2000) QCA 178. That decision is useful to practitioners and to trial Judges in providing a summary of the usual considerations that arise in cases of this kind.
In this case, there are several factors which have been particularly mentioned by the parties here and which are obviously predominant. First, there is the question for the explanation of the delay. I have recounted that. It is observed by the respondent to the appeal that it is hardly a satisfactory explanation.
The other factor is whether or not there is prejudice to the respondent to the appeal. It is not suggested there is any prejudice. In the usual way it will almost certainly be a rehearing on the papers, so that the evidence and the reasons of the Magistrate remains as they always were, preserved for consideration by this Court if the appeal comes on.
Thirdly, it is suggested that the prospects on the appeal should be taken into account and that they are poor, particularly because the learned Magistrate placed great weight on questions of credibility and that the appellant will find it difficult to overcome those matters. That may well be so. In a proceeding of this kind it is, of course, difficult to judge exactly the strength of that submission. It would have been inappropriate to spend more time by looking into that observation because it is obvious that it would take a long time to reach a considered judgement about the real prospects of success, especially where questions of credibility are involved.
However, it must be kept in mind that even where questions which particularly rely on the privileged position of the Magistrate are concerned, it is possible to succeed on questions of credibility.
In this case, it might be kept in mind that, unfortunately, the delays have been caused by the lawyers. In the absence of prejudice and an uncertain assessment of the prospects of success, the correct exercise of the discretion is that the appeal should be allowed to proceed. I say discretion because it is clear that the onus is on the applicant here to show that good reason should be shown for exempting the proceedings from the usual prohibition. In my opinion, such good reasons have been shown.
The application to extend time should be allowed. The application to dismiss the proceedings should be dismissed. However, the application for the matter to proceed is optimistic in asking the respondent to pay the costs of the application. I have not yet heard any submissions about costs but a useful starting point might be for the parties to consider what is, I should think, the usual rule: that the person asking for the indulgence here pays the costs. However, I will hear what the parties say about that.
...
HIS HONOUR: Order that the costs of the applications be assessed on the standard basis (at the end of the appeal proceedings) and paid by the appellant to the respondent.
...
HIS HONOUR: I simply say order that the costs of the applications, in plural, be assessed etcetera. So the order will stand otherwise.