Sunlouvre Pty Ltd v Huenerberg
[2003] QDC 439
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- Unreported Judgment
- Sunlouvre Pty Ltd v Huenerberg[2003] QDC 439
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Sunlouvre Pty Ltd v Huenerberg[2003] QDC 439
Sunlouvre Pty Ltd v Huenerberg[2003] QDC 439
DISTRICT COURT OF QUEENSLAND
CITATION: | Sunlouvre Pty Ltd v Huenerberg [2003] QDC 439 |
PARTIES: | SUNLOUVRE PTY LTD Plaintiff/Appellant v JUERGEN HUENERBERG Defendant/Respondent |
FILE NO/S: | Appeal No. D 372/03 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 28 November 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 November 2003 |
JUDGE: | Judge Robin QC |
ORDER: | Appeal Allowed |
CATCHWORDS: | Appeal from Magistrates Court to District Court – Acting Magistrate entered judgment as sought by counterclaiming defendant on appellant/plaintiff’s claim and on the defendant’s counterclaim for failure of the plaintiff to comply with a Magistrate’s order to make disclosure by list – plaintiff was served with application but failed to appear as solicitor (on leave) did not learn of the application in time – UCPR r 374(8) required such a judgment to be appealed against if to be set aside – history of non-compliance and non appearance by plaintiff – Acting Magistrate had no evidence to show the counterclaim had merit, and apparently did not consider whether the “ultimate remedy” under s 374(5)(a) was really appropriate – appeal allowed – whether appellant should pay indemnity costs considered |
COUNSEL: | Mr SA McLean for the plaintiff/appellant Mr PB O'Neill for the defendant/respondent |
SOLICITORS: | Deacons for the plaintiff/appellant Graham & Associates for the defendant/respondent |
- [1]This is an appeal against orders of an Acting Magistrate made on 13 January 2003 that:
“1.The Claim and Statement of Claim be struck out and judgment be entered for the Defendant on the Claim and Counter-Claim on the grounds of that the plaintiff has failed to comply with the order of the Brisbane Magistrates Court on 22 November 2002 pursuant to Rule 371(2)(e) of the Uniform Civil Procedure Rules;
- Judgment be given for the Defendant Juergen Huenerberg against the Plaintiff Sunlouvre Pty. Ltd. in the sum of $28,000.00 together with costs of $3,259-00, a total of $31,259-00.”
The Acting Magistrate prepared the following typewritten account of the proceedings before him and his reasoning:
“APPLICATION TO STRIKE OUT PROCEEDINGS AND ENTER JUDGMENT
FOR RESPONDENT PLAINTIFF:No Appearance
FOR APPLICANT DEFENDANT:Mr. N.R. Collins (Sol) Graham and Associates
I formally read the application and supporting affidavits of Nigel Robert Collins sworn on 20th December 2002 and Nigel Robert Collins sworn on 29th October 2002.
I hear oral submissions from Mr. Collins.
I allow the filing by leave of the following material:-
Affidavit of Rebecca MacMillan sworn on 8 January 2003;
Affidavit of Nigel Robert Collins sworn on 10 January 2003.
On the material before me, I am satisfied:-
1The Plaintiff has not complied with the order of the Brisbane Magistrates Court on 22 November 2002;
2.Service of this application.
I allow costs on the following basis:-
1.Item 1 Instructions to sue$839-00;
2.Item 2 – Instructions to defend$839-00;
3.Item 6(a) – Counsel’s fee to settle claim$202-00;
4.Item 6(e) – Counsel’s fee to advise$210-00;
(letter of 17/09/02)
5.Item 10 Application to Court$412-00;
6.Item 11(a)(i) Allowance for requesting$266-00;
disclosure
7.Item 11(a)(ii) – Allowance for making disclosure $491-00;
TOTAL$3,259-00”
Background to the litigation
The appellant plaintiff’s Claim and Statement of Claim filed in the Brisbane Magistrates Court on 31 January 2002 alleged that the respondent Juergen Huenerberg (“Mr Huenerberg”) was employed by it on a weekly basis from 7 February 1996 to 12 December 2001, on which date he gave notice of his intention to terminate his employment, that on 15 January 2002 he withdrew $3,000 from the plaintiff’s bank account when he “was not owed any money by the Plaintiff nor was he authorised to withdraw the money.” The $3,000 claim (before interest) could be regarded as one for moneys had and received. A Notice of Intention to Defend with “Attached Defence” admitted the employment, adding that “the Plaintiff company was previously known as ‘Louvrol Pty Ltd’ and ‘Shutterflex Pty Ltd’ and the Defendant had been employed by the those previous companies since 1988.” It was pleaded that the employment ended when “Dirk Huenerberg terminated the employment of the Defendant without notice”. (The person named is shown by other material to be the defendant/respondent’s father.) Withdrawal of the $3,000 on 15 January 2002 was admitted. The “Defence” continued:
“5. The Plaintiff denies the allegations contained in paragraph 5 of the Statement of Claim and states that the Plaintiff owed the Defendant a significant amount of money.
By way of Set-off and Counterclaim the Defendant (Plaintiff by Counterclaim) claims the following:
- Forty-eight (48) weeks holiday pay, being holidays owed by the Plaintiff to the Defendant during the course of his employment by the Plaintiff, a total of not less than TWENTY-THOUSAND DOLLARS ($20,000).
- Long Service leave of ten (10) weeks owed by the Plaintiff to the Defendant, a total of not less than FOUR THOUSAND DOLLARS ($4,000).
And Further:
- The Plaintiff has failed in its obligations to pay Superannuation to the Defendant or on behalf of the Defendant into a fund held by the Defendant at Suncorp Metway. A total of not less than SEVEN THOUSAND DOLLARS ($7,000.00)
4.Full particulars of the Defendant’s claim will be provided once an inspection of documents has taken place, as the Defendant does not have access to his full pay records and his employment history, as such records are in the possession of the Plaintiff and the Plaintiff has failed to provide copies of the records despite being requested to do so on 6 February 2002 and 21 February 2002.
AND the Defendant (Plaintiff by Counterclaim) claims by way of set-off and counterclaims the sum of THIRTY-ONE THOUSAND DOLLARS ($28,000)”.
The sole endorsed notice, following signature and dating, was the familiar notice as to reply:
“You have 14 days within which to file and serve a reply to this defence. If you do not do so, you may be prevented from adducing evidence in relation to allegations of fact made in this defence.”
The fuller “Notice as to Reply and Answer” called for by Form 18 under the UCPR was not included.
- [2]No reply was ever filed. Mr Huenerberg’s solicitors, Graham & Associates immediately set about seeking documents relevant to his employment since 1988. Criticisms might perhaps be made of their pleading, but Graham & Associates have proceeded actively to pursue those documents.
- [3]The plaintiff’s solicitors in correspondence of 19 March 2003 sought particulars of paragraph 3 of the defence:
“Once we have received those particulars we can finalise our client’s reply and answer and then each party can attend to their disclosure obligations. We should say that having regard to the contents of your client’s counterclaim the wages records held by our client relating to your client would be relevant and therefore would be disclosed.”
A further letter of the same date in reference to an “Application to Produce” filed on 6 March 2002 complained:
“We refer to your letter of 13 March 2002 received 14 March 2002 attaching application to produce.
Not only have we never received any such notice (please refer to our letter to you of 7 February 2002) but, with the greatest respect, the application is misconceived. Please direct us to the provision of the Uniform Civil Procedure Rules that allows a defendant to issue a notice to produce as a form of pre-pleading discovery.
The fact is that some of the documents you have requested are now relevant to the counterclaim and will be produced by our client in complying with its disclosure obligations.
By way of specific response to the relief sought in the application we advise as follows:
- You ask for all company wage books for the past 13 years. What is the relevance of those documents in the absence of a pleading to the effect that your client was indeed employed by our client for a specified period. Our client’s records indicate that the plaintiff was not incorporated until February 1996. You need to amend your client’s counterclaim to make those documents relevant. Once that is done the documents will be disclosed as part of our client’s disclosure obligation.
- There is nothing in our client’s claim or our client’s defence and counterclaim which makes the company statutory register relevant. In that regard we refer you to rule 211(1) of the Uniform Civil Procedure Rules. If you can by reference to the pleadings indicate the relevance of the company statutory register then it will be disclosed.
We invite you to withdraw the application. In the event that we receive notification of its withdrawal within the next 7 days then we will agree to have been [it?] dismissed with no orders as to cost.
If your client wishes to proceed with the application it will be defended and we will produce this letter to the court in support of a claim for indemnity costs.”
- [4]The application came on before Mr Allingham SM on 15 April 2002, the only appearance being by Graham & Associates. Whether or not because notice was taken of the letter, the order made (presumably the one the firm sought) was that “Each party deliver to the other a list of documents within 14 days. On the part of the plaintiff it shall include all documents relevant to the contract of employment between the defendant and the plaintiff over any period not exceeding the past 13 years.” Costs were reserved.
- [5]Mr Huenerberg made disclosure by list dated 3 May 2002. By letter of 16 May 2002 the company’s solicitors requested copies of some of the documents and asked for the particulars previously requested “by return so that we can finalise our client’s reply and answer.” Graham & Associates continued to press for the company’s list. Instead, they received a letter dated 10 July 2002 said to “attach copies of those documents which are within our client’s possession or power which are relevant to the matters in dispute” - and attaching a request for trial date for signature.
- [6]The response was a “Rule 444 letter” of 23 August 2002 seeking a list of documents. It was followed by an application filed on 31 October 2002 seeking an order that the plaintiff provide its list of documents as per the request of 23 August 2002, and pay the costs of the application in any event. Mr Costanza SM on 22 November 2002 made such orders, fixing the time for compliance as within seven days of service of the order and ordering the company to pay costs fixed at $412. Once again, there was no appearance before the Magistrate, except by Graham & Associates. They effected service of the order (erroneously described as “dated 27 November 2002”) by letter of 2 December 2002. It is clear from Mr Rosengren’s affidavit used in the appeal by leave of the court on behalf of the appellant that this letter was received. It concluded:
“Please note that, should your client not comply with this order to the letter, we shall be making an application to strike out the claim and have judgment entered for our client, together with costs on both the claim and counterclaim.”
- [7]Nothing happened by way of provision of a list, nor by way of assertions that enough had already been done by production of copies of documents. Graham & Associates’ next letter of 11 December 2002 complained of these matters, renewing the threat of an application, if no list of documents was filed and served by 17 December; Rule 444 was again invoked. Mr Rosengren’s response was to present an offer proposing discontinuance of the action and some other action on condition that Mr Huenerberg divest himself of his share in the company to “our client” for one dollar. The response of 18 December 2002 communicated Mr Huenerberg’s determination to continue with his counterclaim in the circumstances and advised:
“We are now making an application to the court in respect of your client’s failure to comply with the order of 22nd November.”
The application was filed on 23 December 2002, returnable on 13 January 2003. Service was effected at 3.40 pm on 7 January 2003, according to an endorsement apparently made by an employee of the company’s solicitors. See the affidavit of service of NR Collins filed by leave before the Acting Magistrate on 13 January 2003.
- [8]Mr Rosengren deposes that “a letter of 18 December 2002 was received in his firm by facsimile at 2.36 pm on 19 December 2002:
“14.I had already left the office at that time to commence annual leave and did not return to the office until 13 January 2003. My secretary of some 7 years was also absent from the office at that time and my mail was distributed by other secretarial staff in the office. Due to the fact that I was going to be away on annual leave at the same time as my secretary, I did not request the firm to provide me with a float secretary during that time.
- Due to an internal oversight the existence of the Defendant’s application dated 6 January 2003 was not brought to my attention until I found it in a pile of mail when I returned to the office on Monday 13 January 2003. At the time at which I saw it was well past 9:00 am.”
9.00 am was the time of the hearing when the orders under appeal were made.
- [9]Ordinarily, a litigant in whose absence an order is made is entitled to apply to the court that made it to have it set aside or changed on appropriate grounds. Unfortunately, Rule 374(8)(b) of the UCPR compels the appellant to bring this appeal instead. The Rule, which the Acting Magistrate was asked to and did apply, provides:
“[r 374]Failure to comply with order
374(1)This rule applies if a party does not comply with an order to take a step in a proceeding.
(2)This rule does not limit the powers of the court to punish for contempt of court.
(3)A party who is entitled to the benefit of the order may, by application, require the party who has not complied to show cause why an order should not be made against it.
(4)The application –
(a)must allege the grounds on which it is based; and
(b)is evidence of the allegations specified in the application; and
(c)must, together with all affidavits to be relied on in support of the application, be filed and served at least 2 business days before the day set for hearing the application.
(5)On the hearing of the application, the court may –
- (a)give judgment against the party served with the application; or
(b) extend time for compliance with the order; or
(c)give directions; or
(d)make another order.
(6)The party who makes the application may reply to any material filed by the party who was served with the application.
(7)The application may be withdrawn with the consent of all parties concerned in the application or with the court’s leave.
(8) A judgment given under subrule (50(a) may be set aside
(a)if the application is made without notice – on an application to set the judgment aside; or
(b)otherwise – only
(9)Despite subrule (8), if the court is satisfied an order dismissing the proceeding was made because of an accidental slip or omission, the court may rectify the order.
The orders were made under sub-rule 5(a). Such observation may seem inconsistent with the Acting Magistrate’s purporting to act under rule 371(2)(c), but that rule suffices to pick up other rules, including r 374(50(a). I am highly doubtful that rule 371 considered alone could support the orders under appeal.
- [10]Incredibly, the appellant’s record of failing to turn up has continued in the appeal. On 7 May 2003, I heard a Registrar’s reference occasioned by its failure to file the outline of argument required by the Practice Direction. Again, there was no appearance. I reproduce in an appendix to these reasons what I said then. The order was that the appeal be struck out unless a proper outline of argument was filed on or before 21 May 2003, for want of prosecution. An outline of argument came in on that day, so the appeal proceeded.
- [11]Mr McLean, who was engaged as counsel to present the appeal at the last moment, sought leave to rely on an amended (expanded) outline of argument, in support of an amended (expanded) Notice of Appeal. The ground sought to be added is:
“2.That the learned Magistrate erred in exercising his discretion under R 374(5)(a).
Particulars:
- (a)There is no evidence to support the order made;
- (b)There is no proper counterclaim to support the judgment;
- (c)There is no history of the matter to support the making of the order.”
Leave was also sought to use an affidavit of Mr Rosengren sworn on 18 November 2003. Essentially, this puts in the correspondence, tells the “holiday” story already noted; there is some argumentative material cavilling at the defendant’s claim in respect of documents in the 1988-1996 period, having regard to the state of pleadings. It is said that the plaintiff’s reply and answer will plead that Mr Huenerberg could have no claim against the plaintiff prior to its incorporation in February 1996, and that following that date he “was granted and took holiday on an annual basis” – further that all required superannuation payments have been made.
- [12]I am inclined to grant Mr McLean the leave he sought, against the respondent’s opposition, given my view of what the interests of justice call for here. Plainly, it is a strong thing to give judgment against a litigant for “indiscipline”. Rule 374(5)(a) in terms permits that. It is one thing, in my opinion, to give judgment against a plaintiff, claimant or applicant upon his own claim on the basis of sufficiently serious failure to comply with a rule, practice direction or order of a court – it may be a far stronger thing to punish an errant defendant or respondent by giving judgment against him, her or it upon a claim which was never tested or examined. Everything depends on the particular circumstances, of course. There may be situations in which the claim appears so clear that being permitted to defend it looks like something of an indulgence. That is hardly the case here, if only because the duration of the employment (according to the pleadings) of less than six years is obviously unlikely to produce an entitlement to 48 weeks holiday pay or 10 weeks long service leave.
- [13]Rule 374 appears to be modelled on Order 10 rule 7 of the Federal Court Rules 1976, considered by a Full Court of that Court in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388; 98 ALR 200 where the Rule is set out at 395 (ALR 207-08):
“(1)Where a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court on notice –
- (a)if the party in default is an applicant – for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceeding;
- (b)if the party in default is a respondent – for judgment or an order against him; or
- (c)for an order that the step in the proceeding be taken within the time limited in that order.
- (2)The Court may make an order of the kind mentioned in sub-rule (1) or any other order or may give such directions, and specify such consequences for non-compliance with the order, as the Court thinks just.
- (3)This rule does not limit the powers of the Court to punish for contempt.”
In the leading judgment, Wilcox and Gummow JJ said at 395-6 (ALR 208):
“It is to be noted that the power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of “inordinate and inexcusable delay” on the part of the applicant or the applicant’s lawyers, lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.
…
The observations which we have just made about the scope of O 10, r 7 are not intended to convey the impression that any failure to comply with a procedural direction will appropriately result in the dismissal of the proceeding. On the contrary, the rules must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable, by even the most conscientious parties and their lawyers, and of the likely serious consequences to an applicant of staying or dismissing a claim; compare the approach taken to non-compliance with time limitations in respect of appeals in Van Reesema v Giameos (1979) 27 ALR 525. We would not wish our observations to cause respondents to apply for dismissal of proceedings simply because there has been a non-compliance with a direction by the applicant, even though it does not cause or indicate a continuing problem in preparing the matter for an early trial.”
The primary judge’s dismissal of a proceeding for “persistent non-compliance with the directions of the Federal Court by the applicants” was overturned on appeal. It is clear that Order 10 rule 7, like rule 374, provides for a range of sanctions for failure to comply with an order to take a step in a proceeding. Wilcox and Gummow JJ, like Pincus J, considered the primary judge’s discretion had miscarried. As Pincus J put it at 403 (ALR 215), “While I recognise the force of the criticisms of the appellant’s conduct of the case, made in the reasons of the primary judge … it is my opinion that the case was not an appropriate one for the application of the ultimate remedy, that of dismissal.”
- [14]In my opinion, the respondent’s case here is a weaker one than the Federal Court considered. Although the appellant failed to comply with not just one order, but two orders requiring disclosure by list, it had, as is conceded, provided copies of some documents, which it asserts (and here it may or may not be correct) represent full disclosure having regard to the pleadings.
- [15]It appears to me that the hearing on 13 January 2003, which occurred after service allowing the minimum number of three “business days” at a time of the year when Brisbane, notoriously, is in holiday mode and at its most somnolent, went badly wrong. I find the conclusion hard to resist that the Acting Magistrate approached the situation as one in which Mr Huenerberg was entitled to proceed as on default of appearance. It is true that the application contained the endorsement:
“If you wish to oppose this application or to argue that any different order should be made, you must appear before the Court in person or by your lawyer and you shall be heard. If you do not appear at the hearing the orders sought may be made without further notice to you.”
A reader of that note, in my opinion, would not expect non-appearance (which here I am satisfied was accidental) to lead automatically to any final judgment. The ordinary reader would expect, and I am satisfied that R 374 requires not less than a judicial consideration of the justness of the outcome. There is nothing from the Acting Magistrate resembling the careful review of the Judge at first instance in Lenijamar; see 96 ALR 197.
- [16]The “counterclaim” is such that if there had to be judgment in favour of Mr Huenerberg against the appellant upon it, the right judgment might have been one requiring some inquiry or assessment as to the appropriate amount. Mr McLean relied on Australian Securities Commission v Macleod (1994) 54 FCR 309, in which Drummond J held, as the headnote records, that:
“Where judgment is sought pursuant to Order 10 rule 7(1)(b) the applicant must support the motion with evidence sufficient to prove that the Court has jurisdiction in the matter, the facts upon which the cause of action is based, and that the circumstances are such as to justify the grant of the remedy.”
No material was adduced on 13 January 2003 to satisfy a requirement of that kind. Drummond J’s decision was one leading to a judgment against an errant respondent, who apparently failed to appear before the court.
- [17]The Acting Magistrate’s exercise of his discretion miscarried, in my view. The appeal must be allowed, and the orders made on 13 January must be set aside. I might have been inclined to consider letting the judgment against the plaintiff on its own claim stand. However, that is an unattractive course given that Mr Huenerberg’s defence appears to accept the validity of the $3,000 claim.
- [18]Although the respondent below sought “the ultimate remedy”, he may wish, either before this court or before a magistrate, to pursue alternative relief under r 371 or r 374. I ought to allow the parties an opportunity to consider their positions in light of these reasons, and make further submissions about appropriate orders. In principle, I am reluctant to make any orders which give the appearance of taking over management of the case, which remains in the Magistrates Court. If the parties are able to agree about directions which would advance the matter towards determination in the Magistrates Court (assuming they cannot resolve the differences between them) I would be pleased to consider incorporating agreed directions in any order of this court. They might extend to getting pleadings in order and to the troublesome issue of disclosure.
- [19]Mr O'Neill has suggested that an order for security (for the subject matter of the counter-claim rather than costs) might be ordered, as happens from time to time where a default judgment is set aside or when a summary judgment application by a plaintiff is defeated on a basis which seems somewhat tenuous, for example. I have difficulty seeing the point of that, but have sympathy with another suggestion of Mr O'Neill, that some or all costs might be awarded to his client on the indemnity basis. Although some criticism might be made of his and Graham & Associates’ performance, such as their waiting until the height of the holiday period before serving their application, and their apparently eschewing any approach to the other side on 13 January this year, in case there had been some accident underlying their non-appearance (note the comparatively solicitous approach taken in the annexure) essentially, they have done things correctly, while, on the appellant’s side, there has been an almost incredible record of failing to turn up at hearings. I observed on 7 May that this was completely at variance with the solicitors’ known competence and excellent reputation; it is a matter of speculation whether things have gone wrong, one after another, within the firm (a different firm instructed Mr McLean), or whether what has happened was a deliberate implementation of some strategy instructed by the appellant. Really, it does not matter.
- [20]it is not unprecedented for successful litigants (as the appellant has been) to be ordered to pay indemnity costs to the “losing” side. See Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR97585, Tregoyd Gardens Pty Ltd v Jervis, Supreme Court of NSW, Equity Division 3900197, Hamilton J, 25.9.97; BC 9707649; Re Wembley Park Co Ltd’s Transfer (1968) Ch 491, 507; one justification for such an order is that (as here) an indulgence is being obtained. There appears to me to be a case here for the respondent’s indemnity costs of the appeal to be ordered against the appellant on the indemnity basis.
- [21]The appeal should be allowed and the Acting Magistrate’s orders set aside. As to other orders to be made, as contemplated in [19] ff, I shall hear the parties.
APPENDIX
HIS HONOUR: This is a Registrars Reference in a Civil Appeal brought by Sunlouvre Pty Ltd against orders made in the Magistrates Court. Those orders were made in the context of repeated failure by the appellant, which was plaintiff, to comply with rules and orders relating discovery or disclosure.
The consequence was that without any hearing on the merits, a relatively modest claim by the appellant was struck out and a much larger counter claim by Mr Huenerberg resulted in a judgement for the full amount of it against the company.
It is surprising that in the appeal – it was field in this Court on 6th of February 2003 – the appellant hasn’t been more punctilious in complying with the requirements of the rules and the associated requirements in practice directions.
The effect of Rule 785 (1) of the UCPR is that rule 775(1) applies in appeals as such as the present. By that rule, “If the appellant fails to comply with any step required under these rules or a Practice Direction, including a Practice Direction about filing or serving an outline of argument, the Court of Appeal may, at or before the hearing of the appeal and of its own initiative or on an application by the respondent, dismiss the appeal for want of prosecution.”
The Registrar has been in attempted communication with the appellant’s solicitors, who are well known and a highly competent firm of litigation lawyers.
HIS HONOUR: The Registrar’s communications to the firm of solicitors, the last of which indicated that the reference wouldn’t go ahead if the Outline of Argument was filed by yesterday afternoon, have presumably been delivered, none having been returned to the Registrar. I must say, I find the non-response of the firm curious but there may be reasons for it. For the moment, their office is the only means of communication notified to the Court.
I am making these observations because in the unusual circumstances I would feel happier if some attempt at communicating with the appellant in other ways were made, not withstanding that the address for service in the Notice of Appeal, which is the address of the solicitors, is strictly something that everyone should be able to rely upon.
Mr Lewis – who appears for the respondent in the appeal – who enthusiastically has caused his own Outline of Argument to be filed already – asked that the appeal be struck out. I am disinclined to do that, forthwith.
The company is not represented today and didn’t appear when called about midday. The Registrar has referred me to my decision in Hessey v. Tamawood Pty Ltd, 2876 of 1999, 14th of October 1999, in which I decline to strike out an appeal where the appellant had – extremely belatedly – filed a rather sparse outline, by the time the matter was before me.
Mr Lewis’ position is stronger than that of the respondent in the appeal in Hessey, but I prefer to take a cautious approach and my order will be that unless the appellant files a proper Outline of Argument on or before the 21st of May 2003 the appeal be struck out with costs for want of prosecution under Rule 775.
I will order that the respondent, Mr Huenerberg’s costs of this reference be paid by the appellant. I direct the Registrar send notice of this order to the appellant’s solicitors on the record, also to the appellant at his registered office, at 731 Albany Creek Road, Albany Creek and at 44 Boron Street, Sumner Park, Queensland, 4074. Thank you.