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This case considered how the Court of Appeal should proceed in relation to an application for an extension of time to appeal, in circumstances where the primary judge had not yet made final orders disposing of the matter at first instance (but had delivered reasons indicating the orders he was likely to make). The Court treated the application as being one for directions and made orders for how the matter should proceed following final orders of the primary judge.
Morrison and Bond JJA and Boddice J
27 May 2022
Shirley Hartley died in June 2016 and was survived by her four sons. . Under her last will she bequeathed her assets to three of her sons but made no provision for one of them – Craig. . In a statutory declaration made on the same day as her will, she explained that the reason she had made no provision for Craig was that “[h]e is currently addicted to the drug ICE” and she did “not wish for him to benefit at all from my estate as he is a big disappointment to me and has done nothing to help me during my illness”. .
In 2017 Craig filed an application seeking orders that adequate provision be made out of his mother’s estate for his proper maintenance and support, pursuant to s 41 Succession Act 1981. . In December 2021, following a trial, the primary judge published written reasons explaining his reasons why he had concluded that “he would make an order that further provision be made for the proper maintenance and support” of Craig in the form of a specific bequest of $150,000. . However, to date the primary judge had not yet made orders consistent with those reasons, on the basis that he would hear further from the parties as to the precise form of any order. .
In January 2022, one of the sons, Shane, as executor of his mother’s will, filed a notice of appeal from the primary judge’s judgment and brought an application for an extension of time within which to appeal. . However, given that the primary judge had not yet made orders following his delivery of reasons, the key issue addressed by the Court of Appeal in this judgment was how the Court should proceed. .
How things should proceed, absent orders of the primary judge
The Court of Appeal observed that both parties had “proceeded on the basis that the primary judge had made an order capable of being appealed”, but that they were wrong in so assuming. . The appeal right in this case, which was conferred by s 118(2) District Court of Queensland Act 1967, had to be construed as only conferring an ability to appeal from “a formal operative judicial act which disposes of or deals with the particular proceeding or aspect of the proceeding”. . In the absence of final orders from the primary judge, there was not yet a “formal operative judicial act which adversely affects the present applicant’s rights” and which was capable of being appealed. .
However, the parties had spent considerable time making submissions before this issue of the absence of orders was raised. . Further, those submissions had convinced the Court that the primary judge had made at least two discretionary errors “within the meaning of House v The King”, including incorrectly finding that there was no evidence of certain matters, despite that evidence being provided by the statutory declaration of the deceased (which was to be admitted pursuant to s 92 Evidence Act 1977 and regarded as proof of the truth of its contents). . The Court considered that r 5 of the UCPR made it desirable to “make orders which would enable some advantage to be taken of the work done by the parties and by the Court in relation to the argument which has already occurred”. .
Accordingly, the Court considered that the appropriate course to take was to “treat the misconceived application for an extension of time within which to appeal, as an application to this Court for directions in relation to the appeal which may be made”. . Their Honours made orders requiring the parties to take all reasonable steps to obtain a final order from the primary judge, and requiring the applicant to take various steps (such as prepare a proper appeal record) in the event he wished to appeal following the entry of final orders by the primary judge. .
Their Honours also observed that it would be open to the primary judge to “reopen the proceeding before him to correct the errors … identified” because it has “long been the law that a court may review, correct or alter its judgment at any time until its order has been perfected” (citing Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382). .