EJR & Anor v RFHR & Ors [2002] QCA 435

1 SUPREME COURT OF QUEENSLAND CITATION: EJR & Anor v RFHR & Ors [2002] QCA 435 PARTIES: EJR (first appellant/third respondent) GJB (second appellant/appellant) RFHR (first respondent/first respondent) MER (second respondent/second respondent) JAMES VINCENT COCKERILL, ADULT GUARDIAN (third respondent/fourth respondent) PUBLIC TRUSTEE FILE NO/S: Appeal No 5108 of 2002 SC No 372 of 2002 DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application - Civil ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 17 October 2002 DELIVERED AT: Brisbane HEARING DATE: 17 October 2002 JUDGES: McPherson JA, Cullinane and Holmes JJ Separate reasons for judgment of each member of the court, each concurring as to the orders made ORDERS: 1. Application adjourned to a date to be fixed. 2. The costs of and incidental to the adjournment be costs in the appeal. CATCHWORDS: PROCEDURE – STAY APPLICATION – rules and practice direction require supporting affidavits be filed with application at least three days before hearing – applicant refused to comply – whether adjournment can be opposed COUNSEL: The applicant appeared on his own behalf M M Cassidy appeared for the first, second and fourth respondents SOLICITORS: The applicant appeared on his own behalf Crowley & Greenhalgh appeared for the first and second respondents McPHERSON JA: The application in this matter started its -- 1 of 6 -- 2 journey towards this Court in the Guardianship Tribunal. There an application was made for the appointment of the first respondent as guardian of the third respondent who is his daughter. The application succeeded despite the opposition of the appellant. An appeal was then instituted by GJB against that decision and came to this Court where ultimately it was dealt with by Mr Justice Fryberg. On its coming before him the appointed guardian announced that he was agreeable to the appeal being allowed and that he did not wish to remain the guardian of his daughter. After hearing a good deal of argument about the matter his Honour decided that the appointment should be set aside, but the matter should be remitted to the Guardianship Tribunal to enable it to exercise its jurisdiction afresh on what would no doubt be an application by GJB to have himself appointed guardian, or perhaps to have no guardian appointed at all. In consequence of that and other incidental orders that were made, GJB has instituted an appeal to this Court against the orders made by Mr Justice Fryberg. It is to my mind a little difficult to determine from the material that has been filed whether the matter that comes before us now is really an appeal or an application in aid of the appeal. GJB has, however, assured us that it is meant to be of the latter kind and that what in particular he is seeking is a suspension, or more properly a stay, of the order remitting the guardianship -- 2 of 6 -- 3 application back to the Guardianship Tribunal. In addition he wants a stay of certain orders that were made for payment of costs, and he also has some applications with respect to a matter that is still before Mr Justice Moynihan. Mr Justice Moynihan heard applications on the 11th September this year for security for costs of the appeal and so on, but he has not yet delivered his decision or reasons in the matter. I do not think that it is competent for us to deal with a question which is still before his Honour and which, if there is to be an appeal or a direction or order of any kind, will be disposed of, no doubt, when the learned Judge gives his decision. As to the other matters concerned and without attempting to enter upon the merits of the matter in any way, I have no hesitation in saying that nothing has been put before us that would justify our granting a stay of the order for remission to the Tribunal that was made by Mr Justice Fryberg, even for as short a duration as the period that will elapse before the appeal is heard in full. As to the two matters concerning costs, the position is that section 253 of the Supreme Court Act of 1995 precludes an appeal to this Court with respect to costs only, without first obtaining the leave of the Judge who made the costs order sought to be appealed against. -- 3 of 6 -- 4 As to that, if the appeal is ultimately successful and so results in setting aside other orders in the case, the Court of Appeal will, on that occasion, be seized with full jurisdiction with respect to costs in all the matters in which those orders were made. If the appeal is not successful, then the order becomes one as to costs only and any appeal against it is precluded without the leave of the primary Judge, which leave has not been obtained here. The result is that those stay orders, or suspension orders as the applicant, GJB, has called them, are not competent and I would make no order to the effect of that which he is seeking. The matter, however, goes somewhat further than this. When the application came before the Court it was quite clear that the material filed in support of the application had been filed late. To be more precise, GJB filed an application which was returnable on the 17th October, in paragraph 5 of which he referred to an affidavit he would be filing on the 16th October. Rules 26 and 27 of the Uniform Civil Practice Rules read with rule 779 require that an application to this Court and any affidavits to support it must be filed at least three business days before the hearing of the matter. The affidavit in support of this application was, as I have already said, in fact filed only yesterday afternoon. The -- 4 of 6 -- 5 respondents in this matter have asked for an adjournment so that they may have time to consider the application and the supporting documents. The applicant has urged us to deal with it, saying that the material was no different from other material that had been before the respondents at some stage in the course of the several proceedings that have taken place in the Supreme Court. That, of course, is not a decisive consideration because a party is entitled to know well in advance, and, under the rules, at least three clear days in advance, what material in the mass of documents already filed is going to be relied on and for what purpose. The result is, in my view, that the respondents are entitled to a proper time to consider the matter, so that they can resolve what course they should adopt, which is not even to mention the needs of the Court in considering material before it comes before us at the hearing. The result of that is that I see no reason why we should attempt to proceed with this hearing in the circumstances in which neither the Court nor the respondents are in a position to understand or deal with the material so recently filed. It follows, in my opinion, that the application should be adjourned to a date to be fixed. What remains is an -- 5 of 6 -- 6 application to amend the notice of appeal in various ways. I have looked at the proposed amendments and I hold the personal view that none of them can succeed. It is, however, not that matter but the stay or suspension applications which in the end GJB has asked us to deal with here. The result is that, as I see it, he is not entitled to the suspension orders he seeks, but that the respondents are entitled to an adjournment of the proceedings before the Court and that they should be given that benefit. The application therefore should be adjourned to a date to be fixed. CULLINANE J: I agree. HOLMES J: I agree. ... McPHERSON JA: There will be an order, then, that the costs of and incidental to the adjournment be costs in the appeal. Those are the orders that will be made. ----- -- 6 of 6 --