An application for orders striking out the appellant’s notice of appeal. The respondent applied for the notice of appeal to be struck down, submitting that the appellant failed to seek leave to appeal per ss 118 and 118B of the District Court of Queensland Act 1967 (Qld) and that the appeal was commenced out of time. In response, the appellant applied for orders that the time for appeal be extended, it be granted leave under s 118(3) of the District Court of Queensland Act to file and serve the notice of appeal and that leave to appeal be allowed pursuant to r 661(4)(b) of the Uniform Civil Procedure Rules 1999 (Qld).
Fraser JA dismissed the respondent’s application and adjourned the appellant’s application until the hearing of the appeal. His Honour was not satisfied that the respondent had made out the premise of its strike-out application that the appellant’s appeal was commenced out of time, and so dismissed the respondent’s application. His Honour considered it reasonably arguable that the appellant required leave to appeal under s118 of the District Court of Queensland Act 1967 (Qld). His Honour observed that the usual practice in appeals in the civil jurisdiction is that application for leave are heard by a court constituted by three judges on the basis that if leave is granted the appeal can be hear at the same time. Having regard to argument on one of the grounds of the appeal his Honour dismissed the respondent’s submission that there was no arguable merit in the appeal. However, having not heard argument on all of the matters in the appeal, his Honour adjourned the appellant’s application for leave to appeal, with costs reserved.
Nicholas Andreatidis QC and Oliver Cook appeared for the respondent, instructed by Dowd & Co Lawyers.
The judgment is published here.
