Adamson v Williams

[2000] QCA 456

[2000] QCA 456

COURT OF APPEAL

DAVIES JA

CA No 9510 of 2000

CHRISTOPHER MICHAEL ADAMSON  Applicant

v.

LYLE JAMES WILLIAMS  Respondent

BRISBANE

..DATE 07/11/2000

JUDGMENT

DAVIES JA:  This is an application for a stay, not in respect of the judgment of the District Court from which there is an application for leave to appeal to this Court, but in respect of an order pursuant to that judgment for payment out of monies paid into Court by a third party to that third party.

However, the same principles apply and, as I mentioned during the course of argument, the applicant, represented here by Mr Robinson, is required to show, first, that there is a good arguable case.  Secondly, that the applicant would be disadvantaged if a stay were not ordered and, thirdly, the Court must consider whether there was some competing disadvantage to the respondent should the stay be granted which outweighed the disadvantage suffered by the applicant if the stay were not granted.

It seems to me that the applicant, as I indicated during the course of Mr Robinson's argument, fails at the first of those hurdles, that is, in showing that there is a good arguable case on appeal.  It must be remembered in the first place that the applicant has no right to appeal to this Court but must seek leave as he has done.

He has filed an application for leave to appeal to this Court on 1 November 2000 in which he raises three grounds of appeal.  The first is that the learned judge erred in law in not finding that a term should be implied in the contract of retainer between the parties to the effect that if the respondent terminated the applicant's retainer prior to trial the respondent would be liable to pay the applicant's professional fees and outlays.

The second is that the learned judge erred in law in not finding that the applicant was entitled to be paid his professional fees and outlays on a quantum meruit basis in circumstances where the respondent had terminated the contract of retainer prior to trial of the matter.  The third is that the learned judge failed to set aside the decision of the learned magistrate that the agreement between the parties was that the respondent's litigation was conducted on a contingency basis on the ground that the decision was against the evidence and the weight of the evidence and, in the circumstances, making a finding in favour of the applicant.

The first of these raises an implied term argument, the second a quantum meruit argument and the third a credibility argument.  Neither the first or the second of these, it seems to me, was raised or, at least, properly raised before the learned magistrate who decided the case at first instance and there is nothing with which Mr Robinson could point to in the reasons of the learned magistrate which indicated that the magistrate was apprised of these arguments or considered them, certainly not decide them.

Mr Robinson has taken me to the address of the applicant who appeared for himself in this matter and to a passage at page 46 of the transcript which appears, at best for the applicant, to raise obliquely one of these arguments but certainly not in terms which would have made the magistrate aware that these arguments were being advanced.  It is accepted that these matters were not referred to in the pleadings in the Magistrates Court.

For those reasons, it seems to me unlikely that this Court will entertain those arguments in the course of an application for leave to appeal to this Court and certainly not in the substantive appeal, probably not, I should say, in the substantive appeal.  That leaves as, in effect, the only ground of appeal a credibility argument.  That was raised before the learned district court judge on appeal for the applicant and failed.  It was simply a question of accepting one party or the other with respect to what was said during the course of an oral conversation or conversations.

Bearing in mind that the first hurdle in this Court must be an application for leave it does not seem to me that that is an argument which would justify the granting of leave to this Court.  For those reasons, it seems to me that the applicant here fails to establish that there is a good arguable case on appeal and for that reason I would refuse the application for a stay with costs.

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