Aldrick v E M Investments (Qld) Pty Ltd

[1999] QCA 183

COURT OF APPEAL	[1999] QCA 183
McMURDO P THOMAS JA DERRINGTON J
Appeal No 2468 of 1999
E M INVESTMENTS (QLD) PTY LTD	Appellant (Defendant)
and
TREVOR IAN ALDRICK	Respondent (Plaintiff)
BRISBANE
..DATE 24/05/99
JUDGMENT 240599 T6/RRD7 M/T COA 112/99

THOMAS JA: This is a motion to dismiss an appeal as incompetent. The purported appeal is brought

by an unsuccessful defendant (E M Investments (Qld) Pty Ltd) against which a District Court Judge

gave judgment for $40,098 with costs. For convenience I shall refer to it as the appellant.

The incident giving rise to the litigation involved injuries suffered by the respondent when he was

attacked by a dog under the control of an employee of the appellant. The judge's finding of liability

was essentially based upon breach of duty of care by the employee in encouraging the dog to be

aggressive, and in failing to prevent it from coming into contact with the respondent. The relevant

incident and the events leading up to it are described in a detailed judgment delivered by the learned

trial judge, in which the differing versions of the parties involved were apparently considered and

resolved with some care.

The essential determinations in the case were based upon matters of credibility. There is no cross-

appeal, and no issue has been raised by either party which could result in the judgment being increased

beyond its present level.

Section 118(2) of the District Court Act 1967 provides:

"l 18. (1 )...

(2)A party who is dissatisfied with a final judgment of a District Court in its original jurisdiction

may appeal to the	Court of Appeal if the judgment -
(a) is given -

(i)          for an amount equal to or more than the Magistrates Courts jurisdictional limit; or

(ii)         in relation to a matter at issue with a value equal to or more than the Magistrates

Courts jurisdictional limit; or

(b)        involves directly or indirectly any claim, demand or question in relation to any property or right with a value equal to or more than the Magistrates Courts jurisdictional limit."

Plainly the present judgment fails to reach the amount of the Magistrates Courts jurisdictional limit of

$50,000. Accordingly, neither party has an appeal as of right under s 118(2)(a). The question then is

whether the case fulfils the requirements of s 118(2)(b).

The amendment which produced s 118 in its present form was apparently based upon the formula

used in s 35 of the Judiciary Act 1903 (Cth). No clear pattern of interpretation emerged from the

High Court decisions under that section given prior to its repeal. The indeterminate position resulting

from those decisions was noted by this Court in Schiliro v. Peppercorn Child Care Centres Pty Ltd

([2000] 1 Qd R 000).

The present case involves a money claim with an assessment of damages. Some guidance as to the

effect of s 118(2) has been provided by recent decisions in this Court, notably Schiliro, and in Morris

v Australia Meat Holdings Pty Ltd ([2000] 1 Qd R 000). In Schiliro the appeal was brought by a

plaintiff who had failed entirely. The trial judge had assessed damages in any event at a sum less than

$50,000, but the plaintiff's appeal sought to substitute a judgment of more than $50,000. The majority

held that for the purposes of s 118(2)b primary reliance should be placed upon the amount claimed in

the action.

Morris v. Australia Meat Holdings was a defendant's appeal against a judgment of less than

$50,000, as is the case in the present matter. The plaintiff had claimed unspecified damages for

negligence. The Court in that case distinguished Schiliro on the basis that the plaint did not claim any

particular sum. It held that, as the judgment was less than $50,000 and that there was no contention
that a higher figure should have been awarded, the appeal was incompetent.

It is true, as counsel submit in the present matter, that some dichotomy or gap still remains in relation

to the determinations in the two cases that have been mentioned.

It seems to me that the amount at which a judgment may stand after an appeal may be a potentially

relevant factor in considering whether the judgment involves directly or indirectly any claim in relation

to any property or right with a value within the prescribed limits. It also seems to me that as a matter

of general principle, unless the appeal is one with the potential to result in a judgment or a loss of a

judgment for $50,000 or more, it cannot be said under s 118(2)(b) that the "judgment involves any

claim in relation to any right with a value" of $50,000 or more.

It is my view, then, that an appeal lies from the judgment of the District Court if the amount claimed in

the plaint is $50,000 or more, and there is a live contention that there should be a

judgment for $50,000 or more. The present appeal satisfies the first factor, but not the second.

Accordingly, I would rule that the present notice of appeal does not lie as of right.

Mr Hack, who appeared for the appellant, foreshadowed an application for leave to appeal in the

event that leave of the Court was necessary. The question then is whether leave should be granted.

There is a wide and unfettered discretion reposed in the Court on such a question. It is true, as

counsel for the respondent, Mr Kelly, submits, that the present application is out of time, but as the

notice of appeal, although incompetent, was filed within the appropriate time, there is obviously no

question of any prejudice involved. The primary consideration would seem to be whether this is an
appropriate case for the grant of leave to appeal.

Mr Hack submitted that his Honour's findings of fact should be set aside and could not reasonably

have been made. His main submission, as I interpret it, is that the plaintiff's version was essentially of

an incident involving a deliberate attack incited by the man in control of the dog. His Honour accepted

that the man in control of the dog was searching for the respondent by means of the dog and that he

encouraged the dog to be aggressive, but did not accept the respondent's claim that there had been a

direct order to attack.

The submission is that the plaintiff's version necessarily excluded any finding of negligence. I disagree.

I see nothing erroneous in the learned trial judge in circumstances such as the present discounting the

effect of the plaintiff's evidence but in finding breach of a duty of care by the man in charge of the dog.

The challenge that would have to be surmounted by the appellant would require demonstration of

error in accordance with the principles contained in Devries v. Australian National Railways

Commission (1993) 177 CLR 472.

Essentially this is a case where a disappointed litigant seeks to set aside a finding of fact and there is

nothing in the able arguments presented by Mr Hack on behalf of the intending appellant that gives me

any reason to think that a good appeal lies in the present case or that the decision is attended by

sufficient doubt to warrant reconsideration by this Court.

I would accordingly refuse the leave that is requested.
McMURDO P: I agree.

DERRINGTON J: I agree.

McMURDO P: The orders are the notice of motion to dismiss the appeal is upheld. The appeal is

struck out. The application for leave to appeal is dismissed. The appellant is to pay the applicant

respondent's costs of and incidental to these applications.

Mr Hack, it will be necessary for your instructing solicitors to actually file an application for leave to

appeal.