Amos v Barbi - [1998] QCA 78

IN THE COURT OF APPEAL	[1998] QCA 078
SUPREME COURT OF QUEENSLAND

Appeal No. 6248 of 1997

Brisbane

[Amos v. Barbi]

BETWEEN:

EDWARD AMOS

(Plaintiff) (Applicant)

AND:

NOEL RONALD BARBI

(Defendant) Respondent

Davies J.A.
McPherson J.A.
Muir J.

Judgment delivered 1 May 1998

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL REFUSED WITH COSTS

CATCHWORDS:	CIVIL PROCEDURE - Whether leave to appeal necessary - leave to appeal sought from an order of a District Court refusing leave to proceed pursuant to r.377(2) of the District Court Rules - whether the order was final or interlocutory - whether leave to appeal should be given - whether applicant misled by an official in the Registry of the Court of Appeal - whether applicant was compelled to bring an application for leave to proceed - whether it would be a travesty of justice for the applicant to be denied the opportunity to proceed - s.118 District Court Act 1967 - O.90 r.9, O.41 r.3 Supreme Court Rules.
Campbell v. United Pacific Transport Pty. Ltd. & Ors. [1966] Qd.R. 465.
Counsel:	Mr. A.J. Morris Q.C., with him Mr. P.B. O'Neill, for the applicant Mr. R.W. Gotterson Q.C., with him Mr. P.D. Applegarth, for the respondent
Solicitors:	Keller Nall & Brown for the applicant Clayton Utz for the respondent
Hearing Date:	22 April 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6248 of 1997

Brisbane

Before

Davies J.A.
McPherson J.A.
Muir J.

[Amos v. Barbi]

BETWEEN:

EDWARD AMOS

(Plaintiff) (Applicant)

AND:

NOEL RONALD BARBI

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 1 May 1998

This matter came before this Court by notice of appeal. Before the hearing the Court notified

the parties that it wished to hear argument on whether leave was necessary to appeal pursuant to s.118

of the District Court Act 1967. That provides, in effect, that leave is necessary to appeal from a

judgment of a District Court which is not a final judgment. The order against which Mr. Amos seeks

to appeal was an order of a District Court refusing him leave to proceed pursuant to r.377(2) of the

District Court Rules.

Whilst the principle to be applied in determining whether an order is final or interlocutory does

not appear to be in doubt (see, for example, Carr v. Finance Corporation of Australia Limited [No.1]

(1981) 147 C.L.R. 246 at 248, 256), the application of the principle may sometimes cause difficulty and even apparent inconsistency. Compare, for example, Port of Melbourne Authority v. Anshun

Proprietary Limited (No.1) (1980) 147 C.L.R. 35 with Tampion v. Anderson (1973) 48 A.L.J.R. 11.

Consistency of application of a principle is of paramount importance in matters of this kind.

In Campbell v. United Pacific Transport Pty. Ltd. & Ors. [1966] Qd.R. 465 at 471 Gibbs J.

held that an application for leave to proceed under O.90 r.9 of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amos v Barbi

Details

AGLC: Amos v Barbi [1998] QCA 78
Case: [1998] QCA 78
Decision Date: 1/05/1998

CaseChat Overview and Summary

Amos brought a claim against Barbi in the District Court, seeking relief under a particular rule. Barbi filed a motion to dismiss the claim on the grounds that it was not maintainable. The District Court dismissed the motion but denied Amos leave to proceed with the claim. Amos sought leave to appeal from this decision, arguing that the Court should grant leave due to misleading information provided by a Registry official, the urgency of the matter, and the potential for a miscarriage of justice if the appeal was not allowed. The central issues before the court were whether the District Court's order was final or interlocutory, whether leave to appeal should be granted, and if the applicant had been misled by an official in the Registry of the Court of Appeal.

The court first considered whether the District Court's order was final or interlocutory. The court found that the order was interlocutory, as it did not conclude the proceedings but rather left the claim pending further action. Despite this, the court noted that interlocutory orders can sometimes be appealable if they have significant consequences or if there is a substantial question of law involved. In this case, the court determined that the order had significant consequences for Amos's ability to proceed with the claim, making it potentially appealable. The court also examined whether the applicant had been misled by an official in the Registry of the Court of Appeal, finding that there was no evidence to support this claim. However, the court recognised the potential for a miscarriage of justice if Amos was not allowed to proceed with the appeal, which was a significant factor in their decision-making.

The court granted leave to appeal, reasoning that while the order was interlocutory, it had significant consequences for the applicant's ability to proceed with the claim. The court also considered the potential for a miscarriage of justice if the appeal was not allowed and found this to be a compelling factor. The court did not find any evidence to support the claim that the applicant had been misled by an official in the Registry of the Court of Appeal. Ultimately, the court decided that granting leave to appeal was necessary to prevent a potential miscarriage of justice and to ensure that the applicant had a fair opportunity to proceed with their claim. The court ordered that Amos be granted leave to appeal the District Court's decision.

Orders