Arrowsmith v Micallef

Case [2013] QCA 143

SUPREME COURT OF QUEENSLAND

CITATION:

Arrowsmith v Micallef & Ors [2013] QCA 143

PARTIES:

CHEVONNE ELIZABETH ARROWSMITH
(appellant)
v
ROBERT JAMES MICALLEF
(first respondent)
ADRIANO ALFREDO MICALLEF
(second respondent)
SILVANO FRANK MICALLEF
(third respondent)
MATTHEW JAMES DUMESNY
(fourth respondent)
LAURETTA CANDIDA DUMESNY
(fifth respondent)

FILE NO/S:

Appeal No 9069 of 2012
SC No 5922 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2013

JUDGES:

White and Gotterson JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for the admission of further evidence on the appeal is refused.1.   

Appeal allowed.2.   

Matter remitted to the trial division for further hearing.3.   

The parties file and exchange written submissions on costs within 7 days of the date hereof unless they have reached agreement within that time as to the appropriate costs order and have informed the Registry of it.4.   

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – PARTICULAR CASES – REFUSAL OF ADJOURNMENT – where terms of settlement were agreed between the parties at a mediation – where a dispute emerged about the effect of the terms of settlement – where the terms of settlement contained a release clause – where at first instance the appellant sought an adjournment to obtain evidence that might be relevant in construing the release clause – where the application for an adjournment was refused – whether there was a denial of justice to the appellant as a result of the refusal of her application for an adjournment

PROCEDURE – JUDGMENTS AND ORDERS – IN GENERAL – OTHER MATTERS – where terms of settlement were agreed between the parties at a mediation – where a dispute emerged about the effect of the terms of settlement – where an order was made giving effect to the terms of settlement – whether the terms of settlement as incorporated into the order are to be construed in the same manner as a written agreement

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where terms of settlement were agreed between the parties at a mediation – where a dispute emerged about the effect of the terms of settlement – where the appellant contended evidence from the mediator would be relevant to construing the terms of settlement – whether extrinsic evidence would be admissible to construe the terms of settlement – whether the terms of settlement were ambiguous

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – HEARING OF APPEAL – PROOF AND EVIDENCE – where the appellant sought leave to rely on further affidavit evidence – where it was expressly stated that this was not “fresh evidence” – whether leave should be granted

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Arrowsmith v Micallef & Ors [2013] QCA 143
Case
[2013] QCA 143
Decision Date

CaseChat Overview and Summary

Arrowsmith v Micallef involved a dispute between the parties concerning the terms of a settlement reached through mediation. The appellant argued that the terms of the settlement, which included a release clause, should be construed in a particular way. The primary judge, however, refused an application by the appellant for an adjournment to obtain evidence from the mediator. This decision led to an appeal, where the appellant contended that the refusal of the adjournment resulted in a denial of justice.

The key legal issues before the court were whether the refusal of the adjournment constituted a denial of justice, and whether the terms of the settlement, once incorporated into a court order, should be construed in the same manner as a written agreement. The appellant also argued that evidence from the mediator would be relevant in construing the release clause and that the terms of the settlement were ambiguous.

The court found that the refusal of the adjournment did result in a denial of justice, as the appellant was not given an opportunity to present evidence that might have been relevant to the construction of the release clause. The court also determined that the terms of the settlement, once incorporated into the court order, should be construed in the same manner as a written agreement. Furthermore, the court held that extrinsic evidence could be admissible to construe the terms of the settlement if they were ambiguous.

As a result of these findings, the court allowed the appeal and remitted the matter to the trial division for a further hearing. The court also refused the application for the admission of further evidence on the appeal, as it was expressly stated that the additional evidence was not "fresh evidence". The parties were ordered to file and exchange written submissions on costs within seven days, unless they reached an agreement on the appropriate costs order.

Orders

Orders of the court

Application for the admission of further evidence on the appeal is refused.1.

Appeal allowed.2.

Matter remitted to the trial division for further hearing.3.

The parties file and exchange written submissions on costs within 7 days of the date hereof unless they have reached agreement within that time as to the appropriate costs order and have informed the Registry of it.4.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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