Atkinson v Gibson

Case [2010] QCA 279

SUPREME COURT OF QUEENSLAND

CITATION:

Atkinson v Gibson [2010] QCA 279

PARTIES:

ATKINSON, Simon James
(applicant/appellant)
v
GIBSON, Patrick Darren
(respondent/respondent)

FILE NO/S:

CA No 37 of 2010
DC No 2 of 2008
DC No 208 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURTS:


District Court at Cairns

DELIVERED ON:

15 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2010

JUDGES:

McMurdo P, Fraser JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant leave to appeal against the orders made in Appeal No. 2 of 2008 in the District Court at Cairns dismissing the applicant’s appeal against the orders made in the Magistrates Court at Cooktown on 6 December 2007 that the charge of committing a public nuisance be dismissed as there was no case to answer, and awarding costs pursuant to s 232(1) of the Justices Act 1886 (Qld) of $9,222 to be paid to the Registrar within thirty (30) days.1.

Order that: 2.   

Set aside those orders made in the District Court and instead allow the appeal to the District Court in Appeal No. 2 of 2008.a.   

Set aside the orders made in the Magistrates Court at Cooktown ruling that there was no case to answer and dismissing the charge that the respondent committed a public nuisance at Hopevale on 30 November 2006.b.   

Grant leave to appeal against the orders made in the District Court at Cairns in Appeal No. 208 of 2008 dismissing the appeal against the order made in the Magistrate’s Court at Cooktown on 6 August 2008 that costs be awarded in favour of the respondent in the amount of $32,000, and awarding costs pursuant to s 232(1) of the Justices Act 1886 (Qld) of $9,222 to be paid to the Registrar within thirty (30) days, allow the appeal and set aside the orders made in the District Court to that extent, but otherwise refuse leave to appeal against the orders made in the District Court at Cairns in Appeal No. 208 of 2008.3.

Direct that each party file a written submission by 4.00 pm on 29 November 2010 as to the appropriate consequential orders, including as to costs in the Magistrates Court, the District Court, and this Court.4.   

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF THE COURT – GENERALLY – whether the grounds of appeal relied on by the applicant raises a question of general public importance sufficient to attract a grant of leave

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – OTHER CASES – where the applicant sought leave to appeal against orders made by the primary judge dismissing the applicant’s appeal from decisions of the Magistrates Court – where the Magistrate held that there was  no case to answer and dismissed the charge of committing…

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Details
AGLC
Atkinson v Gibson [2010] QCA 279
Case
[2010] QCA 279
Decision Date

CaseChat Overview and Summary

Atkinson v Gibson is a case before the Supreme Court of Queensland, involving an appeal against decisions made by the Magistrates Court and District Court. The applicant, Atkinson, appeals against the dismissal of his appeal from decisions made by the Magistrates Court, which dismissed a charge of committing a public nuisance against the respondent, Gibson. Atkinson argues that the primary judge erred in affirming the Magistrates Court decision, claiming that the road where the alleged public nuisance occurred was a public place and that Gibson had not been acquitted of assault and obstructing Atkinson in the performance of his duties. Additionally, Atkinson contests the District Court's order for him to pay Gibson's costs.

The legal issues before the court were whether the grounds of appeal raised questions of general public importance sufficient to warrant leave to appeal, whether the primary judge erred in affirming the Magistrates Court's decision, and whether the primary judge was correct in upholding the order for Atkinson to pay Gibson's costs. The court examined whether the road was a public place, if Gibson's actions constituted assault, and if the primary judge erred in concluding that the Magistrates Court's findings were open on the evidence. The court also considered whether the primary judge erred in affirming the order for Atkinson to pay Gibson's costs.

The court granted leave to appeal against the orders made in the District Court, dismissing Atkinson's appeal from the Magistrates Court decision to dismiss the charge of committing a public nuisance. The court found that the grounds of appeal raised questions of general public importance, warranting a grant of leave. The court set aside the Magistrates Court's orders and allowed Atkinson's appeal to the District Court. However, the court refused leave to appeal against the orders made in the District Court regarding the award of costs to Gibson, affirming the primary judge's decision. The court directed that each party file written submissions regarding the appropriate consequential orders, including costs in the Magistrates Court, the District Court, and the Supreme Court.

The court's orders include granting leave to appeal against the orders made in the District Court, setting aside the Magistrates Court's orders, allowing Atkinson's appeal to the District Court, and refusing leave to appeal against the orders made in the District Court regarding the award of costs to Gibson. The court directed that each party file written submissions regarding the appropriate consequential orders, including costs in the Magistrates Court, the District Court, and the Supreme Court.

Orders

Orders of the court

Grant leave to appeal against the orders made in Appeal No. 2 of 2008 in the District Court at Cairns dismissing the applicant’s appeal against the orders made in the Magistrates Court at Cooktown on 6 December 2007 that the charge of committing a public nuisance be dismissed as there was no case to answer, and awarding costs pursuant to s 232(1) of the Justices Act 1886 (Qld) of $9,222 to be paid to the Registrar within thirty (30) days.1.

Order that: 2.

Set aside those orders made in the District Court and instead allow the appeal to the District Court in Appeal No. 2 of 2008.a.

Set aside the orders made in the Magistrates Court at Cooktown ruling that there was no case to answer and dismissing the charge that the respondent committed a public nuisance at Hopevale on 30 November 2006.b.

Grant leave to appeal against the orders made in the District Court at Cairns in Appeal No. 208 of 2008 dismissing the appeal against the order made in the Magistrate’s Court at Cooktown on 6 August 2008 that costs be awarded in favour of the respondent in the amount of $32,000, and awarding costs pursuant to s 232(1) of the Justices Act 1886 (Qld) of $9,222 to be paid to the Registrar within thirty (30) days, allow the appeal and set aside the orders made in the District Court to that extent, but otherwise refuse leave to appeal against the orders made in the District Court at Cairns in Appeal No. 208 of 2008.3.

Direct that each party file a written submission by 4.00 pm on 29 November 2010 as to the appropriate consequential orders, including as to costs in the Magistrates Court, the District Court, and this Court.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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