Atkinson v Gibson (No 2) - [2010] QCA 378

SUPREME COURT OF QUEENSLAND

CITATION:

Atkinson v Gibson (No 2) [2010] QCA 378

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) – Further Order

ORIGINATING COURTS:

District Court at Cairns

DELIVERED ON:

23 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2010

JUDGES:

McMurdo P, Fraser JA and Mullins J
Judgment of the Court

ORDERS:

There be no order as to costs in the District Court in Appeals No 2 of 2008 and No 208 of 2008. 1.

Set aside the costs order made in the Magistrates Court at Cooktown.2.

Direct that the Magistrates Court at Cooktown proceed with the hearing of the public nuisance charge according to law. 3.

Order that the applicant pay 60 per cent of the respondent’s costs of the application and the appeal to this Court, to be assessed on the standard basis. 4.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF THE COURT – COSTS ORDERS – where the Court granted the applicant leave to appeal and allowed the appeal against orders made in the District Court on appeal from the Magistrates Court – where the Magistrate ordered the applicant to pay the respondent’s costs – where the District Court had dismissed the appeals and ordered the applicant to pay the respondent’s costs – where on appeal to this Court the applicant succeeded in two respects and failed in two other respects – where this Court granted leave to appeal because of the public importance of the public nuisance ruling – whether there should be an order as to costs in the Magistrate’s Court – whether there should be an order as to costs in the District Court – whether there should be an order as to the costs of the application for leave to appeal and appeal against the applicant in this Court

Atkinson v Gibson[2010] QCA 279, related

COUNSEL:

M B Lehane for the applicant/appellant
J D Henry SC for the respondent

SOLICITORS:

Department of Public Prosecutions (Queensland) for the applicant/appellant
O’Reilly Stevens Bovey Lawyers for the respondent

[1] THE COURT: In an earlier judgment[1] the Court granted the applicant leave to appeal and allowed the appeal against orders made in the District Court. The District Court had dismissed appeals against a Magistrate’s order dismissing a public nuisance charge following a ruling that there was no case to answer on that charge, the Magistrate’s acquittals of the respondent on charges of assaulting police and obstructing police, and the Magistrate’s substantial costs order in the respondent’s favour. This Court ruled that there was a case to answer on the public nuisance charge and set aside the Magistrate’s order dismissing that charge. The Court did not grant the applicant leave to appeal against the District Court’s…

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 Atkinson v Gibson (No 2)

Details

AGLC: Atkinson v Gibson (No 2) [2010] QCA 378
Case: [2010] QCA 378
Decision Date: 23 December 2010

CaseChat Overview and Summary

Atkinson v Gibson (No 2) was a case before the Queensland Court of Appeal, involving a dispute that originated in the Magistrates Court and subsequently moved to the District Court. The applicant, Atkinson, had been ordered by the Magistrate to pay the respondent’s costs following a decision on a public nuisance charge. The District Court dismissed Atkinson's appeals and upheld the Magistrate's costs order. Atkinson then sought leave to appeal to the Court of Appeal, arguing that the District Court's decision on the public nuisance ruling had significant public importance. The Court of Appeal was required to determine whether Atkinson should be granted leave to appeal, and if so, whether the costs orders in the Magistrates and District Courts should be varied.

The legal issues before the Court of Appeal centred on the appropriate exercise of discretion in granting leave to appeal, the assessment of costs in the Magistrates and District Courts, and the costs associated with the appeal to the Court of Appeal itself. The Court had to weigh the public importance of the public nuisance ruling against the need to manage costs effectively and fairly across all levels of the court system.

In its judgment, the Court of Appeal held that Atkinson should be granted leave to appeal due to the public importance of the public nuisance ruling. The Court set aside the costs order made in the Magistrates Court and directed that the hearing of the public nuisance charge proceed according to law. The Court of Appeal also dismissed the appeals in respect of the District Court’s orders but ordered Atkinson to pay 60 per cent of the respondent’s costs of the application and appeal to the Court of Appeal, to be assessed on a standard basis.

The final orders of the Court of Appeal were to leave no order as to costs in the District Court, to set aside the costs order in the Magistrates Court, to direct the Magistrates Court to proceed with the public nuisance charge hearing according to law, and to order Atkinson to pay 60 per cent of the respondent's costs of the application and appeal to the Court of Appeal.

Orders

Orders of the court

There be no order as to costs in the District Court in Appeals No 2 of 2008 and No 208 of 2008. 1.

Set aside the costs order made in the Magistrates Court at Cooktown.2.

Direct that the Magistrates Court at Cooktown proceed with the hearing of the public nuisance charge according to law. 3.

Order that the applicant pay 60 per cent of the respondent’s costs of the application and the appeal to this Court, to be assessed on the standard basis. 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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CITATION:	Atkinson v Gibson (No 2) [2010] QCA 378
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) – Further Order
ORIGINATING COURTS:	District Court at Cairns
DELIVERED ON:	23 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2010
JUDGES:	McMurdo P, Fraser JA and Mullins J Judgment of the Court
ORDERS:	There be no order as to costs in the District Court in Appeals No 2 of 2008 and No 208 of 2008. 1. Set aside the costs order made in the Magistrates Court at Cooktown.2. Direct that the Magistrates Court at Cooktown proceed with the hearing of the public nuisance charge according to law. 3. Order that the applicant pay 60 per cent of the respondent’s costs of the application and the appeal to this Court, to be assessed on the standard basis. 4.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF THE COURT – COSTS ORDERS – where the Court granted the applicant leave to appeal and allowed the appeal against orders made in the District Court on appeal from the Magistrates Court – where the Magistrate ordered the applicant to pay the respondent’s costs – where the District Court had dismissed the appeals and ordered the applicant to pay the respondent’s costs – where on appeal to this Court the applicant succeeded in two respects and failed in two other respects – where this Court granted leave to appeal because of the public importance of the public nuisance ruling – whether there should be an order as to costs in the Magistrate’s Court – whether there should be an order as to costs in the District Court – whether there should be an order as to the costs of the application for leave to appeal and appeal against the applicant in this Court Atkinson v Gibson[2010] QCA 279, related
COUNSEL:	M B Lehane for the applicant/appellant J D Henry SC for the respondent
SOLICITORS:	Department of Public Prosecutions (Queensland) for the applicant/appellant O’Reilly Stevens Bovey Lawyers for the respondent