Ballymont P/L v Ipswich City Council Summary

[2001] QCA 371

COURT OF APPEAL

McPHERSON JA
THOMAS JA
WHITE J

No 6697 of 2001

BALLYMONT PTY LTD ACN 010 212 085
AND ROBERT LEWIS SIMMONS Applicants (Appellants)

and

IPSWICH CITY COUNCIL First Respondent (Respondent)

and

MARK STOCKWELL Second Respondent (First Co-Respondent)

and

STOCKWELL BUILDING
& DEVELOPMENT Third Respondent (Second Co-Respondent)

and

THE STATE OF QUEENSLAND (Third Co-Respondent)

BRISBANE

..DATE 10/09/2001

JUDGMENT

McPHERSON JA: By a majority the Court will grant leave to appeal in this case. I ask Mr Justice Thomas to state the grounds on which that leave is granted.

THOMAS JA: The grounds will be those which are contained in the draft notice of appeal which is exhibited to Mr Goodfellow's affidavit. There are seven grounds in that notice. I have some reservation about number five but not having the benefit of any record think it preferable that all the grounds which the applicant seeks to raise be open to be brought in the Court of Appeal in due course.

The primary error of law which I think emerges in the reasons for judgment appears in a statement that is made in paragraph 17 of the reasons. I do not propose to give a greater excursus of the arguments presented by Mr Gore. It seems to me that there is an arguable case of an error or errors in law having occurred and accordingly I think leave should be granted.

WHITE J: Yes, I agree with Justice Thomas.

McPHERSON JA: Leave is granted accordingly. Costs will be costs in the appeal.

MR HAYDON: Is it possible to seek an expedition of the hearing of the appeal because it is‑‑‑‑‑

McPHERSON JA: Not that I am aware of. You can try the Registrar. I do not get paid for that part of it.

MR HAYDON: I was not entirely sure as to the scope of the appeal because paragraph 6 and 7 were not argued and were abandoned and correspondence between the Crown law and my learned friend's instructing solicitors and‑‑‑‑‑

MR GORE: That is so, your Honour. There is no debate about that.

THOMAS JA: In that case, the grounds should be limited to one to five.

MR HAYDON: Yes, your Honour.

McPHERSON JA: Leave will be limited to grounds one to five.

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CaseChat Overview and Summary

In the matter of Ballymont P/L v Ipswich City Council, the applicants, Ballymont P/L and Robert Lewis Simmons, sought leave to appeal against the decision of the lower court. The respondents in this case included Ipswich City Council, Mark Stockwell, Stockwell Building & Development, and the State of Queensland. The applicants challenged the lower court's judgment, which had dismissed their claim.

The primary legal issue before the Court of Appeal was whether the lower court had made an error in law, as argued by the applicants. The applicants identified seven grounds in their draft notice of appeal, which were exhibited to an affidavit. The Court of Appeal examined these grounds to determine if there was an arguable case of an error or errors in law that warranted leave to appeal.

After examining the grounds, the Court of Appeal concluded that there was indeed an arguable case of an error in law. Justice McPherson noted some reservations about one of the grounds but decided it was preferable to allow all the grounds to be brought before the Court of Appeal. Justice Thomas agreed with this assessment, and Justice White concurred. Consequently, the Court of Appeal granted leave to appeal, limiting it to grounds one to five. The costs of the appeal were to be costs in the appeal itself.

Ballymont P/L v Ipswich City Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established