Barton v Atlantic 3-Financial (Aus) Pty Ltd - [2010] QCA 223

SUPREME COURT OF QUEENSLAND

CITATION:

Barton v Atlantic 3-Financial (Aus) Pty Ltd & Anor [2010] QCA 223

PARTIES:

NATHANIAL KELBURN DUNBAR BARTON
(plaintiff/appellant)
v
ATLANTIC 3-FINANCIAL (AUST) PTY LTD
ACN 056 262 723 (DEREGISTERED)
(first defendant/first respondent)
ATLANTIC 3 FUNDS MANAGEMENT LIMITED
ACN 092 110 097
(second defendant/second respondent)

FILE NO/S:

Appeal No 1295 of 2010
SC No 6621 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

17 August 2010

JUDGES:

Muir and White JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The appeal be allowed;

2.    The order of 4 February 2010, except insofar as it relates to costs, be set aside;

3.    The proceedings be reactivated;

4.    The second respondent pay the appellant’s costs of the appeal;

5.    The second respondent be granted an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld).

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – OTHER MATTERS – primary judge refused appellant’s application for reactivation of proceedings – Supreme Court Practice Direction No. 4 of 2002 paragraph 5.4 outlines the procedure for reactivating a matter that has been deemed resolved – whether primary judge erred in failing to correctly identify the principles or factors relevant to the exercise of the discretion under the Practice Direction – whether exercise of primary judge’s discretion miscarried – whether Court should exercise discretion afresh

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL –second respondent sought to apply for an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld) – whether indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 389

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited
Holdway v Arcuri Lawyers (A Firm)[2008] QCA 302, cited
Mitchell v Pacific Dawn P/L[2003] QCA 526, cited
Multi-Service Group Pty Ltd (in liq) & Anor v Osborne & Anor [2010] QCA 72, applied
Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47, cited

COUNSEL:

D A Savage, with P D Tucker, for the appellant
T Matthews for the respondents

SOLICITORS:

Malcolm Johns & Company for the appellant
Cusack Galvin & James for the respondents

MUIR JA: The appellant plaintiff appeals against an order of the primary judge made on 4 February 2010 dismissing with costs the appellant's application, pursuant to Practice Direction 4 of 2002, to reactivate the proceedings.

In her ex tempore reasons the primary judge stated that the principles relevant to the determination of an application to reactivate a proceeding…

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.

Keep reading for free

Create a free CaseChat account to read Barton v Atlantic 3-Financial (Aus) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] QCA 223
Decision Date: 24 August 2010

CaseChat Overview and Summary

Barton, the appellant, appealed against the decision of the primary judge to refuse the appellant's application to reactivate proceedings that had been deemed resolved. The respondents were Atlantic 3-Financial (Aus) Pty Ltd, the first respondent, and another entity, the second respondent. The proceedings involved a complex dispute, the details of which were not extensively elaborated in the court's decision. The Supreme Court of Queensland was tasked with determining the appeal.

The legal issues at hand centred on whether the primary judge had correctly identified the principles or factors relevant to the exercise of discretion under Supreme Court Practice Direction No. 4 of 2002 paragraph 5.4, which outlines the procedure for reactivating a matter that has been deemed resolved. Additionally, the court had to consider whether the primary judge's exercise of discretion miscarried and if the Supreme Court should exercise the discretion afresh. The second respondent also sought to apply for an indemnity certificate under section 15(1) of the Appeal Costs Fund Act 1973 (Qld), raising the issue of whether such a certificate should be granted.

The court found that the primary judge did not correctly identify the principles or factors relevant to the exercise of discretion. Consequently, the primary judge's exercise of discretion miscarried. The court considered it appropriate to exercise the discretion afresh and granted the application to reactivate the proceedings. Regarding the indemnity certificate, the court determined that the second respondent should be granted the certificate as it was deemed appropriate under the circumstances. The court also ordered that the second respondent pay the appellant's costs of the appeal.

The appeal was allowed, and the order of 4 February 2010, except insofar as it related to costs, was set aside. The proceedings were reactivated, and the second respondent was ordered to pay the appellant's costs of the appeal. Additionally, the second respondent was granted an indemnity certificate under section 15 of the Appeal Costs Fund Act 1973 (Qld).

Orders

Orders of the court

1. The appeal be allowed;

2. The order of 4 February 2010, except insofar as it relates to costs, be set aside;

3. The proceedings be reactivated;

4. The second respondent pay the appellant’s costs of the appeal;

5. The second respondent be granted an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Barton v Atlantic 3-Financial (Aus) Pty Ltd & Anor [2010] QCA 223
PARTIES:	NATHANIAL KELBURN DUNBAR BARTON (plaintiff/appellant) v ATLANTIC 3-FINANCIAL (AUST) PTY LTD ACN 056 262 723 (DEREGISTERED) (first defendant/first respondent) ATLANTIC 3 FUNDS MANAGEMENT LIMITED ACN 092 110 097 (second defendant/second respondent)
FILE NO/S:	Appeal No 1295 of 2010 SC No 6621 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	17 August 2010
JUDGES:	Muir and White JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal be allowed; 2. The order of 4 February 2010, except insofar as it relates to costs, be set aside; 3. The proceedings be reactivated; 4. The second respondent pay the appellant’s costs of the appeal; 5. *The second respondent be granted an indemnity certificate under s 15 of the Appeal Costs Fund Act* 1973 (Qld).**
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – OTHER MATTERS – primary judge refused appellant’s application for reactivation of proceedings – Supreme Court Practice Direction No. 4 of 2002 paragraph 5.4 outlines the procedure for reactivating a matter that has been deemed resolved – whether primary judge erred in failing to correctly identify the principles or factors relevant to the exercise of the discretion under the Practice Direction – whether exercise of primary judge’s discretion miscarried – whether Court should exercise discretion afresh APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL –second respondent sought to apply for an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld) – whether indemnity certificate should be granted Appeal Costs Fund Act 1973 (Qld), s 15 Uniform Civil Procedure Rules 1999 (Qld), r 5, r 389 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited Holdway v Arcuri Lawyers (A Firm)[2008] QCA 302, cited Mitchell v Pacific Dawn P/L[2003] QCA 526, cited Multi-Service Group Pty Ltd (in liq) & Anor v Osborne & Anor [2010] QCA 72, applied Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47, cited
COUNSEL:	D A Savage, with P D Tucker, for the appellant T Matthews for the respondents
SOLICITORS:	Malcolm Johns & Company for the appellant Cusack Galvin & James for the respondents