Bell v Liebsanft - [2004] QCA 267

SUPREME COURT OF QUEENSLAND

CITATION:

Bell v Liebsanft & Ors [2004] QCA 267

PARTIES:

IAN BRUCE BELL
(applicant/appellant/respondent)
v
R H LIEBSANFT (Acting Magistrate)
(first respondent)
S C JOHNSTONE (Magistrate)
(second respondent)
D F WILKINSON (Magistrate)
(third respondent)
ANGELA MONIQUE BAY-JESPERSEN
(fourth respondent/applicant)

FILE NO/S:

Appeal No 9591 of 2003
SC No 4921 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Dismissal for Want of Prosecution

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

29 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2004

JUDGES:

Davies and Jerrard JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal and application for leave to appeal are struck out

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - TIME FOR APPEAL - EXTENSION OF TIME - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL - where there was an application to strike out an application for an extension of time within which to seek leave to appeal to this Court - where the applicant was the wife of the respondent - where the applicant was granted temporary protection orders by a magistrate pursuant to the Domestic and Family Violence Protection Act 1991 (Qld) - where the respondent unsuccessfully applied to the Supreme Court for judicial review of the orders - where the respondent now seeks leave to appeal to this Court - whether the appeal and the application for leave to appeal should be struck out

Domestic and Family Violence Protection Act 1989 (Qld), s 3(3), s 39A

Judicial Review Act 1991 (Qld), s 48(5)

Bell v Bay-Jespersen [2004] QCA 68; Appeal No 9591 of 2003, 19 March 2004, followed

COUNSEL:

R V Bowler, with J W Moore, for the applicant
The respondent appeared on his own behalf

SOLICITORS:

James White Lawyers for the applicant
The respondent appeared on his own behalf

DAVIES JA: This is an application to strike out an application for an extension of time within which to seek leave to appeal to this Court from a judgment of the Supreme Court given on 26 September 2003.

A notice of appeal against that judgment was filed on
27 October 2003 only a few days out of time. However, appearing that leave was necessary in order to appeal, an application for leave to appeal was filed on 17 December 2003. The application sought leave to appeal out of time.

I have no doubt that leave is necessary: see s 48(5) of the Judicial Review Act 1991. Moreover as Justice McPherson pointed out in the course of giving judgment in an application for securities for costs in the application for leave to appeal out of time (which is reported at [2004] QCA 68) his Honour said and I quote:

"If the rule adopted in Johns v Johns [1988] 1 Qd R 138 and Jiminez v Jayform Contracting Pty Ltd [1993] 1 Qd R 610 is applied to applications…

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 Bell v Liebsanft

Details

AGLC: Bell v Liebsanft [2004] QCA 267
Case: [2004] QCA 267
Decision Date: 29 July 2004

CaseChat Overview and Summary

In Bell v Liebsanft, the legal dispute arose between the applicant and the respondent, who are the wife and husband of the case, respectively. The applicant sought to strike out an application for an extension of time within which to seek leave to appeal to the court. The applicant was granted temporary protection orders by a magistrate under the Domestic and Family Violence Protection Act 1991 (Qld). The respondent had previously applied to the Supreme Court for judicial review of the orders but was unsuccessful. The respondent now sought leave to appeal to the court. The primary issue before the court was whether the appeal and the application for leave to appeal should be dismissed.

The court considered the general principles of granting or refusing an extension of time to appeal. It also examined the circumstances of the case and the legal provisions relevant to the application for an extension of time. The court noted that the applicant was the wife of the respondent and that she had been granted temporary protection orders by a magistrate. The court also considered the previous unsuccessful application for judicial review by the respondent. The court followed the principles established in Bell v Bay-Jespersen [2004] QCA 68; Appeal No 9591 of 2003, 19 March 2004. Based on the evidence and the legal principles, the court decided to strike out the appeal and the application for leave to appeal.

The court's reasoning was based on the evidence presented and the legal principles established in previous cases. The court found that the appeal and the application for leave to appeal should be dismissed. Therefore, the court struck out the appeal and the application for leave to appeal.

Orders

Orders of the court

Appeal and application for leave to appeal are struck out

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:	Bell v Liebsanft & Ors [2004] QCA 267
PARTIES:	IAN BRUCE BELL (applicant/appellant/respondent) v R H LIEBSANFT (Acting Magistrate) (first respondent) S C JOHNSTONE (Magistrate) (second respondent) D F WILKINSON (Magistrate) (third respondent) ANGELA MONIQUE BAY-JESPERSEN (fourth respondent/applicant)
FILE NO/S:	Appeal No 9591 of 2003 SC No 4921 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Dismissal for Want of Prosecution
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	29 July 2004
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2004
JUDGES:	Davies and Jerrard JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal and application for leave to appeal are struck out
CATCHWORDS:	APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - TIME FOR APPEAL - EXTENSION OF TIME - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL - where there was an application to strike out an application for an extension of time within which to seek leave to appeal to this Court - where the applicant was the wife of the respondent - where the applicant was granted temporary protection orders by a magistrate pursuant to the Domestic and Family Violence Protection Act 1991 (Qld) - where the respondent unsuccessfully applied to the Supreme Court for judicial review of the orders - where the respondent now seeks leave to appeal to this Court - whether the appeal and the application for leave to appeal should be struck out Domestic and Family Violence Protection Act 1989 (Qld), s 3(3), s 39A Judicial Review Act 1991 (Qld), s 48(5) Bell v Bay-Jespersen [2004] QCA 68; Appeal No 9591 of 2003, 19 March 2004, followed
COUNSEL:	R V Bowler, with J W Moore, for the applicant The respondent appeared on his own behalf
SOLICITORS:	James White Lawyers for the applicant The respondent appeared on his own behalf