Bucknell v Robins - [2008] QCA 214

SUPREME COURT OF QUEENSLAND

CITATION:

Bucknell v Robins [2008] QCA 214

PARTIES:

PETER ADRIAN WENTWORTH BUCKNELL
(plaintiff/applicant)
v
BRAD ROBINS
(defendant/respondent)

FILE NO/S:

Appeal No 2187 of 2008
TD No 174 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

1 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2008

JUDGES:

de Jersey CJ, Fraser JA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal dismissed with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – where by virtue of s 118(3) of the District Court of Queensland Act 1967 (Qld) the applicant required leave of the Court before his appeal could be heard – where the applicant applied for leave to appeal against the refusal of his application in the District Court for an order authorising him to satisfy the order debt he owed to the respondent – where leave will usually be granted only where there is a reasonable argument that the primary judge erred and that an appeal is necessary to correct a substantial injustice to the applicant – where the applicant relied upon several grounds to demonstrate both error and injustice – whether the applicant could demonstrate that the primary judge had erred and that the applicant had suffered a substantial injustice

District Court of Queensland Act 1967 (Qld), s 118(3)
Uniform Civil Procedure Rules 1999 (Qld), r 868(2)(b), r 868(5), r 869(1), r 869(1)(b), r 869(1)(c), r 869(1)(d), r 869(1)(f), r 869(2), r 872(1)(c)

Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd[2008] QCA 100, cited

COUNSEL:

The applicant appeared on his on behalf
S M Gerber for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Brian Bartley and Associates for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Fraser JA. I agree with the order proposed by his Honour, and with his reasons.

FRASER JA: The applicant, Mr Bucknell, applies for leave to appeal against the refusal of his application in the District Court for an order authorising him to satisfy the order debt he owes the respondent, Mr Robins, by payment of instalments.

Mr Bucknell's order debt arises out of litigation he commenced in which he alleged negligence against Mr Robins, a solicitor who acted for Mr Bucknell in the purchase of his grazing property. Ultimately, on the second day of a three day trial, Mr Bucknell abandoned his proceedings. Following an appeal by Mr Robins from the trial judge’s order that there be no order as to costs, on 6 December 2004 this Court ordered Mr Bucknell to pay Mr Robins’ costs of those proceedings. Mr Bucknell was also ordered to pay Mr Robins’ costs of the appeal but…

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 Bucknell v Robins

Details

AGLC: Bucknell v Robins [2008] QCA 214
Case: [2008] QCA 214
Decision Date: 1 August 2008

CaseChat Overview and Summary

Bucknell sought leave to appeal the District Court's decision to refuse his application for an order permitting him to satisfy a debt owed to Robins. The court was required to determine whether Bucknell could demonstrate that the primary judge had erred in law and that the applicant had suffered a substantial injustice. The applicant argued that the primary judge had misapplied the criteria for granting such an order, that there had been a delay in his application, and that he had suffered a substantial injustice due to the refusal of the order.

The court considered whether the grounds put forward by Bucknell were sufficient to demonstrate an error of law and a substantial injustice. The court noted that leave to appeal would usually be granted only if there was a reasonable argument that the primary judge had erred and that an appeal was necessary to correct a substantial injustice. The court concluded that Bucknell had not demonstrated that the primary judge had erred or that he had suffered a substantial injustice. The court found that the primary judge had applied the correct criteria and that the delay in the application did not amount to an error of law. The court also noted that Bucknell had not demonstrated that the refusal of the order had caused him a substantial injustice, as he had not provided any evidence to support his claim.

The court dismissed the application for leave to appeal and ordered Bucknell to pay costs. The court held that Bucknell had not satisfied the criteria for leave to appeal, and that the appeal was unlikely to succeed. The court noted that the applicant had not demonstrated that the primary judge had erred or that an appeal was necessary to correct a substantial injustice. The court concluded that the appeal was not in the interests of justice and that leave to appeal should be refused.

Orders

Orders of the court

Application for leave to appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

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:	Bucknell v Robins [2008] QCA 214
PARTIES:	PETER ADRIAN WENTWORTH BUCKNELL (plaintiff/applicant) v BRAD ROBINS (defendant/respondent)
FILE NO/S:	Appeal No 2187 of 2008 TD No 174 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	1 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	24 July 2008
JUDGES:	de Jersey CJ, Fraser JA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal dismissed with costs
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – where by virtue of s 118(3) of the District Court of Queensland Act 1967 (Qld) the applicant required leave of the Court before his appeal could be heard – where the applicant applied for leave to appeal against the refusal of his application in the District Court for an order authorising him to satisfy the order debt he owed to the respondent – where leave will usually be granted only where there is a reasonable argument that the primary judge erred and that an appeal is necessary to correct a substantial injustice to the applicant – where the applicant relied upon several grounds to demonstrate both error and injustice – whether the applicant could demonstrate that the primary judge had erred and that the applicant had suffered a substantial injustice District Court of Queensland Act 1967 (Qld), s 118(3) Uniform Civil Procedure Rules 1999 (Qld), r 868(2)(b), r 868(5), r 869(1), r 869(1)(b), r 869(1)(c), r 869(1)(d), r 869(1)(f), r 869(2), r 872(1)(c) Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd[2008] QCA 100, cited
COUNSEL:	The applicant appeared on his on behalf S M Gerber for the respondent
SOLICITORS:	The applicant appeared on his own behalf Brian Bartley and Associates for the respondent