Burgess v Gill - [2022] QDC 62

DISTRICT COURT OF QUEENSLAND

CITATION:

Burgess v Gill [2022] QDC 62

PARTIES:

Elisha BURGESS

(Appellant)

v

Ella Gill

(Respondent)

FILE NO:
2268/21

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Southport

DELIVERED ON:

23 February 2022, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2022

JUDGE:

Kent QC, DCJ

ORDER:

1.   Leave is granted to appeal.

2.   Appeal is allowed.

3.   Orders made by Magistrate Nunan in the Magistrates Court of Queensland on the 2 August 2021 are set aside.

4.   Costs of and incidental to the Appeal to be reserved.

5.   The parties have liberty to apply

6.   Leave granted for Mrs Gill to act as Miss Gill’s McKenzie Friend.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – GROUNDS

where the plaintiff has applied for leave under rule 304 of the UCPR to discontinue the proceeding without the consent of the defendant - whether the solicitors, not the party, should be paying the costs - whether the Magistrate erred in law and granted leave to discontinue in the face of serious allegations of fraud against the plaintiff respondent – whether the Magistrate erred in law in ordering costs in the circumstances where the proceedings were allegedly brought pursuant to fraud and, alternatively, as an abuse of process

LEGISLATION:

Justices Act 1886 (Qld), s 222

Magistrates Court Act 1921 (Qld), s 44, s 45(2)(a)

CASES:

Wanstall v Burke [1925] ST r Qd 295

American Express International Incorporated v Hewitt [1993] 2 Qd R 352

Myers v Elman (1940) AC 282

White Industries v Flower & Hart (1998) 156 ALR 169

Fuller v Toms [2010] QCA 283

COUNSEL:
Mr Van Grinsven for the appellant

Mrs Gill as McKenzie Friend for the respondent

SOLICITORS:
SLF Lawyers for the appellant

No appearance for the respondent

Introduction

This is a civil appeal by the appellant, Ms Burgess, previously the defendant in proceedings in the Magistrates Court. The relevant determinations of which Court were made by a Magistrate on the 2nd of August 2021. The circumstances of both the background and the way in which the decision under appeal arose are somewhat singular and, thus, I will catalogue the background in some detail. Having said that, the result at the end of the day, having heard from Mr Van Grinsven on behalf of the appellant and having heard – for reasons which will become obvious – from the respondent’s mother as a McKenzie friend, it is tolerably clear and, thus, in my view, susceptible of being dealt with on an ex-tempore basis.
The appeal is pursuant to section 45(2)(a) of the Magistrates Court Act 1921 because the amount of the claim – which, from memory, is only slightly more than $5000.00 – did not exceed the minor civil dispute limit of $25,000.00. The appeal only lies to this Court by leave and, generally, such leave will not be granted unless the Court is satisfied that some important principle of law or justice is involved. My conclusion, amongst other things, is that…

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 Burgess v Gill

Details

AGLC: Burgess v Gill [2022] QDC 62
Case: [2022] QDC 62
Decision Date: 23 February 2022, ex tempore

CaseChat Overview and Summary

The case of Burgess v Gill involves a plaintiff, Burgess, who applied for leave under rule 304 of the Uniform Civil Procedure Rules (UCPR) to discontinue the proceedings without the consent of the defendant, Gill. The primary issue in this appeal was whether the solicitors, rather than the party, should bear the costs associated with the application to discontinue. Additionally, the court was tasked with determining if the Magistrate erred in law by granting leave to discontinue despite serious allegations of fraud against the plaintiff. The appeal also addressed whether the Magistrate's decision to order costs was lawful, given the allegations that the proceedings were initiated through fraud and as an abuse of process.

The court examined the application to discontinue and the accompanying affidavit. It was noted that the affidavit did not address the issue of costs, which was a significant factor in the decision-making process. The court concluded that the plaintiff's solicitors should bear the costs of the application, as the decision to discontinue was made by them rather than the client. The court further found that the Magistrate had erred in granting leave to discontinue the proceedings without adequately considering the seriousness of the allegations of fraud. This error led to the setting aside of the Magistrate's orders.

In light of these findings, the appeal was allowed, and the orders made by Magistrate Nunan were set aside. The court reserved the costs of and incidental to the appeal for further determination. The parties were granted liberty to apply regarding certain issues, and leave was given for Mrs Gill to act as a McKenzie Friend for Miss Gill. This decision highlights the importance of considering the implications of serious allegations of fraud when deciding whether to allow proceedings to be discontinued.

Orders

Orders of the court

1. Leave is granted to appeal.

2. Appeal is allowed.

3. Orders made by Magistrate Nunan in the Magistrates Court of Queensland on the 2 August 2021 are set aside.

4. Costs of and incidental to the Appeal to be reserved.

5. The parties have liberty to apply

6. Leave granted for Mrs Gill to act as Miss Gill’s McKenzie Friend.

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:	Burgess v Gill [2022] QDC 62
PARTIES:	Elisha BURGESS (Appellant) v Ella Gill (Respondent)
FILE NO:	2268/21
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Southport
DELIVERED ON:	23 February 2022, ex tempore
DELIVERED AT:	Brisbane
HEARING DATE:	23 February 2022
JUDGE:	Kent QC, DCJ
ORDER:	1. Leave is granted to appeal. 2. Appeal is allowed. 3. Orders made by Magistrate Nunan in the Magistrates Court of Queensland on the 2 August 2021 are set aside. 4. Costs of and incidental to the Appeal to be reserved. 5. The parties have liberty to apply 6. Leave granted for Mrs Gill to act as Miss Gill’s McKenzie Friend.
CATCHWORDS:	MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – GROUNDS where the plaintiff has applied for leave under rule 304 of the UCPR to discontinue the proceeding without the consent of the defendant - whether the solicitors, not the party, should be paying the costs - whether the Magistrate erred in law and granted leave to discontinue in the face of serious allegations of fraud against the plaintiff respondent – whether the Magistrate erred in law in ordering costs in the circumstances where the proceedings were allegedly brought pursuant to fraud and, alternatively, as an abuse of process
LEGISLATION:	Justices Act 1886 (Qld), s 222 Magistrates Court Act 1921 (Qld), s 44, s 45(2)(a)
CASES:	Wanstall v Burke [1925] ST r Qd 295 American Express International Incorporated v Hewitt [1993] 2 Qd R 352 Myers v Elman (1940) AC 282 White Industries v Flower & Hart (1998) 156 ALR 169 Fuller v Toms [2010] QCA 283
COUNSEL:	Mr Van Grinsven for the appellant Mrs Gill as McKenzie Friend for the respondent
SOLICITORS:	SLF Lawyers for the appellant No appearance for the respondent