Cassidy v. McDonald - [2007] QCA 332

SUPREME COURT OF QUEENSLAND

CITATION:

Cassidy v McDonald [2007] QCA 332

PARTIES:

WAYNE ROBERT CASSIDY
(plaintiff by counterclaim/applicant)
v
DAVID MORRIS WILLMINGTON
(first defendant by counterclaim/not party to the appeal)
KATHRYN DEBORAH WILLMINGTON
(second Defendant by counterclaim/not party to the appeal)
SCOTT OWEN McDONALD

(third defendant by counterclaim/respondent)

FILE NO:

Appeal No 4351 of 2007
DC No 1253 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

10 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2007

JUDGES:

Jerrard JA, Keane JA and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed with costs to be assessed on indemnity

CATCHWORDS:

APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the amount of damages including the award for aggravated and exemplary damages is within an appropriate range – where there is no important question in the case that warrants leave to be given – whether the applicant should be ordered to pay indemnity costs

Uniform Civil Procedure Rules 1999 (Qld), r 118(3)

New South Wales v Ibbett (2006) 231 ALR 485, considered

COUNSEL:

D Kelly for the applicant
P W Hackett for the respondent

SOLICITORS:

Tucker and Cowen for the applicant
Frank and Carroll Solicitors for the respondent

DOUGLAS J: This application for leave to appeal pursuant to section 118 subsection 3 of the District Court of Queensland Act 1967 seeks leave to challenge a judgment based on findings by the learned District Court Judge that the applicant assaulted the respondent by verbally abusing him, striking him with his hands, holding a knife or letter opener in his hand and waving or pointing it at him in a threatening manner and striking him in the chest while holding the knife or letter opener in his hand.

The attack that his Honour found had occurred arose from an incident on 24 October 2000 where his Honour also found that the applicant attacked the respondent's employer, a Mr Willmington. His Honour assessed the respondent's damages in a sum of $16,149.50 including $10,000 as general damages and $2,500 as aggravated and exemplary damages. In approaching the assessment of damages his Honour made the following findings at paragraph 83:

"Mr McDonald was traumatised by the incident. At the time he was an 18 year old apprentice chef. When the knife was placed against his chest, he thought that he had been stabbed. I accept that Mr McDonald suffered a moderate degree of nervous shock but I consider that it endured for longer than the two weeks estimated by Dr Perros. I note that according to the report of Mr Perros Mr McDonald told him that following the incident he experienced sleep disturbance and nightmares. He took sleeping tablets over a four week period. His appetite was affected for one week. He struggled to remain focussed at work and…

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 Cassidy v. McDonald

Details

AGLC: Cassidy v McDonald [2007] QCA 332
Case: [2007] QCA 332
Decision Date: 10 October 2007

CaseChat Overview and Summary

The appeal in Cassidy v. McDonald arose from a dispute between the plaintiff and the defendant regarding damages awarded in a previous judgment. The case was heard in the Queensland Court of Appeal, where the plaintiff sought leave to appeal the decision of the lower court regarding the assessment of damages, including those for aggravated and exemplary damages. The plaintiff contended that the lower court's award was insufficient and sought an increased amount. The defendant opposed the application and argued that the damages awarded were within an appropriate range and that there was no significant question of law or fact that warranted granting leave to appeal.

The primary legal issue before the court was whether the plaintiff should be granted leave to appeal the damages awarded by the lower court. The court needed to determine if there was an important question of law or fact that warranted granting leave, or if the amount of damages, including those for aggravated and exemplary damages, was within an appropriate range. Additionally, the court had to consider whether the plaintiff should be ordered to pay indemnity costs if the application for leave to appeal was dismissed.

In dismissing the plaintiff's application for leave to appeal, the court found that the amount of damages awarded, including those for aggravated and exemplary damages, was within an appropriate range. The court also determined that there was no significant question of law or fact in the case that warranted granting leave to appeal. Consequently, the court dismissed the application and ordered the plaintiff to pay indemnity costs. The decision underscored the principle that leave to appeal should be granted sparingly and only when there are compelling reasons to do so, particularly when the amount of damages awarded is within a reasonable range.

Orders

Orders of the court

Application dismissed with costs to be assessed on indemnity

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

Full text does not contain this section.

CITATION:	Cassidy v McDonald [2007] QCA 332
PARTIES:	WAYNE ROBERT CASSIDY (plaintiff by counterclaim/applicant) v DAVID MORRIS WILLMINGTON (first defendant by counterclaim/not party to the appeal) KATHRYN DEBORAH WILLMINGTON (second Defendant by counterclaim/not party to the appeal) SCOTT OWEN McDONALD (third defendant by counterclaim/respondent)
FILE NO:	Appeal No 4351 of 2007 DC No 1253 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	10 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	10 October 2007
JUDGES:	Jerrard JA, Keane JA and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed with costs to be assessed on indemnity
CATCHWORDS:	APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the amount of damages including the award for aggravated and exemplary damages is within an appropriate range – where there is no important question in the case that warrants leave to be given – whether the applicant should be ordered to pay indemnity costs Uniform Civil Procedure Rules 1999 (Qld), r 118(3) New South Wales v Ibbett (2006) 231 ALR 485, considered
COUNSEL:	D Kelly for the applicant P W Hackett for the respondent
SOLICITORS:	Tucker and Cowen for the applicant Frank and Carroll Solicitors for the respondent