Corliss v Gibbings-Johns

Case [2010] QCA 233

SUPREME COURT OF QUEENSLAND

CITATION:

Corliss v Gibbings-Johns [2010] QCA 233

PARTIES:

DENNIS BRUCE CORLISS
(defendant/appellant)
v
TERRY EDWARD GIBBINGS-JOHNS
(plaintiff/respondent)

FILE NO/S:

Appeal No 2946 of 2010
SC No 76 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court of Rockhampton

DELIVERED ON:

31 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

12 August 2010

JUDGES:

Holmes and Chesterman JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.  The appeal be dismissed;

2.  The appellant pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN NOT ALLOWED TO BE RAISED ON APPEAL – where appellant was a publican of a hotel – where respondent had sought entry into the appellant’s hotel after it had closed – where the respondent broke one of the hotel’s windows – where respondent claimed that, after he broke the window, the appellant threw a glass object into the respondent’s face causing a penetrating eye injury – where appellant denied having thrown any object at the respondent – where trial judge concluded that the appellant threw a glass object that injured the respondent’s eye – where appellant sought to rely on statutory defences on appeal – where statutory defences not raised on the pleadings or in argument at trial – whether appellant should be allowed to rely on statutory defences

DAMAGES – PERSONAL INJURIES – statutory exclusion from claiming damages because of commission of indictable offence – where the respondent pleaded guilty to a charge of “wilful damage”

APPEAL AND NEW TRIAL  – APPEAL - GENERAL – PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – where appellant claimed two witnesses had been present at the time of the incident – where witnesses’ accounts, if truthful, exonerated appellant – where neither witness gave statements to police in a criminal investigation into the appellant – where trial judge had regard to the fact that appellant did not strive to have the witnesses’ accounts given to police – whether primary judge wrongly instructed himself as to the evidence

Civil Liability Act 2003 (Qld), s 4, s 45
Criminal Code Act 1899 (Qld), s 6(2), s 469, s 659
Regulatory Offences Act 1985 (Qld), s 7
Uniform Civil Procedure Rules 1999 (Qld), r 149, r 157

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, cited
Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351, cited
Gibbings-Johns v Corliss [2010] QSC 49, cited
Robinson v Campbell (No 2) (1992) 30 NSWLR 503, cited
Ross v The Queen (1979) 141 CLR 432, [1979] HCA 29, considered
Sangha v Baxter [2007] NSWCA 264, cited
Sangha v Baxter (2009) 52 MVR 492

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Details
AGLC
Corliss v Gibbings-Johns [2010] QCA 233
Case
[2010] QCA 233
Decision Date

CaseChat Overview and Summary

Corliss v Gibbings-Johns involved an appeal by the appellant, a publican of a hotel, against a finding of liability for an injury to the respondent, who had broken into the hotel after it had closed. The respondent claimed that after breaking a window, the appellant threw a glass object at him, causing a penetrating eye injury. The appellant denied throwing any object at the respondent. The trial judge concluded that the appellant had thrown a glass object, leading to the injury.

The appeal raised two main issues. Firstly, the appellant sought to rely on statutory defences that were not raised at the trial, which the respondent argued should not be considered on appeal. Secondly, the appellant contested the trial judge's finding that the two witnesses who could exonerate him were not credible, despite their accounts being truthful. The appellant argued that the trial judge had erred in his assessment of the witnesses' credibility.

The court held that points and objections not taken below could not be raised on appeal. The statutory defences were not pleaded or argued at trial, and thus, the appellant could not rely on them on appeal. Furthermore, the court found that the trial judge's findings of fact, particularly regarding the credibility of witnesses, were not open to interference unless there was a clear error. The court held that the trial judge had not erred in his assessment of the witnesses' credibility.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed;

2. The appellant pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis.

Background

Background to the litigation

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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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