Di Carlo v Kashani-Malaki - [2012] QCA 320

SUPREME COURT OF QUEENSLAND

CITATION:

Di Carlo v Kashani-Malaki & Anor [2012] QCA 320

PARTIES:

SALVATORE DI CARLO
(appellant)
v
MORTEZA KASHANI-MALAKI
(first respondent)
THE PUBLIC TRUSTEE
(second respondent)

FILE NO/S:

Appeal No 5558 of 2012
SC No 8474 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2012

JUDGES:

Muir and Fraser and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – STATUTORY DEFINITION PROVISIONS GENERALLY – where appellant retained as counsel for respondent during trial – where respondent found guilty – where respondent successfully appealed conviction and a re-trial ordered – where respondent instituted proceedings against the appellant claiming, inter alia, damages for negligence and breach of contract – where no re-trial took place – where respondent pleaded guilty and sentenced to 11 years imprisonment – where appellant submitted respondent lacked capacity to bring the action as the written consent to do so was required from the Public Trustee as manager of respondent’s estate – whether a prisoner convicted of an indictable offence and falling within the ambit of s 90(1)(a) of the Public Trustee Act may continue civil proceedings if such proceedings were instituted prior to imposition of term of imprisonment without the consent of the Public Trustee – whether, if such consent is not required, the conduct of such proceedings is under the control of the Public Trustee as manager of the prisoner’s estate and whether its consent is required for any act or step in the prosecution of the litigation

Acts Interpretation Act 1954 (Qld), s 14A
Public Trustee Act 1978 (Qld), s 90(1)(a), s 91, s 92, s 94, s 95, s 97

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, considered
Barnes v St Helens Metropolitan Borough Council [2007] 1 WLR 879; [2007] 3 All ER 525; [2006] EWCA Civ 1372, cited
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, considered
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; [1997] HCA 53, cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, considered
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; [1983] HCA 9, cited
R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166, considered
Saraswati v The Queen (1991) 172 CLR 1; [1991] HCA 21, cited
Tyler v Krause [2003] 1 Qd R 453; [2002] QCA 295, considered
WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94; [2004] HCA 50

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.

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Details

Case: [2012] QCA 320
Decision Date: 23 November 2012

CaseChat Overview and Summary

Di Carlo v Kashani-Malaki involved the appellant, a retained counsel, who had represented the respondent during a criminal trial. The respondent was found guilty but later successfully appealed and a re-trial was ordered. Before the re-trial, the respondent commenced civil proceedings against the appellant, alleging negligence and breach of contract. However, the respondent subsequently pleaded guilty and was sentenced to 11 years imprisonment. The appellant argued that the respondent lacked the capacity to bring the civil action because the written consent of the Public Trustee, as the manager of the respondent's estate, was required. The central legal issues were whether a prisoner, convicted of an indictable offence and within the ambit of section 90(1)(a) of the Public Trustee Act, could continue civil proceedings initiated before imprisonment without the Public Trustee's consent and whether the Public Trustee's consent was required for any actions in the litigation if such consent was not required to initiate the proceedings.

The court considered the statutory provisions and the nature of the respondent's incapacity under the Public Trustee Act. It determined that the respondent, as a prisoner convicted of an indictable offence, was under the disability specified in section 90(1)(a) of the Public Trustee Act. The court found that the written consent of the Public Trustee was necessary to initiate civil proceedings. However, since the respondent had already instituted the proceedings before being sentenced, the court held that the Public Trustee's consent was not required to continue the litigation. The court also concluded that while the Public Trustee did not need to approve each act or step in the prosecution of the litigation, the conduct of the proceedings was subject to the Public Trustee's control as the manager of the respondent's estate.

The appeal was dismissed, and the appellant was ordered to pay the first respondent's costs of the appeal. The decision clarified the scope of the Public Trustee's authority over civil proceedings initiated by prisoners under the Public Trustee Act, particularly in cases where proceedings were begun before the imposition of a prison sentence.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

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:	Di Carlo v Kashani-Malaki & Anor [2012] QCA 320
PARTIES:	SALVATORE DI CARLO (appellant) v MORTEZA KASHANI-MALAKI (first respondent) THE PUBLIC TRUSTEE (second respondent)
FILE NO/S:	Appeal No 5558 of 2012 SC No 8474 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	5 November 2012
JUDGES:	Muir and Fraser and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed. 2. The appellant pay the first respondent’s costs of the appeal.
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – STATUTORY DEFINITION PROVISIONS GENERALLY – where appellant retained as counsel for respondent during trial – where respondent found guilty – where respondent successfully appealed conviction and a re-trial ordered – where respondent instituted proceedings against the appellant claiming, inter alia, damages for negligence and breach of contract – where no re-trial took place – where respondent pleaded guilty and sentenced to 11 years imprisonment – where appellant submitted respondent lacked capacity to bring the action as the written consent to do so was required from the Public Trustee as manager of respondent’s estate – whether a prisoner convicted of an indictable offence and falling within the ambit of s 90(1)(a) of the Public Trustee Act may continue civil proceedings if such proceedings were instituted prior to imposition of term of imprisonment without the consent of the Public Trustee – whether, if such consent is not required, the conduct of such proceedings is under the control of the Public Trustee as manager of the prisoner’s estate and whether its consent is required for any act or step in the prosecution of the litigation Acts Interpretation Act 1954 (Qld), s 14A Public Trustee Act 1978 (Qld), s 90(1)(a), s 91, s 92, s 94, s 95, s 97 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, considered Barnes v St Helens Metropolitan Borough Council [2007] 1 WLR 879; [2007] 3 All ER 525; [2006] EWCA Civ 1372, cited Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, considered Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; [1997] HCA 53, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, considered Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; [1983] HCA 9, cited R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166, considered Saraswati v The Queen (1991) 172 CLR 1; [1991] HCA 21, cited Tyler v Krause [2003] 1 Qd R 453; [2002] QCA 295, considered WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94; [2004] HCA 50