Duff v Blinco & Blinco - [2006] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:

Duff v Blinco & Blinco [2006] QCA 259

PARTIES:

MICHAEL GAVAN DUFF
(plaintiff/respondent)
v
JEFFREY LIONEL BLINCO and MAVIS JEAN BLINCO
(defendants/applicants)

FILE NO/S:

Appeal No 5121 of 2006
DC No 93 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s118 DCA (Civil) (Mention)

ORIGINATING COURT:

District Court at Dalby

DELIVERED ON:

18 July 2006

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2006

JUDGE:

Keane JA

ORDER:

Declare that the application for leave to appeal is competent1.

Costs of the parties in respect of the mention should be costs in the application for leave to appeal

2.

CATCHWORDS:

APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - claim for royalties related to timber harvested by defendants from plaintiff's property - learned primary judge published reasons finding in favour of the plaintiff on the issue of liability but as yet no finding made on quantum and no formal orders made - whether defendant's appeal is competent

District Court of Queensland Act 1967 (Qld), s 118(3)
Uniform Civil Procedure Rules 1999 (Qld), r 483, r 484, r 485

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied
Town v Australian Telecommunications Commission and Anor (1983) 47 ALR 137, cited

COUNSEL:

S A Lynch for the plaintiff/respondent
A J Greinke for the defendants/applicants

SOLICITORS:

Michael Mason for the plaintiff/respondent
Shannon Donaldson Province Lawyers for the defendants/applicants

KEANE JA: In this action, the plaintiff claimed in the District Court, pursuant to a contract dated 9 May 1990, to recover royalties in respect of timber harvested by the defendants from the plaintiff's property known as "Di Di".

The defendants applied, pursuant to r 483 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR"), to have the court decide the question of the defendants' liability to pay royalties separately from the issue of the quantum of the royalties (ie the quantum which would be payable if the defendants were liable to pay royalties under the contract). The plaintiff consented to this course. The issue of liability was tried separately from the other issues in the action on 29 and 30 September 2005.

On 29 May 2006, the learned trial judge published reasons in which he found "in the plaintiff's favour on the issue of liability" and expressed his "view [that] the plaintiff is entitled … to have the defendants pay him royalties in respect of timber harvested … from Di Di …".[1]
[1]Duff v Blinco, DC No 93 of 2001, 29 May 2006 at [32].

His Honour published these reasons to the parties and said that: "they may consider the trial to be further adjourned to a date to be fixed for the hearing of evidence in relation to quantum and for final judgment".[2]
[2]Duff v Blinco, DC No 93 of 2001, 29 May 2006 at [34].

On 21 June 2006, the defendants, pursuant to s 118(3) of the District Court…

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 Duff v Blinco & Blinco

Details

AGLC: Duff v Blinco & Blinco [2006] QCA 259
Case: [2006] QCA 259
Decision Date: 18 July 2006

CaseChat Overview and Summary

The appeal before the court involves Duff as the appellant and Blinco & Blinco as the respondents. The central issue in this matter pertains to the entitlement to royalties arising from the harvesting of timber by the respondents from the appellant's property. The primary judge had issued reasons finding in favour of the appellant regarding liability, but no determination on the amount of royalties had been made, nor were any formal orders issued. The respondents sought leave to appeal against the primary judge's reasons, which led to the question of whether their application for leave to appeal was competent.

The court was required to determine whether the respondents' application for leave to appeal was valid, considering the circumstances of the case. Given that the primary judge had found in favour of the appellant on the issue of liability, but had not yet determined the quantum of royalties or issued formal orders, the court had to assess the timing and nature of the respondents' appeal. The appeal was grounded on the basis that it was an appeal from an interlocutory decision, which required leave of the court.

The court held that the application for leave to appeal was competent. The reasons provided by the primary judge, which found in favour of the appellant on the issue of liability, constituted a significant judgment from which an appeal could be made. The fact that no determination had been made on the quantum of royalties or formal orders issued did not detract from the interlocutory nature of the appeal. The court found that the respondents' appeal was permissible under the rules governing appeals from interlocutory decisions. Consequently, the application for leave to appeal was deemed competent, and the costs of the parties in respect of the mention were ordered to be costs in the application for leave to appeal.

Orders

Orders of the court

1. Declare that the application for leave to appeal is competent

2. Costs of the parties in respect of the mention should be costs in the application for leave to 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:	Duff v Blinco & Blinco [2006] QCA 259
PARTIES:	MICHAEL GAVAN DUFF (plaintiff/respondent) v JEFFREY LIONEL BLINCO and MAVIS JEAN BLINCO (defendants/applicants)
FILE NO/S:	Appeal No 5121 of 2006 DC No 93 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s118 DCA (Civil) (Mention)
ORIGINATING COURT:	District Court at Dalby
DELIVERED ON:	18 July 2006
DELIVERED AT:	Brisbane
HEARING DATE:	14 July 2006
JUDGE:	Keane JA
ORDER:	Declare that the application for leave to appeal is competent1. Costs of the parties in respect of the mention should be costs in the application for leave to appeal 2.
CATCHWORDS:	APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - claim for royalties related to timber harvested by defendants from plaintiff's property - learned primary judge published reasons finding in favour of the plaintiff on the issue of liability but as yet no finding made on quantum and no formal orders made - whether defendant's appeal is competent District Court of Queensland Act 1967 (Qld), s 118(3) Uniform Civil Procedure Rules 1999 (Qld), r 483, r 484, r 485 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied Town v Australian Telecommunications Commission and Anor (1983) 47 ALR 137, cited
COUNSEL:	S A Lynch for the plaintiff/respondent A J Greinke for the defendants/applicants
SOLICITORS:	Michael Mason for the plaintiff/respondent Shannon Donaldson Province Lawyers for the defendants/applicants