Gibson v Canniffe

Case [2008] QDC 319


DISTRICT COURT OF QUEENSLAND

CITATION:

Gibson v Canniffe; Kidd v Baragan; Slabon v Moore [2008] QDC 319

PARTIES:

PATRICK JAMES GIBSON

(Appellant)

and

CHRISTOPHER MERVYN CANNIFFE

(Respondent)

HELEN CARMEL KIDD

(Appellant)

and

DORIN BARAGAN

(Respondent)

MARK DAMIEN SLABON

(Appellant)

and

DANIEL JAMES MOORE

(Respondent)

FILE NO/S:

D221/08, BD2237/08 and D1308/08

DIVISION:

Crime

PROCEEDING:

Applications

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

24/12/2008

DELIVERED AT:

Brisbane

HEARING DATE:

24/11/2008

JUDGE:

Devereaux SC ADCJ

ORDER:

Appeal No D221/08

1.    Appeal allowed.

2.    The learned Magistrate’s order of dismissal is set aside insofar as it included the refusal of costs.

3.    The complaint is remitted to the Magistrates Court for final disposition, including further hearing and determination, in accordance with these reasons, of the question whether costs should be awarded to the appellant and, if so, in what amount.

Appeal No BD2237/08

1.     Appeal allowed.

2.     The learned Magistrate’s order of dismissal is set aside insofar as it included the refusal of costs.

3.     The complaint is remitted to the Magistrates Court for final disposition, including further hearing and determination, in accordance with these reasons, of the question whether costs should be awarded to the appellant and, if so, in what amount.

Appeal No D1308/08

1.    Appeal allowed.

2.    The learned Magistrate’s order of dismissal is set aside insofar as it included the refusal of costs.

3.    The complaint is remitted to the Magistrates Court for final disposition, including further hearing and determination, in accordance with these reasons, of the question whether costs should be awarded to the appellant and, if so, in what amount.

CATCHWORDS:

Justices Act 1886 – costs – where magistrate summarily deals with a complaint of an indictable offence

Appeal and New Trial – Appeal from Summary Trial of an Indictable Offence – Whether Appeal Competent - Justices Act 1886

Uniform Civil Procedure Rules
Justices Act 1886
s222, s159, s4, s42, s43, s53, s53A, s74, s83A, s54, s57, s59, s70, s71, s104, s108, s113, s141, s142, ss139 – 140, s146A, s147, s145, s146, s148, , s151, s152, s157, s158, s158A, s159
Criminal Code 1899 s335, s340, s552A, s552B, s552I, s552D

Bell v Carter ex parte Bell CA No 25 of 1991
Lamb v Moss (1983) 49 ALR 533
R v Grassby (1988) 15 NSWLR 109
Coco v Shaw [1994] 1 Qd R 469
Coulter v Ryan [2006] QCA 567
Schneider v Curtis [1967] Qd R 300
Owen v Cannavan [1995] QCA 324
Pike v Fancourt; Ex Parte Pike [1980] Qd R 437
Spiller v Scali, ex parte Scali [1966] Q.W.N. 45

Other cases cited in argument
MacPherson v Commissioner of Taxation [1998] QCA 396
Power v Hayward [2007] QSC 26
Latoudis v Casey (1990) 170 CLR 534
Murray v Radford [2003] QCA 91
Power v Lewis [2007] QDC 188
Gram v Torrisi [2001] QDC 263
Rykiert v Maddocks [2003] QDC 529
Durrant v Gardner [2000] QDC 198
Goodwin v Phillips (1908) 7 CLR 1
Baillie v The Home Company Pty Ltd [2000] QDC 036
Leavers V Purcell [1998] QCA…

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Details
AGLC
Gibson v Canniffe; Kidd v Baragan; Slabon v Moore [2008] QDC 319
Case
[2008] QDC 319
Decision Date

CaseChat Overview and Summary

The respondents, Canniffe, brought an application against Gibson, the appellant, for an order that he cease and desist from harassing them. This was pursuant to the Protection from Harassment Act 2009 (Vic). Gibson applied to have the complaint dismissed, and his application was summarily dealt with by a magistrate who dismissed it and refused Gibson’s application for costs. Gibson appealed the magistrate’s order on the basis that the magistrate erred in law by summarily dismissing his application to have the complaint dismissed, and that the magistrate should have awarded him costs. The respondents cross-appealed, arguing that Gibson should not have been awarded any costs.

The court had to determine whether the magistrate erred in summarily dismissing Gibson’s application, and whether the magistrate should have awarded Gibson costs. The court found that the magistrate’s dismissal of Gibson’s application was incorrect as it was not appropriate to summarily dismiss an application to have a complaint dismissed. The court further held that the magistrate should have awarded Gibson costs, as the respondents’ application for an order was an abuse of process. The court then had to consider the appropriate costs to award Gibson. The court found that the appropriate costs were those that would be awarded for a successful application to have a complaint dismissed, and remitted the matter to the Magistrates Court to determine the amount of costs to award Gibson.

The appeal was allowed, and the magistrate’s order of dismissal was set aside insofar as it included the refusal of costs. The complaint was remitted to the Magistrates Court for final disposition, including further hearing and determination, in accordance with these reasons, of the question whether costs should be awarded to Gibson and, if so, in what amount. The respondents’ cross-appeal was dismissed.

Orders

Orders of the court

Appeal No D221/08

1. Appeal allowed.

2. The learned Magistrate’s order of dismissal is set aside insofar as it included the refusal of costs.

3. The complaint is remitted to the Magistrates Court for final disposition, including further hearing and determination, in accordance with these reasons, of the question whether costs should be awarded to the appellant and, if so, in what amount.

Appeal No BD2237/08

1. Appeal allowed.

2. The learned Magistrate’s order of dismissal is set aside insofar as it included the refusal of costs.

3. The complaint is remitted to the Magistrates Court for final disposition, including further hearing and determination, in accordance with these reasons, of the question whether costs should be awarded to the appellant and, if so, in what amount.

Appeal No D1308/08

1. Appeal allowed.

2. The learned Magistrate’s order of dismissal is set aside insofar as it included the refusal of costs.

3. The complaint is remitted to the Magistrates Court for final disposition, including further hearing and determination, in accordance with these reasons, of the question whether costs should be awarded to the appellant and, if so, in what amount.

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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