Henderson v Taylor - [2006] QCA 490

SUPREME COURT OF QUEENSLAND

CITATION:

Henderson v Taylor, Information Commissioner of Queensland [2006] QCA 490

PARTIES:

PAUL DAVID HENDERSON
(appellant/applicant)
v
CATHI TAYLOR (A.K.A CATHERINE MARY TAYLOR), INFORMATION COMMISSIONER, QUEENSLAND
(first respondent)
RACHEL ELIZABETH JEAN MOSS, ASSISTANT INFORMATION COMMISSIONER, QUEENSLAND
(second respondent)

FILE NO/S:

Appeal No 3458 of 2006
SC No 6205 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal
Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2006

JUDGES:

Mackenzie, Philippides and Philip McMurdo JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal is dismissed

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

3. The application filed 4 August 2006 be dismissed with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – REFUSAL OF ADJOURNMENT – the appellant/applicant requested an adjournment of the contempt hearing before the trial judge – adjournment was refused – whether the trial judge erred in exercising judicial discretion to refuse the adjournment

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – whether there is a right of appeal against a judgment dismissing a criminal contempt proceeding

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – the respondent brought an application for security for costs of this appeal – the application was heard on 25 July 2006 – the application was dismissed initially with costs in favour of the appellant/applicant to be assessed on a standard basis – the appellant/applicant sought costs on an indemnity basis – whether the appellant/applicant is entitled to costs on an indemnity basis

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – reasons for judgment in the security for costs application were given by the Court of Appeal on 28 July 2006 – the reasons referred to the appellant/applicant having been a bankrupt – the appellant/applicant argued the reference to bankruptcy was unnecessary – whether the reasons for judgment should be amended

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – HEARING OF APPEAL – appellant/applicant applied for judicial disqualification of certain judges who constituted the Court of Appeal who heard a previous unsuccessful application by the respondent for security for costs – application irrelevant as the Court was differently constituted

Federal Court of Australia Act1976 (Cth), s 24

Criminal Code1899 (Qld), s 8, s 590AA, s 592A, s 668D,
s 669A, Chapter 67
Freedom of Information Act 1992 (Qld), s 52, s 73, s 101C,
s 101G
Judicature Act 1876 (Qld), s 10
Supreme Court of Queensland Act 1991 (Qld), s 29, s 69
Supreme Court Act1995 (Qld), s 254
Uniform Civil Procedure Rules1999

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: [2006] QCA 490
Decision Date: 24 November 2006

CaseChat Overview and Summary

The appeal in Henderson v Taylor was brought by the appellant against the refusal of an adjournment of a contempt hearing before the trial judge. The appeal was dismissed by the Court of Appeal. The appellant argued that the trial judge had erred in exercising his judicial discretion to refuse the adjournment, and that there was a right of appeal against a judgment dismissing a criminal contempt proceeding. The Court of Appeal found that the trial judge's refusal of the adjournment was not an error of law and that there was no right of appeal against a judgment dismissing a criminal contempt proceeding.

The respondent had brought an application for security for costs of the appeal, which was heard on 25 July 2006. The application was dismissed initially with costs in favour of the appellant to be assessed on a standard basis. The appellant sought costs on an indemnity basis, arguing that the reference to his bankruptcy in the reasons for judgment was unnecessary. The Court of Appeal found that the reasons for judgment should not be amended, and that the appellant was not entitled to costs on an indemnity basis.

The appellant applied for judicial disqualification of certain judges who constituted the Court of Appeal who heard a previous unsuccessful application by the respondent for security for costs. However, the application was irrelevant as the Court was differently constituted. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. The application filed on 4 August 2006 was also dismissed with costs.

Orders

Orders of the court

1. The appeal is dismissed

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

3. The application filed 4 August 2006 be dismissed with costs

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:	Henderson v Taylor, Information Commissioner of Queensland [2006] QCA 490
PARTIES:	PAUL DAVID HENDERSON (appellant/applicant) v CATHI TAYLOR (A.K.A CATHERINE MARY TAYLOR), INFORMATION COMMISSIONER, QUEENSLAND (first respondent) RACHEL ELIZABETH JEAN MOSS, ASSISTANT INFORMATION COMMISSIONER, QUEENSLAND (second respondent)
FILE NO/S:	Appeal No 3458 of 2006 SC No 6205 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal Miscellaneous Application – Civil
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	11 October 2006
JUDGES:	Mackenzie, Philippides and Philip McMurdo JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is dismissed 2. The appellant/applicant pay the respondent’s costs of the appeal 3. The application filed 4 August 2006 be dismissed with costs
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – REFUSAL OF ADJOURNMENT – the appellant/applicant requested an adjournment of the contempt hearing before the trial judge – adjournment was refused – whether the trial judge erred in exercising judicial discretion to refuse the adjournment APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – whether there is a right of appeal against a judgment dismissing a criminal contempt proceeding APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – the respondent brought an application for security for costs of this appeal – the application was heard on 25 July 2006 – the application was dismissed initially with costs in favour of the appellant/applicant to be assessed on a standard basis – the appellant/applicant sought costs on an indemnity basis – whether the appellant/applicant is entitled to costs on an indemnity basis APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – reasons for judgment in the security for costs application were given by the Court of Appeal on 28 July 2006 – the reasons referred to the appellant/applicant having been a bankrupt – the appellant/applicant argued the reference to bankruptcy was unnecessary – whether the reasons for judgment should be amended APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – HEARING OF APPEAL – appellant/applicant applied for judicial disqualification of certain judges who constituted the Court of Appeal who heard a previous unsuccessful application by the respondent for security for costs – application irrelevant as the Court was differently constituted Federal Court of Australia Act1976 (Cth), s 24 Criminal Code1899 (Qld), s 8, s 590AA, s 592A, s 668D, s 669A, Chapter 67 Freedom of Information Act 1992 (Qld), s 52, s 73, s 101C, s 101G Judicature Act 1876 (Qld), s 10 Supreme Court of Queensland Act 1991 (Qld), s 29, s 69 Supreme Court Act1995 (Qld), s 254 Uniform Civil Procedure Rules1999