Horne v Cranney - [2011] QCA 149

SUPREME COURT OF QUEENSLAND

CITATION:

Horne v Cranney & Ors t/as Gilshenan & Luton Lawyers [2011] QCA 149

PARTIES:

COLIN JAMES HORNE
(applicant)
v
GLEN MICHEAL CRANNEY, DAVID PAUL ALAN DAVIES, PAUL DOMINIC LUTON, DAVID NEWTON MAHER, PAUL DAVID MCCOWAN, MICHAEL PATRICK QUINN, CECILY MAY TUCKER and WILLIAM JOHN WEIR trading as GILSHENAN & LUTON LAWYERS
(respondents)

FILE NOS:

Appeal No 310 of 2011
DC No 2283 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

20 June 2011

JUDGES:

Chief Justice and Margaret Wilson AJA and Mullins J
Judgment of the Court

ORDERS:

1. That leave to appeal be refused.

2. That the applicant pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – NEGLIGENCE – DAMAGES – where applicant was injured by stepping into hole in the road at the airport – where applicant’s solicitors failed to commence a proceeding for negligence within time – where trial judge had assessed damages the applicant would have recovered at approximately $180,000 and concluded that the applicant’s prospect of obtaining such damages was one-third and accordingly gave judgment for approximately $60,000 – whether the trial judge erred in setting the prospect of success as one-third – whether the trial judge erred by allowing for the prospect of a finding of contributory negligence – whether the trial judge attributed sufficient weight to the expense of elimination of the hazard

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – BY LEAVE OF THE COURT – GENERALLY – where trial judge had assessed damages the applicant would have recovered at approximately $140,000 with interest of approximately $40,000 – where trial judge concluded that the applicant’s prospect of obtaining such damages was one-third and accordingly gave judgment for approximately $60,000, later amended to $61,601.56 – where the final judgment excluding interest was $47,701.56 – where the applicant has a right of appeal only if the judgment amount at least equalled the amount of the Magistrates Court’s jurisdictional limit of $50,000 – whether interest should be included in determining whether that jurisdictional limit was reached – whether leave should be granted

District Court of Queensland Act 1967 (Qld), s 118(2), s 118(3)

Brodie v Singleton Shire Council; Ghantous v HawkesburyCity Council (2001) 206 CLR 512; [2001] HCA 29, considered
Campbell v Turner& Ors (No 2) [2007] QSC 362, considered
Johnson v Perez (1988) 166 CLR 351; [1988] HCA 64, cited
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, cited

COUNSEL:

C J Fitzpatrick for the applicant
R B Dickson for the respondents

SOLICITORS:

Aitken Wilson Lawyers for the applicant
Jensen McConaghy Solicitors for the respondents

[1] THE COURT: The applicant claimed in 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 Horne v Cranney

Details

AGLC: Horne v Cranney [2011] QCA 149
Case: [2011] QCA 149
Decision Date: 24 June 2011

CaseChat Overview and Summary

In the matter of Horne v Cranney, the plaintiff, Horne, sought damages for injuries sustained when she fell into a hole at an airport due to the defendant, Cranney's, alleged negligence. The primary dispute centred on the failure of Horne’s solicitors to initiate proceedings within the statutory time limit. The case was heard in the District Court of Queensland, with an appeal later filed regarding the trial judge’s assessment of damages and the prospects of success.

The key legal issues before the court were whether the trial judge correctly assessed the prospect of success for Horne and if the judge had appropriately considered the potential for contributory negligence and the cost of hazard elimination. The trial judge had estimated that Horne would have recovered approximately $180,000 in damages but reduced the judgment to approximately $60,000, reflecting a one-third chance of success. Additionally, the judge allowed for the possibility of contributory negligence and did not fully consider the expense of eliminating the hazard.

The appeal court found that the trial judge had not erred in setting the prospect of success at one-third, nor in allowing for the prospect of contributory negligence. The court also upheld the judge's consideration of the expense of hazard elimination. Given these findings, the appeal was dismissed, and the court ruled that the trial judge's judgment, amounting to $47,701.56, did not meet the jurisdictional limit for an appeal. Consequently, leave to appeal was refused, and Horne was ordered to pay Cranney’s costs of the application.

Orders

Orders of the court

1. That leave to appeal be refused.

2. That the applicant pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis.

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:	Horne v Cranney & Ors t/as Gilshenan & Luton Lawyers [2011] QCA 149
PARTIES:	COLIN JAMES HORNE (applicant) v GLEN MICHEAL CRANNEY, DAVID PAUL ALAN DAVIES, PAUL DOMINIC LUTON, DAVID NEWTON MAHER, PAUL DAVID MCCOWAN, MICHAEL PATRICK QUINN, CECILY MAY TUCKER and WILLIAM JOHN WEIR trading as GILSHENAN & LUTON LAWYERS (respondents)
FILE NOS:	Appeal No 310 of 2011 DC No 2283 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	20 June 2011
JUDGES:	Chief Justice and Margaret Wilson AJA and Mullins J Judgment of the Court
ORDERS:	1. That leave to appeal be refused. 2. That the applicant pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – NEGLIGENCE – DAMAGES – where applicant was injured by stepping into hole in the road at the airport – where applicant’s solicitors failed to commence a proceeding for negligence within time – where trial judge had assessed damages the applicant would have recovered at approximately $180,000 and concluded that the applicant’s prospect of obtaining such damages was one-third and accordingly gave judgment for approximately $60,000 – whether the trial judge erred in setting the prospect of success as one-third – whether the trial judge erred by allowing for the prospect of a finding of contributory negligence – whether the trial judge attributed sufficient weight to the expense of elimination of the hazard APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – BY LEAVE OF THE COURT – GENERALLY – where trial judge had assessed damages the applicant would have recovered at approximately $140,000 with interest of approximately $40,000 – where trial judge concluded that the applicant’s prospect of obtaining such damages was one-third and accordingly gave judgment for approximately $60,000, later amended to $61,601.56 – where the final judgment excluding interest was $47,701.56 – where the applicant has a right of appeal only if the judgment amount at least equalled the amount of the Magistrates Court’s jurisdictional limit of $50,000 – whether interest should be included in determining whether that jurisdictional limit was reached – whether leave should be granted District Court of Queensland Act 1967 (Qld), s 118(2), s 118(3) Brodie v Singleton Shire Council; Ghantous v HawkesburyCity Council (2001) 206 CLR 512; [2001] HCA 29, considered Campbell v Turner& Ors (No 2) [2007] QSC 362, considered Johnson v Perez (1988) 166 CLR 351; [1988] HCA 64, cited Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, cited
COUNSEL:	C J Fitzpatrick for the applicant R B Dickson for the respondents
SOLICITORS:	Aitken Wilson Lawyers for the applicant Jensen McConaghy Solicitors for the respondents