Labaj v Collins - [2005] QCA 221

SUPREME COURT OF QUEENSLAND

CITATION:

Labaj v Collins [2005] QCA 221

PARTIES:

JOHN LABAJ
(plaintiff/applicant)
v
LES COLLINS
(defendant/respondent)

FILE NO/S:

Appeal No 2255 of 2005
DC No 225 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil
Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2005

JUDGES:

de Jersey CJ, Williams JA and McMurdo J
Judgment of the Court

ORDERS:

1.   Application to adduce additional evidence refused

2.   Application for leave to appeal dismissed

3.   Applicant is ordered to pay the respondent’s costs to be assessed on an indemnity basis

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – STRONG REASONS FOR INTERFERENCE – where primary Judge dismissed application for summary judgment in proceeding claiming damages for negligent preparation of psychologist’s report – where applicant had to secure leave to appeal under s 118 District Court of Queensland Act 1967 (Qld) – where application made out of time – where Disciplinary Committee of the Psychologists Board of Queensland had found the respondent guilty of unsatisfactory professional conduct – where respondent had failed to appear at two directions hearings – where unexplained delay in respondent filing a further amended defence – where applicant alleged bias against the primary Judge – whether issues arising on the pleadings could be determined summarily – whether there were sufficient special circumstances to grant leave to appeal

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – where applicant sought to admit affidavit confirming receipt of enforcement warrant notice – whether affidavit relevant to application

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where pleadings could not be determined summarily, a point made in earlier proceedings in the Court of Appeal and by the primary Judge – whether application had any arguable prospect of success – whether applicant must pay the respondent’s costs on an indemnity basis

District Court of Queensland Act 1967 (Qld), s 118
Uniform Civil Procedure Rules 1999 (Qld), r 280, r 292(2), r 374

Carr v Finance Corporation of AustraliaLtd (No 1) (1981) 147 CLR 246, cited
Labaj v Collins [2004] QCA 334; [2005] 1 Qd R 130, approved

COUNSEL:

The applicant appeared on his own behalf
M H Hindman for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Wilson Ryan Grose for the respondent

THE COURT: On 20 January 2004, the applicant commenced, in the District Court, a proceeding claiming damages in respect of the allegedly negligent preparation of a report by the respondent, a psychologist. The respondent prepared the report at the instance of WorkCover Queensland, in relation to the applicant’s claim for compensation for injuries allegedly suffered in the course of his employment.

In his amended statement of claim, filed 21 April…

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 Labaj v Collins

Details

AGLC: Labaj v Collins [2005] QCA 221
Case: [2005] QCA 221
Decision Date: 24 June 2005

CaseChat Overview and Summary

In the case of Labaj v Collins, the applicant sought to appeal the dismissal of an application for summary judgment in a proceeding that claimed damages for the negligent preparation of a psychologist’s report. The case was heard in the District Court of Queensland. The primary Judge had dismissed the application, and the applicant sought leave to appeal under section 118 of the District Court of Queensland Act 1967 (Qld). The applicant had to secure leave to appeal, which was made out of time. Additionally, the Disciplinary Committee of the Psychologists Board of Queensland had found the respondent guilty of unsatisfactory professional conduct. The respondent had failed to appear at two directions hearings, and there was an unexplained delay in filing a further amended defence. The applicant alleged bias against the primary Judge. The legal issues the court was required to decide included whether the issues arising on the pleadings could be determined summarily and whether there were sufficient special circumstances to grant leave to appeal.

The court considered whether the applicant's application to admit additional evidence, specifically an affidavit confirming receipt of an enforcement warrant notice, was relevant to the application. The court also examined whether the applicant's application had any arguable prospect of success and whether the applicant must pay the respondent's costs on an indemnity basis. The court held that the application to adduce additional evidence was refused as it was not relevant. The court also held that the application for leave to appeal was dismissed because there were no strong reasons to interfere with the discretion of the primary Judge. Furthermore, the court held that the application did not have any arguable prospect of success, and therefore, the applicant must pay the respondent's costs to be assessed on an indemnity basis.

The court's reasoning was that the primary Judge's decision to dismiss the application for summary judgment was not wrong, and there were no sufficient special circumstances to grant leave to appeal. The court also held that the applicant's allegation of bias against the primary Judge was not substantiated. The court further held that the application to adduce additional evidence was not relevant to the application, and therefore, it was refused. Finally, the court held that the applicant must pay the respondent's costs to be assessed on an indemnity basis because the application had no arguable prospect of success. The court dismissed the application for leave to appeal and refused the application to adduce additional evidence. The applicant was ordered to pay the respondent’s costs to be assessed on an indemnity basis.

Orders

Orders of the court

1. Application to adduce additional evidence refused

2. Application for leave to appeal dismissed

3. Applicant is ordered to pay the respondent’s costs to be assessed on an indemnity 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:	Labaj v Collins [2005] QCA 221
PARTIES:	JOHN LABAJ (plaintiff/applicant) v LES COLLINS (defendant/respondent)
FILE NO/S:	Appeal No 2255 of 2005 DC No 225 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	14 June 2005
JUDGES:	de Jersey CJ, Williams JA and McMurdo J Judgment of the Court
ORDERS:	1. Application to adduce additional evidence refused 2. Application for leave to appeal dismissed 3. Applicant is ordered to pay the respondent’s costs to be assessed on an indemnity basis
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – STRONG REASONS FOR INTERFERENCE – where primary Judge dismissed application for summary judgment in proceeding claiming damages for negligent preparation of psychologist’s report – where applicant had to secure leave to appeal under s 118 District Court of Queensland Act 1967 (Qld) – where application made out of time – where Disciplinary Committee of the Psychologists Board of Queensland had found the respondent guilty of unsatisfactory professional conduct – where respondent had failed to appear at two directions hearings – where unexplained delay in respondent filing a further amended defence – where applicant alleged bias against the primary Judge – whether issues arising on the pleadings could be determined summarily – whether there were sufficient special circumstances to grant leave to appeal APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – where applicant sought to admit affidavit confirming receipt of enforcement warrant notice – whether affidavit relevant to application APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where pleadings could not be determined summarily, a point made in earlier proceedings in the Court of Appeal and by the primary Judge – whether application had any arguable prospect of success – whether applicant must pay the respondent’s costs on an indemnity basis District Court of Queensland Act 1967 (Qld), s 118 Uniform Civil Procedure Rules 1999 (Qld), r 280, r 292(2), r 374 Carr v Finance Corporation of AustraliaLtd (No 1) (1981) 147 CLR 246, cited Labaj v Collins [2004] QCA 334; [2005] 1 Qd R 130, approved
COUNSEL:	The applicant appeared on his own behalf M H Hindman for the respondent
SOLICITORS:	The applicant appeared on his own behalf Wilson Ryan Grose for the respondent