Lillicrap v Strange - [1993] QCA 364

IN THE COURT OF APPEAL	[1993] QCA 364
SUPREME COURT OF QUEENSLAND

Appeal No. 113 of 1993.

Brisbane
[Lillicrap v. Strange]

BETWEEN

GARY LILLICRAP
Appellant

and

GLENYS ALICE STRANGE

Respondent

____________________________________________________________

_____

Pincus J.A.
Ambrose J.
White J.
____________________________________________________________

_____

Judgment delivered 04/10/93

Judgment of the Court

____________________________________________________________

_____

NOTICE OF APPEAL STRUCK OUT.

LEAVE TO APPEAL REFUSED.

THE APPLICANT TO PAY THE RESPONDENT'S COSTS OF THE
PROCEEDINGS, TO BE TAXED.
____________________________________________________________

_____

CATCHWORDS:	PRACTICE - whether order of District Court judge granting extension of time within which to bring an action is a "final" order within the meaning of s.92(1) District Courts Act - whether leave to appeal required against the making of the extension order under s.92(2) District Courts Act - whether applicants could demonstrate that some important question of law or justice was involved.
Counsel:	Mr I. Hanger Q.C., with him Mr S Cooper for the appellant.
Mr K. Dorney Q.C., with him Mr P Land for the respondent.
Solicitors:	Flower & Hart for the appellant. Quinlan Miller & Treston, as town agents for Lee Turnbull & Co. for the respondent.
Hearing Date:	25 August 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 113 of 1993.

Brisbane

Before

Pincus J.A.
Ambrose J.
White J.

[Lillicrap v. Strange]

BETWEEN

GARY LILLICRAP
Appellant

and

GLENYS ALICE STRANGE

Respondent

JUDGMENT OF THE COURT

Judgment delivered 04/10/93

The appellant has caused to be filed a notice of appeal
against a judgment of the District Court, given on 1 June
1993, whereby that Court extended time for the bringing of
an action by the respondent against the appellant until 3
March 1993. There is also a notice of motion seeking leave
to appeal. The District Court's order was made under s.
31(2) of the Limitation of Actions Act 1974; we do not
intend to set out s. 31, or the interpretation provision, s.
30.

Counsel for the appellant argued that such an order is one which founds an appeal as of right and submitted that authorities to the contrary should not be followed. The provision on which the appeal is based is s. 92 of the District Courts Act 1967, which reads in part as follows :

(1) Any party who is dissatisfied with the final judgment of a District Court, whether in its original or appellate jurisdiction -

(a)

In an action or matter in which the sum sued for exceeds $10,000
...
may appeal to the Court of Appeal.

(2) Any party who is dissatisfied with a judgment of a District Court other than one hereinbefore mentioned in this section may by leave of the Court of Appeal or a Judge of Appeal appeal to the Court of Appeal.
Such leave may be granted upon such terms as to security for costs or otherwise as the Court of Appeal or a Judge of Appeal may impose, but such leave shall not be granted unless some important question of law or justice is involved.

As…

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 Lillicrap v Strange

Details

AGLC: Lillicrap v Strange [1993] QCA 364
Case: [1993] QCA 364
Decision Date: 4/10/1993

CaseChat Overview and Summary

Lillicrap v Strange involves the interpretation of the District Courts Act and the procedural implications of an order extending the time within which to bring an action. The case was heard in the Supreme Court of South Australia, which was asked to determine whether the extension order granted by a District Court judge was a "final" order and if leave to appeal was necessary. The applicants, Lillicrap, sought an extension of time to bring a proceeding, which was granted by the District Court. They then sought to appeal this decision, raising questions about the nature of the order and the requirements for leave to appeal.

The central legal issues before the court were whether the extension order constituted a "final" order under section 92(1) of the District Courts Act and, if so, whether leave to appeal was required under section 92(2). Additionally, the court had to assess whether the applicants had demonstrated that an important question of law or justice was involved. The applicants argued that the extension order was final and required leave to appeal, whereas the respondents contended that the order was interlocutory and no leave was necessary.

The Supreme Court of South Australia held that the extension order was not a "final" order within the meaning of the Act, as it did not conclude the proceedings in relation to the main cause of action. The court found that the order was interlocutory, as it only addressed the time within which the action could be brought and did not determine the substantive rights of the parties. Consequently, the applicants did not need leave to appeal the order. The court further determined that the applicants had not demonstrated that an important question of law or justice was involved, which was a prerequisite for leave to appeal under section 92(2).

The Supreme Court dismissed the appeal and upheld the District Court's decision. The applicants were not granted leave to appeal the extension order, and the court emphasised the importance of distinguishing between final and interlocutory orders in the context of the District Courts Act.

Orders