Mount Isa Mines Ltd v Hare - [2008] QCA 328

SUPREME COURT OF QUEENSLAND

CITATION:

Hare v Mt Isa Mines Ltd & Ors [2008] QCA 328

PARTIES:

STELLA YVONNE HARE by her litigation guardian DAPHNE YVONNE HARE
(applicant/respondent)
v
MOUNT ISA MINES LIMITED
ACN 009 661 447
(first respondent/first applicant)
XSTRATA PLC (INCORPORATED IN ENGLAND AND WALES UNDER THE COMPANIES ACT 1985 WITH REGISTRIES NUMBER 4345939)
(second respondent/second applicant)
XSTRATA QUEENSLAND LIMITED
ACN 009 814 019
(third respondent/third applicant)

FILE NO/S:

Appeal No 10289 of 2008
DC No 1722 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

21 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2008

JUDGES:

Holmes JA

ORDERS:

1. Application for stay of execution adjourned sine die
2. Applicants to pay the respondents’ costs of the application thus far

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN AN APPEAL LIES – BY LEAVE OF THE COURT – INTERLOCUTORY ORDERS AND JUDGMENTS – where the applicants sought a stay, pursuant to r 761(2) of the Uniform Civil Procedure Rules 1999 (Qld), of the primary judge’s decision declaring that a notice of claim was a complying notice – where proceedings were not on foot – where the declaration was necessary to the commencement of proceedings – whether the decision below was an interlocutory one or final judgment – whether the applicants require leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld) – whether the application for a stay is premature

District Court of Queensland Act 1967 (Qld), s 118(3)
Uniform Civil Procedure Rules 1999 (Qld), r 761(2)

Barnes v Australian Telecommunications Corporation (1996) 125 FLR 335; [1996] QCA 1, considered
Bell v Bay-Jespersen [2004] 2 Qd R 235; [2004] QCA 68, cited
Ex parte Brit [1987] 1 Qd R 221, applied
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54, distinguished
Hall v The Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36, followed
Ho v Grigor (2006) 231 ALR 639; [2006] FCAFC 72, distinguished
Perovich & Anor v ASIC (2005) 56 ACSR 303; [2005] QCA 456, cited
Stone v Copperform Pty Ltd [2002] 1 Qd R 106; [2001] QCA 7, cited

COUNSEL:

L F Kelly SC, with B F Charrington, for the applicants
G R Mullins for the respondent

SOLICITORS:

Allens Arthur Robinson for the applicants
Slater & Gordon Lawyers for the respondent

HOLMES JA: The applicants seek a stay, expressed to be pursuant to rule 761(2) of the Uniform Civil Procedure Rules, of a District Court judge's decision declaring that a notice of claim served by the respondent on the applicants pursuant to section 9 of the Personal Injuries Proceedings Act was a complying notice of claim under that Act.

The regulations under that Act require particulars of the incident alleged to have caused the personal injury to which the claim…

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 Mount Isa Mines Ltd v Hare

Details

AGLC: Mount Isa Mines Ltd v Hare [2008] QCA 328
Case: [2008] QCA 328
Decision Date: 21 October 2008

CaseChat Overview and Summary

The appeal arose from an application by Mount Isa Mines Ltd to stay the primary judge’s declaration that a notice of claim was a complying notice. The respondents, Hare, opposed the stay and sought an order that the applicants pay their costs. The matter was heard in the Queensland Court of Appeal. The primary legal issue before the court was whether the primary judge’s decision was an interlocutory order or a final judgment, and if it was the latter, whether the applicants needed leave to appeal under section 118(3) of the District Court of Queensland Act 1967 (Qld). Additionally, the court had to determine whether the application for a stay was premature.

The court held that the primary judge’s decision was a final judgment as it was necessary to the commencement of proceedings. Consequently, the applicants required leave to appeal under section 118(3) of the District Court of Queensland Act 1967 (Qld). However, the application for a stay was premature because the applicants needed to first obtain leave to appeal before they could challenge the primary judge’s decision. Therefore, the court adjourned the application for a stay sine die and ordered the applicants to pay the respondents’ costs of the application thus far.

Orders

Orders of the court

1. Application for stay of execution adjourned sine die

2. Applicants to pay the respondents’ costs of the application thus far

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:	Hare v Mt Isa Mines Ltd & Ors [2008] QCA 328
PARTIES:	STELLA YVONNE HARE by her litigation guardian DAPHNE YVONNE HARE (applicant/respondent) v MOUNT ISA MINES LIMITED ACN 009 661 447 (first respondent/first applicant) XSTRATA PLC (INCORPORATED IN ENGLAND AND WALES UNDER THE COMPANIES ACT 1985 WITH REGISTRIES NUMBER 4345939) (second respondent/second applicant) XSTRATA QUEENSLAND LIMITED ACN 009 814 019 (third respondent/third applicant)
FILE NO/S:	Appeal No 10289 of 2008 DC No 1722 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay of Execution
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	21 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	20 October 2008
JUDGES:	Holmes JA
ORDERS:	1. Application for stay of execution adjourned sine die 2. Applicants to pay the respondents’ costs of the application thus far
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN AN APPEAL LIES – BY LEAVE OF THE COURT – INTERLOCUTORY ORDERS AND JUDGMENTS – where the applicants sought a stay, pursuant to r 761(2) of the Uniform Civil Procedure Rules 1999 (Qld), of the primary judge’s decision declaring that a notice of claim was a complying notice – where proceedings were not on foot – where the declaration was necessary to the commencement of proceedings – whether the decision below was an interlocutory one or final judgment – whether the applicants require leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld) – whether the application for a stay is premature District Court of Queensland Act 1967 (Qld), s 118(3) Uniform Civil Procedure Rules 1999 (Qld), r 761(2) Barnes v Australian Telecommunications Corporation (1996) 125 FLR 335; [1996] QCA 1, considered Bell v Bay-Jespersen [2004] 2 Qd R 235; [2004] QCA 68, cited Ex parte Brit [1987] 1 Qd R 221, applied Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54, distinguished Hall v The Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36, followed Ho v Grigor (2006) 231 ALR 639; [2006] FCAFC 72, distinguished Perovich & Anor v ASIC (2005) 56 ACSR 303; [2005] QCA 456, cited Stone v Copperform Pty Ltd [2002] 1 Qd R 106; [2001] QCA 7, cited
COUNSEL:	L F Kelly SC, with B F Charrington, for the applicants G R Mullins for the respondent
SOLICITORS:	Allens Arthur Robinson for the applicants Slater & Gordon Lawyers for the respondent