Paulger v Hall

[2002] QCA 353

SUPREME COURT OF QUEENSLAND

CITATION:	Paulger v Hall [2002] QCA 353
PARTIES:	KENNETH PAULGER (applicant/respondent) v BYRON EDWARD HALL (respondent/applicant/appellant)
FILE NO/S:	Appeal No 3950 of 2002 DC No 35 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	13 September 2002
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2002
JUDGES:	McMurdo P, Mackenzie and Holmes JJ Separate reasons for judgment of each member of the court, each concurring as to the orders made.
ORDERS:	1. Leave to appeal granted 2. Appeal dismissed
3. Appeallant to pay the respondent’s costs of the appeal and the application for leave to appeal
CATCHWORDS:	APPEAL – GENERAL PRINCIPLES – IN GENERAL AND RIGHT OF APPEAL – WHEN APPEAL LIES – APPEAL TO DISTRICT COURT – S 222 JUSTICES ACT 1886 – where applicant/appellant seeks leave from decision of District Court allowing respondent’s appeal from magistrate under s 222 Justices Act (Qld) 1886 – where magistrate refused amendment of charges and dismissed complaints – whether District Court judge had power to entertain appeal under s 222 – whether appeal lies under s 222 from a ruling made on an incidental application during the hearing of the complaint.
APPEAL – GENERAL PRINCIPLES – IN GENERAL AND RIGHT OF APPEAL – WHEN APPEAL LIES – APPEAL TO DISTRICT COURT – S 222 JUSTICES ACT 1886 – whether District Court judge was in a position to assess whether a variance existed between the complaints and the evidence adduced – whether District Court judge had heard
all the evidence
APPEAL – GENERAL PRINCIPLES – IN GENERAL AND RIGHT OF APPEAL – WHEN APPEAL LIES – APPEAL TO DISTRICT COURT – S 222 JUSTICES ACT 1886 – whether amendment to complaint correctly refused at first instance – whether applicant/appellant prejudiced by proposed amendment because the cross-examination of witnesses had been conducted on the basis of the charges and particulars provided
APPEAL – GENERAL PRINCIPLES – IN GENERAL AND RIGHT OF APPEAL – WHEN APPEAL LIES – APPEAL TO DISTRICT COURT – S 222 JUSTICES ACT 1886 – whether further hearing of the matter correctly adjourned to the District Court – whether judge had concluded hearing the appeal and set down the matters for separate hearing in the District Court; or whether he had merely adjourned the hearing of the appeal proposing to permit the calling of additional evidence at the further hearing
Bunning v Cross (1978) 141 CLR 54, cited Ex parte Bignell (1915) 32 WN (NSW) 91, cited Felix v Smerdon (1944) 19 ALJR 30, considered Fox v Chiu; ex parte Chiu [1978] Qd R 88, considered Gerlach v Clifton Bricks Pty Ltd (2002) 76 ALJR 828, considered Hackwill v Kay [1960] VR 632, considered Hayes v Wilson; Ex parte Hayes [1984] 2 Qd R 114, considered Hill v Pinnock & Ors (1879) 1 QLJ (Supp) 45, 50, considered Mitchell v Myers (1955) 57 WALR 49, considered O’Beirne v Ramke; Ex…