Rissanen v Hornby - [2008] QCA 352

SUPREME COURT OF QUEENSLAND

CITATION:

Rissanen v Hornby [2008] QCA 352

PARTIES:

RHONDA ELIZABETH RISSANEN
(applicant)
v
GREGORY HORNBY
(respondent)

FILE NO/S:

CA No 140 of 2008
DC No 3124 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 November 2008

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2008

JUDGES:

McMurdo P, White AJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Application for leave to appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – applicant seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – leave will only be granted in circumstances where an appeal is necessary to correct a substantial injustice and there is a reasonable argument that there is an error to be corrected – whether leave to appeal should be granted

District Court of Queensland Act 1967 (Qld), s 118(3)
Evidence Act 1977 (Qld), s 93(1)(b)
Justices Act 1886 (Qld), s 222, s 223

Aldrich v Ross [2001] 2 Qd R 235; [2000] QCA 501, cited
Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Trainee Scheme Ltd[2008] QCA 100, cited
Federated Carters and Drivers’ Industrial Union of Australia v Motor Transport and Chauffeurs’ Association of Australia (1912) 6 CAR 122, cited
Mbuzi v Torcetti (2008) 50 MVR 451; [2008] QCA 231, cited
Mott v Mott [1929] QWN 38, cited
Pickering v McArthur[2005] QCA 294, cited
ReColdham; ex parte Brideson [No 2] (1990) 170 CLR 267; [1990] HCA 36, cited
Rodgers v Smith[2006] QCA 353, cited
Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, cited

COUNSEL:

The applicant appeared on her own behalf
M J Copley for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: This application for leave to appeal should be dismissed for the reasons given by White AJA.

WHITE AJA: The applicant seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 from the decision of a District Court Judge given on 1 May 2008 which dismissed her appeal from a decision of a Magistrate given on 22 September 2006. The Magistrate found proved three charges of assault contrary to s 335 of the Criminal Code and one charge of unauthorised damage to property contrary to s 7 of the Regulatory Offences Act 1985 in relation to events which occurred on 9 April 2005. The Magistrate imposed fines and recorded convictions except with respect to the first assault for which no conviction was recorded and no penalty imposed.

It is well settled that leave under s 118(3) will usually:

“... be granted only where an…

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.

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Details

Case: [2008] QCA 352
Decision Date: 5 November 2008

CaseChat Overview and Summary

The case of Rissanen v Hornby involved the applicant, Rissanen, seeking leave to appeal a decision of the District Court of Queensland. The underlying dispute related to a legal matter which was adjudicated upon in the lower court, and Rissanen sought to challenge the outcome through an appeal. The court called upon to decide the matter of whether leave to appeal should be granted was the Queensland Court of Appeal.

The central legal issue before the court was whether the applicant should be granted leave to appeal from the decision of the District Court. Under section 118(3) of the District Court of Queensland Act 1967, leave to appeal is only granted if it is necessary to correct a substantial injustice and there is a reasonable argument that there is an error to be corrected. The court had to determine if these conditions were met in this case.

The court evaluated the application for leave to appeal and found that the criteria for granting leave were not satisfied. The court concluded that there was no substantial injustice that warranted the correction through an appeal, nor was there a reasonable argument that there was an error to be corrected. Consequently, the application for leave to appeal was dismissed.

Orders

Orders of the court

Application for leave to appeal dismissed.

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:	Rissanen v Hornby [2008] QCA 352
PARTIES:	RHONDA ELIZABETH RISSANEN (applicant) v GREGORY HORNBY (respondent)
FILE NO/S:	CA No 140 of 2008 DC No 3124 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 November 2008
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2008
JUDGES:	McMurdo P, White AJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the order made.
ORDER:	Application for leave to appeal dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – applicant seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – leave will only be granted in circumstances where an appeal is necessary to correct a substantial injustice and there is a reasonable argument that there is an error to be corrected – whether leave to appeal should be granted District Court of Queensland Act 1967 (Qld), s 118(3) Evidence Act 1977 (Qld), s 93(1)(b) Justices Act 1886 (Qld), s 222, s 223 Aldrich v Ross [2001] 2 Qd R 235; [2000] QCA 501, cited Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Trainee Scheme Ltd[2008] QCA 100, cited Federated Carters and Drivers’ Industrial Union of Australia v Motor Transport and Chauffeurs’ Association of Australia (1912) 6 CAR 122, cited Mbuzi v Torcetti (2008) 50 MVR 451; [2008] QCA 231, cited Mott v Mott [1929] QWN 38, cited Pickering v McArthur[2005] QCA 294, cited ReColdham; ex parte Brideson [No 2] (1990) 170 CLR 267; [1990] HCA 36, cited Rodgers v Smith[2006] QCA 353, cited Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, cited
COUNSEL:	The applicant appeared on her own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent