GERALDINE FOOI-FONG ROBERTSON (applicant/respondent) v BETTINA HOLLINGS (IMAGINATION TELEVISION LIMITED) (respondent/not a party to the applications) RSPCA QUEENSLAND INC (respondent/first applicant) STATE OF QUEENSLAND (respondent/second applicant) CHIEF EXECUTIVE, DEPARTMENT OF PRIMARY INDUSTRY AND FISHERIES (respondent/not a party to the applications)
FILE NO/S:
Appeal No 7936 of 2009 SC No 2263 of 2009
DIVISION:
Court of Appeal
PROCEEDING:
Applications to Strike Out
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
9 October 2009
DELIVERED AT:
Brisbane
HEARING DATE:
2 October 2009
JUDGES:
Keane and Fraser JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
1. Respondent's notice of appeal struck out as against the applicants
2. Respondent to pay the costs of the applicants of their applications to strike out the notice of appeal
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where primary judge struck out respondent's amended statement of claim but not her cause of action – where respondent appealed against that decision – where respondent produced further amended statement of claim – where applicants seek to strike out respondent's notice of appeal – whether notice of appeal should be struck out
R G Fryberg for the first applicant E J Longbottom for the second applicant The respondent appeared on her own behalf
SOLICITORS:
Clayton Utz for the first applicant Crown Law for the second applicant The respondent appeared on her own behalf
A: KEANE JIn January and February 2008 the RSPCA seized a number of animals from Mrs Robertson's unlicensed breeding and kennel facility at Buccan. The animals were forfeited pursuant to the Animal Care and Protection Act2001 (Qld) by order of the Magistrates Court. Mrs Robertson has appealed to the District Court against that decision. That appeal has not yet been determined.
Mrs Robertson has also commenced proceedings in the Supreme Court against a number of persons, including the RSPCA and the State of Queensland, claiming damages for various forms of misconduct by those persons. Mrs Robertson represents herself in these proceedings. She has experienced difficulty in delivering a statement of claim which pleads her case in conformity with the requirements of
On two occasions different judges of the Trial Division of the Supreme Court allowed Mrs Robertson an opportunity to replead her case. Ultimately, a judge of the Trial Division of the Supreme Court struck out Mrs Robertson's amended statement of claim which had…
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 Robertson v Hollings
Sign in free to access the full text
Details
AGLC
Robertson v Hollings [2009] QCA 303
Case
[2009] QCA 303
Decision Date
CaseChat Overview and Summary
The appeal in Robertson v Hollings concerned a dispute in Queensland regarding the proper procedure following the striking out of a respondent's amended statement of claim by the primary judge. The primary judge had allowed the respondent to continue with her cause of action despite striking out the amended statement of claim. The respondent subsequently produced a further amended statement of claim. The applicants sought to strike out the respondent's notice of appeal, arguing it should not be allowed given the procedural context.
The legal issues before the court involved the powers of the court in matters of practice and procedure, particularly concerning the striking out of a notice of appeal. The court needed to determine whether the respondent's notice of appeal should be struck out, considering the procedural history and the respondent's actions following the primary judge's decision.
The court found that the respondent's notice of appeal should indeed be struck out. The reasoning focused on the procedural steps taken by the parties and the effect of the primary judge's decision. The court held that the notice of appeal was invalid given the procedural context, leading to the conclusion that it should be dismissed. The costs of the application to strike out the notice of appeal were awarded to the applicants.
Orders
Orders of the court
1. Respondent's notice of appeal struck out as against the applicants
2. Respondent to pay the costs of the applicants of their applications to strike out the notice of appeal