Robertson v Vlahos - [2011] QCA 243

SUPREME COURT OF QUEENSLAND

CITATION:

Robertson v Vlahos & Anor [2011] QCA 243

PARTIES:

GERALDINE FOOI-FONG ROBERTSON
(appellant)
v
LESLEY JOY VLAHOS
(first respondent)
ANASTASI VLAHOS
(second respondent)

FILE NO/S:

Appeal No 13213 of 2010
SC No 12451 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2011

JUDGES:

Margaret McMurdo P, Muir JA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. The application to adduce further evidence be refused.

2. The appeal be dismissed, with costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – where primary judge found appellant had no real prospect of succeeding in proceeding challenging seizure of animals pursuant to Animal Care and Protection Act 2001 (Qld) – where appellant appeals that decision on the ground that the primary judge erred in fact and law in giving summary judgment – whether primary judge’s finding should be set aside

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where the appellant sought leave to adduce new evidence in support of her claim – where the further evidence relates to documentation relevant to the dogs seized by the RSPCA and the dogs surrendered by the respondents –where the documentation sought to be adduced as new evidence relates to a factual finding previously determined adversely to the appellant – whether leave should be granted to adduce further evidence on appeal

Animal Care and Protection Act 2001 (Qld), s 142, s 144, s 149, s 154, s 215
Uniform Civil Procedure Rules 1999 (Qld), r 293

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423, applied
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, cited

COUNSEL:

The appellant appeared on her own behalf
B F Charrington, with R A Nichols, for the respondents

SOLICITORS:

The appellant appeared on her own behalf
McCarthy Durie Ryan Neil Solicitors for the respondents

McMURDO P:MARGARET I agree with Boddice J's reasons for refusing the application to adduce further evidence and for dismissing the appeal with costs.

MUIR JA: I agree with Boddice J that the appellant failed to establish any basis for setting aside the primary judge’s finding. I agree also that the appellant has no real prospect of succeeding on any part of her claim and that the appeal should be dismissed. I agree with the reasons of Boddice J except that, in the absence of an effective contradictor, I do not wish to express a view on the abuse of process ground.

In addition to the question of illegality addressed by the primary judge and Boddice J, there was overwhelming evidence that…

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 Vlahos

Details

AGLC: Robertson v Vlahos [2011] QCA 243
Case: [2011] QCA 243
Decision Date: 13 September 2011

CaseChat Overview and Summary

The appeal before the court concerns a challenge to the seizure of animals under the Animal Care and Protection Act 2001 (Qld) by the RSPCA. The primary judge had granted summary judgment in favour of the respondents, and the appellant sought to appeal that decision on the basis that the primary judge erred both in fact and law. A further aspect of the appeal involves the appellant's application to adduce additional evidence that was not before the primary judge, which pertains to documentation concerning the dogs seized by the RSPCA and those surrendered by the respondents. The court's task was to determine whether the primary judge's finding should be set aside and whether the appellant should be permitted to present the new evidence.

The legal issues that the court had to address include the correctness of the primary judge's decision to grant summary judgment, and whether the appellant had established grounds for the primary judge's decision to be overturned. Additionally, the court considered whether the appellant should be allowed to present further evidence that had not been considered by the primary judge, particularly as it relates to factual findings that had already been determined against the appellant. The court needed to assess whether this new evidence could influence the outcome of the appeal.

The court found that the primary judge's decision to grant summary judgment was correct and that the appellant had not demonstrated any error on the part of the primary judge that warranted setting aside the judgment. Furthermore, the court held that the proposed new evidence did not warrant altering the outcome of the appeal. The evidence related to factual findings that had already been determined adversely to the appellant, and introducing it at this stage would not alter the conclusions reached by the primary judge. Consequently, the appeal was dismissed, and the application to adduce further evidence was refused.

The court ordered that the application to adduce further evidence be refused and that the appeal be dismissed, with costs awarded against the appellant. This decision underscores the importance of the threshold for admitting new evidence on appeal and reinforces the principle that appeals are not a retrial of the original proceedings.

Orders

Orders of the court

1. The application to adduce further evidence be refused.

2. The appeal be dismissed, with costs.

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:	Robertson v Vlahos & Anor [2011] QCA 243
PARTIES:	GERALDINE FOOI-FONG ROBERTSON (appellant) v LESLEY JOY VLAHOS (first respondent) ANASTASI VLAHOS (second respondent)
FILE NO/S:	Appeal No 13213 of 2010 SC No 12451 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2011
JUDGES:	Margaret McMurdo P, Muir JA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. The application to adduce further evidence be refused. 2. The appeal be dismissed, with costs.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – where primary judge found appellant had no real prospect of succeeding in proceeding challenging seizure of animals pursuant to Animal Care and Protection Act 2001 (Qld) – where appellant appeals that decision on the ground that the primary judge erred in fact and law in giving summary judgment – whether primary judge’s finding should be set aside APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where the appellant sought leave to adduce new evidence in support of her claim – where the further evidence relates to documentation relevant to the dogs seized by the RSPCA and the dogs surrendered by the respondents –where the documentation sought to be adduced as new evidence relates to a factual finding previously determined adversely to the appellant – whether leave should be granted to adduce further evidence on appeal Animal Care and Protection Act 2001 (Qld), s 142, s 144, s 149, s 154, s 215 Uniform Civil Procedure Rules 1999 (Qld), r 293 AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423, applied Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, cited
COUNSEL:	The appellant appeared on her own behalf B F Charrington, with R A Nichols, for the respondents
SOLICITORS:	The appellant appeared on her own behalf McCarthy Durie Ryan Neil Solicitors for the respondents