Small v Hattingh & Dawson

[2005] QDC 248

[2005] QDC 248

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

No BD2174 of 2005

STEVEN JAMES SMALL	Appellant
and
GERHARD HATTINGH	First Respondent
and
RODNEY DAWSON	Second Respondent
BRISBANE ..DATE 14/10/2005
JUDGMENT

14102005 T16/KLB01 M/T CMS115/2005 (Robin DCJ)

HIS HONOUR: This matter was before the Court on the 11th of	1
October when orders allowing the appeal against the Magistrate's decisions were foreshadowed.
The making of formal orders was deferred to give Mr Forde the

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opportunity to locate authority, which he believed existed,
that the giving of the notice to admit facts did not
constitute a step for purposes of rule 389. There has now
been received from Mr Forde a document making short further

submissions. It abandons the rule 389 issue, and in those

20

circumstances, the orders foreshadowed ought to be made. makes submissions in support of his client, Mr Dawson's obtaining an indemnity certificate under the Appeal Costs Fund Act 1973, section 15, which provides that, "Where an appeal

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against the decision of the Court to the District Court on a
question of law succeeds, the District Court may, upon
application made in that behalf, grant to any respondent to
the appeal, an indemnity certificate in respect of the

appeal."

40

In my view, the provision quoted describes the present situation. Reference can be made to the ex tempore reasons of the 11th of October 2005 which on review have been expanded to a limited extent.

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The situation is that the Magistrate acted wholly without evidence to form what subsequent events show was a totally erroneous view that Mr Hattingh would be unavailable to give 14102005 T16/KLB01 M/T CMS115/2005 (Robin DCJ) 2 JUDGMENT 60

evidence at trial. This was the foundation of the	1
Magistrate's view that there was prejudice in the circumstances, and that the plaintiff's claim ought to be struck out for want of prosecution. I think that was an error of law. The Magistrate may, alternatively, although this is

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not expressed in his reasons, made much of submissions and
affidavit material before him to the effect that Mr Hattingh
was not a compellable witness at trial; that is completely
contrary to the law that applies in Queensland and has applied

for a very long time.

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The appeal is allowed. The Magistrate's orders of the 1st of June 2005 in relation to striking out of the claim and costs are set aside. The plaintiff did not need leave to proceed under rule 389. The matter is remitted to the Magistrates

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Court for further directions. The respondent Rodney Dawson must pay the appellant's costs of the appeal. Costs of the relevant applications in the Magistrates Court are reserved to that Court.

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Finally, the respondent will be granted an indemnity certificate under Section 15 of the Appeal Costs Fund Act 1973 in respect of this appeal.

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3 JUDGMENT 60