Smith v Woodward - [2009] QCA 119

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Woodward [2009] QCA 119

PARTIES:

CLEEVE RAYMOND SMITH
(appellant/applicant)
v
CHRISTIAN JOHN WOODWARD
(respondent/respondent)

FILE NO/S:

CA No 10 of 2008
DC No 384 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2009

JUDGES:

Keane and Muir JJA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Application for leave to appeal refused

2.    Application to adduce further evidence dismissed

3.    Applicant to pay the respondent's costs of the application to be assessed on the indemnity basis

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant sought leave to appeal against decision of District Court judge – where applicant failed to show how the reasoning of primary judge was wrong – whether leave to appeal should be granted

District Court of Queensland Act 1967 (Qld), s 118

Ferrus v Queensland Police Service [2006] QCA 57, cited
Saunders v Bowman [2008] QCA 112, cited
Smith v Woodward [2007] QDC 324, affirmed

COUNSEL:

The applicant appeared on his own behalf
M J Rinaudo Lewis for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Aboriginal and Torres Strait Islander Legal Service for the respondent

KEANE JA:
On 12 January 2006 orders were made against Mr Smith, the applicant in this Court, by the Magistrate at Maryborough. The orders were made under the Peace and Good Behaviour Act 1982 (Qld) ("the Act") and required that Mr Smith keep the peace and be of good behaviour towards the respondent,

Mr Woodward, for a period of two years and that Mr Smith have no contact with Mr Woodward. Mr Smith was ordered to pay Mr Woodward's costs.

Mr Smith appealed to the District Court. On 7 December 2007 the appeal to the District Court was dismissed with costs. On 7 January 2008 Mr Smith filed an application in which he seeks leave to appeal to this Court from the decision of the District Court.

Mr Smith represented himself below and in this Court.

On 31 July 2008 both parties were advised that the matter was listed for hearing on 3 September 2008. Mr Smith was unable to attend the hearing on that date because of medical reasons. The matter was adjourned to 6 October 2008.

On 6 October 2008 the hearing of the matter was adjourned again because Mr Smith was again indisposed for medical reasons.

Mr Smith subsequently filed an application to adduce further evidence on his application for leave to appeal.

This case does not warrant the grant of leave to appeal. The prospect of further evidence, to the extent that it is evidence not already considered by the courts below, does not alter my view of…

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 Smith v Woodward

Details

AGLC: Smith v Woodward [2009] QCA 119
Case: [2009] QCA 119
Decision Date: 8 May 2009

CaseChat Overview and Summary

In the case of Smith v Woodward, the applicant, Smith, sought leave to appeal a decision made by the District Court judge, which was in favour of Woodward. Smith argued that the District Court judge had erred in their reasoning and sought to appeal the decision. The application was dismissed by the court, with the court finding that Smith had not demonstrated how the reasoning of the primary judge was incorrect. The applicant also sought to adduce further evidence, which was also dismissed by the court.

The legal issue that the court had to decide was whether leave to appeal should be granted, given that Smith had not demonstrated how the reasoning of the primary judge was incorrect. The court had to consider the circumstances in which an appeal may be allowed and whether the applicant had satisfied the necessary criteria to warrant an appeal. The court also had to consider the application to adduce further evidence and whether there were exceptional circumstances that warranted the admission of such evidence.

The court found that Smith had not demonstrated how the reasoning of the primary judge was incorrect and that the appeal was not warranted. The court also found that there were no exceptional circumstances to warrant the admission of further evidence. The court held that the application for leave to appeal should be refused and that the application to adduce further evidence should also be dismissed. The court further ordered that Smith pay Woodward's costs of the application on an indemnity basis.

The court's decision in this case highlights the importance of demonstrating how the reasoning of the primary judge was incorrect in order to successfully appeal a decision. The court also emphasised the need for exceptional circumstances to warrant the admission of further evidence. The outcome of this case serves as a reminder to applicants that the burden of proof lies on them to demonstrate that an appeal is warranted and that they have satisfied the necessary criteria to warrant an appeal.

Orders

Orders of the court

1. Application for leave to appeal refused

2. Application to adduce further evidence dismissed

3. Applicant to pay the respondent's costs of the application to be assessed on the indemnity basis

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smith v Woodward [2009] QCA 119
PARTIES:	CLEEVE RAYMOND SMITH (appellant/applicant) v CHRISTIAN JOHN WOODWARD (respondent/respondent)
FILE NO/S:	CA No 10 of 2008 DC No 384 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	8 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	6 April 2009
JUDGES:	Keane and Muir JJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal refused 2. Application to adduce further evidence dismissed 3. Applicant to pay the respondent's costs of the application to be assessed on the indemnity basis
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant sought leave to appeal against decision of District Court judge – where applicant failed to show how the reasoning of primary judge was wrong – whether leave to appeal should be granted District Court of Queensland Act 1967 (Qld), s 118 Ferrus v Queensland Police Service [2006] QCA 57, cited Saunders v Bowman [2008] QCA 112, cited Smith v Woodward [2007] QDC 324, affirmed
COUNSEL:	The applicant appeared on his own behalf M J Rinaudo Lewis for the respondent
SOLICITORS:	The applicant appeared on his own behalf Aboriginal and Torres Strait Islander Legal Service for the respondent