WAQ v Di Pino - [2012] QCA 283

SUPREME COURT OF QUEENSLAND

CITATION:

WAQ v Di Pino [2012] QCA 283

PARTIES:

WAQ
(appellant)
v
CONSTANTINO DI PINO
(respondent)

FILE NO/S:

Appeal No 1674 of 2012
DC No 3369 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2012

JUDGES:

Fraser and Gotterson JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Leave to amend notice of appeal granted.

2.    Appeal dismissed.

3.    Appellant to pay respondent’s costs of the appeal on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ASSESSMENT OF DAMAGES – where judge below ordered the respondent pay damages to the appellant for trespass to the person in the form of sexual assault – where appellant appeals against judgment – whether the trial judge erred in finding that the appellant did not suffer psychiatric injury in the form of post traumatic stress disorder as a result of the actions of the respondent – whether the trial judge erred in not ordering the respondent pay aggravating and exemplary damages

Ali v Nationwide News Pty Ltd [2008] NSWCA 183, cited
Amalgamated Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWLR 338; [2003] NSWCA 186, cited
Backwell v AAA [1997] 1 VR 182, cited
Browne v Dunn (1893) 6 R (HL) 67, cited
Bulstrode v Trimble [1970] VR 840; [1970] VicRP 104, cited
Cassell & Co Ltd v Broome [1972] AC 1027; [1972] UKHL 3, cited
Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70, cited
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, cited
HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302, cited
McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289, cited
R v di Pino [2004] QCA 39, cited
Rookes v Barnard [1964] AC 1129; [1964] UKHL 1, cited
State of New South Wales v Zreika [2012] NSWCA 37, cited
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40, cited
Williams v Dawson [2000] WASCA 205, cited

COUNSEL:

C C Heyworth-Smith with H Blattman for the appellant
M Black for the respondent

SOLICITORS:

Murphy Schmidt for the appellant
John P Bussa & Co for the respondent

FRASER JA: I agree with the reasons for judgment of Gotterson JA and the orders proposed by his Honour.

GOTTERSON JA: The appellant and respondent were plaintiff and defendant respectively in proceedings which were tried in the District Court at Brisbane on 18 and 19 August 2011. The appellant appeals from a judgment given on 27 January 2012 by which the respondent was ordered to pay her damages of $146,027.83…

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: [2012] QCA 283
Decision Date: 19 October 2012

CaseChat Overview and Summary

The appellant, WAQ, brought an appeal against a decision by the District Court of Queensland, presided over by Di Pino J. The initial proceedings involved a claim of trespass to the person in the form of sexual assault, which resulted in the trial judge ordering the respondent to pay damages to the appellant. The appellant contested the trial judge's findings that they did not suffer a psychiatric injury in the form of post-traumatic stress disorder (PTSD) as a result of the respondent's actions, and that the trial judge did not order the respondent to pay aggravating and exemplary damages. The appeal was heard by the Court of Appeal, which had to determine whether the trial judge's findings were correct and whether there was an error in the assessment of damages.

The court had to address two primary issues: whether the trial judge was correct in finding that the appellant did not suffer from PTSD and whether the trial judge erred in not ordering the respondent to pay aggravating and exemplary damages. The appellant argued that the trial judge failed to properly assess the evidence regarding the psychiatric injury and did not consider the appropriate principles in awarding damages. The respondent contended that the trial judge's findings were supported by the evidence and that there was no basis for awarding aggravating and exemplary damages.

The Court of Appeal found that the trial judge did not err in concluding that the appellant did not suffer from PTSD. The court examined the evidence presented and found that the trial judge's conclusion was supported by the evidence and the applicable legal principles. Additionally, the court held that the trial judge did not err in not ordering the respondent to pay aggravating and exemplary damages. The court found that the trial judge had considered the appropriate principles and that there was no basis for such an award in this case. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal on the standard basis.

The Court of Appeal dismissed the appeal and upheld the decision of the trial judge. The appellant was ordered to pay the respondent's costs of the appeal on the standard basis. The court granted leave to amend the notice of appeal, ensuring that the appeal was heard on its merits. The outcome of the case reinforced the importance of properly assessing evidence and applying legal principles in determining the appropriate award of damages in cases of trespass to the person.

Orders

Orders of the court

1. Leave to amend notice of appeal granted.

2. Appeal dismissed.

3. Appellant to pay respondent’s costs of the appeal on the standard 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	WAQ v Di Pino [2012] QCA 283
PARTIES:	WAQ (appellant) v CONSTANTINO DI PINO (respondent)
FILE NO/S:	Appeal No 1674 of 2012 DC No 3369 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	19 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	20 July 2012
JUDGES:	Fraser and Gotterson JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to amend notice of appeal granted. 2. Appeal dismissed. 3. Appellant to pay respondent’s costs of the appeal on the standard basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ASSESSMENT OF DAMAGES – where judge below ordered the respondent pay damages to the appellant for trespass to the person in the form of sexual assault – where appellant appeals against judgment – whether the trial judge erred in finding that the appellant did not suffer psychiatric injury in the form of post traumatic stress disorder as a result of the actions of the respondent – whether the trial judge erred in not ordering the respondent pay aggravating and exemplary damages Ali v Nationwide News Pty Ltd [2008] NSWCA 183, cited Amalgamated Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWLR 338; [2003] NSWCA 186, cited Backwell v AAA [1997] 1 VR 182, cited Browne v Dunn (1893) 6 R (HL) 67, cited Bulstrode v Trimble [1970] VR 840; [1970] VicRP 104, cited Cassell & Co Ltd v Broome [1972] AC 1027; [1972] UKHL 3, cited Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70, cited Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, cited HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302, cited McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289, cited R v di Pino [2004] QCA 39, cited Rookes v Barnard [1964] AC 1129; [1964] UKHL 1, cited State of New South Wales v Zreika [2012] NSWCA 37, cited Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40, cited Williams v Dawson [2000] WASCA 205, cited
COUNSEL:	C C Heyworth-Smith with H Blattman for the appellant M Black for the respondent
SOLICITORS:	Murphy Schmidt for the appellant John P Bussa & Co for the respondent