Duff v Blinco & Anor [2006] QCA 259 [2006] 2 Qd R 528

SUPREME COURT OF QUEENSLAND CITATION: Duff v Blinco & Blinco [2006] QCA 259 PARTIES: MICHAEL GAVAN DUFF (plaintiff/respondent) v JEFFREY LIONEL BLINCO and MAVIS JEAN BLINCO (defendants/applicants) FILE NO/S: Appeal No 5121 of 2006 DC No 93 of 2001 DIVISION: Court of Appeal PROCEEDING: Application for leave s118 DCA (Civil) (Mention) ORIGINATING COURT: District Court at Dalby DELIVERED ON: 18 July 2006 DELIVERED AT: Brisbane HEARING DATE: 14 July 2006 JUDGE: Keane JA ORDER: 1. Declare that the application for leave to appeal is competent 2. Costs of the parties in respect of the mention should be costs in the application for leave to appeal CATCHWORDS: APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - claim for royalties related to timber harvested by defendants from plaintiff's property - learned primary judge published reasons finding in favour of the plaintiff on the issue of liability but as yet no finding made on quantum and no formal orders made - whether defendant's appeal is competent District Court of Queensland Act 1967 (Qld), s 118(3) Uniform Civil Procedure Rules 1999 (Qld), r 483, r 484, r 485 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied Town v Australian Telecommunications Commission and Anor (1983) 47 ALR 137, cited COUNSEL: S A Lynch for the plaintiff/respondent A J Greinke for the defendants/applicants SOLICITORS: Michael Mason for the plaintiff/respondent Shannon Donaldson Province Lawyers for the defendants/applicants -- 1 of 4 -- 2 [1] KEANE JA: In this action, the plaintiff claimed in the District Court, pursuant to a contract dated 9 May 1990, to recover royalties in respect of timber harvested by the defendants from the plaintiff's property known as "Di Di". [2] The defendants applied, pursuant to r 483 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR"), to have the court decide the question of the defendants' liability to pay royalties separately from the issue of the quantum of the royalties (ie the quantum which would be payable if the defendants were liable to pay royalties under the contract). The plaintiff consented to this course. The issue of liability was tried separately from the other issues in the action on 29 and 30 September 2005. [3] On 29 May 2006, the learned trial judge published reasons in which he found "in the plaintiff's favour on the issue of liability" and expressed his "view [that] the plaintiff is entitled … to have the defendants pay him royalties in respect of timber harvested … from Di Di …".1 [4] His Honour published these reasons to the parties and said that: "they may consider the trial to be further adjourned to a date to be fixed for the hearing of evidence in relation to quantum and for final judgment".2 [5] On 21 June 2006, the defendants, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld), filed an application for leave to appeal to this Court against the decision of the learned primary judge on the question of liability. [6] As the learned trial judge had not pronounced any formal orders (except possibly an order adjourning the further hearing of the action to a date to be fixed), the Deputy Registrar of this Court, understandably concerned at the possibility that the appeal might be incompetent, required the parties to attend a mention of the matter on 14 July 2006. [7] Prior to the hearing on 14 July 2006, the parties exchanged and filed written submissions. The defendants contended that the learned primary judge had decided the question of liability adverse to them, and that, therefore, their application for leave to appeal was competent. The plaintiff, in written submissions filed on 12 July 2006, contended that the application for leave to appeal was incompetent because no order had been made from which the defendants might properly appeal. At the hearing of the matter, the plaintiff maintained this position while acknowledging that the "problem" could readily be resolved by cooperation between the parties, especially bearing in mind the apparent willingness of the learned primary judge to make a declaratory order should that be necessary. It was also the plaintiff's position that he would prefer to have any appeal determined before incurring the expense of a hearing in relation to the quantum of royalties due to him. [8] Section 118(3) of the District Court of Queensland Act provides: "A party who is dissatisfied with any other judgment of the District Court, whether in the court's original or appellate jurisdiction, may appeal to the Court of Appeal with the leave of that court." 1 Duff v Blinco, DC No 93 of 2001, 29 May 2006 at [32]. 2 Duff v Blinco, DC No 93 of 2001, 29 May 2006 at [34]. -- 2 of 4 -- 3 [9] The term "judgment" is defined in s 3 of the District Court Act as follows: "'judgment' includes a judgment, order or other decision or determination of the court". [10] The defendants contend that the learned primary judge has decided or determined the question of the defendants' liability to pay royalties, and that they are entitled to seek leave to appeal against that "judgment". [11] The defendants referred to observations in Australian Broadcasting Tribunal v Bond3 by Mason CJ (made in relation to the Administrative Decisions (Judicial Review) Act 1977 (Cth) but applicable more generally) that the word "decision" may, depending on the context in which it appears, "signify a determination of any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue". Mason CJ went on to say that even if "decision" has "that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly again, a determination which effectively disposes of the matter in hand …".4 [12] Even on the narrowest signification of the word "decision", it is undeniable that the learned primary judge here has "disposed of the matter in hand" because that "matter" was the question of the defendants' liability to pay royalties to the plaintiff under the contract. [13] It is to be emphasised that the function being performed by the learned primary judge under r 483 of the UCPR was the "decision" of the question of the defendants' liability to pay royalties. Rule 484 of the UCPR makes it clear that "orders" by way of relief may be made "[i]f a question is decided under this part". (emphasis added) Rule 485 likewise contemplates that a decision of a question under r 483 may, or may not, lead to a range of orders, including a declaratory judgment. [14] Having regard to the nature of the matter which was before the primary judge under r 483 of the UCPR, the learned primary judge must necessarily be taken to have decided the question of the defendants' liability under the contract, and to have done so adversely to the defendants. The passage from his Honour's reasons in which he expressed his conclusion on the issue of liability is as determinative of the issue of liability as if his Honour had expressly prefaced that conclusion with the words "I decide that" or "I declare that". [15] Support for this understanding of the effect of a decision of a separate question under r 483 of the UCPR is afforded by the decision of the Full Court of the Federal Court of Australia in Town v Australian Telecommunications Commission and Another.5 In that case, the Court was concerned with the provisions in the Federal Court Rules analogous to r 483 to r 485 of the UCPR, Sheppard J, with whom Franki J agreed, said that: "in deciding to answer the question in the way that he has, his Honour has, in reality, made an order determining the question favourably to the respondents."6 3 (1990) 170 CLR 321 at 335. 4 (1990) 170 CLR 321 at 335. 5 (1983) 47 ALR 137. 6 (1983) 47 ALR 137 at 150. -- 3 of 4 -- 4 [16] It follows that I am of the opinion that the defendants' application for leave to appeal is competent. In so saying, of course, I should not be taken as expressing any view as to the desirability of this Court granting leave to deal with this interlocutory appeal. Conclusion and orders [17] I declare that the application for leave to appeal is competent. [18] It was necessary to mention the matter in order to clarify the status of the defendants' application. The plaintiff did not initiate the doubts which attended the competence of the defendants' application for leave to appeal. In these circumstances, I consider that the costs of the parties in respect of the mention should be costs in the application for leave. -- 4 of 4 --