Corliss v Gibbings-Johns

[2010] QCA 233

Queensland Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › General principles
3. › Points not taken below
4. › Whether permitted to be raised on appeal
5. › New statutory defences raised for first time on appeal
6. › Whether could possibly have been met by calling evidence below
1. Appeal
2. › Interference with judge's findings of fact
3. › Functions of appellate court
4. › Where findings based on credibility of witnesses
5. › Whether primary judge wrongly instructed himself as to the evidence
1. Tort Law
2. › Intentional torts
3. › Assault and battery
4. › Statutory exclusion from claiming damages
5. › Criminal behaviour of plaintiff
6. › Whether s 45 Civil Liability Act 2003 (Qld) applies to intentional torts
7. › Civil Liability Act 2003 (Qld), s 4, s 45
1. Criminal Law
2. › Summary conviction of indictable offence
3. › Deeming provision
4. › Whether summary conviction deemed simple offence for purposes of s 6(2) Criminal Code Act 1899 (Qld)
5. › Criminal Code (Qld), s 659
6. › Criminal Code Act 1899 (Qld), s 6(2)

Quick Take

Section 659 of the Criminal Code (Qld), which deems a summary conviction of an indictable offence to be a conviction of a simple offence, operates to prevent s 6(2) of the Criminal Code Act 1899 (Qld) from being engaged where the plaintiff was summarily convicted. There is a substantial argument, left undetermined, that s 45 of the Civil Liability Act 2003 (Qld) does not apply to claims for intentional torts such as assault. Statutory defences that were not pleaded or argued at trial will not be permitted to be raised on appeal where the respondent could possibly have met them by calling additional evidence.