Rockett & Devencorn v Proprietors 'The Sands' BUP 82 [2001] QCA 99

Rockett & Devencorn v Proprietors 'The Sands' BUP 82 [2001] QCA 99 (11 August 2001)

SUPREME COURT OF QUEENSLAND

CITATION:

Rockett & Anor v The Proprietors of "The Sands" BUP 82 [2001] QCA 99

PARTIES:

LYNETTE JOY ROCKETT

(plaintiff/appellant)

ROSS ROBERT DEVENCORN

(plaintiff/appellant)

v

THE PROPRIETORS "THE SANDS" BUP 82

(second defendant/respondent)

FILE NO/S:

Appeal No 4355 of 2000

DC No 3518 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 March 2001

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2001

JUDGES:

McPherson and Williams JJA, Wilson J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.

Appeal allowed with costs

2.

Set aside the orders made on 20 April 2000 in no D 3518 of 1998 in the District Court at Brisbane.

3.

Further order that the applicant in D 3518 of 1998 (being BUP 82) pay the costs of the respondents of and incidental to that application.

CATCHWORDS:

APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - further evidence - Whether a judgment of the Court of Appeal constitutes a "fact" or "facts" under rule 668(1)(a) UCPR.

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - Discontinuance - Effect of consent order dismissing an appeal on later application to vary judgment.

Body Corporate and Community Management Act 1997 (Qld), s. 259

Defamation Act 1889 (Qld), s 16, s 17

Uniform Civil Procedure Rules 1999 (Qld), r 668, r 689, r 762

Concut Pty Ltd v Worrell (2000) 75 ALJR 312, considered

Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235, considered

K G K Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 40, followed

Pavlides v Jensen [1956] Ch 565, distinguished

Rayner v Rayner [1968] QWN 42

Stubberfield v Brisbane City Council [1996] QCA 184, distinguished

Woods v Sheriff of Queensland (1895) 6 QLJ 163, considered

COUNSEL:

P Lyons QC with P J Favell for the appellants

J S Douglas QC with M Varitimos for the respondent

SOLICITORS:

Thynne & Macartney for the appellants

Heiser Bayly and McDonald for the respondent