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  • Unreported Judgment

Sauer v Pashley


[1999] QCA 204








Appeal No 4604 of 1999


TREVOR WILLIAM SAUER Applicant (First Defendant)


BRIAN PETER PASHLEY Respondent (Plaintiff)




DATE 02/06/99




THE CHIEF JUSTICE:  The learned District Court Judge, on my best reading of his judgment, appears to have relied in overturning the Magistrate's decision on part of the evidence of Dr Davies which having been given appears not to have been explored further in the course of the trial before the Magistrate.

It seems likely from a reading of the Magistrate's judgment that the Magistrate did not rely on that passage himself.  This circumstance, to my mind, renders the District Court judgment arguably doubtful to the point where one should contemplate its review.

In terms of this case having a feature of more abiding potential significance beyond its immediate factual ambit the learned District Court Judge does appear in addition arguably to have reversed the onus if one takes, at face value in any case, certain expressions appearing within his reasons for judgment and I mention particularly that appearing towards the foot of page 12.

I am not suggesting that the result of this case would necessarily have great significance for the medical profession in so far as the determination of medical negligence claims is concerned but overall the circumstances combine to warrant, in so my view, the granting of leave to appeal pursuant to section 118 of the District Courts Act.

THOMAS JA:  I agree.  The judgment in question effected a reversal of factual findings of the primary Tribunal.  The reversal occurred in a case where it is by no means clear that the judgment under appeal was correct or based on points that had been litigated below.

The risk of injustice, in my view, is sufficiently open to justify the grant of leave.  I, of course, do not express any view on the actual correctness of the decision that may now be properly reviewed upon appeal.

DEMACK J:  I agree that leave should be granted.

THE CHIEF JUSTICE:  That is the order of the Court.

MR TAIT:  I would ask for the consequential orders and notice of motion, please, as well.  It's a costs and enlargement of time and a stay.

THOMAS JA:  Yes.  No opposition.

THE CHIEF JUSTICE:  No opposition, obviously, Mr Taylor?

MR TAYLOR:  In relation to the stay, Your Honour, there is no material before the Court to support a stay apart from, I suppose, the prospects of success.

THE CHIEF JUSTICE:  But we should stay, shouldn't we, if there is going to be a ventilation of the issue on appeal?  You cannot, in other words, expect the money to be paid under the judgment?


THE CHIEF JUSTICE:  Stay execution upon the judgment pending the determination of the appeal.  Extend the time for the filing of the notice of appeal until 3 June 1999.  Costs are in the cause.


Editorial Notes

  • Published Case Name:

    Sauer v Pashley

  • Shortened Case Name:

    Sauer v Pashley

  • MNC:

    [1999] QCA 204

  • Court:


  • Judge(s):

    de Jersey CJ, Thomas JA. Demack J

  • Date:

    02 Jun 1999

Litigation History

No Litigation History

Appeal Status

No Status