Arthurell v Ryans Mulching Qld Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Arthurell v Ryans Mulching Qld Pty Ltd [2016] QDC 306

PARTIES:

COLIN HARRY ARTHURELL

(appellant)

v

RYANS MULCHING QLD PTY LTD

(respondent)

FILE NO/S:

D37/2016

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Beaudesert

DELIVERED ON:

02/12/2016

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

25/11/2016

JUDGE:

Chowdhury DCJ

ORDER:

1.          Application for leave to appeal dismissed

2.          Respondent’s costs of responding to the application for leave to appeal be reserved

3.          Notice of appeal subject to leave be taken to be a notice of appeal

4.          The respondent file any notice of contention within 14 days of the delivery of this judgment

CATCHWORDS:

LEGISLATION:

CASES:

Appeal from Magistrate – Whether leave needed – s45 Magistrates Court Act 1921

Magistrates Court Act 1921 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Worchild v Brooks [2005] QDC 406

Sutton v Tang [2015] QDC 191

Ramzy v Body Corporate for GC3 [2012] QDC 397.

COUNSEL:

SOLICITORS:

Dr Craig Jensen Lawyers for the Appellant

Hopgood Ganim Lawyers for the Respondent

1. By way of an appeal notice dated 31 October 2016, the appellant seeks leave to appeal to this court against the whole of the decision of the Beaudesert Magistrates Court on 17 October 2016 which ordered that the appellant’s application before that court could not succeed as the notice to admit facts served on the respondent had not been preceded by a month’s notice of intention to proceed under r 189 Uniform Civil Procedure Rules (“UCPR”).   

1. The appellant seeks leave to appeal pursuant to s. 45 Magistrates Court Act 1921 (“the Act”).  The preliminary issue which I have to decide is whether, pursuant to that section, the appellant actually needs leave to appeal.  Curiously, the appellant submits that leave is needed, which is arguably against his interests.  The respondent argues that leave is not needed, which is arguably against its interests.

1. Relevantly, s. 45(1) of the Act reads as follows:

“45       Appeal

(1)Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court—

(a)       in an action in which the amount involved is more than

the minor civil dispute limit; …

may appeal to the District Court as prescribed by the rules.”

1. Section 45(2) relevantly states as follows:

“(2)      Provided that –

(a)where in any of the cases above referred to in subsection (1) the amount is not more than the minor civil dispute limit, an appeal shall lie by leave of the District Court or a District Court judge, who shall not grant such leave to appeal unless the court or judge is satisfied that some important principle of law or justice is involved;

(b)an appeal shall not lie from the decision of the Magistrates Court if, before the decision is pronounced, both parties agree, in writing signed by themselves or their lawyers or agents, that the decision of the court shall be final.”

1. The background to the litigation can be very briefly stated.  In essence, the appellant…