Bonnici v Taylor - [2001] QCA 502

[2001] QCA 502

COURT OF APPEAL

McMURDO P
McPHERSON JA
MACKENZIE J

Appeal No 4758 of 2001

ROBERT BONNICI (Plaintiff) Respondent

and

JILL TAYLOR (Respondent) Appellant

BRISBANE

..DATE 12/11/2001

JUDGMENT

THE PRESIDENT: This matter purports to be an appeal from his Honour Judge Robin QC in Chambers that the purported appellant, the defendant in the action, and whom I shall refer to as the defendant, file and serve within 14 days a schedule in response to an affidavit requiring disclosure indicating as to each item whether it will be disclosed and if not the explanation for non disclosure, with inspection within a further 14 days, extending the period allowed for mediation by two months and reserving the costs.

The respondent plaintiff's claim (the plaintiff) is for a declaration that he is entitled to a 50 per cent interest in specified real property, an order for the sale of the property or alternatively an order that the defendant pay the plaintiff $200,000.

The plaintiff claims his entitlements arose out of contributions made when the parties were in a de facto relationship. The plaintiff was initially legally represented, but at the application below and in this matter represents himself.

On 13 February 2001, his Honour Judge Boyce QC ordered, inter alia, that the parties attend mediation in three months, staying the action until six days after the mediator's certificate is filed and adjourning the application to a date to be fixed to be brought on by either party on four days' notice in writing to the other side.

The respondent having himself made disclosure brought the application resulting in the order the subject of these proceedings because he did not think the plaintiff had made adequate disclosure.

It is immediately apparent that the purported appellant had no right of appeal from such an interlocutory order on a procedural matter of a District Court Judge: see s.118 District Court Acts 1967 (Qld). This matter should have been brought by way of an application for leave to appeal under s.118(3) District Court Acts 1967 (Qld).

I am prepared to treat the notice of appeal as an application for leave to appeal. Leave to appeal from an interlocutory order concerning a question of procedure will ordinarily be refused unless it appears that the decision from which it is sought to appeal is attended with sufficient doubt to warrant it being reconsidered and also that even supposing the decision below to be wrong, substantial injustice would result if leave were refused: Westpac Banking Corporation v Klee Pty Ltd, Appeal No 8205 of 1998, 16 October 1998, para [11], Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400.

The defendant claims the plaintiff did not demonstrate that the documents he sought to be disclosed were directly relevant as required under UCPR r.211; demonstrated no special circumstances under UCPR r.223(4)(a); justifying a Court order for disclosure; the plaintiff did not comply with UCPR r.444 which requires an applicant before making an application to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bonnici v Taylor

Details

AGLC: Bonnici v Taylor [2001] QCA 502
Case: [2001] QCA 502
Decision Date: 12/11/2001

CaseChat Overview and Summary

The Court of Appeal in Bonnici v Taylor was presented with an appeal against an interlocutory order made by Judge Robin in the District Court. The plaintiff, Robert Bonnici, sought a declaration that he was entitled to a 50% interest in certain real property, an order for its sale, or alternatively, that the defendant, Jill Taylor, pay him $200,000. The claim was based on contributions made by Bonnici during a de facto relationship with Taylor. The defendant appealed against the order requiring her to file and serve a schedule of documents, explaining whether they would be disclosed and providing reasons for non-disclosure, with inspection within a further 14 days. The appeal was brought without the necessary leave, and the Court treated the notice of appeal as an application for leave to appeal. The defendant argued that the plaintiff had not demonstrated the relevance of the documents he sought to disclose, and that the primary judge had failed to act on the principle that the onus of establishing relevancy lies with the applicant. The defendant also claimed that the costs of the required disclosure would cause substantial injustice and that the primary judge had made comments suggesting that the onus to establish relevancy shifted in cases involving self-represented litigants.

The Court found that the defendant had no right to appeal from such an interlocutory order on a procedural matter of a District Court Judge and that the matter should have been brought by way of an application for leave to appeal under section 118(3) of the District Court Acts 1967 (Qld). Leave to appeal from an interlocutory order concerning a question of procedure would ordinarily be refused unless it appeared that the decision was attended with sufficient doubt to warrant reconsideration and that, even if the decision below were wrong, substantial injustice would result if leave were refused. The Court was not persuaded that the defendant had demonstrated any sufficient reason for the granting of leave to appeal from an interlocutory order of this type. The Court refused the application for leave to appeal with costs to be assessed.

The Court found that the defendant had failed to demonstrate that the plaintiff had not made adequate disclosure, and that the primary judge's order did not require disclosure of every item in the plaintiff's list. The Court also found that the primary judge's comments did not suggest that the onus to establish relevancy shifted in cases involving self-represented litigants. The Court held that none of the issues raised by the defendant persuaded them that the primary judge's order was attended with sufficient doubt to warrant reconsideration, let alone that substantial injustice would result if leave to appeal were refused and the order stood. The Court dismissed the appeal and refused the application for leave to appeal with costs to be assessed.

Orders