Goodwin v O'Driscoll - [2006] QSC 287

SUPREME COURT OF QUEENSLAND

CITATION:

Goodwin v O’Driscoll & Anor [2006] QSC 287

PARTIES:

BRUCE HENRY GOODWIN
(applicant)
v.
MICHAEL O’DRISCOLL (Magistrate, Referee of the Small Claims Tribunal, Southport)
(first respondent)
and
GERARD MURPHY
(second respondent)

FILE NO:

BS 7474 of 2004

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2006

JUDGE:

Helman J.

ORDER:

The orders made by the Small Claims Tribunal at Southport on 26 July 2004 in proceeding no. 2306 of 2003 are quashed.
No order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – ORDERS TO QUASH DECISION – where tribunal did not have jurisdiction to make the order it did – costs – both parties responsible for the necessity of the application, no order as to costs made

Judicial Review Act 1991 s 41
Small Claims Tribunal Act 1973 ss. 19, 29(1) and (2)

Parisienne Basket Shoes Pty Ltd v. White (1938) 59 C.L.R. 369, cited

COUNSEL:

The applicant appeared on his own behalf
Mr K. Howe for the second respondent

SOLICITORS:

McCowans for the second respondent

This is an application filed on 27 August 2004 under the Judicial Review Act 1991 seeking the quashing of orders made on 26 July 2004 by the first respondent in the Small Claims Tribunal at Southport in proceeding no. 2306 of 2003.

The applicant and the second respondent are agreed that the quashing order should be made for reasons I shall mention later. The first respondent was granted leave to withdraw from this proceeding by Holmes J. on 27 September 2004, when her Honour also ordered that orders made on 26 July 2004 be suspended until further order of this court. The only matter in dispute between the applicant and the second respondent is whether the applicant, who is now not represented by counsel or solicitor but who was so represented when the application was filed and afterwards, should have an order for costs against the second respondent. He contends that he should. The second respondent says that there should be no order for costs, but if there is an order for costs made against him, he should have an indemnity certificate under the Appeal Costs Fund Act 1973.

The applicant and the second respondent are neighbours in Parasol Street, Ashmore. The applicant is the registered proprietor of no. 73 and the second respondent the registered proprietor of no. 75. Since about June 2003 they have been in dispute over a fence and a retaining wall on or about the boundary between their properties. In an effort to resolve their differences the applicant filed a claim, no. 2306 of 2003, under the Small Claims Tribunals Act 1973 seeking relief under the Dividing Fences Act 1953. There was a hearing before the Small Claims Tribunal at Southport on 31 March 2004 and an order was made on that day by a referee. The name…

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 Goodwin v O'Driscoll

Details

AGLC: Goodwin v O'Driscoll [2006] QSC 287
Case: [2006] QSC 287
Decision Date: 4 October 2006

CaseChat Overview and Summary

The case of Goodwin v O'Driscoll involved a dispute concerning an order made by the Small Claims Tribunal at Southport, which the applicant, Goodwin, sought to have quashed. O'Driscoll, the respondent, opposed the application. The dispute centred on the tribunal's jurisdiction to make a particular order and the subsequent application for judicial review. The matter was brought before the court to determine whether the tribunal's decision was valid and whether it should be quashed.

The primary legal issue the court had to decide was whether the Small Claims Tribunal at Southport had the jurisdiction to make the order in question. This required an examination of the statutory provisions that governed the tribunal's powers and the specific circumstances of the case. Additionally, the court had to consider the appropriate remedy in the event that the tribunal's decision was found to be beyond its jurisdiction.

The court found that the tribunal did not have the jurisdiction to make the order it did. Consequently, the court quashed the orders made by the tribunal on 26 July 2004 in proceeding number 2306 of 2003. The court also addressed the issue of costs, determining that both parties were responsible for the necessity of the application. As a result, no order as to costs was made.

Orders

Orders of the court

The orders made by the Small Claims Tribunal at Southport on 26 July 2004 in proceeding no. 2306 of 2003 are quashed.

No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Goodwin v O’Driscoll & Anor [2006] QSC 287
PARTIES:	BRUCE HENRY GOODWIN (applicant) v. MICHAEL O’DRISCOLL (Magistrate, Referee of the Small Claims Tribunal, Southport) (first respondent) and GERARD MURPHY (second respondent)
FILE NO:	BS 7474 of 2004
DIVISION:	Trial Division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 October 2006
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2006
JUDGE:	Helman J.
ORDER:	The orders made by the Small Claims Tribunal at Southport on 26 July 2004 in proceeding no. 2306 of 2003 are quashed. No order as to costs.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – ORDERS TO QUASH DECISION – where tribunal did not have jurisdiction to make the order it did – costs – both parties responsible for the necessity of the application, no order as to costs made Judicial Review Act 1991 s 41 Small Claims Tribunal Act 1973 ss. 19, 29(1) and (2) Parisienne Basket Shoes Pty Ltd v. White (1938) 59 C.L.R. 369, cited
COUNSEL:	The applicant appeared on his own behalf Mr K. Howe for the second respondent
SOLICITORS:	McCowans for the second respondent