Goodwin v. O'Driscoll & Anor

[2007] QCA 108

SUPREME COURT OF QUEENSLAND

CITATION:

Goodwin v O’Driscoll & Anor [2007] QCA 108

PARTIES:

BRUCE GOODWIN
(applicant/appellant)
v
MICHAEL O’DRISCOLL
(first respondent/not a party to the appeal)
GERARD JAMES MURPHY
(second respondent/respondent)

FILE NO/S:

Appeal No 9271 of 2006
SC 7474 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

2 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2007

JUDGES:

McMurdo P, Jerrard JA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – COSTS ORDERS – the appellant seeks to appeal a costs order made by a Supreme Court judge – the appellant did not seek or obtain leave of the primary judge to appeal the costs order – whether the appeal is competent

Judicial Review Act 1991 (Qld), s 49
Supreme Court Act 1995 (Qld), s 253

Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2003] QSC 484, cited
Morrison v Hudson [2006] QCA 170; [2006] 2 Qd R 465, cited
Re Golden Casket Art Union Office [1994] QCA 480; [1995] 2 Qd R 346, cited

COUNSEL:

The appellant appeared on his own behalf
K Howe for the respondent

SOLICITORS:

The appellant appeared on his own behalf
McCowans for the respondent

McMURDO P:  Justice Wilson will deliver her reasons first.

WILSON J:  This is an appeal against the decision of Mr Justice Helman made on 4 October 2006 in a judicial review proceeding.  The orders made by his Honour were that the orders made by the Small Claims Tribunal at Southport on 26 July 2004 in proceeding no 2306 of 2003 be quashed and that there be no order as to costs.

The judicial review application was part of a protracted dispute between the appellant and the second respondent about a dividing fence.  The Small Claims Tribunal made an order on 31 March 2004 about the construction of a dividing retaining wall and a differently constituted Small Claims Tribunal purported to make a further order on 26 July 2004.  The appellant was the applicant in the judicial review proceeding.

At the hearing before Mr Justice Helman, it was common ground that the differently constituted Small Claims Tribunal lacked jurisdiction to make the order on 26 July 2004.  That had been recognised in a hearing before Justice Fryberg on an injunction application.  The appellant subsequently had the judicial review application listed and it came on before Mr Justice Helman.  In the circumstances, it was proper that an order be made quashing the order of the Small Claims Tribunal.

That left the costs of the judicial review application as the only issue for determination by Mr Justice Helman.  The appellant makes a number of complaints about the conduct of the proceeding before his…