Jones v Schultz Toomey O'Brien Lawyers Pty Ltd

[2016] QCA 268

[2016] QCA 268

COURT OF APPEAL

GOTTERSON JA

Appeal No 9155 of 2016
DC No 51 of 2016

IAN MICHAEL JONES  Appellant

v

SCHULTZ TOOMEY O’BRIEN
LAWYERS PTY LTD  Respondent
ACN 136 676 714

BRISBANE

THURSDAY, 20 OCTOBER 2016

JUDGMENT

GOTTERSON JA:  The applicant Ian Michael Jones was a defendant in proceedings brought against him by the Respondent Schultz Toomey O’Brien Lawyers in the Magistrates Court at Caloundra.  On 19 April 2016, Magistrate S.M. Tonkin ordered that Mr Jones pay the solicitors $42,461.69 for claim, $9,594.80 for costs and interest of $8,617.31, in all $60,673.80.

Mr Jones appealed to the District Court under s 45 of the Magistrates Court Act 1921 against those orders.  On 12 August 2016 Judge Long SC, sitting at Maroochydore, made the following orders:

1.The appeal is dismissed.

2.The appellant is to pay the respondent’s costs of the appeal.

3.Direct that the respondents are released from their undertaking given on 3 June 2016.

On 8 September 2016, Mr Jones filed a notice of appeal in this Court against the whole of the orders made by Judge Long SC. The appeal is one for which leave is required under s 118(3) of the District Court of Queensland Act 1967. An application for such leave was filed by Mr Jones on 13 October this year.

At the time that the notice of appeal was filed, Mr Jones also filed, in this Court, an application for a stay.  The stay sought is on the order made by Magistrate Tonkin in the Caloundra Magistrates Court on 19 April 2016 in matter M75/2014 and upheld on appeal by Judge Long at the District Court at Maroochydore in matter D51/2016 on 12 August 2016.  A costs order on the application was also sought by Mr Jones in his favour.

Unfortunately for Mr Jones, this Court does not have power to order a stay of the order made in the Magistrates Court. Rule 761(2) of the Uniform Civil Procedure Rules empowers this Court for a Judge of appeal relevantly to order a stay of the enforcement of all or part of a decision, subject to appeal.  Here the decision subject to appeal is the decision of Judge Long.  Specifically, it is not the orders of Magistrate Tonkin made in the Magistrates Court.  No relief by way of a stay is sought in respect of a decision of Judge Long under appeal, subject to a grant of leave.

It follows that this application must be dismissed for want of jurisdiction. I would observe that Mr Jones may be of an avenue for obtaining a stay of any warrant that has issued in the Magistrates Court. The avenue may be provided by r 819(1) of the Uniform Civil Procedure Rules. The relief would have to be sought in the Magistrates Court which issued the warrant and not in this Court. The definition of Court in r 3 of the Uniform Civil Procedure Rules makes that clear.  Consistently with these reasons, the orders of the Court are:

1.Application for stay refused.

2.The applicant is to pay the respondent’s costs of the application on the standard basis.