Kosteska v Magistrate Manthey - [2013] QCA 105

SUPREME COURT OF QUEENSLAND

CITATION:

Kosteska v Magistrate Manthey & Anor [2013] QCA 105

PARTIES:

LILLE KOSTESKA
(applicant)
v
MAGISTRATE BEVAN MANTHEY
(first respondent)
PAUL GERARD MURRAY (REGISTRAR OF SPER) (second respondent)

FILE NO/S:

Appeal No 7440 of 2012
SC No 5434 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave/Judicial Review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2013

JUDGE:

Margaret McMurdo P and Atkinson and Martin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal refused.

2. The stay application is refused.

3. Applicant to pay second respondent’s costs on an indemnity basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant seeks leave to appeal an order dismissing her application for judicial review of the orders of the first respondent – where applicant sought leave to appeal on a number of grounds including that the Court of Appeal was not a lawfully established court and that the applicant was denied natural justice – whether the Court of Appeal should grant leave to appeal pursuant to the Judicial Review Act 1991 (Qld)

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED - where the applicant makes a stay application with respect to all orders made by the Magistrate Court instituted against the applicant by the Queensland Police Service since November 2009 – whether the Court of Appeal should allow the stay application

Judicial Review Act 1991 (Qld), s 48

Clampett v Hill & Ors[2007] QCA 394, cited
Kelly v Campbell [2002] FCA 1125, cited
Kosteska v Phillips[2011] QCA 266, cited
Meads v Meads [2013] 3 WWR 419; [2012] ABQB 571, cited
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, cited
Re Cusack (1985) 60 ALJR 302, cited
Re Skyring[1999] QCA 460, cited
Re Skyring’s Application (No 2) (1985) 59 ALJR 561, cited
Sharples v Arnison [2002] 2 Qd R 444; [2001] QCA 518, cited
Skyring v Australia and New Zealand Banking Group[1993] QCA 118, cited
Skyring v Australia and New Zealand Banking Group[1994] QCA 143, cited
Skyring v Commonwealth Commissioner of Taxation[1993] QCA 119, cited
Skyring v Lohe[2000] QCA 451, cited

COUNSEL:

The applicant appeared on her own behalf
E M Fletcher for the first respondent
M T Hickey for the second respondent

SOLICITORS:

The applicant appeared on her own behalf
Crown Law for the first and second respondents

MARGARET McMURDO P: This application for leave to appeal should be refused and the stay application dismissed for the reasons given by Martin J. I agree with the orders proposed by his Honour.

ATKINSON J:

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.

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Details

Case: [2013] QCA 105
Decision Date: 10 May 2013

CaseChat Overview and Summary

Kosteska v Magistrate Manthey is a case where the applicant sought leave to appeal an order dismissing her application for judicial review of orders made by the first respondent. The applicant sought to appeal on several grounds, including that the Court of Appeal was not a lawfully established court and that she was denied natural justice. The case was heard in the Court of Appeal in Queensland. The primary issue the court had to decide was whether the Court of Appeal should grant leave to appeal under the Judicial Review Act 1991 (Qld). Additionally, the court needed to determine whether to allow a stay application concerning all orders made by the Magistrates Court against the applicant by the Queensland Police Service since November 2009.

In considering the application for leave to appeal, the Court of Appeal found that the applicant had not demonstrated that the appeal had a reasonable chance of success or that there were other compelling reasons for allowing the appeal. The court held that the applicant's arguments regarding the legitimacy of the Court of Appeal and the denial of natural justice were not sufficiently substantiated to warrant granting leave. The court also examined the stay application and concluded that the applicant had not provided adequate grounds to justify a stay of the proceedings. The Court of Appeal determined that the stay application should be refused, and the applicant was ordered to pay the second respondent’s costs on an indemnity basis.

The Court of Appeal ruled against both the application for leave to appeal and the stay application. The court emphasised the need for compelling reasons to grant leave to appeal and the lack of sufficient justification for a stay of proceedings. The applicant was also ordered to pay the second respondent’s costs on an indemnity basis, reflecting the court's view that the applications were not well-founded.

Orders

Orders of the court

1. Application for leave to appeal refused.

2. The stay application is refused.

3. Applicant to pay second respondent’s costs on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

CITATION:	Kosteska v Magistrate Manthey & Anor [2013] QCA 105
PARTIES:	LILLE KOSTESKA (applicant) v MAGISTRATE BEVAN MANTHEY (first respondent) PAUL GERARD MURRAY (REGISTRAR OF SPER) (second respondent)
FILE NO/S:	Appeal No 7440 of 2012 SC No 5434 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave/Judicial Review
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	20 February 2013
JUDGE:	Margaret McMurdo P and Atkinson and Martin JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal refused. 2. The stay application is refused. 3. Applicant to pay second respondent’s costs on an indemnity basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant seeks leave to appeal an order dismissing her application for judicial review of the orders of the first respondent – where applicant sought leave to appeal on a number of grounds including that the Court of Appeal was not a lawfully established court and that the applicant was denied natural justice – whether the Court of Appeal should grant leave to appeal pursuant to the Judicial Review Act 1991 (Qld) APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED - where the applicant makes a stay application with respect to all orders made by the Magistrate Court instituted against the applicant by the Queensland Police Service since November 2009 – whether the Court of Appeal should allow the stay application Judicial Review Act 1991 (Qld), s 48 Clampett v Hill & Ors[2007] QCA 394, cited Kelly v Campbell [2002] FCA 1125, cited Kosteska v Phillips[2011] QCA 266, cited Meads v Meads [2013] 3 WWR 419; [2012] ABQB 571, cited R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, cited Re Cusack (1985) 60 ALJR 302, cited Re Skyring[1999] QCA 460, cited Re Skyring’s Application (No 2) (1985) 59 ALJR 561, cited Sharples v Arnison [2002] 2 Qd R 444; [2001] QCA 518, cited Skyring v Australia and New Zealand Banking Group[1993] QCA 118, cited Skyring v Australia and New Zealand Banking Group[1994] QCA 143, cited Skyring v Commonwealth Commissioner of Taxation[1993] QCA 119, cited Skyring v Lohe[2000] QCA 451, cited
COUNSEL:	The applicant appeared on her own behalf E M Fletcher for the first respondent M T Hickey for the second respondent
SOLICITORS:	The applicant appeared on her own behalf Crown Law for the first and second respondents