Kosteska v RS Dillon - [2010] QCA 310

[2010] QCA 310

COURT OF APPEAL

MUIR JA
CHESTERMAN JA
McMEEKIN J

Appeal No 5671 of 2010
SC No 4624 of 2010

LILLE KOSTESKA Appellant

and

MAGISTRATE WEBBER First Respondent

and

REGISTRAR K J BROWN Second Respondent

and

R S DILLON Third Respondent

BRISBANE

DATE 09/11/2010

JUDGMENT

MUIR JA: The appellant seeks an adjournment of her appeal. She does so on a number of grounds. She informs the Court that she had an accident on the 2^nd or 3^rd of November which, in effect, has shaken her up. She spoke of problems with her former husband in relation to a domestic violence application. She also made the point that she has no legal representation.

She submitted, in effect, because of her current psychological difficulties resulting from the first two matters mentioned that she had difficulty in presenting her case. She has produced no medical or other evidence‑‑‑‑‑

APPLICANT: Excuse me‑‑‑‑‑

MUIR JA: ‑‑‑‑‑to support her contentions. She appeared to have no difficulty in making the points that she wanted to make.

In that regard, she was content to speak of abstract matters such as justice and to look at the events of five or so years ago rather than turning to the issues relevant to the determination of this appeal.

The matters with which this appeal is concerned are of considerable antiquity. The appellant has had many years within which to consider her position and she has been active in litigating in Courts including the Supreme Court, the Magistrates Court and the Federal Magistrates Court to protect her position. She has obviously devoted a great deal of time and energy to the preparation of written submissions.

I am unable to accept that if the appellant wished to do so she would not be able to advance any further points she wished to make in support of her appeal. However, perusal of the outlines of argument does not encourage the view that the appellant would have anything relevant, useful or constructive to add to her outlines of argument.

To grant the adjournment would be to perpetrate an injustice to the third respondent. The third respondent has had this matter hanging over his head now for in excess of five years. There comes a time when litigation must be determined and, as the High Court of Australia has recently made plain, the interests of the public and the litigants alike are best served by the speedy determination of litigation.

There would be nothing useful to be served by granting an adjournment and accordingly I would refuse the application.

CHESTERMAN JA: I agree.

McMEEKIN J: I agree.

APPLICANT: Excuse me, Sir, can I speak?

MUIR JA: On 11 July 2005, the Registrar of the Magistrates Court in Beenleigh entered a default judgment in favour of the third respondent in the sum of $2,977.05. The third respondent had claimed against the appellant $1,868.35 damages for injuries suffered by the third respondent as a result of the appellant’s negligently causing a motor vehicle…

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 Kosteska v RS Dillon

Details

AGLC: Kosteska v RS Dillon [2010] QCA 310
Case: [2010] QCA 310
Decision Date: 09/11/2010

CaseChat Overview and Summary

The case of Kosteska v RS Dillon involves an appeal by the appellant against the refusal of the primary Judge to grant leave to appeal against the dismissal of an application for a statutory order of review. The application sought to review a default judgment entered by the Registrar of the Magistrates Court in favour of the third respondent. The appeal was dismissed with the third respondent seeking costs against the appellant. The appellant's grounds for appeal include arguments based on the invalidity of certain legislation, the administrative nature of the decisions, and the lack of available legal tender. The Court of Appeal found that the appellant's application was out of time, the legislation in question was valid, and the decisions were properly made. The Court also rejected the appellant's arguments regarding the lack of available legal tender and ordered the appellant to pay the third respondent's costs of the application. The appeal was dismissed and the costs order was confirmed.

Orders