Kosteska v Webber - [2010] QCA 138

SUPREME COURT OF QUEENSLAND

CITATION:

Kosteska v Webber & Ors [2010] QCA 138

PARTIES:

LILLE KOSTESKA
(applicant)
v
MAGISTRATE WEBBER
(first respondent)
REGISTRAR K J BROWN
(second respondent)
R S DILLON
(third respondent)

FILE NO:

Appeal No 5671 of 2010
SC No 4624 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for stay of execution

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

10 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2010

JUDGE:

White JA

ORDERS:

1. Application for stay dismissed.

2. The applicant to pay the respondents costs in the sum of $1,500.00.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where applicant applied for stay of execution on all judgments which derived from default judgment and order made in Magistrates Court pending her application for leave to appeal to the Court of Appeal – where such judgments included a sequestration order of the Federal Magistrates Court – whether a stay of execution can be granted pending an application for leave to appeal – whether there is jurisdiction in the Supreme Court of Queensland to stay orders of the Federal Magistrates Court – whether it is appropriate to grant a stay

Judicial Review Act 1991 (Qld), s 48(5)
Uniform Civil Procedure Rules 1999 (Qld), r 761(2)

Bell v Bay-Jespersen [2004] 2 Qd R 235; [2004] QCA 68, followed
Perovich v ASIC [2005] QCA 456, followed
Stone v Copperform Pty Ltd [2002] 1 Qd R 106; [2001] QCA 7, applied

COUNSEL:

The applicant appeared in person
AD Scott (solicitor) for the first and second respondents
YP Paltridge (solicitor) for the third respondent

SOLICITORS:

The applicant appeared in person
Crown Solicitor for the first and second respondents
Universal Legal Recovery for the third respondent

HER HONOUR: On the 2nd of June 2010 the applicant, pursuant to s 48(5) of the Judicial Review Act 1991 filed an application for leave to appeal the decision of Philip McMurdo J made on the 17th of May 2010 dismissing her application for a statutory order of review in respect of decisions made by the first and second respondents respectively in the Magistrates Court at Beenleigh.

On the 4th of June 2010 the applicant filed an application for "a stay of execution to be imposed on all judgments and orders made by whatever court which derived from the default judgment and order at first instance made in the Beenleigh Magistrates Court". I ascertained from the applicant, who has appeared on her own behalf today, that she intends by that application to include relevant decisions of the Federal Magistrates Court.

A brief synopsis will set out the background to the applicant's application. The third defendant, Mr Dillon, commenced proceedings in February 2004 in the Magistrates Court at Beenleigh to recover damages in the sum of approximately $1,100 arising out of a motor vehicle accident between his vehicle and Ms Kosteska's. A year later, the claim was renewed.

On…

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 Webber

Details

AGLC: Kosteska v Webber [2010] QCA 138
Case: [2010] QCA 138
Decision Date: 10 June 2010

CaseChat Overview and Summary

The applicant, Kosteska, sought a stay of execution on judgments and orders made in her absence, including a sequestration order by the Federal Magistrates Court, pending her application for leave to appeal to the Court of Appeal. The respondent, Webber, opposed the application, arguing that the Supreme Court of Queensland lacked jurisdiction to stay Federal Magistrates Court orders and that the application was an abuse of process. The primary legal issue before the court was whether the Supreme Court had the jurisdiction to grant a stay of execution on orders made by the Federal Magistrates Court. Additionally, the court had to determine whether it was appropriate to grant such a stay pending an application for leave to appeal.

The court found that the Federal Magistrates Court was a separate jurisdiction and that the Supreme Court of Queensland did not have the inherent jurisdiction to stay its orders. The court further held that the application for a stay was an abuse of process and, therefore, the application was dismissed. The court emphasised that the applicant's failure to engage legal counsel and to file the application promptly contributed to the default judgments being entered. The court also considered the public interest in the finality of judgments and the potential harm to the respondent if the stay were granted.

The court ordered that the application for a stay be dismissed and that Kosteska pay Webber's costs of $1,500. The court did not grant leave to appeal, and the applicant's attempt to halt the execution of the judgments and orders was unsuccessful. The judgment underscores the importance of timely legal action and the limited circumstances in which a stay of execution can be granted, particularly concerning orders from separate jurisdictions.

Orders

Orders of the court

1. Application for stay dismissed.

2. The applicant to pay the respondents costs in the sum of $1,500.00.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Kosteska v Webber & Ors [2010] QCA 138
PARTIES:	LILLE KOSTESKA (applicant) v MAGISTRATE WEBBER (first respondent) REGISTRAR K J BROWN (second respondent) R S DILLON (third respondent)
FILE NO:	Appeal No 5671 of 2010 SC No 4624 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for stay of execution
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	10 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	10 June 2010
JUDGE:	White JA
ORDERS:	1. Application for stay dismissed. 2. The applicant to pay the respondents costs in the sum of $1,500.00.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where applicant applied for stay of execution on all judgments which derived from default judgment and order made in Magistrates Court pending her application for leave to appeal to the Court of Appeal – where such judgments included a sequestration order of the Federal Magistrates Court – whether a stay of execution can be granted pending an application for leave to appeal – whether there is jurisdiction in the Supreme Court of Queensland to stay orders of the Federal Magistrates Court – whether it is appropriate to grant a stay Judicial Review Act 1991 (Qld), s 48(5) Uniform Civil Procedure Rules 1999 (Qld), r 761(2) Bell v Bay-Jespersen [2004] 2 Qd R 235; [2004] QCA 68, followed Perovich v ASIC [2005] QCA 456, followed Stone v Copperform Pty Ltd [2002] 1 Qd R 106; [2001] QCA 7, applied
COUNSEL:	The applicant appeared in person AD Scott (solicitor) for the first and second respondents YP Paltridge (solicitor) for the third respondent
SOLICITORS:	The applicant appeared in person Crown Solicitor for the first and second respondents Universal Legal Recovery for the third respondent