Labaj v Lollo Plumbing Pty Ltd - [2004] QCA 96

SUPREME COURT OF QUEENSLAND

CITATION:

Labaj v Lollo Plumbing Pty Ltd & Ors [2004] QCA 96

PARTIES:

JOHN LABAJ
(plaintiff/appellant)
v
LOLLO PLUMBING PTY LTD ACN 057 674 558
(first defendant/first respondent)
ERIC JAMES LOLLO
(second defendant/second respondent)
RICHARD JONES
(third defendant/third respondent)
ANTHONY JOHN LACKEY
(fourth defendant/fourth respondent)

FILE NO/S:

Appeal No 11557 of 2003
SC No 10176 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING
COURT:

Supreme Court at Townsville

DELIVERED EX TEMPORE ON:

2 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2004

JUDGES:

McMurdo P, Davies JA and Philippides J

Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – TRANSFERS AND CONSOLIDATIONS – where order made transferring proceedings to Townsville – whether decision properly made within exercise of discretion

Uniform Civil Procedure Rules, r 14(2)(a), r 31(5), r 137

COUNSEL:

The appellant appeared on his own behalf

M H Hinsman for the respondents

SOLICITORS:

The appellant appeared on his own behalf
Wilson, Ryan & Grose for the respondents

PHILIPPIDES J: The appellant appeals against an interlocutory order transferring the appellant's proceeding to the Townsville Registry of the Supreme Court. In addition to the grounds of appeal set out in the Notice of Appeal, which assert errors of law and fact in respect of the decision to transfer, additional grounds of appeal are raised by the appellant in his written submissions. Before us, the appellant sought and was granted leave to amend the Notice of Appeal to include these additional grounds.

On 11 November 2003, the appellant brought an originating application against the respondents seeking damages in respect of conduct of the respondents arising inter alia out of claims for breach of employment and statutory breaches under the Industrial Relations Act and the WorkCover Act Queensland.

On 26 November 2003, the respondents filed an application seeking orders that the appellant's originating application be dismissed. That aspect of the application developed into an application to strike out at the hearing. The respondents also sought an order that the proceeding to be transferred to the Townsville Registry of the Supreme Court. That

application was returnable on 28 November 2004, which was also the return date for the originating application.

On 28 November 2003, the appellant applied instanter before the primary Judge for summary judgment in respect of the originating application. The primary Judge accepted that the matter ought not have been brought by way of originating application but by way of claim and exercised his discretion under r 14(2)(a) of the UCPR ordering that the proceeding continue as if started by claim. However, his Honour directed that the appellant deliver a statement of claim so as to properly formulate the claim. In those circumstances, his Honour declined to make an order for summary judgment and adjourned that part of the respondents' application seeking an order that the appellant's originating application be dismissed until a…

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 Labaj v Lollo Plumbing Pty Ltd

Details

AGLC: Labaj v Lollo Plumbing Pty Ltd [2004] QCA 96
Case: [2004] QCA 96
Decision Date: 2 April 2004

CaseChat Overview and Summary

The appeal before the court involved a dispute between the plaintiff, Labaj, and the defendant, Lollo Plumbing Pty Ltd, regarding a decision by the District Court to transfer the proceedings to Townsville. Labaj contested the decision to transfer, arguing it was made without proper exercise of discretion. The court had to determine whether the decision to transfer the proceedings was appropriately made within the scope of the District Court's discretion.

The legal issue at hand was whether the District Court's decision to transfer the proceedings to Townsville was within the proper exercise of its discretion under the Supreme Court Act. Labaj argued that the transfer decision was flawed, while Lollo Plumbing Pty Ltd contended that the decision was made appropriately, considering the circumstances of the case.

In evaluating the matter, the court found that the District Court had exercised its discretion in a manner consistent with the principles and objectives of the Supreme Court Act. The court concluded that the District Court's decision to transfer the proceedings was made appropriately and within the bounds of its discretion, taking into account factors such as the convenience of the parties and witnesses, the location of relevant evidence, and the overall expeditious resolution of the proceedings. Consequently, the appeal was dismissed, and the decision of the District Court to transfer the proceedings to Townsville was upheld.

Orders

Orders of the court

Appeal dismissed with costs

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:	Labaj v Lollo Plumbing Pty Ltd & Ors [2004] QCA 96
PARTIES:	JOHN LABAJ (plaintiff/appellant) v LOLLO PLUMBING PTY LTD ACN 057 674 558 (first defendant/first respondent) ERIC JAMES LOLLO (second defendant/second respondent) RICHARD JONES (third defendant/third respondent) ANTHONY JOHN LACKEY (fourth defendant/fourth respondent)
FILE NO/S:	Appeal No 11557 of 2003 SC No 10176 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED EX TEMPORE ON:	2 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	2 April 2004
JUDGES:	McMurdo P, Davies JA and Philippides J Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – TRANSFERS AND CONSOLIDATIONS – where order made transferring proceedings to Townsville – whether decision properly made within exercise of discretion Uniform Civil Procedure Rules, r 14(2)(a), r 31(5), r 137
COUNSEL:	The appellant appeared on his own behalf M H Hinsman for the respondents
SOLICITORS:	The appellant appeared on his own behalf Wilson, Ryan & Grose for the respondents