Mathews v Legal Services Commissioner - [2016] QCA 22

SUPREME COURT OF QUEENSLAND

CITATION:

Mathews v Legal Services Commissioner & Anor [2016] QCA 22

PARTIES:

RUSSELL GORDON HAIG MATHEWS
(applicant)
v
LEGAL SERVICES COMMISSIONER
(respondent)
JOHN PEDEN
(respondent)

FILE NO:

Appeal No 6434 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application to Strike Out

DELIVERED ON:

12 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser JA

ORDERS:

1. The application filed by Mr Mathews on 30 June 2015 be struck out.

2. The parties have leave to file written submissions about costs within 14 days of today.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERAL – COURT ORGANISATION AND DISTRIBUTION OF BUSINESS – SUPREME COURT – where the applicant filed a document in the Court of Appeal Registry applying for a statutory order of review – where the respondent alleged that the matter was improperly instituted in the Court of Appeal and instead should have been brought in the Trial Division – where the Trial Division has jurisdiction to hear an application for a statutory order of review – where the general scheme of the Uniform Civil Procedure Rules is that the Trial Division exercises the court’s original civil jurisdiction – where there was no apparent merit in the application – whether the Court of Appeal has jurisdiction to hear the application – whether the matter was improperly instituted in the Court of Appeal – whether the application for a statutory order of review should be struck out

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERAL – JURISDICTION – FULL COURT – where, invoking the Court of Appeal’s ‘inherent jurisdiction’, the applicant filed a document with the Court of Appeal registry seeking an order striking out a legal practitioner – where the applicant alleged that the legal practitioner had committed professional misconduct – where the applicant alleged that the legal practitioner had failed to “advance the correct decision to be made by the Court” – whether the Court of Appeal has inherent jurisdiction to control and discipline legal practitioners – whether the Court should exercise this jurisdiction

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the respondent submitted that a single judge of appeal had jurisdiction to strike out an improperly instituted notice of appeal – whether a single judge of appeal may strike out a notice of appeal

Judicial Review Act 1991 (Qld), s 19, s 20, s 25, s 48, s 49
Legal Profession Act 2007 (Qld), s 13, s 430
Supreme Court of Queensland Act 1991 (Qld), s 5, s 29, s 45, s 62
Uniform Civil Procedure Rules 1999 (Qld), r 566, r 744, r 745

McElligott v McElligott[2014] QCA 54, followed
Queensland Law Society Inc v Smith [2001] 1 Qd R 649; [2000] QCA 109, cited
Re Hope [1996] 2 Qd R 25; [1995] QCA 471, cited
Syddall v The National Mutual Life Association of Australasia Ltd

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: [2016] QCA 22
Decision Date: 12 February 2016

CaseChat Overview and Summary

In the Supreme Court of Queensland, Mathews brought an application for a statutory order of review against the Legal Services Commissioner. The Commissioner responded by asserting that the application should have been filed in the Trial Division rather than the Court of Appeal, arguing that the Court of Appeal lacked the requisite jurisdiction. The court was tasked with determining whether the Court of Appeal had jurisdiction to hear the application and whether the matter had been improperly instituted in the Court of Appeal.

The court examined the jurisdictional question, noting that the Trial Division possesses original civil jurisdiction under the Uniform Civil Procedure Rules. Given that there was no apparent merit in the application, the court found that the matter should have been brought in the Trial Division. The court also considered whether the Court of Appeal has inherent jurisdiction to control and discipline legal practitioners, ultimately concluding that it should not exercise such jurisdiction in this instance.

In light of the findings, the court struck out the application filed by Mathews on 30 June 2015. The parties were granted leave to file written submissions regarding costs within 14 days from the date of the decision. The court’s ruling clarified the jurisdictional boundaries within the Queensland Supreme Court and reinforced the importance of instituting applications in the correct division.

Orders

Orders of the court

1. The application filed by Mr Mathews on 30 June 2015 be struck out.

2. The parties have leave to file written submissions about costs within 14 days of today.

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:	Mathews v Legal Services Commissioner & Anor [2016] QCA 22
PARTIES:	RUSSELL GORDON HAIG MATHEWS (applicant) v LEGAL SERVICES COMMISSIONER (respondent) JOHN PEDEN (respondent)
FILE NO:	Appeal No 6434 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Application to Strike Out
DELIVERED ON:	12 February 2016
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Fraser JA
ORDERS:	1. The application filed by Mr Mathews on 30 June 2015 be struck out. 2. The parties have leave to file written submissions about costs within 14 days of today.
CATCHWORDS:	PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERAL – COURT ORGANISATION AND DISTRIBUTION OF BUSINESS – SUPREME COURT – where the applicant filed a document in the Court of Appeal Registry applying for a statutory order of review – where the respondent alleged that the matter was improperly instituted in the Court of Appeal and instead should have been brought in the Trial Division – where the Trial Division has jurisdiction to hear an application for a statutory order of review – where the general scheme of the Uniform Civil Procedure Rules is that the Trial Division exercises the court’s original civil jurisdiction – where there was no apparent merit in the application – whether the Court of Appeal has jurisdiction to hear the application – whether the matter was improperly instituted in the Court of Appeal – whether the application for a statutory order of review should be struck out PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERAL – JURISDICTION – FULL COURT – where, invoking the Court of Appeal’s ‘inherent jurisdiction’, the applicant filed a document with the Court of Appeal registry seeking an order striking out a legal practitioner – where the applicant alleged that the legal practitioner had committed professional misconduct – where the applicant alleged that the legal practitioner had failed to “advance the correct decision to be made by the Court” – whether the Court of Appeal has inherent jurisdiction to control and discipline legal practitioners – whether the Court should exercise this jurisdiction APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the respondent submitted that a single judge of appeal had jurisdiction to strike out an improperly instituted notice of appeal – whether a single judge of appeal may strike out a notice of appeal Judicial Review Act 1991 (Qld), s 19, s 20, s 25, s 48, s 49 Legal Profession Act 2007 (Qld), s 13, s 430 Supreme Court of Queensland Act 1991 (Qld), s 5, s 29, s 45, s 62 Uniform Civil Procedure Rules 1999 (Qld), r 566, r 744, r 745 McElligott v McElligott[2014] QCA 54, followed Queensland Law Society Inc v Smith [2001] 1 Qd R 649; [2000] QCA 109, cited Re Hope [1996] 2 Qd R 25; [1995] QCA 471, cited Syddall v The National Mutual Life Association of Australasia Ltd