McDonald v Tinbilly Travellers P/L - [2008] QCA 17

SUPREME COURT OF QUEENSLAND

CITATION:

McDonald v Tinbilly Travellers P/L [2008] QCA 17

PARTIES:

PETER JOHN McDONALD
(applicant/appellant/respondent)
v
TINBILLY TRAVELLERS PTY LTD ACN 097 028 914
(defendant/respondent/applicant)

FILE NO/S:

Appeal No 10028 of 2007
C2006/80 (QIRC)

DIVISION:

Court of Appeal

PROCEEDING:

Application to Strike Out

ORIGINATING COURT:

Queensland Industrial Relations Commission

DELIVERED ON:

15 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2008

JUDGES:

McMurdo P, Fraser JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. The notice of appeal and the appellant’s application are struck out
2. Appellant is ordered to pay the respondent’s costs of the appeal and of the respondent’s application

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEALS TO SUPREME COURT

INDUSTRIAL LAW – QUEENSLAND – APPEALS – PROCEDURE AND OTHER MATTERS RELATING TO APPEALS - where the appellant applied for leave to appeal to the Full Bench of the Industrial Relations Commission – where leave was denied – where the appellant appealed to this Court under s 340 Industrial Relations Act 1999 (Qld) – whether the appellant could demonstrate an error of law – whether the appellant could demonstrate excess or want of jurisdiction of the Full Bench of the Industrial Relations Commission

Corporations Act 2001 (Cth), s 127(1)(a), s 127(2), s 127(4)

Industrial Relations Act 1999 (Qld), s 74, s 76, s 78, s 79, s 80, s 242, s 255, s 265, s 340, s 341(1), s 342(1), s 342(2), s 349(1)(c), s 349(2)(a)

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, cited
Law Partners Mortgages Pty Ltd (in liq) v Jeremy [2008] QCA 010, cited
McDonald v Tinbilly Travellers Pty Ltd [2006] QIRComm 103, referred to
McDonald v Tinbilly Travellers Pty Ltd [2006] QIC 63, referred to
von Risefer v State of Queensland [2005] QCA 136, cited
Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378, cited

COUNSEL:

The appellant appeared on his own behalf
Mr G C O’Driscoll for the respondent

SOLICITORS:

The appellant appeared on his own behalf
BCI Duells for the respondent

McMURDO P: This appeal should be struck out for the reasons given by Fraser JA.

Such an order is exceptional: Law Partners Pty Ltd (in liq) v Jeremy.[1] It is, however, the appropriate order in the unusual circumstances pertaining in the present case. The appeal to this Court from the decision of the full bench of the Queensland Industrial Relations Commission (President Hall presiding) lies only on the ground of error of law or excess or want of jurisdiction: s 340 Industrial Relations Act 1999 (Qld).[2] The appellant has made lengthy written and oral submissions. He has effectively before this Court put the arguments he would make on his appeal. For the reasons given by Fraser JA, he has failed to raise in them any valid arguments to demonstrate his claimed errors of law or excess or want…

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: [2008] QCA 17
Decision Date: 15 February 2008

CaseChat Overview and Summary

The appeal was brought by McDonald against Tinbilly Travellers P/L, with the proceedings initially handled in the Industrial Relations Commission of Queensland. The central issue was whether McDonald could demonstrate an error of law or excess or want of jurisdiction by the Full Bench of the Industrial Relations Commission in denying his application for leave to appeal. The Full Bench had ruled against McDonald in a matter concerning his employment status and associated entitlements, and he sought to challenge that decision further.

The court examined whether McDonald could substantiate an error of law, which would warrant an appeal to the Supreme Court under section 340 of the Industrial Relations Act 1999 (Qld). Additionally, the court considered whether the Full Bench exhibited excess or want of jurisdiction in its refusal of McDonald's application for leave to appeal. The court reviewed the evidence and arguments presented in McDonald's application, evaluating the legal grounds on which he sought to overturn the Full Bench's decision.

In its decision, the court found that McDonald failed to demonstrate an error of law or excess or want of jurisdiction on the part of the Full Bench. Consequently, the appeal was dismissed, and the notice of appeal and application were struck out. Furthermore, McDonald was ordered to pay the respondent's costs associated with the appeal and the respondent's application. This ruling underscores the stringent criteria required to successfully appeal a decision of the Full Bench of the Industrial Relations Commission in Queensland.

Orders

Orders of the court

1. The notice of appeal and the appellant’s application are struck out

2. Appellant is ordered to pay the respondent’s costs of the appeal and of the respondent’s application

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:	McDonald v Tinbilly Travellers P/L [2008] QCA 17
PARTIES:	PETER JOHN McDONALD (applicant/appellant/respondent) v TINBILLY TRAVELLERS PTY LTD ACN 097 028 914 (defendant/respondent/applicant)
FILE NO/S:	Appeal No 10028 of 2007 C2006/80 (QIRC)
DIVISION:	Court of Appeal
PROCEEDING:	Application to Strike Out
ORIGINATING COURT:	Queensland Industrial Relations Commission
DELIVERED ON:	15 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	1 February 2008
JUDGES:	McMurdo P, Fraser JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. The notice of appeal and the appellant’s application are struck out 2. Appellant is ordered to pay the respondent’s costs of the appeal and of the respondent’s application
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEALS TO SUPREME COURT INDUSTRIAL LAW – QUEENSLAND – APPEALS – PROCEDURE AND OTHER MATTERS RELATING TO APPEALS - where the appellant applied for leave to appeal to the Full Bench of the Industrial Relations Commission – where leave was denied – where the appellant appealed to this Court under s 340 Industrial Relations Act 1999 (Qld) – whether the appellant could demonstrate an error of law – whether the appellant could demonstrate excess or want of jurisdiction of the Full Bench of the Industrial Relations Commission Corporations Act 2001 (Cth), s 127(1)(a), s 127(2), s 127(4) Industrial Relations Act 1999 (Qld), s 74, s 76, s 78, s 79, s 80, s 242, s 255, s 265, s 340, s 341(1), s 342(1), s 342(2), s 349(1)(c), s 349(2)(a) Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, cited Law Partners Mortgages Pty Ltd (in liq) v Jeremy [2008] QCA 010, cited McDonald v Tinbilly Travellers Pty Ltd [2006] QIRComm 103, referred to McDonald v Tinbilly Travellers Pty Ltd [2006] QIC 63, referred to von Risefer v State of Queensland [2005] QCA 136, cited Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378, cited
COUNSEL:	The appellant appeared on his own behalf Mr G C O’Driscoll for the respondent
SOLICITORS:	The appellant appeared on his own behalf BCI Duells for the respondent