McDonald v. Tinbilly Travellers Pty Ltd - [2008] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION:

McDonald v Tinbilly Travellers P/L [2008] QCA 81

PARTIES:

PETER JOHN MCDONALD
(applicant/appellant/applicant)
v
TINBILLY TRAVELLERS PTY LTD

(defendant/respondent/respondent)

FILE NO/S:

Appeal No 10028 of 2007
C2006/80 (QIRC)

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

Queensland Industrial Relations Court

DELIVERED EX TEMPORE ON:

7 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2008

JUDGES:

Keane JA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed1.

Applicant to pay respondent's costs of this application to be assessed on the standard basis2.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – where the applicant sought a stay of execution pending the outcome of an application for special leave to appeal to the High Court – whether the balance of convenience favours the granting of the stay

Rapid Roofing Pty Ltd & Ors v Natalise Pty Ltd & Ors
[2007] QCA 179, applied

COUNSEL:

The applicant appeared on his own behalf
G C O'Driscoll for the respondent

SOLICITORS:

The applicant appeared on his own behalf
BCI Duells Lawyers for the respondent

KEANE JA: The applicant, Mr McDonald, seeks a stay of orders made by the Court of Appeal on 15 February 2008. The stay is sought pending the determination of his application for special leave to the High Court of Australia.

The orders which the Court of Appeal made on the 15 February 2008 involved:
(a) the striking out of Mr McDonald's appeal from the Full Bench of the Industrial Relations Commission, whereby the appellant was refused leave to pursue before the Full Bench an appeal against the dismissal of Mr McDonald's claim against the respondent, Tinbilly Travellers Pty Ltd, for unpaid wages;

(b) the striking out of an application to the Court of Appeal for an order directed to the Industrial Relations Commission that it rehear Mr McDonald's application for relief relating to the termination of his employment with Tinbilly; and
(c) an order that Mr McDonald pay Tinbilly's costs of his appeal and application.

The appeal and application were disposed of in a summary way on the footing that neither the appeal nor the application raised any arguable point; see McDonald v Tinbilly Travellers Pty Ltd [2008] QCA 17 at [57] - [60].

In his written outline in support of this application, Mr McDonald submits that:
"given that the matter is now the subject of an application for special leave to appeal to the High Court of Australia, it is respectfully submitted that the orders of the Court of Appeal on 15 February 2008 be stayed, pending the outcome of that High Court application."

To the extent that Mr McDonald's submission seems to assume that the filing of an application for special leave to appeal operates to confer an entitlement to a stay of the orders of the Court of Appeal, that assumption is erroneous in point…

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.

Keep reading for free

Create a free CaseChat account to read McDonald v. Tinbilly Travellers Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] QCA 81
Decision Date: 7 April 2008

CaseChat Overview and Summary

The case of McDonald v. Tinbilly Travellers Pty Ltd involved the applicant, McDonald, seeking a stay of execution pending the outcome of an application for special leave to appeal to the High Court. The respondent, Tinbilly Travellers Pty Ltd, opposed the stay and sought costs. The matter was heard in the Queensland Court of Appeal, where the applicant was seeking to halt enforcement of a lower court's decision in their favour while awaiting the outcome of their application for special leave to appeal to the High Court.

The primary legal issue before the Court was whether the balance of convenience favoured granting the stay of execution. The Court considered whether McDonald had demonstrated that the balance of convenience was in their favour, and whether the stay would cause undue hardship to the respondent if granted. The Court examined the merits of the case, the likelihood of success on appeal, and the potential prejudice to the parties if the stay was either granted or refused.

In dismissing the application, the Court found that the balance of convenience did not favour the granting of the stay. The Court was of the view that the applicant had not demonstrated that the potential prejudice to the respondent if the stay was refused outweighed the prejudice that would be caused to the applicant if the stay was granted. The Court also considered the potential delay to the resolution of the appeal if the stay was granted. The Court found that the costs incurred by the respondent in opposing the application should be awarded to them.

The Court dismissed the application for a stay of execution and ordered that the applicant pay the respondent's costs of the application to be assessed on the standard basis. The Court did not provide any further orders in relation to the appeal or the underlying matter.

Orders

Orders of the court

Application dismissed1.

Applicant to pay respondent's costs of this application to be assessed on the standard basis2.

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 81
PARTIES:	PETER JOHN MCDONALD (applicant/appellant/applicant) v TINBILLY TRAVELLERS PTY LTD (defendant/respondent/respondent)
FILE NO/S:	Appeal No 10028 of 2007 C2006/80 (QIRC)
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay of Execution
ORIGINATING COURT:	Queensland Industrial Relations Court
DELIVERED EX TEMPORE ON:	7 April 2008
DELIVERED AT:	Brisbane
HEARING DATE:	7 April 2008
JUDGES:	Keane JA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed1. Applicant to pay respondent's costs of this application to be assessed on the standard basis2.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – where the applicant sought a stay of execution pending the outcome of an application for special leave to appeal to the High Court – whether the balance of convenience favours the granting of the stay Rapid Roofing Pty Ltd & Ors v Natalise Pty Ltd & Ors [2007] QCA 179, applied
COUNSEL:	The applicant appeared on his own behalf G C O'Driscoll for the respondent
SOLICITORS:	The applicant appeared on his own behalf BCI Duells Lawyers for the respondent