McMahon v State of Qld - [2000] QCA 483

SUPREME COURT OF QUEENSLAND

CITATION: McMahon v State of Qld [2000] QCA 483

PARTIES: GREGORY MICHAEL McMAHON
(plaintiff/respondent)
v
STATE OF QUEENSLAND
(defendant/appellant)

FILE NO/S: Appeal No 588 of 2000
SC No 255 of 1995

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 24 November 2000

DELIVERED AT: Brisbane

HEARING DATE: 28 August 2000

JUDGES:
Pincus and Thomas JJA, Atkinson J

Separate reasons for judgment of each member of the Court; Pincus JA and Atkinson J concurring as to the order made, Thomas JA dissenting

ORDER: Appeal dismissed with costs.

CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – TRANSFERS AND CONSOLIDATIONS - claim for damages pursuant to s 16 of the Defence (Re-establishment) Act 1965 (Cth) – where proceeding commenced in Supreme Court and Act provided claim could only be made by application to a court of summary jurisdiction – power of Supreme Court under s 75 of the Supreme Court of Queensland Act 1991 (Qld) to transfer the matter to the Magistrates Court not limited to actions properly commenced in the Supreme Court – whether exercise of such power in present case inconsistent with s 16 of the Defence (Re-establishment) Act 1965 (Cth)

Defence (Re-establishment) Act 1965 (Cth), s 16, s 58
Supreme Court of Queensland Act 1991 (Qld), s 8(2)(b), s 75

Abebe v The Commonwealth; re Minister for Immigration and Multicultural Affairs [1999] HCA 14, 14 April 1999, cited
Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545, cited
Brown v The Queen (1986) 1650 CLR 171, cited
Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529, cited
Commonwealth v Hospital Contribution Fund of Australia (1992) 150 CLR 49, referred to
Ex parte Walsh and Johnson; in re Yates (1925) 37 CLR 36, cited
Federated Sawmill, Timber Yard and General Wood-workers’ Employees’ Association (Adelaide Branch) v Alexander (1912) 15 CLR 308, referred to
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 31, referred to
Kotsis v Kotsis (1970) 122 CLR 69, cited
Laurance v Katter [2000] 1 Qd R 147, cited
Le Mesurier v Connor (1929) 42 CLR 481, referred to
Peacock v Newton Marrickville & General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25, cited
R v Federal Court of Bankruptcy; ex parte Lowenstein (1938) 59 CLR 556, cited
Re Wakim [1999] HCA 27, 17 June 1999, cited
Russell v Russell (1976) 134 CLR 495, cited

COUNSEL: J A Griffin QC with T W Quinn for the appellant
A N S Skoien for the respondent

SOLICITORS: Crown Law Office for the appellant
Gilshenan & Luton for the respondent

PINCUS JA: I have had the advantage of reading the reasons of Thomas JA in which the nature of the problem is explained. The question is whether, if the Commonwealth Parliament vests jurisdiction to deal with a kind of case in State…

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: [2000] QCA 483
Decision Date: 24 November 2000

CaseChat Overview and Summary

The case of McMahon v State of Queensland involved a claim for damages pursuant to section 16 of the Defence (Re-establishment) Act 1965 (Cth). The plaintiff commenced the proceeding in the Supreme Court, however, the Act stipulates that such a claim must be made by application to a court of summary jurisdiction. The defendant sought a transfer of the matter to the Magistrates Court under section 75 of the Supreme Court of Queensland Act 1991 (Qld). The plaintiff argued that the exercise of this power was inconsistent with section 16 of the Defence (Re-establishment) Act 1965 (Cth).

The legal issue before the court was whether the power of the Supreme Court to transfer the matter to the Magistrates Court was limited to actions properly commenced in the Supreme Court, or if it could also apply to actions that were not properly commenced in the Supreme Court. The court considered the language of section 75 of the Supreme Court of Queensland Act 1991 (Qld) and found that it did not limit the power of the Supreme Court to transfer the matter to the Magistrates Court. The court also found that the exercise of this power was not inconsistent with section 16 of the Defence (Re-establishment) Act 1965 (Cth).

The court dismissed the appeal and ordered that the costs of the proceeding be paid by the appellant. The court found that the exercise of the power to transfer the matter to the Magistrates Court was not inconsistent with the relevant statutory provisions and that the matter should be heard in the Magistrates Court. The decision of the court was that the appeal was without merit and that the transfer of the matter to the Magistrates Court was appropriate.

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:	McMahon v State of Qld [2000] QCA 483
PARTIES:	GREGORY MICHAEL McMAHON (plaintiff/respondent) v STATE OF QUEENSLAND (defendant/appellant)
FILE NO/S:	Appeal No 588 of 2000 SC No 255 of 1995
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 November 2000
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2000
JUDGES:	Pincus and Thomas JJA, Atkinson J Separate reasons for judgment of each member of the Court; Pincus JA and Atkinson J concurring as to the order made, Thomas JA dissenting
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – TRANSFERS AND CONSOLIDATIONS - claim for damages pursuant to s 16 of the Defence (Re-establishment) Act 1965 (Cth) – where proceeding commenced in Supreme Court and Act provided claim could only be made by application to a court of summary jurisdiction – power of Supreme Court under s 75 of the Supreme Court of Queensland Act 1991 (Qld) to transfer the matter to the Magistrates Court not limited to actions properly commenced in the Supreme Court – whether exercise of such power in present case inconsistent with s 16 of the Defence (Re-establishment) Act 1965 (Cth) Defence (Re-establishment) Act 1965 (Cth), s 16, s 58 Supreme Court of Queensland Act 1991 (Qld), s 8(2)(b), s 75 Abebe v The Commonwealth; re Minister for Immigration and Multicultural Affairs [1999] HCA 14, 14 April 1999, cited Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545, cited Brown v The Queen (1986) 1650 CLR 171, cited Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529, cited Commonwealth v Hospital Contribution Fund of Australia (1992) 150 CLR 49, referred to Ex parte Walsh and Johnson; in re Yates (1925) 37 CLR 36, cited Federated Sawmill, Timber Yard and General Wood-workers’ Employees’ Association (Adelaide Branch) v Alexander (1912) 15 CLR 308, referred to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 31, referred to Kotsis v Kotsis (1970) 122 CLR 69, cited Laurance v Katter [2000] 1 Qd R 147, cited Le Mesurier v Connor (1929) 42 CLR 481, referred to Peacock v Newton Marrickville & General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25, cited R v Federal Court of Bankruptcy; ex parte Lowenstein (1938) 59 CLR 556, cited Re Wakim [1999] HCA 27, 17 June 1999, cited Russell v Russell (1976) 134 CLR 495, cited
COUNSEL:	J A Griffin QC with T W Quinn for the appellant A N S Skoien for the respondent
SOLICITORS:	Crown Law Office for the appellant Gilshenan & Luton for the respondent