Milojevic & Anor v Bourke - [2024] QCATA 9

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Milojevic & Anor v Bourke [2024] QCATA 9

PARTIES:

SANDRA MILOJEVIC

(first applicant/appellant)

And

SAMUEL MICHAEL ROWE

(second applicant/appellant)

v

MATTHEW RONALD BOURKE

(respondent)

APPLICATION NO/S:

APL386-23

ORIGINATING APPLICATION NO/S:

MCD367/23 (Southport)

MATTER TYPE:

Appeals

REASONS DELIVERED ON:

25 January 2024

DECISION DATE:

8 December 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1. The application to stay a decision is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where stay is sought– where the application in a minor civil dispute was heard after a reopening – where final decision made by consent – where second reopening granted in the absence of power to do so – where decision made to strike reopened proceeding out and to confirm the final decision made by consent

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32, s 58, s 138, s 139, s 140, s 143, s 145, Schedule 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 92, r 93

Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453
Day v Humphrey [2017] QCA 104
Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347
Hessey-Tenny & Anor v Jones [2018] QCATA 131

Simonova v Department of Housing and Public Works [2018] QCA 60

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Summary

Ms Milojevic and Mr Rowe (‘the applicants’) were parties to a minor civil dispute over services provided to them by Mr Bourke. The dispute travelled through the tribunal as follows:
(a)On 6 September 2023 an order was made in the applicants’ favour at a hearing that took place in the absence of Mr Bourke.
(b)On 21 September 2023 the proceeding was reopened on Mr Bourke’s application on the grounds that Mr Bourke did not attend the hearing because he did not receive notice of it.
(c)On 9 October 2023 at the rehearing, the parties reached agreement by consent and an order was made giving effect to their agreement, pursuant to which Mr Bourke was to pay the applicants the sum of $385.00 in full and final settlement of the dispute.
(d)Mr Bourke paid the ordered amount to the applicants.
(e)On 12 October 2023 the applicants applied to reopen the decision as they say they had obtained further evidence to support their claim.
(f)They also applied for a notice to adduce electronic evidence and for a notice requiring a witness to attend the hearing.
(g)On 19 October 2023 the applicants’ application to reopen the proceeding was granted on the papers by an adjudicator who was not the presiding adjudicator for the 9 October 2023 hearing. As an outcome, the claim was listed for rehearing on 17 November 2023.
(h)On 23 October 2023 Mr Bourke applied…

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 Milojevic & Anor v Bourke

Details

AGLC: Milojevic & Anor v Bourke [2024] QCATA 9
Case: [2024] QCATA 9
Decision Date: 25 January 2024

CaseChat Overview and Summary

The case of Milojevic & Anor v Bourke involved a dispute that was heard in the Queensland Court of Appeal. The primary matter at hand was whether the court should grant a stay of proceedings in a minor civil dispute. The application for a stay was made subsequent to the reopening of the case, and the final decision was made by consent. A second reopening was granted, despite the court lacking the authority to do so. The court was then tasked with deciding whether to strike the reopened proceedings and confirm the final decision made by consent.

The central legal issue revolved around the general principles governing the grant or refusal of a stay of proceedings in minor civil disputes. The court had to determine whether the circumstances warranted the granting of a stay, particularly in light of the second reopening, which was made without the court's power. The court also needed to consider the appropriate course of action in the context of a final decision made by consent, and whether the second reopening should be struck out.

In its reasoning, the court emphasised that a stay of proceedings is not a matter of right, and the circumstances of each case must be considered. The court highlighted that the second reopening was granted without the requisite authority, and the decision to strike the reopened proceedings and confirm the final decision made by consent was appropriate. The court concluded that the application for a stay was not justified and should be refused, as the circumstances did not warrant the intervention of the court in the final decision reached by the parties. The court's decision was grounded in the principles of fairness and the proper administration of justice, ensuring that the final resolution of the dispute was upheld.

The orders made by the court were clear and decisive. The application to stay the decision was refused, and the court confirmed the final decision made by consent. This outcome ensured that the legal process was respected and that the final resolution of the dispute was not undermined by an unauthorised reopening. The court's decision was a reminder of the importance of adhering to procedural rules and the authority of the court in managing civil proceedings.

Orders

Orders of the court

1. The application to stay a decision is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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