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Remely v O'Shea

Remely v O'Shea

Case [2008] QCA 78 4 April 2008

Appeal

Jurisdiction

Natural Justice & Procedural Fairness

Costs

Administrative Law

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SUPREME COURT OF QUEENSLAND

CITATION:

Remely v O’Shea & Anor [2008] QCA 78

PARTIES:

OTTO REMELY
(applicant/appellant)
v
LEANNE O’SHEA
(first respondent)
GEOFF VANDENBERG AND LARAINE VANDENBERG
(second respondents)

FILE NO/S:

Appeal No 8395 of 2007
SC No 01 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Applications
General Civil Appeal

ORIGINATING COURT:

Supreme Court at Bundaberg

DELIVERED ON:

4 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2008

JUDGES:

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

ORDERS:

1. Application for leave to appeal from the decision of
     Dutney J refused

2. Application concerning the orders made by Holmes JA
     refused
3. Appeal dismissed
4. Applicant/appellant pay the respondents’ costs of the
     appeal and the applications, to be assessed on the
     standard basis in each case

Ex tempore orders of the Court made on 13 March 2008:

5. Application to disregard the second respondent’s
     supplementary record book refused
6. Application to strike out the second respondent’s
     outline of argument refused
7. Application for directions to the registry about filing
     and service of documents refused

Orders made ex tempore by McMurdo P on 4 April 2008

Order 4 above set aside1.

Allow the parties to make submissions as to costs in accordance with the Practice Direction2.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where the appellant had sought judicial review – where the appellant’s application for judicial review was dismissed – where the appellant appealed that decision

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the appellant sought review of a decision of the Small Claims Tribunal – where the Small Claims Tribunal Act 1973 (Qld) provided that no appeal shall lie from a decision of the tribunal unless there had been a denial of natural justice or the tribunal lacked jurisdiction – where the appellant sought judicial review – where the appellant submitted that there were numerous issues that warranted review of the tribunal’s decision – whether the numerous issues raised by the appellant demonstrated that he had been denied natural justice or that the tribunal had lacked jurisdiction

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – HEARING OF APPEAL – PROOF AND EVIDENCE – where the appellant submitted that he had been denied natural justice – where the appellant submitted that various evidence demonstrated that a denial of natural justice had occurred – whether the appellant’s evidence discharged the onus upon him to prove that the tribunal had denied him natural justice

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – where the trial judge exercised the discretionary power conferred by s 49 of the Judicial Review Act 1991 (Qld) to order that the appellant pay the respondents’ costs of his application for judicial review – where the appellant submitted that the disparity in income between…

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 Remely v O'Shea

Details

AGLC: Remely v O'Shea [2008] QCA 78
Case: [2008] QCA 78
Decision Date: 4 April 2008

CaseChat Overview and Summary

The matter of Remely v O’Shea came before the Queensland Court of Appeal. The appellant, Remely, had sought judicial review of a decision made by the Small Claims Tribunal. The application for judicial review was dismissed, and Remely subsequently appealed this decision. The appeal centred around several issues, including whether the appellant had been denied natural justice or if the tribunal lacked jurisdiction, and if the trial judge erred in ordering the appellant to pay the respondents’ costs.

The court was required to determine if the appellant’s numerous issues were sufficient to demonstrate a denial of natural justice or a lack of jurisdiction by the tribunal. The appellant argued that various pieces of evidence showed a denial of natural justice. The court had to assess whether this evidence discharged the onus on the appellant to prove that the tribunal had indeed denied him natural justice. Furthermore, the court had to consider whether the trial judge properly exercised his discretion in ordering the appellant to pay the respondents’ costs, particularly given the disparity in income and the public interest matters.

The Court of Appeal held that the appellant had not demonstrated that the tribunal had denied him natural justice or lacked jurisdiction. The evidence presented did not meet the required standard to substantiate the appellant’s claims. The trial judge’s decision to order the appellant to pay the respondents’ costs was within the scope of his discretion, and no error was found in this regard. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondents’ costs of the appeal and the applications. Additionally, the court allowed the parties to make submissions regarding the costs, in accordance with the Practice Direction.

Orders

Orders of the court

1. Application for leave to appeal from the decision of

Dutney J refused

2. Application concerning the orders made by Holmes JA

refused

3. Appeal dismissed

4. Applicant/appellant pay the respondents’ costs of the

appeal and the applications, to be assessed on the

standard basis in each case

Ex tempore orders of the Court made on 13 March 2008:

5. Application to disregard the second respondent’s

supplementary record book refused

6. Application to strike out the second respondent’s

outline of argument refused

7. Application for directions to the registry about filing

and service of documents refused

Orders made ex tempore by McMurdo P on 4 April 2008

Order 4 above set aside1.

Allow the parties to make submissions as to costs in accordance with the Practice Direction2.

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.

Citations

AGLC Citation

Remely v O'Shea [2008] QCA 78

Most Recent Citation

Remely v O'Shea [2008] QCA 111

Cases citing this decision · 7 of 7 shown

Cavalliotis v Rizio & Anor
[2013] QCATA 201 Para 18

…ase is to be considered in the light of section 13 of the QCAT Act. [7] Goodwin v O’Driscoll & Anor [2006] QSC 287 at [6]; Remely v O’Shea & Anor [2008] QCA 78; Burton v Referee, Small Claims Tribunal, Gympie [1997] QSC 226. [8] QCAT Act s 142(3)(a)(i).…
Hart v Anti-Discrimination Commission Queensland
[2012] QCA 295 Para 1

…y to entertain the contention raised by the State that the appellant requires leave to raise this point, referring to Remely v O’Shea .[60] [60][2008] QCA 78 at [78]-[80].…
C G Maloney Pty Ltd v Noon
[2011] NSWCA 397 Para 79

…] QCA 117 at [17]; Shadbolt v Wise [2005] QCA 443; [2006] 1 Qd R 553 at [35]-[36] per Keane JA (McPherson and Williams JJA agreeing); Remely v O'Shea [2008] QCA 78 at [79]-[80]. I mention at this stage the possibility of this matter arising as, if any party wishes to argue that Wheeler should not be followed, am…
Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd
[2011] NSWCA 128 Para 1

…] QCA 117 at [17]; Shadbolt v Wise [2005] QCA 443; [2006] 1 Qd R 553 at [35]-[36] per Keane JA (McPherson and Williams JJA agreeing); Remely v O'Shea [2008] QCA 78 at [79]-[80]. I mention at this stage the possibility of this matter arising as, if any party wishes to argue that Wheeler should not be followed, am…
Renton v Magistrate Baldwin
[2009] QSC 103 Para 1

…mple of the limitations inherent in the review process and in relation to a referee’s decision in respect of a tenancy matter see Remely v O’Shea [2008] QCA 78…
Remely v O'Shea
[2008] QSC 172 Para 1

…which application was dismissed.[22] Mr Remely has since filed an application for special leave to the High Court. [20] Remely v O’Shea & Anor [2008] QCA 78 [21] Remely v O’Shea & Anor [2008] QCA 111 [22]Unreported – App No 8395 of 2007 – Keane JA - 20/05/2008…
Remely v. O'Shea
[2008] QCA 111 Para 76

…[2] Remely v O'Shea & Anor [2008] QCA 78 at [76], [81]. [3] Remely v O'Shea & Anor [2007] QCA 225 at [3].…

View all 7 citing cases →

Cases cited in this decision · 6 of 6 shown

Remely v. O'Shea
[2007] QSC 225 Para 1

…It is necessary to bear that limitation in mind when considering the grounds of the appellant’s appeal to this Court. [1] Remely v O’Shea & Anor [2007] QSC 225 at [3].…
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 117 Para 1

…justice.[9] I am not persuaded that his Honour erred in that decision. [8] VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]. [9] Remely v O’Shea & Anor [2007] QSC 225 at [15].…
Theophanous v Gillespie
[2002] QCA 117 Para 1

…leave to appeal and no such leave was sought. [21] Re Golden Casket Art Union Office [1995] 2 Qd R 346 at 348-349; Theophanous & Ors v Gillespie [2002] QCA 117 at [17]; Shadbolt v Wise [2006] 1 Qd R 553 at [35] – [36].…
Re Golden Casket Art Union Office
[1994] QCA 480

…; [1936] HCA 40, cited Re Golden Casket Art Union Office [1995] 2 Qd R 346; [1994] QCA 480 cited Remely v O’Shea & Anor [2007] QSC 225, referred to VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117, cited COUNSEL: The applicant/appellant appeared on his own behalf R H Berry…
Anghel v Minister for Transport (No 2)
[1994] QCA 232 Para 1

…pellant to pay the respondents' costs to be assessed on the standard basis.[19] [18] Anghel v Minister for Transport (No 2) [1995] 2 Qd R 454 at 459; [1994] QCA 232. [19] Remely v O'Shea & Anor [2007] QSC 225 at [48].…
House v R
[1936] HCA 40 Para 1

…tainly, the order was within the trial judge's discretion and no basis for an appeal has been demonstrated.[20] [20] House v R (1936) 55 CLR 499; [1936] HCA 40.…

Legislation cited in this decision · 7

Residential Tenancies Act 1994 (Qld)
249, 250(1)(a), 38, 94(2) 5 mentions (from Para 1)
Judicial Review Act 1991 (Qld)
49(6)(c), 7(1)(a) 3 mentions (from Para 1)
Small Claims Tribunals Act 1973 (Qld)
14, 16(1)(d) 3 mentions (from Para 1)
Supreme Court Act 1995 (Qld)
253 2 mentions (from Para 1)
Supreme Court of Queensland Act 1991 (Qld)
43(4) 2 mentions (from Para 1)
Small Claims Tribunal Act 1973 (Qld)
1 mention
Uniform Civil Procedure Rules 1999 (Qld)
681 1 mention

CITATION:	Remely v O’Shea & Anor [2008] QCA 78
PARTIES:	OTTO REMELY (applicant/appellant) v LEANNE O’SHEA (first respondent) GEOFF VANDENBERG AND LARAINE VANDENBERG (second respondents)
FILE NO/S:	Appeal No 8395 of 2007 SC No 01 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Applications General Civil Appeal
ORIGINATING COURT:	Supreme Court at Bundaberg
DELIVERED ON:	4 April 2008
DELIVERED AT:	Brisbane
HEARING DATE:	13 March 2008
JUDGES:	McMurdo P, Fraser JA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal from the decision of Dutney J refused 2. Application concerning the orders made by Holmes JA refused 3. Appeal dismissed 4. Applicant/appellant pay the respondents’ costs of the appeal and the applications, to be assessed on the standard basis in each case Ex tempore orders of the Court made on 13 March 2008: 5. Application to disregard the second respondent’s supplementary record book refused 6. Application to strike out the second respondent’s outline of argument refused 7. Application for directions to the registry about filing and service of documents refused Orders made ex tempore by McMurdo P on 4 April 2008 Order 4 above set aside1. Allow the parties to make submissions as to costs in accordance with the Practice Direction2.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where the appellant had sought judicial review – where the appellant’s application for judicial review was dismissed – where the appellant appealed that decision ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the appellant sought review of a decision of the Small Claims Tribunal – where the Small Claims Tribunal Act 1973 (Qld) provided that no appeal shall lie from a decision of the tribunal unless there had been a denial of natural justice or the tribunal lacked jurisdiction – where the appellant sought judicial review – where the appellant submitted that there were numerous issues that warranted review of the tribunal’s decision – whether the numerous issues raised by the appellant demonstrated that he had been denied natural justice or that the tribunal had lacked jurisdiction APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – HEARING OF APPEAL – PROOF AND EVIDENCE – where the appellant submitted that he had been denied natural justice – where the appellant submitted that various evidence demonstrated that a denial of natural justice had occurred – whether the appellant’s evidence discharged the onus upon him to prove that the tribunal had denied him natural justice APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – where the trial judge exercised the discretionary power conferred by s 49 of the Judicial Review Act 1991 (Qld) to order that the appellant pay the respondents’ costs of his application for judicial review – where the appellant submitted that the disparity in income between…