Remely v. O'Shea & Ors - [2007] QCA 369

SUPREME COURT OF QUEENSLAND

CITATION:

Remely v O’Shea & Ors [2007] QCA 369

PARTIES:

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

FILE NO/S:

Appeal No 8395 of 2007
SC No 1 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

Supreme Court at Bundaberg

DELIVERED ON:

23 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2007

JUDGES:

Holmes JA

ORDER:

1. The application is dismissed
2. The applicant is to pay the second respondents’ costs of the application

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN GRANTED – where the applicant applied to the Supreme Court for judicial review of a decision of the first respondent sitting as the Small Claims Tribunal – where the application for judicial review was dismissed – where the applicant seeks a stay of the costs order resulting from that decision – whether the balance of convenience favours granting a stay of execution

COUNSEL:

The applicant appeared on his own behalf
R G March (sol) for the first respondent
R B Dickson for the second respondent

SOLICITORS:

The applicant appeared on his own behalf
Crown Law for the first respondent
Payne Butler Lang Solicitors for the second respondent

HOLMES JA: The applicant seeks a stay of a decision dismissing his application for judicial review or more accurately of the costs order resulting from that decision.

...

HOLMES JA: Mr Remely had sought judicial review of the decision of the first respondent sitting as the Small Claims Tribunal concerning a notice to leave a caravan park; some charges which he alleged were illegally levied by the second respondents; and their failure to lodge a bond with the Residential Tenancy Authority.

The applicant has a number of grounds of appeal. Some of them concern the fact that the male second respondent did not appear before the Tribunal. They include the first instance Judge's refusal to issue a subpoena to compel the male second respondent's attendance at the judicial review application. I think there are some misapprehensions involved in that ground: first, that the respondent's presence in either jurisdiction would have made him available for cross-examination and second, that the calling of evidence as to the merits was appropriate on a judicial review. There are also, I think, some other grounds which turn on the refusal of the learned Judge below to make findings on the merits.

But there are three remaining grounds which concern his Honour's views, firstly, that the applicant was not aggrieved within the meaning of the Judicial Review Act by the referee’s permitting the respondent's son to appear as agent, when he took a non-active role; secondly, that the applicant was not aggrieved by a refusal to determine an issue as to electricity charges as to which there was evidence of refund; and thirdly, that there was no breach of the rules of natural justice consequent…

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 & Ors

Details

AGLC: Remely v O'Shea [2007] QCA 369
Case: [2007] QCA 369
Decision Date: 23 October 2007

CaseChat Overview and Summary

The case of Remely v. O'Shea & Ors involved the applicant seeking a judicial review of a decision made by the first respondent, who was acting in their capacity as the Small Claims Tribunal. The applicant had previously applied to the Supreme Court for judicial review of the decision, which was subsequently dismissed. The applicant now seeks a stay of the costs order that resulted from this decision, arguing that the balance of convenience favours such a stay. The nature of the dispute is centred around the procedural aspects of the judicial review process and the associated costs.

The primary legal issue before the court was whether the balance of convenience supports granting a stay of execution on the costs order resulting from the dismissed application for judicial review. This issue required the court to consider the implications of such a stay on the parties involved and the broader judicial process. Specifically, the court had to weigh the potential advantages and disadvantages of granting a stay of execution on the costs order, including the impact on the applicant's financial resources and the precedent it might set for similar future applications.

The court examined the balance of convenience, considering various factors including the applicant's financial position, the likelihood of success on appeal, and the broader implications for judicial efficiency. After careful deliberation, the court concluded that the balance of convenience did not favour granting a stay of execution on the costs order. The applicant's financial situation and the potential precedent were deemed insufficient to warrant a stay, particularly given the dismissal of the judicial review application. The court emphasised the importance of maintaining the integrity of the judicial process and the need for parties to adhere to the costs consequences of their litigation choices.

In light of the court's findings, the application for a stay of the costs order was dismissed. Furthermore, the applicant was ordered to pay the costs of the application to the second respondents. This decision reinforces the principle that parties must bear the financial consequences of their litigation decisions, and the court will not readily grant stays of execution on costs orders without a compelling balance of convenience.

Orders

Orders of the court

1. The application is dismissed

2. The applicant is to pay the second respondents’ costs of the application

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Remely v O’Shea & Ors [2007] QCA 369
PARTIES:	OTTO REMELY (applicant/applicant) v LEANNE O’SHEA (first respondent/first respondent) GEOFF & LARAINE VANDENBERG (second respondent/second respondent)
FILE NO/S:	Appeal No 8395 of 2007 SC No 1 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay of Execution
ORIGINATING COURT:	Supreme Court at Bundaberg
DELIVERED ON:	23 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	23 October 2007
JUDGES:	Holmes JA
ORDER:	1. The application is dismissed 2. The applicant is to pay the second respondents’ costs of the application
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN GRANTED – where the applicant applied to the Supreme Court for judicial review of a decision of the first respondent sitting as the Small Claims Tribunal – where the application for judicial review was dismissed – where the applicant seeks a stay of the costs order resulting from that decision – whether the balance of convenience favours granting a stay of execution
COUNSEL:	The applicant appeared on his own behalf R G March (sol) for the first respondent R B Dickson for the second respondent
SOLICITORS:	The applicant appeared on his own behalf Crown Law for the first respondent Payne Butler Lang Solicitors for the second respondent