Risefer v AB Pacific Trading Co

[2000] QCA 132

[2000] QCA 132

COURT OF APPEAL

DAVIES JA

[RISEFER & Anor v A B PACIFIC TRADING COMPANY Pty Ltd & Anor]

Application No 3030 of 2000

EUSTACE VON RISEFER

and

ELIZABETH VON RISEFER  Applicants

and

A B PACIFIC TRADING COMPANY
PTY LTD  Respondent

and

ASIA PACIFIC REALTORS AND
CONSULTANTS PTY LTD  Respondent

BRISBANE

..DATE 13/04/2000

JUDGMENT

DAVIES JA:  This is an application by Eustace Von Risefer and Elizabeth Von Risefer against Asia Pacific Realtors and Consultants and AB Pacific Trading Company Pty Ltd.

The application seeks the following orders:

1. Stay of execution and judgment;

2. Stay of execution of bankruptcy proceedings in the Federal Court;

3. Stay of order Appeal 620/98

The judgment referred to in paragraph 1 of the application is presumably the judgment given in the Magistrates Court against the applicants on 22 July 1998 for $36,286.30 including costs and interest.

The order on appeal referred to in paragraph 3 of the application is an order of the District Court dismissing an appeal to that Court against the judgment to which I have just referred.  The judgment on appeal was given on 10 March this year.

The bankruptcy proceedings in the Federal Court referred to in paragraph 2 of the application are not matters before this Court. The applicants cannot appeal to this Court against the judgment given on appeal in the District Court without leave of this Court, Section 118(3) of the District Court Act 1967.

However I have before me an application for leave to appeal in this matter which is listed to be heard on 7 June next.

I have read, as I indicated to Mrs Von Risefer before she addressed the Court both the reasons for judgment of the learned Stipendiary Magistrate and the reasons for judgment on appeal of the learned District Court Judge.  I have also read an unsworn 51 paragraph document received by this Court on 5 April, purporting to be an affidavit by Mrs Von Risefer.

I have also read a bundle of other material referred to in that document which Mrs Von Risefer has filed.  I have also listened to what she has said, much of it repeating what is contained in those documents.

It is plain that the case in the Magistrates Court depended on findings of fact which in turn depended on assessment of credit.  The learned Stipendiary Magistrate in that respect believed the witnesses for the plaintiffs, the present respondents, and disbelieved Mrs Von Risefer, the main witness for the present applicants.

On appeal, the learned District Court Judge refused to overturn those findings of fact and consequently the judgment of the Magistrates Court.

I do not propose to pre-judge the matter before the application for leave to appeal to this Court is heard, but it seems to me that if leave were granted, the appeal would have little prospects of success.  That is because this Court does not re-investigate findings of fact, particularly where those findings of fact are based on questions of credit, or at least does not do so unless there are specific reasons why that should be done.  There are none which appear from the judgment either of the Magistrate or of the learned District Court Judge.

More importantly, for the application for leave to appeal to succeed, the applicants would need to show either that there was some question of law which required investigation, something of general importance perhaps, or a serious question of injustice which appears from the judgment in the Court below.

That does not appear from the judgments, in my opinion.  Moreover, it is a judgment on a relatively small sum of money, an amount of money which is exclusively within the jurisdiction of the Magistrates Court, based as I have said on findings of credit.

For all of those reasons, I do not think that a stay should be granted of the judgment of the District Court and accordingly I would dismiss the application with costs.

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