Savage Resorts Pty Ltd v Maksymiuk (No 3)

[2015] QCATA 188

CITATION: Savage Resorts Pty Ltd v Maksymiuk (No 3) [2015] QCATA 188

PARTIES:	Savage Resorts Pty Ltd (Applicant/Appellant)
v
Richard Maksymiuk (Respondent)

APPLICATION NUMBER: APL498-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice D Thomas, President

DELIVERED ON: 1 September 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.     The application for a transcript to be delivered by registered post is refused.

2.     The application for an extension of time to file submissions is refused.

3.     In the event that an oral hearing is listed for APL498-14, the parties are granted leave to attend the hearing by videoconferencing via the Cairns Courthouse.

4.     The application that APL498-14 is injunctive and not a stay of proceedings is refused.

5.     The application that directions order shall explicitly state that the case waiting for an outcome in the Court of Appeal is refused.

6.     The application that a hearing of the application for leave to appeal or appeal be listed 8 weeks after a decision from the Court of Appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where the respondent made various applications for interim orders – where applications previously ruled upon – whether applications should be refused or allowed

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 142(3)(a)(i)

Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. Richard Maksymiuk has filed a further application for interim orders in this long-running dispute. These are my reasons for those orders.

The initiating document be treated as an application for leave to appeal only

1. This application was filed by Savage Resorts Pty Ltd (‘Savage’).

2. Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act, s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

3. If Savage’s application for leave to appeal is successful, it is for the appeals Tribunal to determine how, or if, the appeal itself should proceed, depending on whether the error was one of law or an error of mixed fact and law. It is not for Mr Maksymiuk to dictate the Tribunal’s procedure.

A complete transcript of MCDT 391/14 be delivered to Mr Maksymiuk by registered mail

1. Mr Maksymiuk has consistently submitted that he has not received material sent to him by the Tribunal. On 11 February 2015, I ordered that the transcript for MCDT 391/14 to be made available to both parties at the Cairns Courthouse.

2. The transcript was provided in accordance with that order. Mr Maksymiuk collected the transcript on 18 February 2015. I can see no reason why Mr Maksymiuk should also have a copy delivered by registered post.

3. Mr Maksymiuk now says that he was supplied the transcript for only one day whereas the tribunal sat for five days. It is true that this proceeding was listed before the tribunal on five separate occasions. The proceeding was adjourned on four of those days. The only substantive day of hearing was 14 October 2014. Mr Maksymiuk has a copy of the transcript for that day. That is all that is required. If Mr Maksymiuk wants copies of the transcripts for the adjourned hearings, he should apply in the usual way.

That Mr Maksymiuk file and serve his submissions 8 weeks after he receives the transcript by registered post

1. As I have already noted, Mr Maksymiuk collected the transcript on 18 February 2015. I ordered that he deliver submissions within 14 days of collection, so he should have filed and served his material by 4 March 2015. On 19 March 2015, I allowed Mr Maksymiuk further time, until 25 March 2015, to file submissions. He did not file any submissions.

2. Given that I have refused Mr Maksymiuk’s application for delivery of the transcript by registered post, and he has been given an opportunity to file submissions already, I will not further extend time for delivery of his submissions.

That the application for leave to appeal will be determined after an oral hearing and not on the papers

1. It is appropriate that this application is listed for an oral hearing. I have directed that Mr Maksymiuk have leave to appear by video conference. The registry will afford both parties sufficient notice of the hearing date.

That Mr Maksymiuk’s application is for injunctive relief, and not an application for a stay of proceeding

1. On 19 March 2015, I stayed the hearing of this application pending the decision of the Court of Appeal. Mr Maksymiuk has received the necessary protection from the Appeals Tribunal. The difference between an application for injunctive relief and an application for a stay of proceedings is now academic.

That the directions order shall explicitly state that the case is waiting for an outcome in the Court of Appeal

1. On 19 March 2015, I ordered that the application for leave to appeal be stayed pending further decision of the Appeals Tribunal. I was aware that this matter was before the Court of Appeal. I was aware that the decision of the Court of Appeal may affect the deliberations of the Appeals Tribunal. I acknowledge Mr Maksymiuk’s position. I do not see the need to make my position more explicit.