Smiley v Watson

[2001] QCA 269

SUPREME COURT OF QUEENSLAND

CITATION:

Smiley v Watson & Anor [2001] QCA 269

PARTIES:

JACK IRVING SMILEY
(plaintiff/applicant)
v
JOHN WATSON
(first defendant/first respondent)
LAURA WATSON
(second defendant/second respondent)

FILE NO/S:

Appeal No 4076 of 2001
DC No 68 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

20 July 2001

DELIVERED AT:

Brisbane

HEARING DATE:

29 June 2001

JUDGES:

Davies JA, McPherson JA, Williams JA

Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Application for leave to appeal dismissed with costs

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – whether leave to proceed was required – whether obtaining a document pursuant to a notice of third party discovery constitutes taking a step in the proceeding 

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – JURISDICTION – SUBJECT MATTER – action for damages for personal injuries – where matter commenced in Magistrates Court – where transfer to District Court sought - whether the District Court had jurisdiction to hear and determine an application for leave to proceed – whether transfer from District Court constituted a step in proceedings

District Court Act 1967 (Qld) s 79, s 118

Uniform Civil Procedure Rules r 389(2)

Burns v Korff (1982) 8 QL 201, cited

Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd R 592, applied

Decandia v Parker OS 163 of 1979, judgment 4 May 1979, considered

I H Dempster Nominees Pty Ltd v Chemgoods Pty Ltd [1993] 2 Qd R 377, applied

Red Ru Pipeline Construction Company Pty Ltd v The State of Queensland [1990] 1 Qd R 389, cited

Thompson v Kirk [1995] 1 Qd R 463, cited

Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228, cited

COUNSEL:

M Grant-Taylor SC for the applicant
F Dawson for the respondents

SOLICITORS:

Boyce Garrick for the applicant
Butler McDermott & Egan for the respondents

1. DAVIES JA: I agree with the reasons for judgment of Williams JA and with the orders he proposes.

1. McPHERSON JA: I agree with the reasons of Williams JA.  The application for leave to appeal should be dismissed with costs.

1. WILLIAMS JA: This is an application for leave to appeal against a decision of a District Court judge refusing the applicant (plaintiff in the action) leave to proceed pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999.

1. Notwithstanding that the application was made to that court, counsel for the applicant now contends that the District Court had no jurisdiction to consider it. Further and alternatively, it is contended that the learned District Court judge erred in refusing to grant leave. Based on those two contentions it was submitted that this was an appropriate case for this Court to grant leave to appeal pursuant to s 118 of the District Court Act 1967.

1. On 20 April 1995 the applicant was working as…