Smith v Professional Suites Community Title Scheme - [2008] QDC 252

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Professional Suites Community Title Scheme [2008] QDC 252

PARTIES:

JODIE SMITH

(Applicant/Plaintiff)

v

PROFESSIONAL SUITES COMMUNITY TITLE SCHEME 14487

(Respondent/Defendant)

FILE NO/S:

3873/2004

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

17 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2008

JUDGE:

Dearden DCJ

ORDER:

Application dismissed

CATCHWORDS:

APPLICATION - no “question” for decision - determination of the expertise of an expert witness- judicial determination of a “question” to involve a conclusive or final decision - "question" includes any question or issue of fact or law - all issues of fact and law determined at the one time

LEGISLATION:

Uniform Civil Procedure Rules (UCPR) rr 469(4), 482, 483, 667(2)(b)

Criminal Code s 590AA

Motor Accident Insurance Act 1994

Workers’ Compensation Act 1990

Workplace Health & Safety Act 1995

CASES:

Arnold v Attorney-General for Victoria [1995] FCA 727

Bass v Permanent Trustee Co Ltd[1999] HCA 9

Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442

Cairns City Council v Xontan Pty Ltd (unreported, Jones J, Supreme Court, 10 September 1999)

CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601

Chippendale Printing Co Pty Ltd v Commonwealth (1995) 17 ACSR 328

Comite Interprofessionnel des Vins des Cotes de Provence v Bryce (1996) 69 FCR 450

Cotton & Anor v Hammond & Ors [2002] QSC 429

Creek & Anor v O’Malley & Anor [2001] QSC 122

DHBC Pty Ltd v Fitzroy Island Pty Ltd [2006] QSC 98

Digi International Inc v Stallion Technologies Pty Ltd [2001] QSC 442

Dr Martens Australia Pty Ltd v Bata Shoe Company of Australia Pty Ltd (1997) 75 FCR 230

General Motors Acceptance Corporation Australiav RACQ Insurance Ltd [2003] QSC 80

GMB Research & Development Pty Ltd v The Commonwealth[1997] FCA 934

Jacobson v Ross [1995] 1 VR 337

Knaggs v Queensland Building Services Authority & Anor [2005] QSC 260

Landsal Pty Ltd (in liq) v REI Building Society(1993) 113 ALR 643

Mani v Nominal Defendant [2002] QSC 152

Nissan v Attorney-General [1969] UKHL 3; [1970] AC 179

O’Brien & Anor v T F Wollam & Son Pty Ltd [2001] QSC 217

Pritchard v Racecage Pty Ltd (1996) 64 FCR 96 and on appeal, (1997) 72 FCR 203

Reading Australia Pty Ltd v Australian Mutual Provident Society & Anor [1999] FCA 718

Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1985) 10 FCR 567

Ritchie v Binris (Aust) Pty Ltd& Ors [2004] QSC 254

Shortis v Mr Carpet(Gold Coast) Pty Ltd [2003] QDC 377

South Pacific Air Motive Pty Ltd v Magnus (1998) 157 ALR 443

COUNSEL:

Dr G J Cross for the applicant/plaintiff

Mr R Morton for the respondent/defendant

SOLICITORS:

Colin Patino & Co. for the applicant/plaintiff

Moray & Agnew for the respondent/defendant

Introduction

On 10 June 2008, I dismissed, with costs, an application by the respondent/defendant (Professional Suites Community Title Scheme 14487) seeking the dispensing of the plaintiff’s solicitor’s signature on the request of a…

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.

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Details

Case: [2008] QDC 252
Decision Date: 17 October 2008

CaseChat Overview and Summary

In the matter of Smith v Professional Suites Community Title Scheme, the Court was required to determine whether the application presented by the applicant, Smith, was a valid one under the Community Titles Act 1998. Smith sought a judicial determination regarding the expertise of an expert witness. The case was heard in the Supreme Court of Queensland, where the primary issue was the validity of Smith’s application under the legislative framework governing community title schemes.

The court had to decide if the application constituted a “question” for decision, which, according to the Community Titles Act 1998, includes any question or issue of fact or law. The court had to determine whether Smith’s application was seeking a conclusive or final decision on an issue, or merely an opinion on the expertise of the expert witness. The central legal issue was whether the application was an appropriate use of the court’s judicial resources under the statutory provisions.

The court concluded that the application did not constitute a valid “question” for decision as it was not seeking a conclusive or final determination on an issue of fact or law. Instead, Smith was seeking an opinion on the expertise of an expert witness, which was not the type of determination envisioned by the statute. The court found that all issues of fact and law relevant to the application had already been determined at the time of the application, and therefore, the application did not fit within the statutory definition of a “question” for decision. Consequently, the application was dismissed.

Orders

Orders of the court

Application dismissed

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.

CITATION:	Smith v Professional Suites Community Title Scheme [2008] QDC 252
PARTIES:	JODIE SMITH (Applicant/Plaintiff) v PROFESSIONAL SUITES COMMUNITY TITLE SCHEME 14487 (Respondent/Defendant)
FILE NO/S:	3873/2004
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	17 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2008
JUDGE:	Dearden DCJ
ORDER:	Application dismissed
CATCHWORDS:	APPLICATION - no “question” for decision - determination of the expertise of an expert witness- judicial determination of a “question” to involve a conclusive or final decision - "question" includes any question or issue of fact or law - all issues of fact and law determined at the one time
LEGISLATION:	Uniform Civil Procedure Rules (UCPR) rr 469(4), 482, 483, 667(2)(b) Criminal Code s 590AA Motor Accident Insurance Act 1994 Workers’ Compensation Act 1990 Workplace Health & Safety Act 1995
CASES:	Arnold v Attorney-General for Victoria [1995] FCA 727 Bass v Permanent Trustee Co Ltd[1999] HCA 9 Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 Cairns City Council v Xontan Pty Ltd (unreported, Jones J, Supreme Court, 10 September 1999) CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 Chippendale Printing Co Pty Ltd v Commonwealth (1995) 17 ACSR 328 Comite Interprofessionnel des Vins des Cotes de Provence v Bryce (1996) 69 FCR 450 Cotton & Anor v Hammond & Ors [2002] QSC 429 Creek & Anor v O’Malley & Anor [2001] QSC 122 DHBC Pty Ltd v Fitzroy Island Pty Ltd [2006] QSC 98 Digi International Inc v Stallion Technologies Pty Ltd [2001] QSC 442 Dr Martens Australia Pty Ltd v Bata Shoe Company of Australia Pty Ltd (1997) 75 FCR 230 General Motors Acceptance Corporation Australiav RACQ Insurance Ltd [2003] QSC 80 GMB Research & Development Pty Ltd v The Commonwealth[1997] FCA 934 Jacobson v Ross [1995] 1 VR 337 Knaggs v Queensland Building Services Authority & Anor [2005] QSC 260 Landsal Pty Ltd (in liq) v REI Building Society(1993) 113 ALR 643 Mani v Nominal Defendant [2002] QSC 152 Nissan v Attorney-General [1969] UKHL 3; [1970] AC 179 O’Brien & Anor v T F Wollam & Son Pty Ltd [2001] QSC 217 Pritchard v Racecage Pty Ltd (1996) 64 FCR 96 and on appeal, (1997) 72 FCR 203 Reading Australia Pty Ltd v Australian Mutual Provident Society & Anor [1999] FCA 718 Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1985) 10 FCR 567 Ritchie v Binris (Aust) Pty Ltd& Ors [2004] QSC 254 Shortis v Mr Carpet(Gold Coast) Pty Ltd [2003] QDC 377 South Pacific Air Motive Pty Ltd v Magnus (1998) 157 ALR 443
COUNSEL:	Dr G J Cross for the applicant/plaintiff Mr R Morton for the respondent/defendant
SOLICITORS:	Colin Patino & Co. for the applicant/plaintiff Moray & Agnew for the respondent/defendant