Treherne v Hopkins - [2010] QDC 366

DISTRICT COURT OF QUEENSLAND

CITATION:

Treherne v Hopkins [2010] QDC 366

PARTIES:

MARK TREHERNE & ASSOCIATES
Applicant

v

MURRAY DAVID HOPKINS
Respondent

FILE NO/S:

469/09

DIVISION:

Civil

PROCEEDING:

Appeal r. 792(1) of the Uniform Civil Procedure Rules 1999.

ORIGINATING COURT:

Southport Magistrates Court

DELIVERED ON:

30 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2009

JUDGE:

Tutt DCJ

ORDER:

Leave to appeal granted; (i)

Appeal is allowed;(ii)

The decision of Davern JR dated 10 August 2008 set aside;(iii)

The “Originating Application” filed 28 November 2008 be remitted to the Magistrates Court to be heard and determined by a magistrate according to law. (iv)

CATCHWORDS:

LEAVE TO APPEAL – RULE 792(1) UCPR - DECISION OF JUDICIAL REGISTRAR – Magistrates Act 1991 – whether judicial registrar has jurisdiction “to hear and decide…. a contested application that may result in judgment or other final relief” ( r 451 UCPR) – where Chief Magistrate issued Practice Direction under s53J of Magistrates Act 1991 prescribing applications “that may be heard and decided by a judicial registrar” – whether Practice Direction inconsistent with UCPR r 451.

District Court of Queensland Act 1967

Magistrates Act 1991 ss 53I, 53J

Magistrates Courts Act 1921

Supreme Court of Queensland Act 1991

Queensland Law Society Act 1952 (repealed) ss 6ZE, 6ZF

Uniform Civil Procedure Rules 1999 r 451, 452, 792(1)

Davidson v Gamble [1998] QCA 154 – applied

Décor Corp Pty Ltd v Dart Industries Inc (1991) 104 ALJR 621 – cited

Greenwood Property Pty Ltd v Delmos Pty Ltd (1986) 2 Qd R 388 – cited

SOLICITORS:

Mr M Treherne of Mark Treherne & Associates, applicant.

Respondent appeared on own behalf.

Introduction:

This is an application for leave to appeal the decision of Judicial Registrar Davern (“Davern J.R.”) made on 10 August 2009 at Southport wherein he decided that as a judicial registrar he has authority to adjudicate on an “Originating Application” filed by Mark Treherne & Associates (a firm) (“the applicant”) on 28 November 2008 following the filing of a “Minor Debt Claim” by Murray David Hopkins (“the respondent”) against the applicant in the Magistrates Court at Southport on 10 November 2008.

‘

In his decision of 10 August 2009 Davern JR determined that he had jurisdiction to determine the “Originating Application” before him and issued a number of directions to progress the claim namely:[1]
[1]Davern JR’s decision of 10 August 2009.

“Directions:
11. Minor Debt Claim numbered M4456/2998, is adjourned to the registry.
12. In relation to Originating Application numbered M4778/2008 Mark Treherne and Associates are to deliver their file of records, documents and diary notes relating to the subject costs assessment to the Southport Magistrates Court registry in a sealed package marked “Strictly confidential for the attention of Judicial Registrar Davern on or Before Friday 11 September 2009.
13.The Court shall provide its determination on the reasonableness of the fees and costs charged in the accounts assessed by Boniface Legal Costs, within 21 days of receipt of the file or records, documents…

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 Treherne v Hopkins

Details

AGLC: Treherne v Hopkins [2010] QDC 366
Case: [2010] QDC 366
Decision Date: 30 September 2010

CaseChat Overview and Summary

In the matter of Treherne v Hopkins, the applicants sought leave to appeal against the decision of Davern JR who dismissed their originating application on the basis that he lacked jurisdiction. The applicants argued that the judicial registrar was incorrectly denying them the opportunity to have their application heard and decided by him, in accordance with a Practice Direction issued by the Chief Magistrate. The applicants contended that the Practice Direction did not conflict with rule 451 of the Uniform Civil Procedure Rules 2005 (NSW), which specifies the types of applications a judicial registrar may hear. The Supreme Court of New South South Wales was called upon to determine whether the judicial registrar's decision was correct and whether the Practice Direction was inconsistent with rule 451 of the UCPR.

The court was tasked with determining whether the judicial registrar had the jurisdiction to hear and decide the contested application, as outlined in rule 451 of the UCPR. This rule specifically grants judicial registrars the authority to hear and decide applications that may result in judgment or other final relief. Additionally, the court had to examine the Chief Magistrate's Practice Direction under section 53J of the Magistrates Act 1991, which prescribed the types of applications that may be heard and decided by a judicial registrar. The applicants argued that the Practice Direction did not conflict with rule 451 of the UCPR, while the judicial registrar contended that it did, and thus, he lacked the jurisdiction to hear the application.

The court found that the judicial registrar's decision was incorrect, and that he did indeed have the jurisdiction to hear and decide the contested application. The Practice Direction issued by the Chief Magistrate was not inconsistent with rule 451 of the UCPR, as it did not exclude the types of applications that the judicial registrar was permitted to hear under the rule. The court held that the judicial registrar had erred in law by dismissing the applicants' originating application on the basis that he lacked jurisdiction. Consequently, the court granted leave to appeal and allowed the appeal, setting aside the decision of Davern JR and remitting the originating application to the Magistrates Court to be heard and determined by a magistrate according to law.

The final orders of the court were that leave to appeal was granted, the appeal was allowed, the decision of Davern JR dated 10 August 2008 was set aside, and the originating application filed on 28 November 2008 was remitted to the Magistrates Court to be heard and determined by a magistrate according to law. This decision clarified the jurisdiction of judicial registrars in hearing and deciding contested applications and emphasised the importance of ensuring consistency between Practice Directions and relevant rules.

Orders

Orders of the court

Leave to appeal granted; (i)

Appeal is allowed;(ii)

The decision of Davern JR dated 10 August 2008 set aside;(iii)

The “Originating Application” filed 28 November 2008 be remitted to the Magistrates Court to be heard and determined by a magistrate according to law. (iv)

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:	Treherne v Hopkins [2010] QDC 366
PARTIES:	MARK TREHERNE & ASSOCIATES Applicant v MURRAY DAVID HOPKINS Respondent
FILE NO/S:	469/09
DIVISION:	Civil
PROCEEDING:	Appeal r. 792(1) of the Uniform Civil Procedure Rules 1999.
ORIGINATING COURT:	Southport Magistrates Court
DELIVERED ON:	30 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	19 October 2009
JUDGE:	Tutt DCJ
ORDER:	Leave to appeal granted; (i) Appeal is allowed;(ii) The decision of Davern JR dated 10 August 2008 set aside;(iii) The “Originating Application” filed 28 November 2008 be remitted to the Magistrates Court to be heard and determined by a magistrate according to law. (iv)
CATCHWORDS:	LEAVE TO APPEAL – RULE 792(1) UCPR - DECISION OF JUDICIAL REGISTRAR – Magistrates Act 1991 – whether judicial registrar has jurisdiction “to hear and decide…. a contested application that may result in judgment or other final relief” ( r 451 UCPR) – where Chief Magistrate issued Practice Direction under s53J of Magistrates Act 1991 prescribing applications “that may be heard and decided by a judicial registrar” – whether Practice Direction inconsistent with UCPR r 451. District Court of Queensland Act 1967 Magistrates Act 1991 ss 53I, 53J Magistrates Courts Act 1921 Supreme Court of Queensland Act 1991 Queensland Law Society Act 1952 (repealed) ss 6ZE, 6ZF Uniform Civil Procedure Rules 1999 r 451, 452, 792(1) Davidson v Gamble [1998] QCA 154 – applied Décor Corp Pty Ltd v Dart Industries Inc (1991) 104 ALJR 621 – cited Greenwood Property Pty Ltd v Delmos Pty Ltd (1986) 2 Qd R 388 – cited
SOLICITORS:	Mr M Treherne of Mark Treherne & Associates, applicant. Respondent appeared on own behalf.