Worchild v Brooks

[2005] QDC 406

DISTRICT COURT OF QUEENSLAND

CITATION:

Worchild v Brooks [2005] QDC 406

PARTIES:

ANDREW WORCHILD

Applicant

v

RAYMOND SYDNEY BROOKS

Respondent

FILE NO:

400/2005

PROCEEDING:

Application to appeal Magistrates Court decision  

ORIGINATING COURT:

Southport

DELIVERED ON:

9 December 2005

DELIVERED AT:

Southport

HEARING DATE:

26 September 2005

JUDGE:

Dearden DCJ

ORDER:

The application for leave to appeal is refused

CATCHWORDS:

APPLICATION TO APPEAL MAGISTRATES COURT DECISION – Appeal from interlocutory decision – Costs

Uniform Civil Procedure Rules – r.171; r.190; r.225; r.292

Atkinson v Atkinson [1969] VR 278
Carr v Finance Corporation of Australia (1981) 147 CLR 247
Ex parte Britt [1987] 1 Qd R 221
Fire & All Risks Insurance Co Ltd v Rousianos [1989] 5 ANZ Ins Cas 75.821
Lauchlan v Hartley [1979] Qd R 305

COUNSEL:

Mr Worchild appeared on his own behalf  

C Wiltshire for the respondent

SOLICITORS:

Jones King Lawyers for the respondent    

1. The applicant, Andrew Worchild, seeks leave to appeal against the decision of Magistrate Costanzo, delivered in the Southport Magistrates Court on 8 July 2005, which ordered the respondent, Raymond Brooks, to serve a copy of the respondent’s List of Documents and a copy of each document on the applicant within seven working days of the making of the order, and ordered the applicant to pay the respondent’s costs, to be agreed or assessed.

1. The learned Magistrate’s decision, which runs to some 11 typed pages, relates to an application by Mr Worchild seeking (in the alternative):

   (1)Judgment for Mr Worchild with damages to be assessed pursuant to UCPR r 292;

   (2)Striking out of Mr Brooks’ reply to Mr Worchild’s counterclaim pursuant to UCPR r 171;

   (3)Judgment for Mr Worchild with damages to be assessed and/or that Mr Brooks’ reply to Mr Worchild’s counterclaim of Mr Brooks be struck out pursuant to UCPR r 190;

   (4)Judgment for Mr Worchild with damages to be assessed and/or that the reply of Mr Brooks to Mr Worchild’s counterclaim be struck out pursuant to UCPR r 225.

2. In respect of each of the grounds of Mr Worchild’s application, the learned Magistrate came to careful, well-reasoned and justifiable conclusions.  The proceedings appealed from in the Magistrates Court were interlocutory proceedings.  Because the Magistrates Court proceedings were interlocutory, the appeal can only proceed by leave[1].  No doubt, were it not for the delay occasioned by this appeal, the matter may well have progressed by now to a trial in the Magistrates Court on the merits of the substantive issues.

   [1]  Carr v Finance Corporation of Australia (1981) 147 CLR 247; ex parte Britt [1987] 1 Qd R 221

1. It is not apparent that the learned Magistrate has acted on any incorrect principle[2] or in any other way wrongly exercised his discretion[3].  I am of the opinion that there are no special or compelling circumstances requiring the intervention of the District Court, in its appellate jurisdiction, in respect of the learned Magistrate’s interlocutory decision.  On the contrary, I am left with the clear impression that the application by Mr Worchild in the Magistrates Court, and this appeal to the District Court, are no more than delaying tactics by which Mr Worchild is seeking to avoid a Magistrates Court trial in respect of the substantive issues in a timely manner.

   [2] Atkinson v Atkinson [1969] VR 278

   [3] Fire & All Risks Insurance Co. Ltd v Rousianos [1989] 5 ANZ Ins Cas 75.821

1. The decision of the learned Magistrate in respect of costs was not only appropriate, but, given his conclusions in respect of each of the grounds of           Mr Worchild’s application, inevitable.  The discretion to award costs against     Mr Worchild was exercised judicially and I am completely unpersuaded that it was exercised wrongly[4].

   [4] See Lauchlan v Hartley [1979] Qd R 305

1. In light of the conclusions I have reached, I can see no basis on which               Mr Worchild should be granted leave to appeal, and accordingly, the application is refused.

1. I will hear the parties on the issue of costs.

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