Queensland Judgments


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  • Unreported Judgment

Bernstrom v National Australia Bank


[2002] QSC 247




Application No 52 of 2001








DATE 22/07/2002


HIS HONOUR: This is an application for the stay of execution of orders which were made initially by the Chief Justice sitting in the trial division. The Chief Justice's orders were the subject of appeal to the Court of Appeal of Queensland and that appeal was dismissed. This application seeks a stay of the execution of the order to allow the applicant to make application for leave to appeal to the High Court.

This application was filed in the Supreme Court at Cairns, returnable before me on this particular day. When the matter was called on two remarks were made, firstly by myself raising the concern as to whether I had jurisdiction to hear the application and, secondly, by counsel for the applicant asking me to disqualify myself from hearing the application on the basis that I was one of the Justices who participated in the decision of the Court of Appeal.

The jurisdictional question is one that is not free from doubt. Although I incline to the view that a Judge of a trial division does have jurisdiction to grant a stay in these circumstances it is tainted by sufficient doubt on my part to pause before making the decision. There is no doubt that the Court of Appeal of Queensland does have original jurisdiction, however, to hear this application. The question of whether I should disqualify myself was looked at in that context.

The preconditions for the granting of a stay are clear enough. They are, whether the applicant will suffer serious or irremedial loss if a stay is not ordered and, secondly, the applicant's chances of ultimate success in the hearing of the application for leave to appeal to the High Court.

Whilst I have views about this matter, and particularly the second of those two matters, there is a concern where a request is made for me to disqualify myself that I would be assessing the ultimate chances of success from a standpoint where I participated in the decision from which the appeal is sought to be made.

Given those two concerns I have taken the view that I should not hear the application but that the matter should be commenced before the Court of Appeal, which will exercise its original jurisdiction.

Counsel appearing for the respondent seeks an order for costs, doing so on the basis that for the applicant to make an application which she was aware would be returned before me and then to object to my hearing the matter necessarily involves wasted costs if that application for me to disqualify myself was successful. The counsel for the respondent says that the request for me to disqualify myself was made without notice and that consequently the applicant should bear the costs. There is a countervailing argument by the applicant that they were not made aware by the respondent that the jurisdictional point would be raised. Concerning that latter issue, the jurisdictional point has not been argued in such a way as to say that I have not had jurisdiction, it has only been raised as a point for me to consider.

In all those circumstances it does seem to me to be unreasonable for a party to bring an application to be heard by me and then, without notice to the other side, take exception to my hearing the matter on the grounds of some apprehended bias. In those circumstances I will order that the applicant should pay the costs thrown away by this adjournment of the application to allow the matter now to be raised before the Court of Appeal exercising original jurisdiction.


Editorial Notes

  • Published Case Name:

    Anita Bernstrom v National Australia Bank

  • Shortened Case Name:

    Bernstrom v National Australia Bank

  • MNC:

    [2002] QSC 247

  • Court:


  • Judge(s):

    Jones J

  • Date:

    22 Jul 2002

Litigation History

No Litigation History

Appeal Status

No Status