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Labaj v Lollo Plumbing Pty Ltd


[2004] QCA 96






SC No 10176 of 2003

Court of Appeal


General Civil Appeal


Supreme Court at Townsville


2 April 2004




2 April 2004


McMurdo P, Davies JA and Philippides J

Separate reasons for judgment of each member of the court,
each concurring as to the orders made


Appeal dismissed with costs


PROCEDURE – SUPREME COURT PROCEDURE – TRANSFERS AND CONSOLIDATIONS – where order made transferring proceedings to Townsville – whether decision properly made within exercise of discretion

Uniform Civil Procedure Rules, r 14(2)(a), r 31(5), r 137


The appellant appeared on his own behalf

M H Hinsman  for the respondents


The appellant appeared on his own behalf

Wilson, Ryan & Grose for the respondents

PHILIPPIDES J:  The appellant appeals against an interlocutory order transferring the appellant's proceeding to the Townsville Registry of the Supreme Court.  In addition to the grounds of appeal set out in the Notice of Appeal, which assert errors of law and fact in respect of the decision to transfer, additional grounds of appeal are raised by the appellant in his written submissions.  Before us, the appellant sought and was granted leave to amend the Notice of Appeal to include these additional grounds. 

On 11 November 2003, the appellant brought an originating application against the respondents seeking damages in respect of conduct of the respondents arising inter alia out of claims for breach of employment and statutory breaches under the Industrial Relations Act and the WorkCover Act Queensland.

On 26 November 2003, the respondents filed an application seeking orders that the appellant's originating application be dismissed.  That aspect of the application developed into an application to strike out at the hearing.  The respondents also sought an order that the proceeding to be transferred to the Townsville Registry of the Supreme Court.  That application was returnable on 28 November 2004, which was also the return date for the originating application.

On 28 November 2003, the appellant applied instanter before the primary Judge for summary judgment in respect of the originating application.  The primary Judge accepted that the matter ought not have been brought by way of originating application but by way of claim and exercised his discretion under r 14(2)(a) of the UCPR ordering that the proceeding continue as if started by claim.  However, his Honour directed that the appellant deliver a statement of claim so as to properly formulate the claim.  In those circumstances, his Honour declined to make an order for summary judgment and adjourned that part of the respondents' application seeking an order that the appellant's originating application be dismissed until a time after the statement of claim had been delivered.

As to the balance of the respondents' application for transfer of the proceedings to the Townsville Registry, the learned Judge at first instance considered that, taking all the circumstances of the proceedings into account, it was appropriate to order that the proceeding be transferred.  In exercising his discretion in this fashion, his Honour referred to the following matters: 

  • the first defendant carries on business in the Townsville area;
  • the second, third and fourth defendants all reside in the Townsville area;
  • the appellant's claim arose from events said to have occurred in the Townsville area whilst he was employed by the first defendant;
  • a considerable number of witnesses appear to reside in the Townsville area;
  • the appellant had resided in the Townsville area at the relevant time.

His Honour noted that the only link with Brisbane was that the appellant presently resided in Brisbane and that he may wish to call expert witnesses who were also resident in Brisbane.  However, his Honour noted that such experts as were likely to be called for example, medical experts, commonly gave evidence by telephone or video link.

The appellant contends that in ordering the transfer of  proceedings his Honour erred in law and in fact.  Those grounds are not made out.  It is clear that the order made by his Honour was entirely within the appropriate exercise of his discretion and made having regard to correct legal criteria, relevant factual considerations and the competing contentions advanced.  Nor do I consider that any of the additional matters raised in the outline of argument of the appellant raise any matters of substance.

One of the additional complaints made by the appellant concerns the respondents' application and supporting material.  There is no issue that the respondents' application and supporting material was not served in compliance with r 31(5) of the UCPR and indeed that was conceded before the primary Judge.  The learned primary Judge offered the appellant the opportunity of an adjournment, given the late service, if the appellant required time in order to respond to the material.  However, on the basis of the appellant's indication that he was able to deal with the respondents' application notwithstanding the late service, the primary Judge abridged the time for the hearing of the respondent's application.  That abridgment clearly applied both to the application and the supporting material.

There is also a complaint made about the affidavit of Mr Lollo.  No further objection is taken to that affidavit after time was abridged to hear the respondents' application.  Nor has the appellant demonstrated any reason why that affidavit ought not to have been received into evidence.

The appellant also raises as an additional ground going to the order for transfer that, in making the order, the primary Judge did not have regard to the appellant's financial circumstances, in particular, the appellant's claim that transfer would effectively prevent the appellant from further litigating the matter.  The submission concerning the appellant's financial circumstances was made by the appellant before the learned primary Judge but did not find favour, his Honour articulating in his judgment the key considerations influencing his decision to order a transfer of the proceeding.

The appellant also complains that the primary Judge erred in not considering the appellant's request for summary judgment.  It appears that the appellant had expected the defence to have been filed by the return date of the originating summons.  That appears to have been the motivating factor in making the instanter application for summary judgment.  So much is made apparent by the appellant's statement at the hearing that he was not really expecting to get judgment and that his submissions in respect of the instanter application were directed to getting a response from the respondents.  Given that the proceeding had been commenced by originating summons, no intention to defend was required.  The respondents appeared at the first return date and indicated to the primary Judge that the proceeding would be defended.  It is patently obvious that no order for summary judgment was appropriate in those circumstances.

I would dismiss the appeal with costs.

THE PRESIDENT:  I agree.  I would only add one matter.  Orally, in his submissions today, Mr Labaj has suggested that as to costs there is no evidence that Ms Hinsman or her instructing solicitors are, in fact, appearing for the respondents but that submission is patently without any merit and is baseless. 

I agree with the orders proposed by Justice Philippides in her reasons.

DAVIES JA:  I also agree.

THE PRESIDENT:  That is the order of the Court.  The appeal is dismissed with costs.               


Editorial Notes

  • Published Case Name:

    Labaj v Lollo Plumbing Pty Ltd & Ors

  • Shortened Case Name:

    Labaj v Lollo Plumbing Pty Ltd

  • MNC:

    [2004] QCA 96

  • Court:


  • Judge(s):

    McMurdo P, Davies JA, Philippides J

  • Date:

    02 Apr 2004

Litigation History

No Litigation History

Appeal Status

No Status