Bonnici v Taylor[2001] QCA 502

COURT OF APPEAL

McMURDO P

McPHERSON JA

MACKENZIE J

BRISBANE

DATE 12/11/2001

JUDGMENT

THE PRESIDENT:  This matter purports to be an appeal from his Honour Judge Robin QC in Chambers that the purported appellant, the defendant in the action, and whom I shall refer to as the defendant, file and serve within 14 days a schedule in response to an affidavit requiring disclosure indicating as to each item whether it will be disclosed and if not the explanation for non disclosure, with inspection within a further 14 days, extending the period allowed for mediation by two months and reserving the costs.

The respondent plaintiff's claim (the plaintiff) is for a declaration that he is entitled to a 50 per cent interest in specified real property, an order for the sale of the property or alternatively an order that the defendant pay the plaintiff $200,000.

The plaintiff claims his entitlements arose out of contributions made when the parties were in a de facto relationship.  The plaintiff was initially legally represented, but at the application below and in this matter represents himself.

On 13 February 2001, his Honour Judge Boyce QC ordered, inter alia, that the parties attend mediation in three months, staying the action until six days after the mediator's certificate is filed and adjourning the application to a date to be fixed to be brought on by either party on four days' notice in writing to the other side.

The respondent having himself made disclosure brought the application resulting in the order the subject of these proceedings because he did not think the plaintiff had made adequate disclosure.

It is immediately apparent that the purported appellant had no right of appeal from such an interlocutory order on a procedural matter of a District Court Judge:  see s.118 District Court Acts 1967 (Qld).  This matter should have been brought by way of an application for leave to appeal under s.118(3) District Court Acts 1967 (Qld).

I am prepared to treat the notice of appeal as an application for leave to appeal.  Leave to appeal from an interlocutory order concerning a question of procedure will ordinarily be refused unless it appears that the decision from which it is sought to appeal is attended with sufficient doubt to warrant it being reconsidered and also that even supposing the decision below to be wrong, substantial injustice would result if leave were refused:  Westpac Banking Corporation v Klee Pty Ltd, Appeal No 8205 of 1998, 16 October 1998, para [11], Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400.

The defendant claims the plaintiff did not demonstrate that the documents he sought to be disclosed were directly relevant as required under UCPR r.211; demonstrated no special circumstances under UCPR r.223(4)(a); justifying a Court order for disclosure; the plaintiff did not comply with UCPR r.444 which requires an applicant before making an application to write to the respondent specifying a number of matters; and the plaintiff infringed the stay order in making the application.

Mrs Cool, counsel for the defendant, stresses that it is a matter of principle that the plaintiff should establish relevancy; it is not for the defendant to establish lack of relevancy, and that the primary Judge failed to act on this principle and that this is a sufficient reason for the granting of the application.

Nevertheless, Mrs Cool concedes that now, because of material filed in this Court, many of the items which are sought to be disclosed are relevant.  She also concedes that the defendant's original statement of disclosure was not in itself adequate, for example, there was no disclosure of the defendant's income tax returns.

Furthermore, Judge Robin's order gave the defendant the opportunity to explain why any item ought not to be disclosed.  It did not require disclosure of every item in the plaintiff's list.

Mrs Cool argues that the cost of the disclosure required by the order is such that it would cause substantial injustice to the defendant, but I am not persuaded that is so.

Mrs Cool argues that a serious question of law arose in that the primary Judge made comments suggesting that the onus to establish relevancy shifted in cases involving self-represented litigants.  I doubt that this was what his Honour intended but in any case, this matter can be no authority for that proposition.

None of the issues raised by the defendant persuade me that Judge Robin's order is attended with sufficient doubt to warrant it being reconsidered, let alone that, even if it were wrong, substantial injustice would result if leave to appeal were refused and Judge Robin's order stood.

The applicant has failed to demonstrate any sufficient reason for the granting of leave to appeal from an interlocutory order of this type.

I would strike out the notice of appeal but treat it as an application for leave to appeal and refuse the application for leave to appeal with costs to be assessed.

McPHERSON JA:  I agree.  Despite Mrs Cool's submissions, no question arises in this attempt to appeal on an interlocutory matter of a practice that merits the attention of this Court.

MACKENZIE J:  I agree.

THE PRESIDENT:  The order is as I have proposed.  Costs if any to be assessed.

...

THE PRESIDENT:  Further order is that the time for mediation is extended to two months from today.