Courtney v Chalfen [2020] QCA 294

SUPREME COURT OF QUEENSLAND CITATION: Courtney v Chalfen [2020] QCA 294 PARTIES: SIMON CHRISTOPHER COURTNEY (appellant) v ELEANOR SOPHIE CHALFEN (respondent) FILE NO/S: Appeal No 7938 of 2020 SC No 2178 of 2020 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2020] QSC 195 (Williams J) DELIVERED ON: 18 December 2020 DELIVERED AT: Brisbane HEARING DATE: 16 November 2020 JUDGES: Morrison and Philippides and Mullins JJA ORDERS: 1. Application filed on 27 July 2020 struck out. 2. Appeal dismissed. 3. The respondent file and serve any submissions on the question of costs of the appeal and application, limited to five pages, by 4 pm on 11 January 2021. 4. The appellant file and serve any submissions in response, limited to five pages, by 4 pm on 25 January 2021. 5. The question of costs be resolved on the papers. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN GRANTED – where the appellant resided in the Cayman Islands for a time – where the respondent is a resident of Grand Cayman in the Cayman Islands – where the appellant and respondent were married – where they lived in the respondent’s apartment in the Cayman Islands and the appellant stored some of his property in a guest bedroom – where in August 2016 some of the appellant’s property was placed in a rented storage unit – where the rental on that storage unit was paid for by the respondent’s mother – where the appellant commenced proceedings for conversion and breach of a bailment condition – where the respondent filed a conditional notice of intention to defend and then applied for -- 1 of 18 -- 2 orders setting aside service of the claim and statement of claim or, alternatively, permanently staying the proceedings – where that application came before the learned primary judge who made orders on 26 June 2020 that the proceedings be permanently stayed – where the appellant challenges that order on a variety of grounds – whether there was error in staying the proceedings under r 127(2)(b) Uniform Civil Procedure Rules 1999 (Qld) APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where the learned primary judge considered whether r 127(2)(b) Uniform Civil Procedure Rules 1999 (Qld) was applicable – where, in doing so, the learned primary judge recorded a contention advanced by the respondent to the effect that when considering whether r 127(2)(b) was engaged, one relevant factor was whether the appellant would have obtained a grant of leave under r 126 if such an application had been made – whether the learned primary judge erred by taking into account whether it was unlikely that leave would have been granted, had it been applied for under r 126 Uniform Civil Procedure Rules 1999 (Qld) PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – OTHER MATTERS – where the learned primary judge ordered the permanent stay on 26 June 2020 – where the learned primary judge ordered the appellant to pay the costs of the proceedings below on 24 July 2020 – where, by separate application brought within Appeal No 7938 of 2020, the appellant has challenged the orders made on 24 July 2020 – whether the application should be granted Uniform Civil Procedure Rules 1999 (Qld), r 125, r 126, r 127, r 667, r 778 Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34, cited Courtney v Chalfen [2020] QSC 195, cited Fylas Pty Ltd v Vinal Pty Ltd [1992] 2 Qd R 593; [1991] QSC 211, distinguished Henry v Henry (1996) 185 CLR 571; [1996] HCA 51, cited Perpetual Trustees Queensland Ltd v Thompson [2012] 2 Qd R 266; [2011] QSC 48, distinguished Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10, cited Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460; [1986] UKHL 10, cited Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, cited -- 2 of 18 -- 3 COUNSEL: The appellant appeared on his own behalf N H Ferrett QC for the respondent SOLICITORS: The appellant appeared on his own behalf HopgoodGanim Lawyers for the respondent [1] MORRISON JA: The appellant is an Australian citizen who was admitted as a solicitor in Queensland in 1999. For a time he resided in the Cayman Islands, returning to Queensland in May 2018. He returned because he had been deported from the Cayman Islands after having been convicted and sentenced on two counts of inflicting grievous bodily harm and one count of reckless driving. [2] The respondent is a resident of Grand Cayman in the Cayman Islands. She and the appellant were married in July 2014 but are currently undergoing divorce proceedings in the Cayman Islands. Those proceedings commenced in February 2017. [3] Whilst they were married the appellant and respondent lived in the respondent’s apartment and the appellant stored some of his property in a guest bedroom. [4] On 7 July 2016 the appellant was sentenced to three years in custody as a consequence of his convictions. In August 2016 some of his property was removed from the respondent’s apartment and placed in a rented storage unit. The rental on that storage unit was paid for by the respondent’s mother, who at relevant times has resided in the United Kingdom. [5] After his return to Queensland, on 10 December 2019 the appellant commenced proceedings against the respondent in the Magistrates Court of Queensland. The claim was for damages for conversion and breach of a bailment condition. The appellant sought to serve that claim and a statement of claim by email on the respondent’s divorce lawyers in the Cayman Islands. As they did not have instructions service was not accepted. [6] On 27 February 2020 the appellant commenced the current proceedings in the Supreme Court. On the same day the respondent was personally served with the claim and statement of claim at her home address in the Cayman Islands. [7] On 20 March 2020 the Magistrates Court proceedings were discontinued. On 25 March 2020 the respondent filed a conditional notice of intention to defend and then applied for orders setting aside service of the claim and statement of claim or, alternatively, permanently staying the proceedings. [8] That application came before the learned primary judge who made orders on 26 June 2020 that the proceedings be permanently stayed. [9] The appellant challenges that order on a variety of grounds. The claim and statement of claim [10] The claim seeks damages as a consequence of the respondent’s “conversion of [the appellant’s] goods and/or breach of bailment condition”.1 1 Appeal Book (AB) 41. -- 3 of 18 -- 4 [11] The statement of claim pleads that the appellant was the owner of a number of items of personal property including: (a) gold bullion, including a 1 kilogram bar and 20 Golden Eagle coins; (b) a collection of rare vinyl records and Blu-Ray discs; (c) a number of significant sunglasses; and (d) other personal items of clothing, jewellery and furniture. [12] As to the gold, the statement of claim alleges that it was placed in a safety deposit box belonging to the respondent prior to the divorce proceedings commencing. Prior to the appellant’s arrival back in Queensland the respondent asserted that she had no claim over the gold, but a third party did. After his arrival in Queensland, on 10 August 2019 he demanded production of the gold. In response, the respondent is alleged to have refused to give possession of the gold, stating that it now belongs to a third party. [13] As for the vinyl records and Blu-Ray discs, the statement of claim alleges that they were removed from the marital home and put in a storage unit in the Cayman Islands. During 2017 the appellant conducted a limited inspection of his personal effects in the storage unit. He requested a key but that was refused by the respondent’s lawyer. That lawyer undertook to hold the key to the storage unit. After his personal effects were returned to him in Queensland in April 2018, it became evident that 22 vinyl records and a particular set of Blu-Ray discs had been removed. The cost of replacing them is around $7,500. [14] As to the sunglasses, two pairs were damaged by poor packing when the appellant’s personal goods were returned from the Cayman Islands to Queensland. Some other items were also damaged. [15] As for the clothing and furniture, these were not packed and shipped when the appellant’s goods were returned to Queensland. The cost of replacing those items is about $6,750. [16] The relief claimed in the statement of claim is as follows:2 (a) for the gold, vinyl records, Blu-Ray discs, clothing, jewellery and furniture: “damages for conversion, or a breach of a bailment condition”; (b) for the sunglasses and some other items: “damages for negligence, or a breach of a bailment condition”. Relevant provisions of the Uniform Civil Procedure Rules 1999 (Qld) [17] Central to the issues before this Court are certain rules in the Uniform Civil Procedure Rules 1999 (Qld).3 The first of those are rr 125(a) and (s), which relevantly provide: “125 When service allowed without leave An originating process may be served outside Australia without leave in the following circumstances – (a) if the claim is founded on a tortious act or omission – 2 AB 48. 3 To which I shall refer as the UCPR. -- 4 of 18 -- 5 (i) that was done or that happened wholly or partly in Australia; or (ii) in respect of which the damage was sustained wholly or partly in Australia; … … (s) if the claim, so far as it concerns the person to be served, falls partly within 1 or more of paragraphs (a) to (r) and, as to the residue, within 1 or more of the others of paragraphs (a) to (r).” [18] The appellant contended below, and before this Court, that r 125(a)(ii) applied, so that the claim and statement of claim could be served in the Cayman Islands without leave, on the basis that the claim was founded on a tortious act or omission in respect of which the damage was sustained wholly or partly in Australia. [19] The respondent disputed that contention, and submitted that leave was required under r 126, which provides: “126 When service allowed with leave (1) The court may, by leave, allow service outside Australia of an originating process if service is not allowed under rule 125. … (3) Also, an application for leave under this rule must be supported by an affidavit stating any facts or matters related to the desirability of the court assuming jurisdiction, including – (a) the place or country in which the person to be served is or possibly may be found; and (b) whether or not the person to be served is an Australian citizen. (4) The court may grant leave under this rule if satisfied – (a) the claim has a real and substantial connection with Australia; and (b) Australia is an appropriate forum for the trial; and (c) in all the circumstances the court should assume jurisdiction.” [20] The respondent’s application to set aside service or to stay the proceedings was relevantly under r 127 UCPR which provides: “127 Court’s discretion whether to assume jurisdiction (1) On application by a person on whom an originating process has been served outside Australia, the court may dismiss or stay the proceeding or set aside service of the originating process. (2) Without limiting subrule (1), the court may make an order under this rule if satisfied – (a) service of the originating process is not authorised by these rules; or (b) the court is an inappropriate forum for the trial of the proceeding; …” -- 5 of 18 -- 6 Approach of the learned primary judge [21] The three issues raised before the learned primary judge were, in summary:4 (a) was the claim within r 125 UCPR with the result that the claim and statement of claim were authorised to be served in the Cayman Islands without leave of the Supreme Court; (b) if not, would leave have been granted, pursuant to r 126 UCPR, to serve the claim and statement of claim in the Cayman Islands; and (c) in any event, should the claim be stayed or service set aside pursuant to r 127 UCPR or the inherent jurisdiction of the court. [22] Her Honour firstly considered whether r 125(a)(ii) was applicable. Consideration of this issue occurred in the context of her Honour’s assessment of whether service of the originating process was not authorised by the rules, which was the first basis entitling a stay of the proceedings or the setting aside of service under r 127(2)(a) UCPR. [23] Her Honour concluded that it was “at least arguable that loss sustained as a result of the alleged negligence and conversion was at least partly “sustained” in Australia for the purpose of r 125(a)(ii) UCPR”.5 Her Honour then considered the contest between the parties as to whether the alleged breach of a bailment condition was a tortious act or omission so as to come within the relevant rule:6 “[79] The statement of claim in this proceeding is deficient in a number of material respects and on its face it is almost impossible to properly understand the legal basis of the claims made. In respect of the claim for “breach of bailment condition”, the statement of claim does not plead a contract, nor does it plead a duty of care and breach. The claim and statement of claim at best includes a claim based on some form of gratuitous bailment. [80] On balance, I consider that the claim in respect of bailment is not within r 125(a)(ii) UCPR as it is not founded on “a tortious act or omission”.” [24] That was not the end of the matter as her Honour considered whether r 127(2)(b) UCPR was applicable. As noted above, that empowers the court to make an order staying proceedings or setting aside service when an originating proceeding has been served outside Australia, if the court considers that it is “an inappropriate forum for the trial of the proceeding”. [25] In doing so, her Honour recorded a contention advanced by the applicant below (the respondent before this Court), to the effect that when considering whether r 127(2)(b) was engaged, one relevant factor was whether the appellant would have obtained a grant of leave under r 126 UCPR if such an application had been made. The contention advanced was that it was relevant because the appellant would not have been able to establish that the claim had a real and substantial connection to Australia, or that Australia was an appropriate forum for the trial. 4 Courtney v Chalfen [2020] QSC 195 at [7]. 5 Reasons below at [71]. 6 Reasons below at [79]-[80]. -- 6 of 18 -- 7 [26] Her Honour’s analysis under r 127(2)(b) proceeded on the basis that “many of the same factors are considered by r 126(4) and r 127(2)(b) UCPR in the balancing exercise to be undertaken by the Court”.7 [27] Her Honour then recorded the substance of two submissions made by the applicant below, going to r 126(4)(a),8 r 126(4)(b)9 and r 126(4)(c) UCPR.10 [28] The factors advanced under r 126(4)(a) were as follows:11 (a) the only connection with Queensland was that the appellant currently resides here and as a result it is alleged that damage was sustained here; (b) there is no need for a comparative consideration as in a case of forum non conveniens; (c) the connection required must be a substantial one, and not trivial; (d) the mere fact that one party lives in Queensland does not establish a real connection, nor a substantial one; (e) residence of a plaintiff in Queensland is not an element of the cause of action; and (f) other factors point to a real and substantial connection with the Cayman Islands, such as: (i) no part of any tort occurred in Australia; (ii) those chattels alleged to have been detained were detained in the Cayman Islands; and (iii) there were no witnesses in Australia apart from the appellant. [29] Then, her Honour noted the contentions as to the factors relevant to the question of “appropriate forum” under r 126(4)(b):12 (a) the respondent is unable to travel to Australia due to serious health problems; (b) the causes of action and loss arose in the Cayman Islands; (c) other than the appellant all other witnesses were in the Cayman Islands; (d) the law of the Cayman Islands applied to the causes of action; and (e) any incapacity of the appellant to travel to the Cayman Islands was a result of his own criminal conduct. [30] Her Honour also dealt with the contentions advanced relating to whether the court should assume jurisdiction under r 126(4)(c) UCPR. There is no present need to set those matters out. [31] Her Honour concluded as a consequence of the matters set out above, and those in relation to r 126(4)(c), that leave to serve the proceedings would not have been granted under r 126 UCPR.13 [32] However, her Honour went on to consider the submission that had been made that, even if leave would have been granted to serve out of Australia, nonetheless the 7 Reasons below at [91]. 8 The “real and substantial connection with Australia” limb. 9 The “appropriate forum” limb. 10 The “assumption of jurisdiction” limb. 11 Reasons below at [92]. 12 Reasons below at [93]. 13 Reasons below at [98]. -- 7 of 18 -- 8 proceedings should be stayed under r 127 UCPR. Her Honour referred to Regie Nationale des Usines Renault SA v Zhang14 in which the High Court commented upon the exposition of the “inappropriate forum” test as formulated in Voth v Manildra Flour Mills Pty Ltd.15 Her Honour also took guidance from comments in “Australian Civil Procedure”16 in a section dealing with the difference between the “clearly inappropriate forum test” and the “clearly more appropriate forum test”, the latter being embraced by the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd.17 [33] Her Honour’s conclusion was set out in these terms:18 “[118] In exercising my discretion and balancing the various factors, I am satisfied that the effect of continuing the litigation in the Supreme Court of Queensland is oppressive and vexatious in the sense that it is unfairly prejudicial and unjustifiably troublesome to the applicant. I consider that the overall effect of the various factors taken together establishes that this Court is an inappropriate forum for the trial of the proceeding. These factors include the following: (a) If an application for leave under r 126 UCPR had been made it is unlikely that the grounds would have been satisfied on the material currently before the Court. (b) The only connection with Australia is that the plaintiff currently resides here. (c) No part of any tort occurred in Australia (although it is arguable that the plaintiff “sustained” damage in Australia pursuant to r 125(a)(ii), this is distinct from the loss necessary to establish the pleaded tort). (d) The chattels alleged to have been detained were detained in the Cayman Islands. (e) The law of the Cayman Islands applies to the causes of action. (f) Other than the plaintiff, no witnesses are in Australia. (g) The defendant is unable to travel to Australia due to serious health problems. (h) Any incapacity of the plaintiff to travel to the Cayman Islands is as a result of his own criminal conduct. (i) In the divorce proceedings in the Cayman Islands the parties are already litigating various property issues. Relevantly: (i) Any asset of a party, regardless of whether it is a pre-marital asset, is subject to the jurisdiction of the Grand Court of the Cayman Islands until that Court makes a final order dealing with financial matters 14 (2002) 210 CLR 491; [2002] HCA 10. 15 (1990) 171 CLR 538; [1990] HCA 55. 16 B C Cairns, Australian Civil Procedure (2020), Thompson Reuters, (12th Ed) (Australian Civil Procedure). 17 [1987] AC 460. 18 Reasons below at [118]. -- 8 of 18 -- 9 relevant to the divorce which either specifies the treatment of the parties’ assets or does not involve an asset of a party. (ii) While there is not necessarily an overlap in the proceedings, it is inappropriate and inefficient for this Court to deal with assets that are subject to the jurisdiction of the Grand Court of the Cayman Islands. (iii) It is apparent that evidence has already been provided to the Grand Court of the Cayman Islands and will be provided to the Grand Court of the Cayman Islands as part of the divorce proceedings relevant to the assets the subject of these proceedings. It is inappropriate and inefficient to duplicate that process where the divorce proceedings are on-going. (iv) There is also the risk of inconsistent decisions in respect of issues and property. (j) The plaintiff is already participating remotely in the divorce proceedings in the Grand Court of the Cayman Islands. (k) To require the defendant to litigate in Australia is to put the defendant to unjustifiable expense and trouble, particularly when it is the result of the plaintiff’s criminal conduct that would prevent him from returning to the Cayman Islands.” [34] Those matters were the basis for her Honour’s conclusion that the Queensland Supreme Court is an inappropriate forum for the trial of the proceedings.19 Issues on appeal [35] The appellant’s outline raised three central issues, namely whether:20 (a) an action for negligence and conversion, arising from a relationship of bailment, is a claim founded on a tortious act or omission for the purposes of r 125(a)(ii) UCPR; (b) if it is not, does r 125(s) require that the entire claim be struck out, or just the offending claim; and (c) there was error in applying the “clearly inappropriate forum” test in determining that there should be a stay. [36] The appellant’s contentions covered all of those issues in the outline and in oral submissions. For present purposes, however, it is convenient to commence with consideration of whether there was error in staying the proceedings under r 127(2)(b) UCPR. If her Honour were right to grant the stay, any contended error in approach to the other issues is rendered irrelevant. 19 Reasons below at [120]. 20 Appellant’s outline, paragraphs B1-4. -- 9 of 18 -- 10 Appellant’s contentions – stay pursuant to r 127(2)(b) UCPR [37] Firstly, the appellant contended that the learned primary judge did not apply the “clearly inappropriate forum” test as laid down in Voth v Manildra Flour Mills. The contention was that there was error in applying r 126 as a factor to consider in determining whether r 127(2)(b) was satisfied. Insofar as the learned primary judge referred to the balancing of factors, it was contended that approach had been rejected in Central Petroleum Limited v Geoscience Resource Recovery LLC21 and by this Court in MacKellar Mining Equipment Pty Ltd & Ors v Thornton & Ors.22 [38] Secondly, it was said that the learned primary judge concluded that the appellant bore the burden of proof in terms of satisfying the court of the three conditions under r 126 UCPR. Her Honour concluded that the appellant had failed to discharge that burden and that conclusion as to the applicability of r 126 was then applied to determine the applicability of r 127(2)(b) with no further discussion as to the burden of proof. This, it was contended, was to reverse the onus of proof. [39] Thirdly, it was contended that the learned primary judge had not properly considered the appellant’s arguments as to why the “clearly inappropriate forum” test did not result in injustice or oppression.23 [40] Fourthly, it was said that the learned primary judge applied Bendigo and Adelaide Bank Ltd v Quine24 as authority that the court has a wider discretion than simply the factors listed in r 127(2) UCPR. That, it was said, was an error and involved applying the wrong test. [41] Fifthly, it was said that the learned primary judge erred in conclusion, including that the only connection with Australia was the fact that the appellant resides here. The contention was that the appellant is an Australian citizen, resides in Australia, and the loss necessary to establish the pleaded torts was suffered in Australia. [42] Sixthly, it was contended that the learned primary judge erred by holding that the reason for the appellant’s inability to litigate in the Cayman Islands resulted in Queensland being a clearly inappropriate forum. The contention was that her Honour expressly excluded the appellant’s inability to litigate in the Cayman Islands as a factor to be weighed in his favour on the basis of prior criminal convictions. In doing so it was said her Honour deprived the appellant of access to justice in Queensland courts, and applied the law as a punitive measure. [43] Finally, it was contended that there were some subsidiary errors on the part of the learned primary judge to do with the impact of the matrimonial proceedings in the Cayman Islands, whether the gold was the subject of jurisdiction of the Grand Court of the Cayman Islands, and whether there was a conflict between the issues considered in the Cayman Islands and those in Queensland. Consideration – misapplication of the inappropriate forum test? [44] The appellant’s contention that the learned primary judge had misapplied the test relevant to the application of r 127(2)(b) of the UCPR should be rejected. It proceeds on a misunderstanding of the reasoning of the learned primary judge. 21 [2018] 2 Qd R 371; [2017] QSC 223 at [35]. 22 (2019) 367 ALR 171; [2019] QCA 77 at [38]. 23 Here referring to the appellant’s written submissions dated 23 April 2020 at paras [59]-[73]. 24 (2018) 55 VR 701. -- 10 of 18 -- 11 [45] Her Honour turned to r 127(2)(b) at paragraph [87] of the reasons below, explicitly noting the submission by the then applicant that the Supreme Court of Queensland was an inappropriate forum. Then, after having noted the submission made by the then applicant that it was a relevant consideration to that question as to whether leave would have been granted under r 126 of the UCPR, the learned primary judge expressly noted the submission calling r 127(2)(b) in aid of a stay. It is true that her Honour observed that “The reality is that many of the same factors are considered under r 126(4) and r 127(2)(b) UCPR in the balancing exercise to be undertaken by the Court”. However, as will become apparent, that is an unobjectionable observation. [46] The learned primary judge then set out (in paragraphs [92], [93] and [94] of the reasons below) the various factors taken into account by her Honour in respect of the consideration of whether leave would have been granted under r 126(4) UCPR. Her Honour concluded that leave would not have been granted under that rule.25 [47] Her Honour then noted the submission by the then applicant that even if leave had been granted under r 126 UCPR, nonetheless the proceedings should be stayed under r 127.26 It was in that context that her Honour gave consideration to the decision in Regie Nationale des Usines Renault SA v Zhang27 upon which the current appellant then relied. As observed earlier, the High Court in that case did not depart from what was said in Voth. To the contrary, it summarised Voth by adopting a passage from its decision in Henry v Henry:28 “In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, “the discussion by Lord Goff in Spiliada of relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance”. [48] Her Honour also adopted guidance from Australian Civil Procedure29 which accurately summarised some of the factors relevant to applying the test in Voth. They included: (a) “oppressive” means seriously and unfairly prejudicial or damaging; (b) “vexatious” means unjustifiable trouble or harassment; (c) oppressive and vexatious refer to the effect of continuing the litigation in the plaintiff’s selected forum; (d) a stay could be granted if it could be shown that the selected forum was clearly inappropriate; (e) on the clearly inappropriate test, a regularly commenced proceeding that was not vexatious could be stayed if it were unjust to continue it and the proceeding could be brought in another forum without inconvenience to the plaintiff; and 25 Reasons below at [95]. 26 Reasons below at [96]. 27 (2002) 210 CLR 491; [2002] HCA 10. 28 (1996) 185 CLR 571 at 587; [1996] HCA 51; internal references omitted. 29 Reasons below at [103]. -- 11 of 18 -- 12 (f) the clearly inappropriate test emphasises the effect on the defendant of continuing the proceeding in the selected forum. [49] The learned primary judge returned to consideration of a stay under r 127(2) at paragraph [118] of the reasons below: see paragraph [33] above. Her Honour expressly stated that it was on the basis of the matters in paragraph [118] that she was satisfied that the court was an inappropriate forum for the trial of these proceedings.30 [50] The appellant contended that the learned primary judge erred by taking into account whether it was unlikely that leave would have been granted, had it been applied for under r 126 UCPR. The learned primary judge did include that as a factor in paragraph [118] of the reasons below. Although couched in qualified terms, namely that if an application had been made “it is unlikely that the grounds would have been satisfied on the material currently before the Court”, nonetheless it was a factor taken into account. [51] In my view, the appellant’s contentions in this respect must be accepted. One need only point to two considerations to demonstrate the inapplicability of the question under r 126 UCPR to any question under r 127(2) UCPR. The first is that r 126(4)(b) requires a determination that “Australia is an appropriate forum for the trial”. That is the test adopted in Spiliada, and rejected in Voth. To determine the question of a stay under r 127(2)(b) by reference to the test rejected in Voth would be to water down the express provisions of the rule. [52] Secondly, rr 126 and 127 deal with different questions. Under r 126 the question is whether the court might grant leave to allow for service of an originating process “if service is not allowed under rule 125”. In other words, r 126 has application where a claimant cannot bring the claim within r 125, which permits service as of right. Rule 127(2)(b) operates whether or not service is authorised under the UCPR. So much is clear from the fact that r 127(2)(a) permits an order staying a proceeding or setting aside service if the court is satisfied that service of the originating process is not authorised by the UCPR. Then, r 127(2)(b) is cast as an alternative, applicable whether or not service is authorised under the UCPR. Because r 127(2)(b) operates regardless of whether the proceedings are permitted to be served under the UCPR, it cannot be a relevant factor that leave could not have been obtained under r 126 UCPR. [53] However, resolution of this issue in favour of the appellant does not dispose the issue as to whether the learned primary judge erred in the exercise of the discretion to order that the proceedings be stayed under r 127(2)(b) UCPR. The learned primary judge expressly stated that it was the effect of the various factors “taken together” that established the court was an inappropriate forum.31 Therefore, her Honour proceeded on the basis that it was the cumulative effect of all of the factors listed in paragraph [118] of the reasons below which compelled the view she reached. Even if one disregards the factor in subparagraph (a), the balance, in my view, still compels the same result. [54] It is also true that a number of the factors listed in paragraph [118] of the reasons below match those set out in paragraphs [92]-[94], where her Honour dealt with the question of leave under r 126 UCPR.32 However, the fact that there are similar factors 30 Reasons below at [120]. 31 Reasons below at [118]. 32 Thus: paragraph [92](a) and [118](b); [92](g)(i) and [118](c); [92](g)(ii) and [118](d); [92](g)(iii) and [118](f); [93](a) and [118](g); [93](b) and [118](e); [93](c) and [118](f); [93](d) and [118](e); [93](e) and [118](h); and a substantial part of [94] relates to paragraph [118](a). -- 12 of 18 -- 13 which are considered under r 126 UCPR and as to the question of whether the Supreme Court of Queensland is a clearly inappropriate forum, does not mean that there has been a misapplication of the test. As the High Court recognised in Voth, the discussion by Lord Goff in Spiliada of relevant “connecting factors” and a “legitimate personal or juridical advantage” provides valuable assistance in respect of the clearly inappropriate forum test. [55] When one examines the factors listed, all of which are justified on the material before the learned primary judge, it cannot be demonstrated that her Honour erred in reaching the conclusion that a stay was appropriate. Some examples suffice to make the point. [56] It is correct to say that the only connection with Queensland is that the appellant resides here now, and some of his assets have been sent here. However, apart from discovering the alleged consequences of mis-packing the vinyl records and Blu-Ray discs, the damage to two pairs of sunglasses and other personal items, and that some personal items of clothing and furniture had not been packed, everything else to do with this case concerns the Cayman Islands. [57] Other than the appellant, no witnesses are present in Australia. Indeed, the respondent’s mother, who apparently has a claim to the gold, is resident in the United Kingdom. [58] The respondent cannot travel because of serious health issues. She is already involved, as is the appellant, in court proceedings in the Cayman Islands concerning matrimonial property. The appellant already has participated in those divorce proceedings by a form of video conference. His inability to travel to the Cayman Islands because of his convictions and deportation can be overcome in that way. [59] The appellant’s contention that he cannot meaningfully institute proceedings in the Cayman Islands in respect of the claims he now makes here, cannot be sustained. He professes to be without means, but the fact is that on his own case he is in possession in Queensland of numerous assets such as the apparently valuable collection of rare vinyl records and Blu-Ray discs, as well as the apparently valuable collection of sunglasses, all of which could probably be realised in order to meet the filing fees applicable to commencing proceedings in the Cayman Islands. Even though the realisation of those assets might not produce sufficient funds to instruct local solicitors in the Cayman Islands, nonetheless the appellant is a fully qualified lawyer and, as his appearance before this Court demonstrated, fully able to conduct his own litigation. [60] Insofar as the gold bullion is concerned, the necessary nexus with Queensland is contended to be the fact that in August 2019, while the appellant was in Queensland, a demand was made for the production of the gold, but it was not produced. There are reasons to doubt the sufficiency of that connection, particularly in the context of whether Queensland is clearly an inappropriate forum. The appellant’s own material demonstrates that: (a) he moved to Queensland in May 2018; (b) the gold had been in the possession of the respondent but at some time was transferred to the possession of the respondent’s mother; (c) the appellant was aware of a contention that the gold bullion belonged to the respondent’s mother, and not the appellant, in late 2017; (d) by 23 February 2018 (and therefore some time prior to the appellant’s return to Queensland) the appellant was aware of an affidavit filed by the respondent in -- 13 of 18 -- 14 the Grand Court of the Cayman Islands in which it was contended by the respondent that the gold bullion was agreed by the appellant to be given to the respondent’s mother as collateral for a loan to assist him in the criminal proceedings brought against him; further, the contention made in that affidavit was that the gold was no longer the property of the appellant, but of the respondent’s mother; (e) therefore, prior to the appellant’s return to Queensland the appellant as bailee was aware that the bailor (whether gratuitous or under some form of contract) had announced that the gold was in the hands of someone other than the bailee, and that person was the rightful owner; (f) therefore, if there were a breach of a bailment condition or a conversion of the gold, it was complete in the Cayman Islands at a time before the appellant returned to Queensland; and (g) the appellant frankly accepted that his demand in August 2019 was not made in the expectation that the gold would be produced in Australia by the respondent, but rather produced in some unspecified way to some unspecified person in the Cayman Islands. [61] Finally, the learned primary judge found that any asset of a party to a marriage, regardless of whether it was a pre-marital asset, was subject to the jurisdiction of the Grand Court of the Cayman Islands until that court made a final order dealing with the financial matters relevant to the divorce.33 That finding is not challenged by the appellant, at least not beyond mere assertion. That being so, contentions by the appellant about ownership of the gold and other items of his properly left in the Cayman Islands are matters which are likely to be dealt with by the Grand Court of the Cayman Islands. As her Honour found, that was a compelling reason to stay the proceedings in Queensland. [62] In my view, it cannot be demonstrated that her Honour erred in reaching the conclusion that the proceedings here should be stayed. [63] In those circumstances, the question as to whether the proceedings could be served because they came within r 125(a)(ii) or r 125(s) UCPR need not be determined by this Court. [64] The appeal should be dismissed. Application re costs orders made on 24 July 2020 [65] The learned primary judge ordered the permanent stay on 26 June 2020. The appeal (Appeal No 7938 of 2020) is directed only at that order.34 On 24 July 2020 the learned primary judge ordered the appellant to pay the costs of the proceedings below. By separate application brought within Appeal No 7938 of 2020 the appellant has challenged the orders made on 24 July 2020. However, no appeal has been filed in respect of those orders. [66] The orders made on 24 July 2020 came about as set out below. 33 Reasons below at [118](i). 34 Appellant’s outline, paragraph A2. -- 14 of 18 -- 15 [67] At the conclusion of the reasons below the learned primary judge addressed the question of costs in this way:35 “[124] No submissions were made in relation to costs. While the applicant has been successful, I make no order as to costs as it appears to be inappropriate given my reasons and orders.36 This is something the applicant may want to consider further. If the applicant wishes to pursue an order for costs, I grant liberty to apply in respect of costs only.” [68] The learned primary judge then made the 26 June 2020 orders in these terms: “1. The proceeding be permanently stayed. 2. No order as to costs. 3. Liberty to apply in respect of costs.” [69] Subsequently, submissions were made in relation to costs. The applicant below contended that a costs order should be made in her favour. The respondent below (the appellant here) contended that order No. 2 made on 26 June 2020 was a final order and could not be varied pursuant to the grant of liberty to apply. Written submissions were lodged and there was a short hearing. As a consequence, on 24 July 2020 the learned primary judge made the following orders: “1. Vacate paragraph (2) of the Orders dated 26 June 2020. 2. The Respondent/Plaintiff pay the Applicant’s/Defendant’s costs of and incidental to the application in the proceeding on the standard basis.” [70] By application made on 27 July 2020 the appellant applies for the following orders in respect of those orders made on 24 July 2020: “(1) That the orders made by the learned trial judge on 24 July 2020 varying the substance of the 26 June 2020 “No Order as to Costs” order by awarding costs be declared Coram non Judice and set aside. (2) Alternatively, that the orders made by the learned trial judge on 24 July 2020 varying the substance of the 26 June 2020 “No Order as to Costs” order by awarding costs be set aside.” [71] At the oral hearing instituted by the respondent, when she sought a costs order under the provision for liberty to apply, the learned trial judge made several points in the course of submissions: (a) her Honour’s intention behind paragraph 2 of the orders made on 26 June 2020 was “more to maintain the status quo”, because “it was clear that … costs hadn’t been dealt with”;37 (b) that it was clear from the reasons which had been given that “the costs were still open”;38 and 35 Reasons below at [124]. 36 Here the learned trial judge referred to Bendigo and Adelaide Bank Ltd v Quine (2018) 55 VR 701. 37 AB 404 lines 23-25. 38 AB 404 line 29. -- 15 of 18 -- 16 (c) that her Honour’s intention was to vacate the order in which case she would then deal with costs. [72] The appellant contends that the grant of liberty to apply is insufficient to enable the learned trial judge to vacate the original order and order costs after submissions were heard. He contends that the order made on 24 July 2020 is without jurisdiction,39 and that an order made without jurisdiction is Coram non Judice, and of no effect. [73] In my view, the appellant’s application must be dismissed. There are several reasons for that conclusion. [74] Any order of a superior court of record is efficacious until set aside or varied on appeal. The orders of 24 July 2020 have not been appealed. Absent an appeal against those orders, there is no occasion on an application such as has been brought before this Court to question the orders made. Applications can be made to this Court under Chapter 18, Part 2 Div 1 of the UCPR. However, r 778 makes it clear that such an application is “in an appeal or case stated”. Whilst this application is “in” Appeal No 7938 of 2020, in the sense that it has been filed within that proceeding, that appeal does not concern the orders made on 24 July 2020. [75] The application is therefore incompetent. [76] However, even if the present notice of appeal were amended to include a challenge to the orders made on 24 July 2020, there is yet another barrier to the relief sought. [77] There is the difficulty that the explanation immediately preceding those orders in paragraph [124] of the reasons below makes it plain that her Honour was not dealing with the question of costs because no submissions had been made as to them, but was granting liberty to apply in respect of costs should the applicant wish to do so. In those circumstances order No. 2 made on 26 June 2020 was susceptible of being vacated or set aside in the event that the applicant availed itself of liberty to apply in respect of costs. [78] Further, the proper construction of orders 2 and 3 made on 26 June 2020, seen in light of the reason expressed for making the orders that way, is that order No. 2 was not, in fact, intended as a final order. The qualification was that costs had not been addressed by the parties, and the successful party was to be given the chance to apply for costs. That is reflected in order No. 3. For that reason authorities as to the scope of liberty to apply do not compel the result urged by the appellant. Thus, the principle expressed in cases such as Perpetual Trustees Queensland Ltd v Thompson,40 and Fylas Pty Ltd v Vinal Pty Ltd,41 that liberty to apply cannot be used to vary the substance of a final order, are not applicable. Order No. 2 on 26 June 2020 was not intended as a final order. As was recognised by McPherson SPJ in Fylas,42 where the order is not final, liberty to apply has a wider operation than merely working out the terms: “In Penrice v. Williams (1883) 23 Ch.D. 353, 356–357, Chitty J. spoke of an order that is “clearly not of a final character, and also when there is necessarily something to be done irrespective of what appears on 39 Referring to Perpetual Trustees Queensland Ltd v Thompson [2012] 2 Qd R 266; [2011] QSC 48 at [24]. 40 [2012] 2 Qd R 266; [2011] QSC 48 at [29]-[32]. 41 [1992] 2 Qd R 593 at 598; [1991] QSC 211. 42 [1992] 2 Qd R 593 at 598; [1991] QSC 211. -- 16 of 18 -- 17 the face of the order”. His Lordship was there explaining that in some cases an order may by its very nature need to be supplemented to give full effect to it, in which event liberty to apply is implied and need not be expressly reserved. See also Fritz v. Hobson (1880) 14 Ch.D. 542, 561; Cristel v. Cristel [1951] 2 K.B. 725, 731.” [79] Nor is the principle of finality offended. As the High Court recognised in Burrell v The Queen,43 the principle protects parties to litigation from attempts to re-agitate what has been decided. Here the question of costs had not been decided on 26 June 2020. [80] Finally, the appellant’s attempts to prevent the orders of 24 July 2020 from having effect should not be condoned. He was well aware from the reasons delivered on 26 June 2020 that the question of costs had not been argued, let alone determined. His characterisation of the effect of orders No. 2 and 3 made on 26 June 2020 is, in the circumstances, disingenuous. [81] For these reasons the application in respect of the orders made on 24 July 2020 is incompetent and in any event doomed to failure. In the circumstances I would be disposed to order that the appellant pay the costs of that application on an indemnity basis. However, the respondent has sought to be heard on the question of costs should the appeal fail, and therefore those costs as well as the costs of the application can await further submissions. [82] I also agree with the additional reasons of Mullins JA. Conclusion [83] I propose the following orders: 1. Application filed on 27 July 2020 struck out. 2. Appeal dismissed. 3. The respondent file and serve any submissions on the question of costs of the appeal and application, limited to five pages, by 4 pm on 11 January 2021. 4. The appellant file and serve any submissions in response, limited to five pages, by 4 pm on 25 January 2021. 5. The question of costs be resolved on the papers. [84] PHILIPPIDES JA: I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour. I also agree with the additional comments of Mullins JA. [85] MULLINS JA: I agree with the reasons of Morrison JA for disposing of the appeal and the proposed orders. [86] In relation to the application filed by the appellant on 27 July 2020 within the appeal purporting to seek orders in respect of the costs orders made by the learned primary judge on 24 July 2020, I also agree with Morrison JA that the application is incompetent and should be struck out. 43 (2008) 238 CLR 218; [2008] HCA 34 at [16]. -- 17 of 18 -- 18 [87] It is apparent the primary judge made an error in making orders numbered 2 and 3, when the reasons in Courtney v Chalfen [2020] QSC 115 were published on 26 June 2020, as the intention expressed by the primary judge in [124] of the reasons was to give the opportunity to Ms Chalfen as the applicant to pursue an order for costs. That intention was inconsistent with making an order of “no order as to costs” which was a final order that there be no order for costs in favour of either party. The orders made on 26 June 2020 that did not reflect that intention were therefore amenable to being set aside pursuant to r 667(2)(d) of the Uniform Civil Procedure Rules 1999 (Qld). -- 18 of 18 --