Cummins v Thomas [2009] QDC 201

1-1 [2009] QDC 201 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 1028 of 2009 MARY ELIZABETH CUMMINS Plaintiff and RHYS HENRY THOMAS Defendant BRISBANE ..DATE 23/06/2009 ORDER CATCHWORDS: Uniform Civil Procedure Rules r 16(a), r 35, r 123 - unsuccessful application by defendant for declaration that claim had not been properly started "for want of jurisdiction" - court of view that its jurisdiction was clear, that the real question was whether the appropriate forum was as selected by the plaintiff or a Western Australian court as the defendant contended - plaintiff had insufficient opportunity to present evidence about this. -- 1 of 6 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The Court makes the following orders on the defendant's application filed on the 2nd of June 2009: 1) Refuse the relief sought in paragraph 1 of the application; 2) Direct that a defence be filed and served within 14 days together with any further affidavit material; 3) Adjourn the application in respect of paragraphs 2 and 3 and, in particular, in respect of issues under the Service and Execution of Process Act, to a date to be fixed; 4) Direct that the plaintiff file and serve her affidavit material in response within 14 days of receipt of the defendant's material; 5) The application may be brought on by seven days' written notice by either party; 6) The defendant must pay the plaintiff's costs of today's hearing, to be assessed. Those orders are made by way of resolving the defendant's assertion for purposes of rule 16(a) of the UCPR that the originating process has not, for want of jurisdiction, been properly started in this Court. The filing of that -- 2 of 6 -- 1-3 ORDER 1 10 20 30 40 50 60 application follows the filing of a conditional notice of intention to defend on the 21st of May 2009. The plaintiff's claim is one for contribution against her fellow guarantor of the obligations of a company called Kimberley Sea Planes Pty Ltd pursuant to a hire purchase agreement with CBFC Limited. That agreement related to a houseboat named the Barra Shack which is said to be located and used in Broome, Western Australia. It refers to the Brisbane address of CBFC Limited and a Western Australian address of the hirer company. The guarantors give post office box addresses in Western Australia. The agreement was probably entered into in that State on the basis of the identifying details of the witness, which are stamped in a couple of places. The defendant resides in Western Australia, indeed, in Broome, and the plaintiff on the Gold Coast. Proceedings resulting in the winding-up of the hirer appear to have been instigated by her in the Supreme Court of Queensland, and financial matters appear to have been resolved with CBFC Limited in Queensland when it made demand for the sum in excess of $300,000 which it contended was owing. The plaintiff has paid that and now seeks contribution. The proceeding for the moment is about money only, and specifically, who should pay what amounts of the total. Given that one protagonist resides in Queensland and the other in Western Australia, there's going to be inevitable -- 3 of 6 -- 1-4 ORDER 1 10 20 30 40 50 60 inconvenience for one or the other, wherever proceedings may be instituted. I'm told that there are already proceedings instituted in the west by the defendant against the plaintiff under the local equivalent of part 19 of The Property Law Act 1974 of Queensland, among other proceedings in numerous courts involving the same parties. In find myself totally unable to identify any basis on which it could be said that this Court lacks jurisdiction to entertain the money claim. It's not a case, for example, of a proceeding about land in another State. The defendant/applicant's advisors appear to have appreciated this. Mr Telford began by seeking leave to amend the application to make it clear that in the alternative relief was sought under the Service and Execution of Process Act of the Commonwealth by way of a determination that the courts of Western Australia were the appropriate venue for resolution of this dispute rather than those of Queensland. Paragraph 2 of the application is wide enough to cover the court's entertaining questions of this kind, and Mr Russell representing the plaintiff had been given some inkling that section 20 of the Act might be relied on. It was only this morning, however, that Mr Mossman's affidavit dealing with convenience factors and the like of the kind a court's asked to consider in section 20 matters came to Mr Russell. He objected to the amendment being allowed, essentially, as I understood him, because he wasn't prepared and able to respond with evidence. -- 4 of 6 -- 1-5 ORDER 1 10 20 30 40 50 60 As I've said, I'm totally at a loss to understand why this court should lack jurisdiction in the matter, although it's plain that there's room for a contest as to whether of courts with jurisdiction one in Queensland or one in Western Australia might be more appropriate. The authorities Mr Telford placed before the Court of Saggers Investments Pty Ltd v Blackwatch Boats Pty Ltd [2007] QDC 032 and Lenard's Pty Ltd v Kimart Pty Ltd [2009] QDC 150 both appear to me to be helpful in relation to convenience factors (and others, such as parties' choice of forum) leading to identification of what court is more appropriate. It's premature to have that sort of question resolved until Mr Russell's client has an opportunity to put in her material. I'm sympathetic to his submission that that question is better examined once there are pleadings identifying the issues. It's been foreshadowed that there may be issues of whether CBFC sold the houseboat at an undervalue; there may be issues of whether the plaintiff is in some way complicit in anything that the finance company may have done wrong. It's a more satisfactory way the court proceeding to have those contentions in a pleading rather than, as they presently exist, as contentions foreshadowed in Mr Mossman's affidavit as anticipated to be forthcoming in future on the basis of present instructions. I may say, having noted Judge Shanahan's reference in Lenard's to rule 35 of the UCPR, that I find ample support there for -- 5 of 6 -- 1-6 ORDER 1 10 20 30 40 50 60 the commencement of the plaintiff's proceeding in this "district" and justification for the defendant being served in Western Australia, as the Act allows and as the Rules envisage. See Rule 123.. The matter will now advance through to the pleading stage and then it may well be that the section 20 question, which I suspect is the one the defendant really wanted resolved, can be ventilated in the court. The court is willing to allow the amendment, if it is considered necessary, but not willing to entertain that aspect of the application relying on Mr Mossman's recent affidavit today. ----- -- 6 of 6 --