Australia Meat Holdings Pty Ltd v Higgs [2006] QDC 81

DISTRICT COURT OF QUEENSLAND CITATION: Australia Meat Holdings Pty Ltd v Higgs [2006] QDC 081 PARTIES: AUSTRALIA MEAT HOLDINGS PTY LTD Applicant V DARYL GEORGE HIGGS Respondent FILE NO/S: BD4020/05 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 13 April 2006 DELIVERED AT: Brisbane HEARING DATE: 6 April 2006 JUDGE: McGill DCJ ORDER: Order that the order made on 8 November 2005 be set aside, application transferred to the Supreme Court, costs reserved. CATCHWORDS: INFERIOR COURTS – District Court – Jurisdiction – order made without jurisdiction – order set aside – transfer to Supreme Court. JUDGMENTS AND ORDERS – Setting aside – absence of jurisdiction to make order – inherent jurisdiction to set aside. WorkCover Queensland Act 1996 s 304. Cameron v Cole (1944) 68 CLR 571 – considered. Champion v Fay [1983] 2 Qd R 416 – applied. Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415 – applied. Mason v Ryan (1884) 10 VLR (L) 335 – followed. Montes v Barclay Motors (Bodyworks) Pty Ltd [1968] Qd R 556 – applied. Murcia and Associates v Grey (2001) 25 WAR 209 – considered. R v Brisbane City Council, ex parte Read [1986] 2 Qd R 22 – considered. White v Weston [1968] 2 QB 647 – considered. -- 1 of 6 -- 2 COUNSEL: C. Newton for the applicant G.J. Cross for the respondent SOLICITORS: Maurice Blackburn Cashman for the applicant Abbott Tout lawyers for the respondent [1] This is an unusual application which raises some interesting and important, but ultimately not difficult, questions about the jurisdiction of the District Court. On 28 October 2005 the applicant filed an application seeking an order under the WorkCover Queensland Act 1996 that the applicant’s notice of claim for damages be deemed compliant. That application came before me on 8 November 2005, and I made such an order; I also made a costs order against the respondent, for the respondent to pay costs on an indemnity basis. At the time I gave reasons for that decision, although as emerged on a later hearing those reasons were given on the basis of a fundamental misapprehension as to the factual situation. That misapprehension, however, did not affect the question of whether either of the orders made against the respondent ought to have been made. [2] On the hearing of that application no point was taken as to the jurisdiction of the court to entertain the application. I did not investigate the point myself, so the matter proceeded on the assumption on the part of everyone that the court had jurisdiction. [3] Any jurisdiction to make a declaration that the notice of claim was compliant must be found in s.304 of the WorkCover Queensland Act which permits “the court” to declare that the notice of claim has been given, or the claimant is taken to have remedied non-compliance with the requirements of s.280. The term “court” is defined in schedule 3 of the Act, unhelpfully, as “the court having jurisdiction in relation to the amount or matter referred to.” The obscurity of the legislation has now been clarified by the Court of Appeal, in Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415, on the basis that the reference to “the court” “can only be a reference to the court which has jurisdiction to hear and decide the proceeding which is actually permitted to be started by reason of that grant of leave.” 1 [4] It follows that, for this court to have jurisdiction to entertain an application under s.305, the application must be one in respect of a notice by which a claim is made in respect of which proceedings could be brought in this court. The court’s monetary jurisdiction in respect of such a proceeding is limited to $250,000.2 This court only has jurisdiction to make an order under s.304 in respect of a proceeding to be commenced in this court, and therefore it only has jurisdiction in respect of the claim where the claim is one within the monetary jurisdiction of the court.3 [5] It may be that this will not necessarily be something determined and fixed by the claim made originally in the notice of claim.4 However, in the present case there has been nothing to indicate that the applicant is confining the claim made to 1 Hamling (supra) para [32] per Keane JA, with whom the other members of the court agreed. 2 District Court of Queensland Act 1967 s.68 3 Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192. 4 Suncorp Metway Insurance Ltd v Snowden [2005] QDC 312 -- 2 of 6 -- 3 anything less than the claim in the notice of claim, which was for an amount well in excess of the monetary limit.5 [6] As I say, the point was not taken before me at the time of that application. Subsequently another application was made in relation to the same claim, but this one came on after judgment had been delivered in Hamling, and this time the respondent took the point that there was no jurisdiction to deal with the application. In the light of the arguments then presented, on 6 February 2006 I ruled that I did not have jurisdiction in relation to that application, and ordered that it be transferred to the Supreme Court under s.85 of the District Court of Queensland Act.6 [7] The respondent has now applied for a declaration that the order made on 8 November 2006 was made without jurisdiction, and an order that it be set aside. That application is advanced on the basis that the court has inherent jurisdiction to set aside an order which was made without jurisdiction. The applicant resisted the application, essentially on the basis that the original order was not a nullity, and therefore it stands unless and until it is set aside on appeal. In effect, the applicant’s argument is that the respondent’s only remedy was and is to appeal against the order. The applicant did not seek to persuade me that the order made was in fact one which I had jurisdiction to make. Consistently with my earlier ruling, for the reasons set out above, I am satisfied that the order made on 8 November 2005 was one that I did not have jurisdiction to make. [8] The question then becomes whether this is something that I can do anything about, or whether I am simply functus officio. There is no particular reason why this court should have supervisory jurisdiction over itself; the Supreme Court has supervisory jurisdiction over this court, because of its role as the sole superior court in Queensland.7 In addition, there is undoubtedly the capacity to appeal to the Court of Appeal from the decision, whether or not it was in excess of jurisdiction. The time for appealing has now expired, but the Court of Appeal has power to extend time, so that the Court of Appeal could deal with the matter and set aside the order if it thought it appropriate to do so. [9] The question, however, is whether this court has jurisdiction either to give a declaration that one of its orders was made without jurisdiction, or to set aside that order. It has no express jurisdiction to do so; no specific statutory power in the court was identified by counsel for the respondent in support of this application. Rather, reference was made to the inherent jurisdiction of the court.8 There is authority that all courts, including inferior courts, have an inherent jurisdiction to correct irregularities in their procedures, and for that purpose to set aside proceedings which are void or irregular: Mason v Ryan (1884) 10 VLR (L) 335 at 340; Montes v Barclay Motors (Bodyworks) Pty Ltd [1968] Qd R 556 at 560; Champion v Fay [1983] 2 Qd R 416 at 417. For this reason, there is an inherent jurisdiction to set aside a default judgment which has been irregularly entered9 , or to 5 $615,876.36: Affidavit of Hodgson filed 28 October 2005 Exhibit RLH13, p35 6 An order was subsequently made by the Supreme Court: [2006] QSC 70. 7 R v Brisbane City Council, ex parte Read [1986] 2 Qd R 22 at 25. 8 It may be that as a statutory inferior court, it would be more appropriate to speak in terms of the implied jurisdiction of the court. 9 Champion v Fay (supra). Coles v Burke (1987) 10 NSWLR 429 is not authority to the contrary, because in that case it was held that any inherent power was exhausted by explicit provisions of the Act and rules: p437. -- 3 of 6 -- 4 set aside a judgment which has been given in circumstances where there has been a failure to comply with the rules of natural justice.10 [10] The decision in Mason v Ryan (supra) is particularly significant because it dealt with a situation where the County Court, the equivalent of this court, set aside a final judgment under its inherent jurisdiction on the ground that it was a judgment which it had not had jurisdiction to give. In that case a County Court trial took place with a jury in circumstances where the Full Court subsequently held that there was no power to empanel a jury. It was held that this was not just an irregularity, and accordingly the fact that the defendant did not raise the point until after the judgment was irrelevant; the judgment given by the County Court was one without jurisdiction: pp 339, 341. An application by the defendant to set aside the judgment on the ground of want of jurisdiction was successful in the County Court, and the Full Court confirmed on appeal that the County Court had an inherent power to set aside proceedings which it may find to be void or irregular.11 [11] Mason v Ryan was referred to as authoritative by the Full Court of Victoria in Duncan v Loewenthal [1969] VR 180, where it was held that the County Court had an inherent jurisdiction to dismiss an action for want of prosecution (p182), by W B Campbell J in Montes v Barclay Motors (Bodyworks) Pty Ltd [1968] Qd R 556 at 560, and by Steytler J, with whom Wallwork J agreed, in Murcia and Associates v Grey (2001) 25 WAR 209 at [16]. 12 In my opinion Mason v Ryan is sufficient authority that I have jurisdiction to set aside my earlier order.13 [12] Although a judgment or order of a superior court is said to be voidable rather than void, even if made without jurisdiction14 , the same approach has not traditionally been adopted in relation to judgments of inferior courts. The traditional view has been that a judgment or order of an inferior court made without or in excess of jurisdiction is void.15 There has been perhaps too great a tendency to refer to things which were merely fatally defective as void, or a nullity. On the other hand, there has been at times a tendency for even administrative decisions which were made without jurisdiction to be treated as being effective until set aside rather than void. In a useful article in (1997) 6 Journal of Judicial Administration 249, Professor Campbell argued that the traditional distinction between void and voidable decisions, depending on whether the court was superior or inferior, was questionable. She said (p258-9): “The distinction is one which, applied to administrative decisions, has virtually been abandoned. … The considerations [for this approach] apply equally to decisions of courts of law, superior or inferior. ... It makes no sense to treat those of their decisions which are in excess of jurisdiction as void ipso facto and therefore decisions which can be 10 Cameron v Cole (1944) 68 CLR 571 at 589 per Rich J, 607 per Williams J; Taylor v Taylor (1979) 143 CLR 1 at 8 per Gibbs CJ, 16 per Mason J; White v Weston [1968] 2 QB 647 at 659; Ford v Gray (1989) 50 SASR 425; 11 P 340 per Higinbotham J, Williams J and Holroyd J concurring. 12 In that case it was held, by a majority, that a District Court judge did not have jurisdiction to restrain by injunction a particular individual from acting as solicitor for one of the parties to a proceeding before it. The question of whether the District Court had power to set aside that order on the basis of want of jurisdiction did not arise. 13 See also K. Mason: “The inherent jurisdiction of the court” (1983) 57 ALR 449 especially at 456-7 14 R v Brisbane City Council (supra) at 26; Cameron v Cole (supra) at 590. 15 For example, Murcia and Associates v Grey (supra) at [14] and authorities there cited. -- 4 of 6 -- 5 ignored with impunity. ... To regard a court’s decision as valid and binding until set aside is not inconsistent with the proposition that the court itself may, in certain circumstances, set aside its own decision. Those circumstances may include an exceeding of the court’s jurisdiction.” [13] I think there is good sense in that approach, although later developments do not seem to support the tendency referred to, of treating all administrative decisions as merely voidable.16 It is unnecessary for me to decide, for present purposes, in the light of the authorities to which I have referred, whether my decision was void or voidable.17 It follows that I do not accept the submission advance by counsel for the applicant. In either case, I am satisfied that on the authorities there is an inherent jurisdiction in this court to set aside the order. That jurisdiction should be exercised with considerable care; in particular if there is some doubt or dispute as to the matter, in my opinion this court should not decide the question18 , but leave the matter to be determined by the Court of Appeal, which has undoubted jurisdiction to determine the matter authoritatively. [14] In this case, the order I am being asked to set aside is my own, but in principle there is no reason why the same jurisdiction could not be exercised by another judge of the court, and I think it inappropriate for one judge of this court to be deciding a contested issue as to whether an order which was made by another judge on a particular occasion was without jurisdiction and should be therefore set aside. But I am satisfied on the authorities that the jurisdiction exists, and in an appropriate case it may be exercised. [15] In the present case there was now no dispute before me that the earlier application was one which was not within the jurisdiction of the court. It follows that the order which I made was one I did not have jurisdiction to make, and on the authorities and on principle the court can and in the circumstances ought to set aside such an order. The question then arises as to what should happen as a consequence. The respondent submitted that there was no longer any dispute as to the proposition that the notice of claim was compliant, but of course at the time the application was made that was still disputed, so the applicant was clearly entitled to make that application to a court having jurisdiction. There remains a dispute in relation to the question of the costs of that application, and that is a matter which a court having jurisdiction has to decide. [16] Where the only matter remaining in issue is the question of costs, that question can be decided summarily under the rules: r 683. However, I do not think that the presence of that rule can interfere with the operation of s.85 of the District Court of Queensland Act. The application which came before me last November was and is one which the Supreme Court has jurisdiction to entertain, so subsection (2) applies and unless subsection (4) applies I have no choice but to transfer the matter to the Supreme Court. 16 See Lewis “Judicial Remedies in Public Law” (3rd Ed 2004) pp 184-5, 194. 17 Mason v Ryan (supra) referred to proceedings “void or irregular”. See also White v Weston (supra) at 659 per Russell LJ, 622 per Sacks LJ 18 This is because a decision by this court (unlike the Supreme Court) as to whether it has jurisdiction is not conclusive: R v Brisbane City Council (supra) at 25. Accordingly, a decision that an earlier decision of the court (express or implied) that it had jurisdiction was wrong is no more conclusive than the earlier decision. -- 5 of 6 -- 6 [17] The respondent submitted that subsection (4) did apply, and that the applicant (or rather his lawyers) should have known that the matter was not one within the jurisdiction of the District Court. However, the application was made and determined prior to the decision of the Court of Appeal in Hamling, and at a time when it was by no means generally accepted that the jurisdiction of this court was so limited, as shown by the facts in that case. The statute in question is as I have noted unclear on the point, and therefore I do not think it is a matter which falls within subsection (4). The appropriate course therefore is for me to comply with my statutory obligation under s.85(2). [18] I therefore order that the order that I made on 8 November 2005 be set aside, and that the application be transferred to the Supreme Court. I remain uncertain as to whether in such circumstances I can deal with any costs incurred to date, but if and insofar as I can I simply reserve them to the Supreme Court -- 6 of 6 --