Carlson, Zak & Boniface v Strik [1998] QCA 179

1 COURT OF APPEAL [1998] QCA 179 McPHERSON JA DERRINGTON J WHITE J Appeal No 2845 of 1998 DAVID ALLAN CARLSON, PETER BARTH ZAK and IAN NORMAN BONIFACE Applicants v. JOHANNES MARIA STRIK and DESLEY STRIK Respondents BRISBANE ..DATE 05/05/98 JUDGMENT -- 1 of 6 -- 050598 D.1 T7/TW12 M/T COA95/98 2 JUDGMENT McPHERSON JA: This is an application to extend the time for appealing and for leave to appeal against an order of a District Court made in an action No 1512 of 1996 in that Court at Brisbane on 12 September 1996. The relief claimed in the action, as it is proposed it will be when the statement of claim is amended as it is sought to do, may be shortly described as being for winding up and taking accounts of a partnership constituted, as it is alleged, by the three plaintiffs and the two defendants. The plaintiffs who are, or of whom one of them Mr Boniface, is the applicant now before us, initially succeeded in obtaining a judgment in that action in default of defence by the defendants. When the defendants applied to set that judgment aside, the plaintiff consented to that being done. However, the defendants also sought a further order, which was that the proceedings in the action be transferred to the Queensland Building Industry Tribunal. In the face of opposition from the plaintiff the proceedings were transferred to the tribunal. The order made on the date I have mentioned provides, or specifies that it be ordered by consent, that the judgment entered on 13 August 1996 be set aside; that the action be transferred to the Queensland Building Tribunal pursuant to s 97(1) of the applicable Act and that the respondents pay the applicant's costs of and incidental to the application to be taxed. It is essentially against that order, or rather those parts of it, that order the transfer of -- 2 of 6 -- 050598 D.1 T7/TW12 M/T COA95/98 3 JUDGMENT the action and the payment of costs that the plaintiffs now seek to appeal. Events since that date have proved their opposition to that order to have been justified. After a good deal of time had been spent and a large amount of costs wasted in the tribunal, the defendants themselves took the point that the tribunal had no jurisdiction to entertain the proceedings in the action. On 7 October 1997 the tribunal member delivered a decision together with written reasons in which he explained why the tribunal had no jurisdiction. On this application the correctness of that decision is not in dispute. Even counsel for the defendants, who originally contended to the contrary before the District Court Judge, now accepts that the position as it is set forth in the reasons of the tribunal member. The plaintiffs, or the plaintiff, Mr Boniface, complains that so long as the order of 12 September 1996 is allowed to stand, there is no Court or jurisdiction in which he can have his action No 1512 of 1996 determined. The defendants' only response to this is that he can institute another action of the same kind in the Supreme Court. That is to my mind as good as to say that the order for transfer that was made in September 1996 was wrong which also, in my opinion, it plainly was. The action, as it stands, may conceivably not be within the jurisdiction conferred by s 68(1)(b)(v) of the District Court Act 1967 because there is a possibility that the -- 3 of 6 -- 050598 D.1 T7/TW12 M/T COA95/98 4 JUDGMENT amount or rather the value of the partnership assets exceeds the monetary jurisdiction of the District Court. However, that may be, both parties are agreed that to avoid further jurisdictional wrangles of the kind we have seen, it would be preferable to have the action transferred into the Supreme Court. In all the circumstances, and because the plaintiffs are otherwise deprived of the right to have their action heard so long as the order dated 12 September 1996 stands, they ought, in my view, as a matter of justice, to be given leave to appeal against the order for transfer to the tribunal that was made on that date, together with any necessary extension of time within which to pursue that appeal. Furthermore, because it is clear that the defendants now accept that the order for transfer was wrong, as it turned out, and in my view ought never to have been made, there is plainly no point in bringing the matter back to this Court to enable the appeal to be heard on another day. The appeal should now be allowed. The order made on 12 September 1996 in the District Court should be set aside to the extent that it transfers the proceedings in the action before that Court to the Building Tribunal and orders that the plaintiff pay the costs of and incidental to that order. In lieu the defendants' application for that order should be dismissed with costs of -- 4 of 6 -- 050598 D.1 T7/TW12 M/T COA95/98 5 JUDGMENT and incidental to that application to be taxed and to be paid by the defendants. The defendants, who are the respondents in this Court, must also be ordered to pay the plaintiffs' costs of and incidental to this application and appeal. If those orders are made, there is no need to consider the question which was also raised by both side of security for the costs of the appeal. It will already have been disposed of. So far as the costs in the tribunal are concerned they appear to have been thrown away on the abortive proceedings in that body, or before that body. Having found that the tribunal had no jurisdiction the tribunal member also held that in consequence there is no jurisdiction to order costs against the defendants. I am not persuaded that that was so. The notion that a person who wrongly invokes a jurisdiction that does not exist is entitled to do so with impunity as to costs seems to me to be fallacious even if it is or may be a very old fallacy. However, that may be the order of the tribunal declining jurisdiction to award costs against the defendants before it, is not now before this Court in any shape or form and I do not consider that we can deal with it. I have considered whether those costs thrown away may not be costs incidental to the application or orders made in the District Court on 12 September 1996, but the decision in re Brandreth's Trademark ((1878) 9 ChD 618) appears to be opposed to -- 5 of 6 -- 050598 D.1 T7/TW12 M/T COA95/98 6 JUDGMENT that view. Our power in this Court to award costs of proceedings in the Court below is founded essentially on the power of that Court to order costs which in this instance derives from rule 363 of the District Court Rules. That rule speaks of "The costs of any action or proceedings", which in the context can only mean the costs of an action or proceeding in the District Court. The costs of the abortive proceedings in the Building Industry Tribunal are not a part of those costs. Putting that matter on one side it seems to me that the orders that should be made are those I have already specified together with an order pursuant to s 85 of the District Court Act that the action in that Court No 1512 of 1996 be that the action in that Court and all proceedings in that action be transferred into the Supreme Court for hearing and determination in that Court and that the costs, if any, of and incidental to that order for transfer be costs in the cause in the Supreme Court. There should, in my view, also be leave to the plaintiffs to amend their plaint in that action by delivering a statement of claim in such form as they may be advised. Those are the orders that I propose should be made. DERRINGTON J: I agree. WHITE J: I agree. McPHERSON JA: The orders will be as I have stated them. -- 6 of 6 --