Cowton, Re [1996] QCA 150 [1997] 1 Qd R 239

IN THE COURT OF APPEAL [1996] QCA 150 SUPREME COURT OF QUEENSLAND Appeal No. 2493 of 1996. Brisbane [Cowton v. Price Attack P/L & Anor.] BETWEEN: LEISA KAY COWTON (Applicant) AND: PRICE ATTACK FRANCHISING PTY LTD (First Respondent) AND: FINDHAM PTY LTD (Second Respondent) ___________________________________________________________________ McPherson J.A. Davies J.A. Pincus J.A. ___________________________________________________________________ Judgment delivered 24/05/1996 Joint Reasons for Judgment of Pincus J.A. and Davies J.A.; separate concurring Reasons for Judgment of McPherson J.A. ___________________________________________________________________ APPLICATION REFUSED WITH COSTS ___________________________________________________________________ CATCHWORDS: Consolidation of Magistrates Court and District Court proceedings - time delay - definition of word "plaintiff" in s. 79 of District Courts Act 1967- ordinary meaning of word "plaintiff". District Courts Act 1967 ss. 79, 80, 82, 83 and 86. Magistrates Courts Rules r. 9. Deputy FCT v. Ellis & Clark Ltd (1934) 52 C.L.R. 85 Kerr v. Verran (1989) 88 A.L.R. 125 The Great Fingall Consolidated Ltd v. Sheehan (1905) 3 C.L.R. 177 Counsel: Ms D A Skennar for the applicant. Mr P Morrison QC for the first respondent. Mr P J Dunning for the second respondent. -- 1 of 7 -- Solicitors: Trescott & Associates for the applicant. Stokes and Panattiere for the first respondent. Hopgood & Ganim for the second respondent. Hearing date: 20 May 1996. -- 2 of 7 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 2493 of 1996 Brisbane Before McPherson J.A. Davies J.A. Pincus J.A. [Cowton v. Price Attack Pty Ltd. & Findham Pty Ltd.] BETWEEN LEISA KAY COWTON Applicant AND PRICE ATTACK FRANCHISING PTY LTD First Respondent AND FINDHAM PTY LTD Second Respondent REASONS FOR JUDGMENT - McPHERSON J.A. Judgment delivered the 24th day of May 1996 For the reasons given by Pincus and Davies JJ.A., I agree that the application should be dismissed with costs. -- 3 of 7 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 2493 of 1996. Brisbane Before McPherson J.A. Davies J.A. Pincus J.A. [Cowton v. Price Attack P/L & Anor.] BETWEEN: LEISA KAY COWTON (Applicant) AND: PRICE ATTACK FRANCHISING PTY LTD (First Respondent) AND: FINDHAM PTY LTD (Second Respondent) JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND DAVIES J.A. Judgment delivered 24/05/1996 This is an application for leave to appeal against an order made by a District Court judge in Chambers. The applicant, Ms Cowton, has been sued in the District Court by Price Attack Franchising Pty Ltd and in the Magistrates Court by Findham Pty Ltd. On the evidence there is likely to be some factual connection between the issues in one case and those in the other. The applicant applied to the District Court to have the Magistrates Court proceedings transferred to the District Court and to have the two suits consolidated. The District Court judge rejected the applications, principally for the reason that the proceedings were of long-standing; those in the Magistrates Court were begun in April -- 4 of 7 -- 3 1993 and those in the District Court in the same month. The judge also mentioned that in each action the applicant had filed a defence and counter-claim in April 1993. His Honour referred to the facts that for nearly three years the applicant had suffered a situation to persist in which she was fighting on two fronts, that the actions were getting close to trial and that it was desirable that litigants be bound to the way in which they conduct proceedings. The applicant says that there is an important legal point involved in the case. The judge held that the word "plaintiff" in s. 79 of the District Courts Act ("the Act") excludes a defendant with a counter-claim; it is said that the judge was wrong in taking that view. Section 79 of the Act allows the District Court to transfer a Magistrates Court action to itself at the instance of the plaintiff and s. 80 allows that to be done at the instance of the defendant. The judge would not order a transfer under s. 80 because he held that there was no important question of law or fact likely to arise, that being a condition of exercise of the power under s. 80; that conclusion is not challenged. The applicant relies solely on the proposition that she is the plaintiff in the Magistrates Court for the purposes of s.79(1) of the District Courts Act which reads: "Where there is now or hereafter pending in a Magistrates Court an action, the plaintiff may at any time apply to a District Court or a judge thereof for an order to transfer the action to a District Court on the ground that there is reasonable ground for supposing that the relief or remedy sought (which would be available if the action were transferred to the District Court) is not available in the Magistrates Court. ". Counsel for the applicant, in her admirably succinct argument, did not suggest that the word "plaintiff" ordinarily includes a counter-claiming defendant, but relied on the -- 5 of 7 -- 4 proposition that s. 79 of the District Courts Act should be construed having regard to r. 9 of the Magistrates Court rules. That defines "plaintiff" to include a person who sets up a counter-claim. We were referred to no authority for the proposition that subordinate legislation made under one Act may properly be used to construe the meaning of words in another Act; no doubt, however, circumstances might arise in which that would seem to be the proper course; we refer to Deputy F.C.T. v. Ellis & Clark Ltd (1934) 52 C.L.R. 85 at 89, Kerr v. Verran (1989) 88 A.L.R. 125 - cf. The Great Fingall Consolidated Ltd v. Sheehan (1905) 3 C.L.R. 177 at 184. But here we can see no reason for proceeding on the basis that the legislature intended terms used in this statute, referring to the Magistrates Court, to be taken to have, not their ordinary meaning, but a special meaning derived from the Magistrates Court Rules. It is argued for the respondents that, so far from supporting the applicant’s interpretation, the statutory context rather goes against it. The respondents point out that s. 80 of the District Courts Act permits transfer at the instance of a defendant, subject to a criterion which differs from that applicable to a plaintiff. It is argued that the two provisions form part of a code in Div. 4 of the Act dealing comprehensively with the subject matter, the former having to do with transfer at the instance of plaintiffs and the latter transfer at the instance of defendants. If the applicant’s contention is right then a counter- claiming defendant may take advantage of either provision - of s. 79 as a plaintiff or s. 80 as a defendant to obtain an order for transfer of an action. The respondents point out, also, that the applicant’s method of construction could not apply to ss. 82 and 83. We note that in s. 86 the term "defendant" is applied to a counter-claiming defendant. -- 6 of 7 -- 5 It seems to us improbable that the meaning the applicant contends for was intended. Absent any special definition or context, the word "plaintiff" ordinarily means the person who institutes a suit and that meaning should be applied here. It follows that the order made below were, in our view, correct. Two other points should be mentioned. One is that at the conclusion of the hearing the Court informed counsel for the parties that it might take the course of deciding the legal point raised, to avoid the necessity of a further hearing, and invited further submissions; none were made. The second is that the respondents raised the question whether or not the judge was right in proceeding, as he did, on the assumption that s. 79(2) of the Act uses the word "shall" as meaning "may"; it is unnecessary to discuss that, in view of our conclusion on the meaning of "plaintiff". The application must be dismissed with costs. -- 7 of 7 --