Advanced Air Conditioning Pty Ltd v Katim Pty Ltd - [2004] QDC 180

DISTRICT COURT OF QUEENSLAND

CITATION:

Advanced Air Conditioning Pty Ltd v Katim Pty Ltd & Ors [2004] QDC 180

PARTIES:

ADVANCED AIR CONDITIONING PTY LTD (ACN 090 028 747)

Applicant

v

CHARLES AQUILINA

Respondent

FILE NO/S:

4845/2001

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

10 June 2004

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2004

JUDGE:

Shanahan DCJ

ORDER:

Conditionally allow the applicant to file an amended application

CATCHWORDS:

CONTEMPT OF COURT – Where there was an allegation that the respondent had committed contempt by disobeying a court order

DEFECTIVE APPLICATION – Where the proceedings in relation to the contempt were commenced by way of application – Where the application did not nominate the factual elements of the allegation or the correct statutory basis of the charge – Whether the application was a nullity – Whether the District Court had jurisdiction to cure the defect – Whether the applicant should be granted leave to amend the original application – Whether the proposed amendment was valid

Cases cited:

Cameron v Cole (1943) 63 CLR 571

Consolidated Press Ltd v McRae (1955) 93 CLR 325

Dow v Attorney General (1980) Qd R 58

Hafele (Aust) Pty Ltd v Maggbury Pty Ltd [2000] QCA 397

McGroarty v Clauson (1989) 167 CLR 251

R v Cook; ex parte Twigg (1980) 147 CLR 15

Stone v ACE-I.R.M. Insurance Broking Pty Ltd (2004) 1 Qd R 173

Statutes cited:

District Court Act 1967 (Qld): s 129

Trade Practices Act 1974 (Cth)

Uniform Civil Procedure Rules 1999 (Qld): rr 5, 371, 375, 377, 925, 926

COUNSEL:

Mr M Amerena for the applicant

Mr M Brady for the respondent

SOLICITORS:

McLaughlin Ivey for the applicant

Walters & Co for the respondent

This matter arises out of an application which calls for the punishment of the respondent, Charles Aquilina, for an alleged contempt of court.

The application, filed on 24 March 2004, reads in the relevant part:

“…the applicant is applying… for the following…:
1. That the [respondent] be punished for contempt of court pursuant to Rule 925 of the Uniform Civil Procedure Rules…”

This bare allegation of contempt is not then further particularised on the face of the application itself.

The matter came before me on 21 May 2004 for hearing. At that time the applicant sought leave to file an amended application which purported to particularise the alleged contempt pursuant to the requirements of r 926(1) Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). That rule states:

“926 Procedure under div 3
(1) A person applying for punishment of a contempt must file an application specifying the alleged contempt.”

The respondent objected to the amendment being filed on the basis that the original application amounted to a nullity and therefore could not be amended. The respondent also took issue with the proposed amendment because, in the respondent’s submission, it still failed to properly particularise the alleged contempt.

Although counsel for the respondent suggested that I should first hear evidence on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] QDC 180
Decision Date: 10 June 2004

CaseChat Overview and Summary

Advanced Air Conditioning Pty Ltd sought to bring contempt proceedings against Katim Pty Ltd for allegedly disobeying a court order. The original application was found to be defective as it failed to nominate the factual elements of the contempt or the correct statutory basis for the charge. The Court had to decide whether the application was a nullity and if it had jurisdiction to cure the defect. The Court also needed to determine if the applicant should be granted leave to amend the original application and if the proposed amendment was valid.

The Court found that the original application was a nullity as it did not provide the necessary details to enable Katim to respond to the allegations. However, the Court had jurisdiction to cure the defect as it was an inherent power. The Court also found that the applicant should be granted leave to amend the original application as the proposed amendment was valid and would enable Katim to respond to the allegations. The Court conditionally allowed the applicant to file an amended application.

The Court's decision was based on the principle that a court has inherent jurisdiction to cure procedural defects in an application. The Court also found that the proposed amendment was valid as it provided the necessary details to enable Katim to respond to the allegations. The Court's decision was in line with the case law on the inherent jurisdiction of courts to cure procedural defects. The Court also found that the applicant had acted reasonably in seeking to cure the defect in the original application.

Orders

Orders of the court

Conditionally allow the applicant to file an amended application

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Advanced Air Conditioning Pty Ltd v Katim Pty Ltd & Ors [2004] QDC 180
PARTIES:	ADVANCED AIR CONDITIONING PTY LTD (ACN 090 028 747) Applicant v CHARLES AQUILINA Respondent
FILE NO/S:	4845/2001
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	10 June 2004
DELIVERED AT:	Brisbane
HEARING DATE:	21 May 2004
JUDGE:	Shanahan DCJ
ORDER:	Conditionally allow the applicant to file an amended application
CATCHWORDS:	CONTEMPT OF COURT – Where there was an allegation that the respondent had committed contempt by disobeying a court order DEFECTIVE APPLICATION – Where the proceedings in relation to the contempt were commenced by way of application – Where the application did not nominate the factual elements of the allegation or the correct statutory basis of the charge – Whether the application was a nullity – Whether the District Court had jurisdiction to cure the defect – Whether the applicant should be granted leave to amend the original application – Whether the proposed amendment was valid *Cases cited:* Cameron v Cole (1943) 63 CLR 571 Consolidated Press Ltd v McRae (1955) 93 CLR 325 Dow v Attorney General (1980) Qd R 58 Hafele (Aust) Pty Ltd v Maggbury Pty Ltd [2000] QCA 397 McGroarty v Clauson (1989) 167 CLR 251 R v Cook; ex parte Twigg (1980) 147 CLR 15 Stone v ACE-I.R.M. Insurance Broking Pty Ltd (2004) 1 Qd R 173 *Statutes cited:* District Court Act 1967 (Qld): s 129 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 1999 (Qld): rr 5, 371, 375, 377, 925, 926
COUNSEL:	Mr M Amerena for the applicant Mr M Brady for the respondent
SOLICITORS:	McLaughlin Ivey for the applicant Walters & Co for the respondent