American Express International Inc v Hewitt

[1992] QCA 107

IN THE COURT OF APPEAL	[1992] QCA 107
SUPREME COURT OF QUEENSLAND	Appeal No. 61 of 1992
BETWEEN:

CYRUS LENNOX SIMSON HEWITT

(First Defendant) Applicant

AND:

AMERICAN EXPRESS INTERNATIONAL INC.

(Plaintiff) Respondent

AND:

QINTEX LIMITED (IN LIQUIDATION)

(Second Defendant)

JUDGMENT

Delivered the 23rd day of April 1992

This is an application for leave to appeal to this Court from an interlocutory order made by her Honour Judge McMurdo in the District Court on 19 March 1992 dismissing an application by the applicant:

1.    that an action instituted by the respondent against the applicant be struck out for want of prosecution; or in the alternative

1A. that it be stayed on the ground that the District Court

was an inappropriate forum.

The notice of motion in this Court also sought amendment of paragraph 1 of the summons filed in the District Court to add, in the alternative to the claim that the action be struck out for want of prosecution, a claim that it be stayed. That application was not pursued before me but Mr Dorney Q.C., counsel for the applicant, told me that it would be pursued on appeal if leave were granted.

The action was in substance for moneys due upon a credit card called an American Express Corporate Card. The action was originally instituted only against the applicant. However, the respondent brought an application, also returnable before her Honour, to join Qintex Limited (In Liquidation) ("Qintex") as a defendant. Her Honour recorded that "The parties agreed that submissions on both applications would be heard at the same time leaving it for me to determine which, if any, applications I would grant."

In the event, her Honour determined the respondent's application first and ordered that Qintex be joined as a defendant. She then proceeded to determine the applicant's application.

The arguments on both sides were based on r. 9 of The District Courts Rules, 1968 and s. 11 of the Service and Execution of Process Act 1901 (Cth). It is not clear whether there was any argument based on r. 59 of The District Courts Rules, 1968 but the respondent did not rely on it before me. The applicant did not argue that any basis for leave arose out of her Honour's decision upon paragraph 1A.

The applicant contended before me that her Honour was wrong in dismissing his application because, assuming that the respondent relied only on s. 11(1)(b) of the Service and Execution of Process Act, 1901 (Cth) it had not proved that the contract sued on was made or entered into within Queensland. He did not argue before me that, as against the defendant, Qintex, the action was not properly constituted pursuant to r. 9(a).

Paragraph 1 of the application before her Honour was misconceived in form. It should have been for a stay: see Flaherty v. Girgis (1987) 162 C.L.R. 574 at 583-7. However, it is not suggested that that affected her Honour's decision; that she would not have allowed an application to amend to seek a stay if she had decided the substantive question in the applicant's favour. Nor is it relevant before me except to explain the application to amend paragraph 1 of the summons.

Leave to appeal may be granted only if "some important question of law or justice is involved": The District Courts Act of 1967, s. 92(2). Mr Dorney Q.C., although formally contending that some important question of law was involved, quite properly accepted that he had difficulty in making that argument good; and he was unable to identify any important question of law involved in her Honour's decision.

His alternative argument, upon which he mainly relied, was that there was an important question of justice involved. That question, he said, was that a person should not be subjected to the jurisdiction of a court unless, in effect, the jurisdiction of that court is sufficiently proved. Stated in such general terms, the argument amounts to an assertion that every contest to jurisdiction under s. 11 (or r. 59) involves an important question of justice. The fallacy of such an assertion is obvious on its face. No doubt recognising this, Mr Dorney Q.C. argued that her Honour's decision on this question was clearly wrong and that that had the consequence that in this case an important question of justice was involved.

No doubt the likely correctness of the decision, leave to appeal from which is sought, is a relevant factor on an application for leave, at least in the sense that such an application is unlikely to be granted if the decision below is plainly right. No doubt also, at least generally, the greater the likelihood that the decision is wrong the greater is the injustice caused to the unsuccessful party.

But when s. 92(2) speaks of an important question of justice, it is not speaking merely of the injustice which a party will generally suffer when a decision is made against that party which appears to be wrong. It is speaking of a question which goes beyond the correctness or otherwise of the decision. That is why Mr Dorney Q.C. was obliged at the outset to put his argument in such a general way. Merely demonstrating that a decision is arguably or even probably wrong does not establish that an important question of justice is involved.

Mr Dorney Q.C. also took me through the arguments advanced in paragraph 32 of Mr Robinson's first affidavit. It is fair to say that he advanced these only as secondary arguments, his primary one being that with which I have already dealt. And it is sufficient to say that there is, as I indicated during the course of argument, no important question of law or justice involved in any of them.

The application therefore must be refused with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 61 of 1992
In the Court of Appeal Mr. Justice Davies
BETWEEN:

CYRUS LENNOX SIMSON HEWITT

(First Defendant) Applicant

AND:

AMERICAN EXPRESS INTERNATIONAL INC.

(Plaintiff) Respondent

AND:

QINTEX LIMITED (IN LIQUIDATION)

(Second Defendant)

JUDGMENT

Delivered the 23rd day of April 1992

MINUTE OF ORDER:	Application refused with costs
CATCHWORDS:	INFERIOR COURTS - DISTRICT COURT - APPEAL TO SUPREME COURT - Application for leave to appeal from dismissal of application to strike out or stay by District Court Judge - whether "some important question of law or justice is involved" - whether injustice generally suffered by losing party suffices
Service & Execution of Process Act 1901 (Cth) s.11; District Courts Act 1967 s. 92(2); District Court Rules r. 9
Counsel:	K. Dorney Q.C. with him P. Baker for the Applicant K.C. Fleming Q.C. with him R. Traves for the Respondent
Solicitors:	Robinson Hoskin for the Applicant Flower & Hart for the Respondent
Hearing date(s):	16 April 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 61 of 1992
BETWEEN:

CYRUS LENNOX SIMSON HEWITT

(First Defendant) Applicant

AND:

AMERICAN EXPRESS INTERNATIONAL INC.

(Plaintiff) Respondent

AND:

QINTEX LIMITED (IN LIQUIDATION)

(Second Defendant)

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DAVIES JA
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Judgment delivered on the 23rd day of April 1992
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"APPLICATION REFUSED WITH COSTS"
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