Bender v Hickey

[2014] QMC 10

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Bender v Hickey and Anor [2014] QMC 10

PARTIES:

DANIEL FRANCIS JUSTIN BENDER

(Plaintiff/Respondent)

v

PETER ANTHONY HICKEY
(Defendant/Applicant)

and

JAMES DOWSE COLLINS

(Defendant/Applicant)

FILE NO/S:

M12956/13

DIVISION:

Magistrates Courts

PROCEEDING:

Claim - Application pursuant to Rule 16 of the Uniform Civil Procedure Rules 1999 (Qld), that the proceedings be set aside, for want of jurisdiction or procedural irregularity.

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

14 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2014

MAGISTRATE:

The Honourable Judge Carmody QC

ORDER:

1.   The application is refused.

2.   Service of the claim is to be taken to have been effected on each defendant on the day it came into their respective possession.

3.   The applicant defendants are to pay the plaintiffs cost of the application to be assessed on the standard basis.

CATCHWORDS:

MAGISTRATE COURTS PRACTICE AND PROCEDURE – JURISDICTION – PROCESS SERVICE RULES – whether Brisbane Magistrates Court is an inappropriate forum despite valid service where foreign law rules to be applied

COUNSEL:

D Quayle for the plaintiff/respondent

P Lambert for the defendants/applicants

SOLICITORS:

Reichman Lawyers for the plaintiff/respondent

Broadley Rees Hogan Lawyers for the defendants/applicants

The application

[1]     The applicant defendants seek orders setting aside the claim (Uniform Civil Procedure Rules 1999 (UCPR) r 16(e)) or, alternatively, its service on either or both of them (rr 16(f), 126).

[2]     The application is based on alleged procedural irregularity or lack of jurisdiction.

The context

[3]     The application cannot properly be understood without a statement of the pleaded case.

[4]     The plaintiff, Mr Bender, lives on the Gold Coast in Queensland. He set up a logistics business (PCS) in Papua New Guinea (PNG) with the two defendants, Mr Hickey and Mr Collins, in 2011.

[5]     The defendants later agreed to buy the plaintiff’s share of PCS for PNG K500 000 payable in two instalments. The first payment was made in the first week of May 2013. However, the plaintiff claims the balance was not paid into his Australian bank account as agreed.

[6]     Liability for the debt is denied.

Setting aside originating process

[7]     A proceeding brought by a plaintiff in a Magistrates Court lacking jurisdiction to hear and determine it is liable to be struck out with costs (s12 Magistrates Courts Act 1921 (Q)).

[8]     This claim was filed in the Brisbane on 6 December 2013. The defendants filed a conditional notice of intention to defend disputing jurisdiction (UCPR 144).

[9] As Brisbane is a central registry of the court neither the pre-conditions for geographical jurisdiction in UCPR r 35 nor the change of venue provisions of UCPR r 38 apply (cf s 39 Acts Interpretation Act 1954 (Q)).

[10]     An action can be maintained in Queensland against a party susceptible to service either within or outside the State.

[11]     Thus valid service on a defendant is sufficient to establish jurisdiction (Laurie v Carroll (1958) 98 CLR 310) but is not necessarily determinative of whether it will be…