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 exercised (Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538).

[12]     Conversely, service not effected as provided by the rules of the court is irregular but not void.

[13] A defendant present within the geographical jurisdiction of the court, even temporarily, when, or after, the proceedings started, is subject to the special UCPR service procedures governing summary civil proceedings.

[14] The effect of UCPR r 111(1) and (2), is that a document required to be served personally, including a money claim (see UCPR r 8(2), r 105(1)), may be duly served by leaving it with an apparent adult living at the defendants address or last known place of residence (cf UCPR r 112(a), (3)).

The position of the first defendant

[15]     The originating court documents were left with Mr Hickey’s wife at 10 Cuba Court on the Sunshine Coast and later emailed to him in PNG.

[16]     Mr Hickey claims to reside in PNG and visit his family at Cuba Court, work commitments permitting, every couple of weeks or months.

[17]     He deposes to any profit sharing agreement with the plaintiff being made in PNG and denies the alleged contravention.

[18] I am satisfied that the Cuba Court address is a “relevant address” for Mr Hickey within the meaning of UCPR r 112(3)(b)(i) and that ordinary service was regularly effected.

[19]     Even if service was technically defective UCPR 117 applies to validate informal service via email on 16 December 2013 (Pino v Prosser (1967) VR 835; Johnsen v Duks (1963) NSW LR 730).

The second defendant

[20]     Mr Collins is an Australian citizen living in PNG. He denies any contract and says that PNG is the appropriate jurisdiction for resolving the dispute.

[21]     He deposes to receiving an email copy of the claim from the plaintiff’s lawyers on 29 December 2013.

[22] The rules permit service of originating process on a person outside Australia without leave in a proceeding relating to a contract with a Queensland resident or breached in the State (UCPR r 124(1)(g)(ii), (h)).

[23] Based on the allegations in the claim and the plaintiffs evidence on this application I am not satisfied that the second defendant has discharged the onus under UCPR r 126 of proving that service was not authorised under UCPR r 124.

[24] Again, despite the mode of service not strictly complying with UCPR r 112(1)(ii) the documents clearly came into Mr Collins’s possession and, in my view, a UCPR r 117 order is appropriate having regard to the summary nature of this court’s jurisdiction and the philosophy of the rules (UCPR r 5, r 117, r 371; s 4 Magistrates Courts Act 1921; Dowson v McGrath (1956) 58 WALR 27 at 32 per Dwyer CJ).

Should jurisdiction be declined?

[25]     A plaintiff has a prima facie right to an exercise of jurisdiction when it is regularly invoked, that is, the court has authority to decide the subject matter and service is validly effected (Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538).

[26]     However, there is discretionary power to decline jurisdiction over a foreign defendant served inside the jurisdiction or where the cause of action has foreign elements (Oceanic Sun Lines Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 232-237) but not merely on the basis of the forum non conveniens principle.

[27]     The court will only refuse to determine proceedings under the so called “clearly inappropriate forum” test formulated by the High Court in Voth at 557.

[28] Essentially, to set aside an originating process or stay a proceeding under UCPR r 16(f), (g) the court has to be satisfied that it would be “oppressive, vexatious or an abuse of process” not to do so (Voth at 554; Robinson v Studorp Ltd (2013) QSC 238 per Jackson J at [4]).

[29]     The availability and appropriateness of the foreign tribunal (eg. the court of PNG) is relevant but not decisive (Voth at 564-5), (Murakarmi v Wiryadi (2010) 268 ALR 377 at 406).

[30]     Nor is the fact that most of the witnesses would have to travel to Queensland from PNG to testify of overriding importance (Pertsh v PT John Holland Constructions Indonesia (2001) QSC 127).

[31]     An Australian court cannot be a clearly inappropriate forum simply because the choice of law rules require the application of foreign law (Regie Nationale Renault v Zahang (2002) 210 CLR 491 at 521).

Conclusion

[32]     The proper approach is to determine what order best meets the overall interests of all the parties and for the ends of justice (Henry v Henry (1996) 185 CLR 571 at 587; Placer (PNG) Pty Ltd v Anderson (1997) QCA 74; Bradley v Placements (PNG) Ltd [2014] QSC 16).

[33]     The defendants have both been validly served. The court has territorial and subject matter jurisdiction. The relevant connecting factors such as convenience, expense, witness availability and the governing law do not demonstrate that PNG is the natural or more appropriate forum with the most real and substantial nexus with the action (Voth at 564-5). A legal expert in PNG commercial law, Mr Molloy, is of the opinion that the applicable law is substantially the same in both countries. Competent Australian solicitors and counsel are briefed and there is no indication that the plaintiff has instituted the proceeding to unduly vex or oppress the defendants in the Voth sense.

[34]     Thus, there is no principled reason for the court to decline to exercise its power and authority to hear and determine the proceeding (cf Tuckerman v Neville [1992] 2 Qd R 657).

[35]     Both limbs of the application fail.

Orders

1. The application is refused.

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

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