Black on White Pty Ltd v Rose

[1996] QCA 291

IN THE COURT OF APPEAL	[1996] QCA 291
SUPREME COURT OF QUEENSLAND

Appeal No. 3098 of 1996

Brisbane
[Black on White Pty Ltd. v. Rose]

BETWEEN:

BLACK ON WHITE PTY LTD

Applicant

AND:

CHRISTY MAREE ROSE

Respondent

Fitzgerald P.
Shepherdson J.

Byrne J.

Judgment delivered 23/08/1996

Judgment of the Court.

APPLICATION DISMISSED WITH COSTS

CATCHWORDS:	Appeal and new trial - Right of appeal - Appeal from Magistrates Court to District Court - Whether right to appeal conferred by s.111 of the District Courts Act 1967 has been impliedly repealed by s.45 of the Magistrates Courts Act 1921 - Where amount sued for $1,450.
Appeal and New Trial - Appellate jurisdiction - Appeal from Magistrates Court to District Court - $1,450 claimed - Whether important principle of law or justice made out - Whether contract discharged by oral agreement.
Counsel:	Mr P.J. Favell for the applicant Mr P.T. White for the respondent
Solicitors:	Baker Johnson for the applicant Bennett Carroll for the respondent
Hearing Date:	22 April 1996

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3098 of 1996

Brisbane

Before Fitzgerald P.

Shepherdson J.

Byrne J.

[Black on White Pty Ltd v. Rose]

BETWEEN:

BLACK ON WHITE PTY LTD

Applicant

AND:

CHRISTY MAREE ROSE

Respondent

REASONS FOR JUDGMENT - JUDGMENT OF THE COURT

Judgment delivered : 23/8/96

This is an application under s.118(2) of the District Courts Act 1967 for leave to appeal against the decision of a judge of District Courts dismissing an application for leave to appeal against a judgment of the Brisbane Magistrates Court. The question of law or justice said to be involved is whether the right conferred by s.111 of the District Courts Act to appeal to a District Court from a Magistrates Court has been impliedly repealed by s.45 of the Magistrates Courts Act 1921.

The applicant conducts training courses as the Australian College of Nannies. The respondent enrolled in one of the courses but did not complete it. She did not pay all the tuition fees either. By plaint and summons issued out of the Brisbane Magistrates Court, the applicant sued her for $1,450, which was the amount of the balance of the agreed fees. The applicant did not elect to have the case determined as an action for a small debt.

At the trial, the respondent testified to a conversation with one of the applicant's staff during which it was agreed, in effect, that the respondent would withdraw from the course and would not be liable for any more fees. The evidence was uncontradicted, not shown to be implausible, and the Magistrate accepted it. He considered that the oral agreement was effective to release the parties from the future performance of their respective obligations under the contract: in the applicant's case, to provide the tuition; in the respondent's, to pay for it. He was also disposed to dismiss the case on the footing that no tuition contract had ever been concluded - an approach hard to reconcile with admissions in the respondent's defence. Judgment was given for the respondent with costs.

The applicant sought leave from the Brisbane District Court to appeal to that Court against the Magistrate's decision. The application for leave to appeal was founded on s.45(2) of the Magistrates Courts Act, which provides that a party dissatisfied with a judgment of a Magistrates Court in an action in which the amount involved is not more than $5,000 may appeal to a District Court "by leave of . . . a judge . . . who shall not grant such leave to appeal unless . . . satisfied that some important principle of law or justice is involved". Two matters were argued.

First, it was said that an important principle of law or justice inhered in the

erroneous finding that there was no such contract as the defence had admitted. reliance on the respondent's evidence concerning the discussion with the member of the applicant's staff because agreed written "terms and conditions of enrolment" stipulated that "no variation" to them "shall apply unless expressly agreed to by the college in writing". Of course, if there were no substance in the second contention, the respondent was entitled to the judgment which the Magistrate pronounced in her favour.

The absence of any reference to the "terms and conditions of enrolment" in a reply posed a substantial difficulty for the applicant's reliance on the "no variation" term. That pleading point aside, the term that no "variation" would be effective unless expressly agreed to in writing presented no obstacle to the respondent's defence. On the arrangement to which she testified, the tuition contract was prospectively discharged, not varied, which was enough to dispose of the critical issue against the applicant. The applicant's proposed appeal had no prospects of success, and the application might have been dismissed on that ground alone. In a reserved judgment, the judge held that the points sought to be agitated raised no important principle of law or justice and refused the application for leave accordingly. This was correct. As the case was fought at trial, it simply turned on the respondent's evidence. Its reliability was not to be, and could not successfully have been, challenged in the appeal.

Curiously, the applicant also argued that leave to appeal was not necessary. A right to appeal was said to have been accorded by s.111 of the District Courts Act 1967, which provides that:

"(1)	An appeal shall not lie from a Magistrates Court to the Supreme Court.
(2)	An appeal shall lie to a District Court in such cases and subject to the same conditions as such an appeal lay to the Supreme Court prior to the coming into operation of the District Courts Act 1958 and a District Court shall have the same powers, authorities and duties as the Supreme Court had in respect of any such appeal or application for leave to appeal".

Immediately prior to the coming into operation of the District Courts Act 1958, any party dissatisfied with a judgment of a Magistrates Court in an action in which the amount involved was $150 or more was entitled to appeal to the Supreme Court: see s.11(3) of the Magistrates Courts Act 1921 - 1954. Accordingly, s.111 of the District Courts Act envisages appeals to a District Court from judgments in Magistrates Courts actions in which the amount involved is $150 or more. Yet s.45(2) of the Magistrates Courts Act only allows such an appeal as of right when at least $5,000 is involved.

No appeal had actually been instituted, and so there was no need to consider whether such an appeal might have been competent. His Honour appreciated this but, hoping, as he said, that his opinion on competency might save time and money, gave reasons for his conclusion that s.111 of the District Courts Act cannot stand with s.45(2) of the Magistrates Courts Act and must be taken to be impliedly repealed. It is also unnecessary for this Court now to consider the interrelationship of s.111 of the District Courts Act and s.45 of the Magistrates Courts Act. However, this presently hypothetical point was fully argued, is not without general importance, and may as well be decided.

Apart from having suffered the common fate of relocation and renumbering,

District Courts Act
However, since 1967 there have been amendments to those provisions of the

s.111 of the has not changed since its introduction in 1967. in actions. By s.18 of the District Courts and Magistrates Courts Jurisdiction Act 1976, $300 was substituted for £75 as the amount beyond which an appeal could be taken without leave. This was increased to $600 (by s.7 of the District and Magistrates Courts and Property Law Act Amendment Act 1982); then to $2,400 (by s.22 of the District Courts Act and other Courts Act Amendment Act 1989); and, most recently, to $5,000 (by s.6 of the Magistrates Courts Jurisdiction Amendment Act 1993). The intent of these increases is obvious.

Section 45 of the Magistrates Courts Act and s.111 of the District Courts Act cover the same ground in respect of judgments and orders in actions in the Magistrates Court where the amount involved is not more than $150. Otherwise, plainly the sections operate inconsistently. One accords a right to appeal where $150 or more is involved; the other sets the threshold at $5,000. In these circumstances, the earlier provision - s.111 of the District Courts Act - is, by necessary implication, repealed to the extent of that inconsistency: cf Goodwin v. Phillips (1908) 7 C.L.R. 1, 7; Denning v. Ipswich City Council [1990] 1 Qd.R. 528, 531. As the primary judge held, without leave an appeal against the Magistrate's decision would have been incompetent.

This application must be dismissed with costs.