Carlson, Zak & Boniface v Strik & Strik

[1998] QCA 179

URT OF APPEAL	[1998] QCA 179
PHERSON JA RRINGTON J ITE J
peal No 2845 of 1998
VID ALLAN CARLSON, PETER BARTH ZAK
d IAN NORMAN BONIFACE	Applicants
HANNES MARIA STRIK and
SLEY STRIK	Respondents
ISBANE DATE 05/05/98
DGMENT

1

PHERSON JA: This is an application to extend the time for
pealing and for leave to appeal against an order of a
strict Court made in an action No 1512 of 1996 in that

urt at Brisbane on 12 September 1996.

e relief claimed in the action, as it is proposed it will

when the statement of claim is amended as it is sought to

, may be shortly described as being for winding up and
king accounts of a partnership constituted, as it is

leged, by the three plaintiffs and the two defendants.

e plaintiffs who are, or of whom one of them Mr Boniface,

the applicant now before us, initially succeeded in

taining a judgment in that action in default of defence by
e defendants. When the defendants applied to set that
dgment aside, the plaintiff consented to that being done.
owever, the defendants also sought a further order, which
s that the proceedings in the action be transferred to the

eensland Building Industry Tribunal.

the face of opposition from the plaintiff the proceedings

re transferred to the tribunal. The order made on the date

have mentioned provides, or specifies that it be ordered

consent, that the judgment entered on 13 August 1996 be

t aside; that the action be transferred to the Queensland
ilding Tribunal pursuant to s 97(1) of the applicable Act
d that the respondents pay the applicant's costs of and

cidental to the application to be taxed.

is essentially against that order, or rather those parts
it, that order the transfer of the action and the payment
costs that the plaintiffs now seek to appeal. Events

nce that date have proved their opposition to that order

have been justified.

ter a good deal of time had been spent and a large amount

costs wasted in the tribunal, the defendants themselves

ok the point that the tribunal had no jurisdiction to

tertain the proceedings in the action.

7 October 1997 the tribunal member delivered a decision

gether with written reasons in which he explained why the

ibunal had no jurisdiction.

this application the correctness of that decision is not

dispute. Even counsel for the defendants, who originally

ntended to the contrary before the District Court Judge,
w accepts that the position as it is set forth in the

asons of the tribunal member.

e plaintiffs, or the plaintiff, Mr Boniface, complains
at so long as the order of 12 September 1996 is allowed to
and, there is no Court or jurisdiction in which he can
ve his action No 1512 of 1996 determined. The defendants'
ly response to this is that he can institute another
tion of the same kind in the Supreme Court. That is to my
nd as good as to say that the order for transfer that was

de in September 1996 was wrong which also, in my opinion,

plainly was.

e action, as it stands, may conceivably not be within the
risdiction conferred by s 68(1)(b)(v) of the District
urt Act 1967 because there is a possibility that the
ount or rather the value of the partnership assets exceeds

e monetary jurisdiction of the District Court.

wever, that may be, both parties are agreed that to avoid
rther jurisdictional wrangles of the kind we have seen, it
uld be preferable to have the action transferred into the

preme Court.

all the circumstances, and because the plaintiffs are

herwise deprived of the right to have their action heard

long as the order dated 12 September 1996 stands, they

ght, in my view, as a matter of justice, to be given leave

appeal against the order for transfer to the tribunal

at was made on that date, together with any necessary

tension of time within which to pursue that appeal.

rthermore, because it is clear that the defendants now
cept that the order for transfer was wrong, as it turned
t, and in my view ought never to have been made, there is

ainly no point in bringing the matter back to this Court

enable the appeal to be heard on another day.

e appeal should now be allowed. The order made on 12
ptember 1996 in the District Court should be set aside to
e extent that it transfers the proceedings in the action
fore that Court to the Building Tribunal and orders that
e plaintiff pay the costs of and incidental to that order.

lieu the defendants' application for that order should be

smissed with costs of and incidental to that application

be taxed and to be paid by the defendants. The

fendants, who are the respondents in this Court, must also

ordered to pay the plaintiffs' costs of and incidental to

is application and appeal.

those orders are made, there is no need to consider the

estion which was also raised by both side of security for
e costs of the appeal. It will already have been disposed

.

far as the costs in the tribunal are concerned they

pear to have been thrown away on the abortive proceedings

that body, or before that body. Having found that the

ibunal had no jurisdiction the tribunal member also held
at in consequence there is no jurisdiction to order costs
ainst the defendants.

am not persuaded that that was so. The notion that a rson who wrongly invokes a jurisdiction that does not ist is entitled to do so with impunity as to costs seems

me to be

llacious even if it is or may be a very old fallacy.
wever, that may be the order of the tribunal declining
risdiction to award costs against the defendants before

, is not now before this Court in any shape or form and I

not consider that we can deal with it.

have considered whether those costs thrown away may not be
sts incidental to the application or orders made in the
strict Court on 12 September 1996, but the decision in re
andreth's Trademark ((1878) 9 ChD 618) appears to be
posed to that view. Our power in this Court to award
sts of proceedings in the Court below is founded

sentially on the power of that Court to order costs which

this instance derives from rule 363 of the District Court

les. That rule speaks of "The costs of any action or

oceedings", which in the context can only mean the costs

an action or proceeding in the District Court. The costs

the abortive proceedings in the Building Industry

ibunal are not a part of those costs.

tting that matter on one side it seems to me that the
ders that should be made are those I have already
ecified together with an order pursuant to s 85 of the
strict Court Act that the action in that Court No 1512 of
96 be that the action in that Court and all proceedings in
at action be transferred into the Supreme Court for

aring and determination in that Court and that the costs,

any, of and incidental to that order for transfer be

sts in the cause in the Supreme Court.

ere should, in my view, also be leave to the plaintiffs to

end their plaint in that action by delivering a statement

claim in such form as they may be advised.

ose are the orders that I propose should be made.
RRINGTON J: I agree.

ITE J: I agree.

PHERSON JA: The orders will be as I have stated them.

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