CAV Queensland Pty Ltd v Fitzgerald

[2011] QDC 104

DISTRICT COURT OF QUEENSLAND

CITATION:

CAV Queensland Pty Ltd v Fitzgerald [2011] QDC 104

PARTIES:

CAV QUEENSLAND PTY LTD
(Applicant)

AND

MARK ANDREW FITZGERALD
(Respondent)

FILE NO/S:

BD1175/11

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

10 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2011

JUDGE:

McGill DCJ

ORDER:

Order of 19 April 2011 set aside; application transferred to the Supreme Court.

CATCHWORDS:

INFERIOR COURTS – District Court - jurisdiction – effect of amendment to s 69 – no jurisdiction for application if only relief removal of caveat

District Court of Queensland Act 1967 s 69(1), s 85

Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192 – applied

COUNSEL:

D. Thomae for the applicant

The respondent appeared in person

SOLICITORS:

1. In this matter, an originating application was filed on 12 April 2011, simply seeking an order that a particular caveat be removed pursuant to section 127 of the Land Title Act 1994. The applicant also claimed costs and such further or other declarations, orders or relief as the Court thinks fit. There is nothing in that originating application which claimed any relief which is within the terms of s 68 of the District Court of Queensland Act 1967.

1. Section 69 of that Act gives the Court, “for the purposes of exercising the jurisdiction conferred by this part”, all the powers and authorities of the Supreme Court including a power conferred on the Supreme Court under an Act. That last provision was inserted expressly by amendment in late 2010. However, significantly, it was an amendment to section 69, not an amendment to section 68. Section 68 defines the basic jurisdiction of the District Court under the District Court of Queensland Act 1967.

1. There are some other Acts of the State Parliament, such as the Property Law Act, and of the Commonwealth Parliament, which confer jurisdiction on the District Court.  An example of the latter is the Proceeds of Crime Act.  However, so far as the District Court of Queensland Act 1967 is concerned, jurisdiction is conferred by s 68. That jurisdiction does not include the jurisdiction to order the removal of a caveat under the Land Title Act.  That Act simply provides for the power to remove a caveat on the part of the Supreme Court. 

1. If the jurisdiction of the District Court is properly enlivened by a proceeding seeking relief under s 68, and for the purposes of exercising that jurisdiction it is relevant and appropriate for the District Court to order that a caveat be removed, then there will be power to do that under s 69. However, that does not justify what might be described as a free-standing application for an order to remove a caveat.

1. All of this follows from the analysis of the position of the District Court by the Full Court in Startune Pty Ltd v. Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R. 192. That was concerned with the question of an injunction, but the situation applies in the same way in relation to an order to remove a caveat. Power to grant an injunction under s 69 is dealt with expressly in subsection (2)(b).

1. It follows that the originating application that was filed in this matter did not properly invoke the jurisdiction of the Court.  An order by an inferior Court made in a matter without jurisdiction is a nullity, and it follows that the order purportedly made by another Judge on 19 April 2011 in this Court was a nullity. 

1. This Court has, I believe, inherent jurisdiction to set aside a purported exercise of the Court's jurisdiction without authority in order to regularise the record of the Court, and that order being a nullity, it ought to be set aside. 

1. There is, however, a further reason why it ought to be set aside, and that is that the order was made in the absence of the respondent.  His Honour reserved leave for the respondent to apply to have the order set aside because it was made in his absence, and the respondent has applied by an application filed 3 May 2011 to set aside the order on the ground that it was made in his absence.  That is a further reason for setting aside the order, or at least potentially would be, subject to the merits of that application.  However, it is not necessary to consider the merits of that application because the order on 19 April should not have been made because of the want of jurisdiction. 

1. The appropriate course on that day, and indeed the appropriate course now, having set aside the order, is to follow the course dictated by s 85 of the District Court of Queensland Act 1967 and transfer the matter to the Supreme Court.

1. Section 85 does not indicate that this Court has jurisdiction in relation to costs in a matter which is transferred to the Supreme Court. I suspect that that is a matter for the Supreme Court Judge but, in any event, I will reserve the costs to the Supreme Court Judge.

1. So, the order of 19 April 2011 is set aside, and the originating application is transferred to the Supreme Court.