Courtney v Chalfen - [2020] QSC 195

SUPREME COURT OF QUEENSLAND

CITATION:

Courtney v Chalfen [2020] QSC 195

PARTIES:

SIMON CHRISTOPHER COURTNEY

(applicant)

v
ELEANOR SOPHIE CHALFEN

(respondent)

FILE NO/S:

BS No 2178 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

26 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

24 April 2020

JUDGE:

Williams J

ORDER:

1.     The proceeding be permanently stayed.

2.     No order as to costs.

3.     Liberty to apply in respect of costs.

CATCHWORDS:

PRIVATE INTERNATIONAL LAW – SERVICE OUT OF JURISDICTION – UNDER OTHER LEGISLATION AND RULES OF COURT – PROCEDURE – LEAVE TO ISSUE AND SERVICE PROCESS AND SETTING ASIDE ORDER FOR LEAVE – GENERALLY – where the defendant served an originating process outside the jurisdiction – where the defendant did not apply for leave of the Court to serve the originating process but relied on r 125 Uniform Civil Procedure Rules 1999 (Qld) – whether leave of the Court was required under r 126 Uniform Civil Procedure Rules 1999 (Qld) – whether leave would have been granted had the application been made

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY – where the applicant applied for the proceedings to be stayed under r 127 Uniform Civil Procedure Rules 1999 (Qld) - where the service of the originating process was not authorised by the rules – whether the Court should exercise its discretion to assume jurisdiction

Uniform Civil Procedure Rules 1999 (Qld), r 16, r 124, r 125, r 126, r 127, r 128, r 129, r 129A, r 129B, r 129C, r 129D, r 129E, r 129F, r 129G, r 129H, r 371

Agar v Hyde (2000) 201 CLR 552, cited
Bendigo and Adelaide Bank Ltd v Quine [2018] VSC 272, cited
Borch & Others v Answer Products Inc & Ors [2000] QSC 379, distinguished
City of Swan v McGraw-Hill Companies Inc [2014] FCA 44, cited
Michael Wilson & Partner Ltd v Emmott [2019] NSWSC 218, cited
News Corporation Limited v Lenfest Communications Inc (1996) 21 ACSR 553, cited
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, cited
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, cited

Yearworth v North Bristol NHS Trust [2010] QB 1, cited

COUNSEL:

N Ferrett QC for the applicant/defendant

SOLICITORS:

HopgoodGanim Lawyers for the applicant/defendant

Self-represented respondent/plaintiff

This is an application by the defendant for the following orders:
(a)An order pursuant to r 16(f) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) or r 127 of the UCPR, setting aside service of the claim and statement of claim.
(b)Alternatively an order, pursuant to r 16(g) of the UCPR or r 127 of the UCPR, or pursuant to the inherent jurisdiction of the Court, permanently staying the proceeding.
(c)Costs.
(d)Such further or other orders as the Court deems fit.
The application was heard on 24 April 2020 with the parties making oral submissions by telephone in addition…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QSC 195
Decision Date: 26 June 2020

CaseChat Overview and Summary

In the case of Courtney v Chalfen, the plaintiff, Mr Courtney, sought to serve a statement of claim on the defendant, Ms Chalfen, who resided in the Cayman Islands. The dispute centred around whether the defendant could be served with the originating process outside of the jurisdiction, and if so, whether leave of the Court was required under the Uniform Civil Procedure Rules 1999 (Qld). Additionally, the Court had to determine whether the proceedings should be stayed or dismissed if the service was not properly authorised.

The central legal issues revolved around the interpretation and application of the relevant rules under the Uniform Civil Procedure Rules 1999 (Qld). The primary questions were whether the claim fell within the scope of rule 125, which would allow service without leave, or if rule 126 required leave to be obtained. If leave was necessary and not obtained, the Court had to decide whether it would have granted leave had an application been made. Moreover, the Court had to consider whether, in the absence of proper service, the proceedings should be stayed or dismissed under rule 127 or the inherent jurisdiction of the Court.

The Court determined that the service of the originating process on the defendant in the Cayman Islands was not authorised by the rules, as it did not fall within rule 125 and no application for leave had been made under rule 126. The Court concluded that had an application for leave been made, it would likely have been granted due to the connection between the claim and the defendant’s residence in the Cayman Islands. Nevertheless, given the unauthorised service, the Court exercised its discretion to permanently stay the proceedings, rather than dismissing them outright. This decision allowed for the possibility of future costs applications to be made by the parties.

The Court's final orders were that the proceedings be permanently stayed, with no order as to costs but liberty reserved for the parties to apply regarding costs. This outcome balanced the need for procedural fairness with the Court’s jurisdiction and the procedural requirements under the Uniform Civil Procedure Rules.

Orders

Orders of the court

1. The proceeding be permanently stayed.

2. No order as to costs.

3. Liberty to apply in respect of costs.

Background

Background to the litigation

The issues in dispute are:(a)Is the claim within r 125 UCPR so that the claim and statement of claim was authorised to be served on the defendant in the Cayman Islands without the leave of the Court?(b)If not, would leave have been granted pursuant to r 126 UCPR to serve the claim and statement of claim on the defendant in the Cayman Islands?(c)In any event, should the claim be dismissed, stayed or service set aside pursuant to r 127 UCPR or the inherent jurisdiction of the Court? Background facts The plaintiff, Mr Courtney, is an Australian who previously resided in the Cayman Islands, returning to Australia in May 2018. The plaintiff is a lawyer and was admitted as a solicitor in Queensland in 1999. The defendant, Ms Chalfen, is a resident of Grand Cayman in the Cayman Islands. The plaintiff and the defendant were married in July 2014 but are in the process of being divorced. In November 2016 the defendant informed the plaintiff that the “marriage was over” but did not file for divorce until February 2017.[1][1]First Chalfen affidavit at [12], [13]. The plaintiff and the defendant had lived in the defendant’s apartment since before they were married and the plaintiff had stored some of his property in the guest bedroom.[2][2]First Chalfen affidavit at [16]. In January 2015 the plaintiff was involved in a serious car accident which severely injured two people. The plaintiff was convicted in the Grand Court of the Cayman Islands on two counts of inflicting grievous bodily harm and one count of reckless driving. On 7 July 2016 the plaintiff received a three year custodial sentence.[3][3]First Chalfen affidavit at [14], [15]. In or about August 2016 certain of the plaintiff’s property was removed from the defendant’s apartment and placed in a rented storage unit. The rental on the storage unit was paid for by the defendant’s mother.[4] [4]First Chalfen affidavit at [17]. On 10 December 2019, the plaintiff commenced proceedings in the Magistrates Court. The claim was effectively the same as the current Supreme Court claim[5] except it did not include the claim for interlocutory relief. The plaintiff sought to serve the claim and statement of claim by email on the defendant’s Cayman Islands divorce lawyers but service was not accepted as they did not have instructions.[6][5]The claim was for liquidated damages and the wording was different but included a claim for conversion and breach of a bailment condition. See exhibit “ESC-01” of first Chalfen affidavit at 52.[6]First Courtney affidavit at [38] to [40] and exhibit “SCC-12” of first Courtney affidavit at 29. On 27 February 2020 the plaintiff commenced the current proceedings in the Supreme Court of Queensland. On 27 February 2020 the defendant was personally served with the Supreme Court claim and statement of claim by a process server at her home address in the Cayman Islands.[7][7]First Chalfen affidavit at [3]-[4]. See also affidavit of service of Sheldon Williams sworn 28 February 2020 and filed 24 March 2020.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Courtney v Chalfen [2020] QSC 195
PARTIES:	SIMON CHRISTOPHER COURTNEY (applicant) v ELEANOR SOPHIE CHALFEN (respondent)
FILE NO/S:	BS No 2178 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	26 June 2020
DELIVERED AT:	Brisbane
HEARING DATE:	24 April 2020
JUDGE:	Williams J
ORDER:	1. The proceeding be permanently stayed. 2. No order as to costs. 3. Liberty to apply in respect of costs.
CATCHWORDS:	PRIVATE INTERNATIONAL LAW – SERVICE OUT OF JURISDICTION – UNDER OTHER LEGISLATION AND RULES OF COURT – PROCEDURE – LEAVE TO ISSUE AND SERVICE PROCESS AND SETTING ASIDE ORDER FOR LEAVE – GENERALLY – where the defendant served an originating process outside the jurisdiction – where the defendant did not apply for leave of the Court to serve the originating process but relied on r 125 Uniform Civil Procedure Rules 1999 (Qld) – whether leave of the Court was required under r 126 Uniform Civil Procedure Rules 1999 (Qld) – whether leave would have been granted had the application been made PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY – where the applicant applied for the proceedings to be stayed under r 127 Uniform Civil Procedure Rules 1999 (Qld) - where the service of the originating process was not authorised by the rules – whether the Court should exercise its discretion to assume jurisdiction Uniform Civil Procedure Rules 1999 (Qld), r 16, r 124, r 125, r 126, r 127, r 128, r 129, r 129A, r 129B, r 129C, r 129D, r 129E, r 129F, r 129G, r 129H, r 371 Agar v Hyde (2000) 201 CLR 552, cited Bendigo and Adelaide Bank Ltd v Quine [2018] VSC 272, cited Borch & Others v Answer Products Inc & Ors [2000] QSC 379, distinguished City of Swan v McGraw-Hill Companies Inc [2014] FCA 44, cited Michael Wilson & Partner Ltd v Emmott [2019] NSWSC 218, cited News Corporation Limited v Lenfest Communications Inc (1996) 21 ACSR 553, cited Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, cited Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, cited Yearworth v North Bristol NHS Trust [2010] QB 1, cited
COUNSEL:	N Ferrett QC for the applicant/defendant
SOLICITORS:	HopgoodGanim Lawyers for the applicant/defendant Self-represented respondent/plaintiff