Cowton v Price Attack Franchising Pty Ltd

[1996] QCA 150

IN THE COURT OF APPEAL	[1996] QCA 150
SUPREME COURT OF QUEENSLAND

Appeal No. 2493 of 1996.

Brisbane

[Cowton v. Price Attack P/L & Anor.]

BETWEEN:

LEISA KAY COWTON

(Applicant)

AND:

PRICE ATTACK FRANCHISING PTY LTD

(First Respondent)

AND:

FINDHAM PTY LTD

(Second Respondent)

___________________________________________________________________

McPherson J.A.
Davies J.A.

Pincus J.A.

___________________________________________________________________

Judgment delivered 24/05/1996

Joint Reasons for Judgment of Pincus J.A. and Davies J.A.; separate concurring Reasons
for Judgment of McPherson J.A.

___________________________________________________________________

APPLICATION REFUSED WITH COSTS

___________________________________________________________________

CATCHWORDS: Consolidation of Magistrates Court and District Court
proceedings - time delay - definition of word "plaintiff" in s. 79
of District Courts Act 1967- ordinary meaning of word
"plaintiff".
District Courts Act 1967 ss. 79, 80, 82, 83 and 86.

Magistrates Courts Rules r. 9.

Deputy FCT v. Ellis & Clark Ltd (1934) 52 C.L.R. 85
Kerr v. Verran (1989) 88 A.L.R. 125

The Great Fingall Consolidated Ltd v. Sheehan (1905) 3 C.L.R. 177

Counsel:  Ms D A Skennar for the applicant.
Mr P Morrison QC for the first respondent.
Mr P J Dunning for the second respondent.

Solicitors: Trescott & Associates for the applicant.

Stokes and Panattiere for the first respondent. Hopgood & Ganim for the second respondent.

Hearing date:  20 May 1996.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2493 of 1996

Brisbane

Before McPherson J.A.
Davies J.A.
Pincus J.A.

[Cowton v. Price Attack Pty Ltd. & Findham Pty Ltd.]

BETWEEN

LEISA KAY COWTON Applicant

AND

PRICE ATTACK FRANCHISING PTY LTD First Respondent

AND

FINDHAM PTY LTD Second Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 24th day of May 1996

For the reasons given by Pincus and Davies JJ.A., I agree that the application

should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2493 of 1996.

Brisbane

Before McPherson J.A.
Davies J.A.
Pincus J.A.

[Cowton v. Price Attack P/L & Anor.]

BETWEEN:

LEISA KAY COWTON

(Applicant)

AND:

PRICE ATTACK FRANCHISING PTY LTD

(First Respondent)

AND:

FINDHAM PTY LTD

(Second Respondent)

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND DAVIES J.A.

Judgment delivered 24/05/1996

This is an application for leave to appeal against an order made by a District Court

judge in Chambers. The applicant, Ms Cowton, has been sued in the District Court by

Price Attack Franchising Pty Ltd and in the Magistrates Court by Findham Pty Ltd. On the

evidence there is likely to be some factual connection between the issues in one case and

those in the other. The applicant applied to the District Court to have the Magistrates Court

proceedings transferred to the District Court and to have the two suits consolidated. The

District Court judge rejected the applications, principally for the reason that the

proceedings were of long-standing; those in the Magistrates Court were begun in April 1993 and those in the District Court in the same month. The judge also mentioned that in

each action the applicant had filed a defence and counter-claim in April 1993. His Honour

referred to the facts that for nearly three years the applicant had suffered a situation to

persist in which she was fighting on two fronts, that the actions were getting close to trial

and that it was desirable that litigants be bound to the way in which they conduct

proceedings.

The applicant says that there is an important legal point involved in the case. The

judge held that the word "plaintiff" in s. 79 of the District Courts Act ("the Act") excludes a

defendant with a counter-claim; it is said that the judge was wrong in taking that view.

Section 79 of the Act allows the District Court to transfer a Magistrates Court action

to itself at the instance of the plaintiff and s. 80 allows that to be done at the instance of the

defendant. The judge would not order a transfer under s. 80 because he held that there

was no important question of law or fact likely to arise, that being a condition of exercise

of the power under s. 80; that conclusion is not challenged. The applicant relies solely on

the proposition that she is the plaintiff in the Magistrates Court for the purposes of s.79(1)

of the District Courts Act which reads:

"Where there is now or hereafter pending in a Magistrates Court an action, the plaintiff may at any time apply to a District Court or a judge thereof for an order to transfer the action to a District Court on the ground that there is reasonable ground for supposing that the relief or remedy sought (which would be available if the action were transferred to the District Court) is not available in the Magistrates Court. ".

Counsel for the applicant, in her admirably succinct argument, did not suggest that the word "plaintiff" ordinarily includes a counter-claiming defendant, but relied on the proposition that s. 79 of the District Courts Act should be construed having regard to r. 9

of the Magistrates Court rules. That defines "plaintiff" to include a person who sets up a

counter-claim. We were referred to no authority for the proposition that subordinate

legislation made under one Act may properly be used to construe the meaning of words

in another Act; no doubt, however, circumstances might arise in which that would seem to

be the proper course; we refer to Deputy F.C.T. v. Ellis & Clark Ltd (1934) 52 C.L.R. 85

at 89, Kerr v. Verran (1989) 88 A.L.R. 125 - cf. The Great Fingall Consolidated Ltd v.

Sheehan (1905) 3 C.L.R. 177 at 184. But here we can see no reason for proceeding on

the basis that the legislature intended terms used in this statute, referring to the Magistrates

Court, to be taken to have, not their ordinary meaning, but a special meaning derived from

the Magistrates Court Rules.

It is argued for the respondents that, so far from supporting the applicant’s

interpretation, the statutory context rather goes against it. The respondents point out that

s. 80 of the District Courts Act permits transfer at the instance of a defendant, subject to

a criterion which differs from that applicable to a plaintiff. It is argued that the two

provisions form part of a code in Div. 4 of the Act dealing comprehensively with the subject

matter, the former having to do with transfer at the instance of plaintiffs and the latter

transfer at the instance of defendants. If the applicant’s contention is right then a counter-

claiming defendant may take advantage of either provision - of s. 79 as a plaintiff or s. 80

as a defendant to obtain an order for transfer of an action. The respondents point out, also,

that the applicant’s method of construction could not apply to ss. 82 and 83. We note that

in s. 86 the term "defendant" is applied to a counter-claiming defendant.

It seems to us improbable that the meaning the applicant contends for was

intended. Absent any special definition or context, the word "plaintiff" ordinarily means the

person who institutes a suit and that meaning should be applied here. It follows that the

order made below were, in our view, correct.

Two other points should be mentioned. One is that at the conclusion of the hearing

the Court informed counsel for the parties that it might take the course of deciding the legal

point raised, to avoid the necessity of a further hearing, and invited further submissions;

none were made. The second is that the respondents raised the question whether or not

the judge was right in proceeding, as he did, on the assumption that s. 79(2) of the Act

uses the word "shall" as meaning "may"; it is unnecessary to discuss that, in view of our

conclusion on the meaning of "plaintiff".

The application must be dismissed with costs.