Cummins v. Thomas - [2009] QDC 201

[2009] QDC 201

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1028 of 2009

MARY ELIZABETH CUMMINS Plaintiff

and

RHYS HENRY THOMAS Defendant

BRISBANE

..DATE 23/06/2009

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 16(a), r 35, r 123 - unsuccessful application by defendant for declaration that claim had not been properly started "for want of jurisdiction" - court of view that its jurisdiction was clear, that the real question was whether the appropriate forum was as selected by the plaintiff or a Western Australian court as the defendant contended - plaintiff had insufficient opportunity to present evidence about this.

HIS HONOUR: The Court makes the following orders on the defendant's application filed on the 2nd of June 2009:

Refuse the relief sought in paragraph 1 of the application;

Direct that a defence be filed and served within 14 days together with any further affidavit material;

Adjourn the application in respect of paragraphs 2 and 3 and, in particular, in respect of issues under the Service and Execution of Process Act, to a date to be fixed;

Direct that the plaintiff file and serve her affidavit material in response within 14 days of receipt of the defendant's material;

The application may be brought on by seven days' written notice by either party;

The defendant must pay the plaintiff's costs of today's hearing, to be assessed.

Those orders are made by way of resolving the defendant's assertion for purposes of rule 16(a) of the UCPR that the originating process has not, for want of jurisdiction, been properly started in this Court. The filing of that application follows the filing of a conditional notice of intention to defend on the 21st of May 2009.

The plaintiff's claim is one for contribution against her fellow guarantor of the obligations of a company called Kimberley Sea Planes Pty Ltd pursuant to a hire purchase agreement with CBFC Limited. That agreement related to a houseboat named the Barra Shack which is said to be located and used in Broome, Western Australia. It refers to the Brisbane address of CBFC Limited and a Western Australian address of the hirer company. The guarantors give post office box addresses in Western Australia. The agreement was probably entered into in that State on the basis of the identifying details of the witness, which are stamped in a couple of places.

The defendant resides in Western Australia, indeed, in Broome, and the plaintiff on the Gold Coast. Proceedings resulting in the winding-up of the hirer appear to have been instigated by her in the Supreme Court of Queensland, and financial matters appear to have been resolved with CBFC Limited in Queensland when it made demand for the sum in excess of $300,000 which it contended was owing. The plaintiff has paid that and now seeks contribution.

The proceeding for the moment is about money only, and specifically, who should pay what amounts of the total. Given that one protagonist resides in Queensland and the other in Western Australia, there's going to…

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: [2009] QDC 201
Decision Date: 23 June 2009

CaseChat Overview and Summary

In the District Court of Queensland, Mary Elizabeth Cummins sought to bring a claim against Rhys Henry Thomas for contribution relating to the obligations of a company called Kimberley Sea Planes Pty Ltd under a hire purchase agreement. The defendant, Rhys Henry Thomas, sought to have the claim dismissed on the basis that the Court lacked jurisdiction, or alternatively, that the appropriate forum for the claim was a Western Australian court. The matter proceeded on the basis of an unsuccessful application by the defendant to have the claim dismissed.

The Court was required to determine whether it had jurisdiction to hear the matter and, if so, whether the appropriate forum for the dispute was the District Court of Queensland or a Western Australian court. The Court found that it had jurisdiction to hear the matter and that the real issue was whether the appropriate forum was as selected by the plaintiff or a Western Australian court. The Court noted that the plaintiff had insufficient opportunity to present evidence about this issue, and the matter would advance to the pleading stage before this issue could be ventilated in the court.

The Court refused the relief sought by the defendant in paragraph 1 of the application, which was a declaration that the claim had not been properly started "for want of jurisdiction". The Court directed that a defence be filed and served within 14 days, together with any further affidavit material. The Court also directed that the plaintiff file and serve her affidavit material in response within 14 days of receipt of the defendant's material. The application in respect of paragraphs 2 and 3 and, in particular, in respect of issues under the Service and Execution of Process Act, was adjourned to a date to be fixed. The defendant must pay the plaintiff's costs of the hearing, to be assessed.

Orders