MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Mackay Taxi Holdings Ltd v Lowe [2019] QMC 7
PARTIES:
Mackay Taxi Holdings Limited
v
Lowe & Lowe
FILE NO/S:
Mackay Civil No M 14/19
DIVISION:
Magistrates Courts
PROCEEDING:
Application to stay or strike out action in detinue
ORIGINATING COURT:
Magistrates Court, Mackay
DELIVERED ON:
21 June 2019
DELIVERED AT:
Mackay
HEARING DATE:
19 February 2019
MAGISTRATE:
Acting Magistrate J M Aberdeen
ORDER:
Application dismissed
CATCHWORDS:
DETINUE – remedies available in the Magistrates Court – claim and pleading for “delivery up” of chattels – whether beyond jurisdiction as involving an equitable remedy.
ARBITRATION – application for stay of action pending arbitration – burden and standard of proof on applicant to bring matter within section 8 of the Commercial Arbitration Act 2013 – “dispute or difference” - onus of proof not discharged.
SOLICITORS:
For Plaintiff/Respondent: Mr G Smart (S R Wallace & Wallace)
For Defendant/Applicant: Mr R Bakker (R B Lawyers)
REGISTRY: Mackay
NUMBER: M 14/19
Plaintiff: MACKAY TAXI HOLDINGS LIMITED ACN 009 946 329
AND
First Defendant: CHRISTOPHER GORDON LOWE
AND
Second Defendant: ANNETTE JUNE LOWE
DECISION
The Defendants have applied for the following orders: (i) that the Plaintiff’s action be struck out for want of jurisdiction; or (ii) that the Plaintiff’s action be stayed.
Background:
At all relevant times, the Plaintiff conducted a taxi despatch service. The Defendants operated a taxi service pursuant to Licence Number 20385.
On 25 January 2011, the Plaintiff and the Defendants entered into a written Operator’s Contract (the Agreement) under which the Plaintiff (the Service Provider) agreed to provide a taxi despatch service to the Defendants (the Operator).
A copy of the Agreement has been annexed as “A” to the affidavit of the First Defendant[1].
[1] Filed 5 February 2019. The Agreement, in Clause 1.2, refers to a Schedule to the Agreement detailing equipment to be provided by the Plaintiff to the Defendants for use in operating their taxi service. This Schedule has not been produced in evidence. A further provision of the Agreement refers to By-Laws approved by the Service Provider (the Plaintiff) and provided to the Defendants. These By-Laws, whatever they may contain, have not been produced into evidence. The affidavit of the First Defendant, and the affidavit of Mr Gerard Lucas, on behalf of the Plaintiff, constitute the only evidence proffered to the Court upon this application.
Clause 2.1 of the Agreement provides for the commencement and termination of the Agreement in the following terms –
“Subject to any rights of early termination contained in Clause 7.1, this Agreement shall commence on the First day of February Two Thousand and Eleven and continue in force during any period the Service Provider [Plaintiff] holds a Service Contract [with the State Government] or until such other date as the parties may agree.”
In or about 2017, the State Government commenced a legislative and administrative overhaul of the Queensland taxi industry. As part of that overhaul, the concept of a “Service Contract”, referred to in Clause 2.1, became redundant.…
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- Case
- [2019] QMC 7
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Magistrates Court had jurisdiction to hear the claim for the return of the equipment, which was considered an action for detinue, and whether such a claim could be brought in the Magistrates Court as it potentially involved an equitable remedy. Additionally, the court had to decide whether the arbitration clause in the contract between the parties was enforceable and whether the proceedings should be stayed pending arbitration.
The court held that the Magistrates Court did have jurisdiction to hear the claim for the return of the equipment, as it was a claim for detinue which, while involving equitable principles, could still be heard in the Magistrates Court. Regarding the arbitration clause, the court found that the burden and standard of proof to bring the matter within section 8 of the Commercial Arbitration Act 2013 had not been discharged by the Defendants. The Defendants had not demonstrated that a dispute or difference had arisen between the parties that was covered by the arbitration clause. Consequently, the court dismissed the application for a stay of proceedings pending arbitration.
The court dismissed the application for a stay of the proceedings pending arbitration and ordered that the application be dismissed. The matter was to proceed in the Magistrates Court for the determination of the claim for the return of the equipment.
Orders
Orders of the court
Application dismissed
Background
Background to the litigation
Full text does not contain this section.
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
Section 8 of the Commercial Arbitration Act 2013 provides –“Arbitration agreement and substantive claim before court (cf Model Law Art 8)(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party’s first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.(2) Where an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.” The Defendants have submitted that clause 10.1 imposes a mandatory requirement to mediate a dispute prior to the commencement of litigation[34]. They allege that the parties were in a relationship pursuant to the Agreement, and that the arbitration agreement contained within clause 10.1 brings within its scope issues such as the disposition of the Plaintiff’s equipment following termination[35].[34] Defendants’ written submissions at [3].[35] Ibid at [4]. They submit that the issuing of proceedings based on the Agreement is in itself a breach of the Agreement; and that their invitation to the Plaintiff to participate in mediation, as the first step towards resolution of their dispute, was rejected by the Plaintiff. Thus, it is contended, the way was cleared for arbitration[36].[36] Ibid at [5]. The Defendants contend that, under the circumstances, a referral to arbitration is mandatory[37].[37] Ibid at [6] and [8]. Further, the Defendants contend that, as they have not been given the opportunity to attempt to resolve the dispute under clause 10.1, the Plaintiff’s action is incompetent, and should be struck out. In his oral submissions, Mr Bakker, for the defendants, stressed the existence of the Agreement, and the commercial necessity that parties to a contract needed to have “certainty of dealing”[38]. Commenting upon the Plaintiff’s contention that the contract in question (the Agreement) was at an end (a proposition with which the Defendants did not agree[39]) Mr Bakker submitted that the proceedings instituted by the Plaintiff should not have been issued, were in contravention of clause 10.1, and should be stayed.[38] Transcript 1-5 [10] & [21].[39] Ibid at [19]. The Plaintiff submits that the evidence of Mr Lucas, of the Plaintiff, makes it clear that the Plaintiff has not held a “service contract” with the State Government since October 2017[40]. [40] Affidavit of Gerard Michael LUCAS filed 18/02/19 at [5]. Thereafter, “provision of the taxi dispatch service past that date has been, in essence, by a mutual agreement to continue the contract past October 2017”.[41] This relationship arose via the conduct of the parties, and there was no specific discussion between the parties as to the extension of the term.[42] The relationship between the parties continued, essentially, “at will”.[43][41] Letter Plaintiff to Defendants of 18/12/19, third paragraph.[42] Plaintiff’s written submissions at [16][43] Ibid at [24].