Allgas Energy Limited v Lynch
[2001] QDC 272
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Allgas Energy Limited v Lynch[2001] QDC 272
- Add to List
Allgas Energy Limited v Lynch[2001] QDC 272
Allgas Energy Limited v Lynch[2001] QDC 272
DISTRICT COURT | No D3396 of 2000 |
APPELLATE JURISDICTION
JUDGE BOTTING
ALLGAS ENERGY LIMITED | Appellant |
and
JOHN FRANK LYNCH and CHERYL GWENETH LYNCH | Respondent |
BRISBANE
DATE 03/05/2001
JUDGMENT
HIS HONOUR: This is an application made at the commencement of an appeal, that appeal being from a decision of the learned Magistrate sitting at the Magistrates Court at Holland Park. An application was before his Worship essentially putting in issue the jurisdiction of that Court to determine the substantive matters raised by the pleadings.
His Worship concluded that his Court did not have jurisdiction and stayed the proceedings, permanently, I presume.
The plaintiff now appeals against that decision and the preliminary issue has been raised as to whether or not the appellant should be permitted to rely upon additional evidence which is contained within an affidavit of Mr Peter Huggett sworn 28 December last year and filed in this Court on 11 January this year.
I have had an interesting discussion with counsel as to whether this might be said to be an appeal from a final judgment of the Magistrates Court. That issue arises because Rule 766 provides that:
“The Appeal Court may on special grounds receive further evidence as to questions of fact either orally in Court, by affidavit, or any other way.”
That rule is qualified by subrule (2) which provides that:
“Further evidence may be given without special leave unless the appeal is from a final judgment.”
I have been referred to the decision of the Court of Appeal in Kitto v. Medalion Homes, a decision of the Court of Appeal handed down on 20 July last year, and I have also had reference to Hall v. The Nominal Defendant (1966) 117 Commonwealth Law Reports 423, and Carr v. Finance Corporation of Australia Limited (1981) 147 Commonwealth Law Reports 246. I must confess that for myself, it would seem to me that the present appeal is indeed one from a final judgment of the Magistrates Court, but I am prepared to assume for the time being in the appellant's favour that that is not the case and, hence, that special grounds need not be shown for the reception of fresh evidence.
It is clear, however, and properly conceded by counsel for the appellant that nonetheless it is a matter of leave as to whether or not he might place the additional evidence before the Court.
Counsel for the respondent has referred me to the speech of Lord Bridge in Langdale v. Danby (1982) 3 All England Reports, particularly at page 138 where his Lordship referred to the speech of Lord Hodgson in an earlier case in which he said:
“In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given it would probably have an important influence on the result of the case although it need not be decisive; and, third, the evidence must be such as is presumably to be believed or in other words it must be apparently credible though it need not be incontrovertible.”
His Lordship, Lord Bridge, then went on to say in his speech:
“In the situation arising on an appeal to the Court of Appeal from a summary judgment, the applications of these conditions and perhaps the conditions themselves will require some modification. It may well be that the standard of diligence required of a defendant preparing his case in opposition to a summons for summary judgment, especially if under pressure of time, will not be so high as that required when preparing for trial. The second and third conditions will no doubt be satisfied if the further evidence tendered is sufficient according to the ordinary principles applied on applications for summary judgment to raise a triable issue, but I can see no injustice at all in requiring a defendant to use such diligence as is reasonable in the circumstances to put before the Judge on hearing of the summons albeit in summary form or the evidence he relies on in defence whereas it would be a great injustice to the plaintiff to allow the defendant to introduce for the first time on appeal evidence which was readily available at the hearing of the summons but was not produced.”
So far as the traditional test propounded in the first part of that quotation, it is clear that the additional material sought to be put before me must fail that test. It cannot be realistically suggested that the material now sought to be put before me could not have been put before his Worship.
I take the speech of Lord Bridge to be suggesting that that Rule need not be applied in its full rigour in respect of matters other than applications for new trials or reception of fresh evidence after final judgment in a trial.
As his Lordship suggests, the Rule can be qualified if what is being appealed against is a decision on a summary judgment application.
So, it seems to me that in the present case it is not necessary for the granting of leave that I be persuaded that the evidence could not have been put before the learned Magistrate. Nonetheless, it simply comes down to this, as it seems to me, that the material now sought to be put and now thought to be pertinent was not put before his Worship. There is no explanation before me as to why that was not done. Indeed, really, there is nothing to explain the present application other than, presumably, the appellant's legal advisers think it desirable that the additional material be before me.
In those circumstances, I think I should decline to give leave to read the additional material. I have been referred to Rule 787(b) which provides that:
“Unless a Judge otherwise orders, the Court must rely on the transcript and exhibits at first instance.”
Although a literal construction of that might suggest a further impediment in the appellant's way, I really do not think that Rule is intended to deal with this particular situation. In any event, as I say, I refuse leave to read the additional material.
...
HIS HONOUR: This is an appeal from a decision of the Magistrate sitting at Holland Park in which he stayed proceedings essentially on the basis that they were not shown to have been commenced within the proper district. Indeed, his decision essentially was that the plaintiff, on the material before him, could not have commenced the proceedings in Queensland.
The plaintiff sued the defendants who were directors of a company against which the plaintiff had obtained judgment in the Holland Park Magistrates Court. At the time that the company entered into its contractual obligations with the plaintiff, the defendants did likewise guaranteeing the debts of the company. The documents, the guarantee and the contract, were in the one group of documents.
It appears to be common ground that at all relevant times the defendants have been resident in New South Wales, that the company conducted its business and was incorporated in New South Wales, that the documents pertinent to these proceedings were executed in New South Wales and that the goods giving rise to the creation of the debt were also supplied by the plaintiff to the company in New South Wales.
In these circumstances, the application of course fell to be determined by the provisions of rule 35 which provides mandatory terms that proceedings must be commenced in one of the five districts which are listed. It is interesting to observe that paragraph (d) of sub-rule (1) now reads:
“If a defendant has agreed or undertaken in writing to pay a debt or another amount at a particular place, the district in which the place is located.”
Whilst there is certainly here a writing witnessing an obligation to pay, the obligation to pay at a particular place is not stated in the writing and hence paragraph (d) has no application.
The only basis, it seems to me, and I think this is now common ground, upon which it might have been found that the Holland Park Magistrates Court had jurisdiction, was an application of paragraph (e) of sub-rule 1 of rule 35. That paragraph provides that an action may be commenced in the district in which all or part of the plan or cause of action arose.
As I perceive it and certainly as his Worship perceived it there was really nothing in the material before him to suggest that payment would be made in the Holland Park Magistrates Court other than the fact, as I understand it, that the plaintiff has its registered office in that jurisdiction. As counsel for the appellant conceded, in my view, quite properly his case can only succeed if there is a presumption of law that in a case such as this the place of payment will be deemed to be the residence, or at least the principal office, of the plaintiff.
He has referred me to Penisi v. Hogan, a decision of the Full Court from the mid-1930s.
It can be found in 1937 St.R.Qd. page 425. The principal judgment was given by Mr Justice E A Douglas with whom Mr Justice Webb, as he then was, agreed.
Perhaps I should observe that the then Senior Puisne Judge, Mr Justice Macrossan, said that he could not expressly disagree with the judgment but he said entertained, as he said, some grave doubts as to peripatetic jurisdiction.
In any event, E.A. Douglas Justice and Webb Justice can be taken as having concurred in the following, and I quote from page 430:
“There is, however, an implied promise to pay the plaintiff where he resides which is at Tully. The debtor is bound to go to the creditor and pay where the creditor is. Non-payment of the debt to the plaintiff at Tully is a matter which the plaintiff would be required to prove. It is therefore a part of the cause of action.”
And it was expressly so decided in Morley Stone Company v. Gibney. That case, it seems to me, is authority for the proposition that a debtor must seek out his creditor and pay him at the place of his residence or at least of his business.
As I said, that decision dates from the 1930s and perhaps might be said to have stood for a long time. However, it seems to me that in a number of recent cases what might at one time have thought to have been a presumption of law almost has been significantly, as it were, watered down.
In Chalet Holdings Pty Ltd v. Griffith Co-operative Society Ltd (1983) Victorian Reports 760, Mr Justice Beach looked at this issue. At page 766 he said:
In my opinion, the correct principle applicable in a situation such as this is that stated by Dean Justice in the decision to which I have just referred - that is, that the place of payment depends upon the place which in the absence of express provision in the contract should be held from all the circumstances the parties should be taken as implying, intending. To suppose that a debtor in the State of New South Wales should be excused from performing his contractual obligations to pay his creditor because his creditor is resident in the State of Victoria and therefore beyond the jurisdiction of the State of New South Wales without having regard to the circumstances giving rise to the creation of the debt and modern business practice whereby moneys are transmitted from State to State and country to country with little or no inconvenience to a debtor would be to completely ignore the realities of life in the commercial world as we know it today. Whilst in 1628 it may well have been perilous for a debtor to carry a bag of coin beyond the walls of the city in search of his creditor and thus reasonably to excuse him from so doing, it could hardly be contended that there is anything perilous involved in a debtor carrying on business in one State of Australia and posting to his creditor's residence in another State. However, the real point in the case is this: where should it be held that the parties impliedly intended payments of rentals to be made.”
That statement was adopted by President Fitzgerald and Justice Williams in Connell v. Rothwells Ltd, decided in 1993 and reported in 119 Australian Law Reports 538. Their Honours in that case said at page 544:
“These matters were all referred to in the context of submissions which may be accepted as correct for present purposes that the questions as to, one, the proper law of the contract, and, two, the place where payment was required or permitted to be made were both dependent on the parties' intention. The former question was to be decided by reference to the terms of the deed provided that any express choice was bona fide made and the circumstances surrounding its execution. Similarly, the latter question was one involving the interpretation of the deed in the context of any material surrounding circumstances.”
And their Honours there referred to Chalet. In a decision given the preceding year, the Full Court which included Mr Justice McPherson, Senior Puisne Judge as he then was, touched upon the same issue. That case is Tuckerman v. Neville reported in 1992 2 Queensland Reports 657.
The Senior Puisne Judge said this and I quote from page 665.
“Equally, I do not consider that Brisbane was the district in which by the defendant's written promise of compensation dated 10 September 1989 a sum of money was made payable. In Penisi v Hogan, E.A. Douglas considered that a provision in the form of Rule 9C required that payment within the relevant district be expressly promised or engaged for. Assuming that something less than express promise may suffice, the defendant's promise of compensation does not, even by implication or inference, identify Brisbane as the place for payment. On the contrary, its terms in the surrounding circumstances in which it was given all point in the direction of Papua New Guinea as the place for payment. It was there that the agreement was made. It related to the compensation for loss of employment in Papua New Guinea under a contract made in that country and the sum promised is expressed to be payable in the currency of that nation. In a case like this in which the promise to pay was made a broad, a plaintiff claiming to be a creditor gains no assistance from any rule that a debtor is bound to seek out his creditor in order to pay him.”
In the same case, Mr Justice Derrington said, and I quote from pages 672 and 673:
“Equally, there was no engagement in writing to pay in the Brisbane district. The promise in writing is silent upon the point. In all the circumstances including the nomination of the currency in which the amount was to be paid imply the contrary. The respondent sought refuge in the proposition that the debtor was obliged to pursue his creditor, and the appellant knew that the respondent would be in the Brisbane district at the time of the last date for payment. However, a debtor is not required to pursue his creditor out of the jurisdiction. (See the review of the authorities in Chalet). Further, the requirement of Rule 9 as to jurisdiction is this: that not only must there be writing which evidence is a promise to pay but it must also state the place within the jurisdiction where it is payable. If the writing does not include the latter feature, it does not avail the plaintiff. The defendant must seek him out to pay him within the jurisdiction.”
Chalet Holdings again is referred to. His Honour there would seem to be suggesting that the rule as they now exist would not allow an argument to be advanced under subrule (e) if there is a written document put but which does not provide for the place of payment.
As I have said, it seems to me that in this case if jurisdiction was to be shown in the Holland Park Magistrates Court, the only basis for so doing is the provisions of paragraph (e) of subrule (1) of Rule 35.
It seems to me that in the present state of our law that one must have, as was said by Mr Justice Beach - the real issue to be decided is where should it be held that the parties impliedly intended the payments to be made, and it seems to me that this then becomes a matter of evidence of all the circumstances surrounding the making of the contract.
It seems to me that his Worship, if I may say so, in a careful judgment carefully analysed the law and, in my respectful view, did so correctly. In my view, he then looked appropriately at the evidence and was not satisfied that it had been shown that the agreement between the parties was that moneys should be paid in the Holland Park District.
It seems to me that my responsibility is also to look at the evidence and I have come to the same conclusion.
It seems to me that, as it were, everything about this contract smacks of New South Wales other than the mere fact that the plaintiff has his registered office in Brisbane although there is material in the affidavit from one of the defendants suggesting that the person with whom he negotiated, so far as the plaintiff was concerned, came from an office apparently conducted by the plaintiff in Toowoomba.
In any event, it seems to me that his Worship was entitled to hold as he did, and I see no reason to differ from that. I should emphasis that bearing in mind what I perceive to be the nature of the appeal, I have of course considered the evidence before his Worship which was comprised of a number of affidavits which have been read before me today.
It seems to me that, therefore, the appeal should be dismissed. I do not need to consider whether or not leave for the institution of the appeal would have been necessary in those circumstances.
...
HIS HONOUR: The appeal is dismissed with costs.