Labaj v Bevan[2003] QDC 233

DISTRICT COURT OF QUEENSLAND

REASONS FOR JUDGMENT

1. [1]
   This is an appeal by John Labaj against a decision of a stipendiary magistrate at Townsville on 25 November 2002.

2. [2]
   The appellant had filed in the Magistrates Court at Townsville an originating application dated 30 October 2002. The dispute concerned a bundle of legal and personal documents said to be the property of the appellant which were in the possession of the respondent, Peter C Bevan, a solicitor. The application sought an order from the Magistrates Court that Mr Bevan return the bundle of documents to the plaintiff along with any damages caused by the delay in their return. The affidavit of the appellant filed in support of the application on 30 October 2002 made no mention of damages but sought the return of the documents. According to the applicant’s affidavit he had offered to pay the solicitor’s account but had been told that the account was not prepared. The solicitor had indicated that when the account was prepared and paid he would release the documents.

3. [3]
   In response to the application the respondent filed an affidavit on 14 November 2002 in which he deposed to submitting a letter to the applicant with a tax invoice dated 31 October 2002 indicating that upon payment of the tax invoice he would release the documents to him as his lien would no longer be applicable. He goes on to depose to the fact that as at the date of the affidavit the tax invoice had not been paid.

4. [4]
   Despite the abovementioned views which seemed to signal a likely resolution of the matter, the matter came on for hearing before the stipendiary magistrate on 25 November 2002.  The material filed by the parties related to issues concerning the solicitor’s lien over the documents.  Neither adverted to the question of jurisdiction.

5. [5]
   When the matter came on for hearing the stipendiary magistrate indicated to the applicant that the Magistrates Court had no power to make orders such as those requested. There is no transcript of what occurred. According to the applicant’s outline of submissions the magistrate made some enquiries concerning the existence of a solicitor’s lien but proceeded to dismiss the application stating again that the applicant did not have the right to apply for such an order and that as the applicant had brought the respondent to court unnecessarily the applicant should pay the respondent’s costs in the sum of $180.00.

6. [6]
   The orders of the magistrate are set out in a handwritten documents over the signature of the magistrate which is in the following terms:

“APLC-25.11.02 at 9.00 am

Mr Labaj’s submission.

I have no jurisdiction.  I can make no order for delivery of the plaintiff’s property – he should proceed to the District Court – Supreme Court for his order.

David Glasgow

Magistrate

I dismiss the plaintiff’s claim.

The defendant seeks costs of defending the claim at $250.

I order the plaintiff pay the defendant’s costs at !80.  Costs to be paid within 28 days from today.

David Glasgow

Magistrate.”

7. [7]
   The appellant submits before me in his Outline of Arguments filed 26 February 2003 that the magistrate had full jurisdiction in the matter. He refers to s 4 of the Magistrates Court and s 4A relating to Consent jurisdiction. His submissions in respect of these two provisions are plainly wrong. The magistrate was fully correct in saying that he did not have the statutory power to make such an order. There was no question of Consent jurisdiction in the circumstances. However, the appellant goes on to refer to s 5A of the Act relating to proceedings started in a wrong court. This section is in the following terms:

“5A Proceeding started in wrong court

1. (1)
   This section applies if a Magistrates Court considers the court does not have jurisdiction to hear and decide a proceeding started in the court.
2. (2)
   If the Magistrates Court considers the District Court has jurisdiction to hear the proceeding, the Magistrates Court may, by order, transfer the proceeding to the District Court.
3. (3)
   If subsection (2) does not apply and the Magistrates Court considers the Supreme Court has jurisdiction to hear the proceeding, the Magistrates Court may, by order, transfer the proceeding to the Supreme Court.
4. (4)
   If the Magistrates Court considers that the party who started the proceeding knew, or should have known, that the court did not have jurisdiction to hear the proceeding, the court may strike out the proceeding and order the party who started the proceeding to pay the costs of the other party to the proceeding.
5. (5)
   If the Magistrates Court does not have jurisdiction and the matter may not be transferred under subsection (2) or (3) or struck out under subsection (4), the court-

1. (a)
   must strike out the proceeding; and
2. (b)
   may order the party who started the proceeding to pay the costs of the other party to the proceeding.
3. (c)
   In this section “proceeding” includes appeal.”

8. [8]
   In his document described “Book of Appeal” the applicant makes reference to a number of judicial statements concerning principles of natural justice along with submissions concerning the relationship between a solicitor and his client. Unfortunately for the applicant these matters of general principle do not bear upon the issue of a magistrate’s jurisdiction which is derived from the abovementioned statute. However, it seems to me that there is merit in the appellant’s submissions relating to s 5A of the Act. The ordinary rule for the construction of statutes containing the word “may” is that “may” prima facie conveys that the authority which has power to do such an Act has an option either to do it or not to do it.  However there are situations where the word “may” is not used to confer a discretion but to provide a power, the exercise of which arises upon the proof of the particular case out of which such power arises.

9. [9]
   The distinction is succinctly expressed by Cullen CJ in Massy v Council of the Municipality of Yass (1922) 22 SR NSW 494 at 497, 498:

“The ordinary rule for the construction of Statutes containing the word “may” or the word “shall” I think is very well expressed in Halsbury, vol. 27, p.170.  A great deal of light was thrown on controversies of this kind by the case of Julius v. Bishop of Oxford (5  A.C.) and the case of Smith v. Watson (4 C.L.R. 802).  I shall read the passage in Halsbury:  “A distinction is commonly drawn between mandatory and directory Statutes, and it is said of the former that they must be fulfilled exactly, but the latter substantially only.  Upon the principle that the ordinary sense of enacting words is primarily to be adhered to, provisions which appear on the face of them to be imperative cannot, without strong reason, be held to be directory; nor are those which are susceptible of a permissive meaning to be construed in the first instance as imperative.  A duty however may exist outside and apart from the enacting words, whereby those on whom a faculty or power is conferred by the Statute are under an obligation to exercise it.  The expressions ‘shall’ and ‘may’ ‘shall be empowered’  ‘it shall be lawful for,’ and ‘may’ simply, have for this reason, though primarily permissive, been in certain circumstances treated as mandatory.”

10. [10]
    Section 5A of the Act would appear in ss (2) and (3) to afford a discretion to transfer proceedings to either the District Court or the Supreme Court. Ss (4) provides for a particular circumstance in which a party had started proceedings in bad faith. This was quite obviously not the situation in the present instance where the applicant was a lay person and where neither the applicant nor the respondent would seem to have adverted to the question of jurisdiction prior to the hearing.

11. [11]
    Ss (5) then provides for the striking out of the proceedings which an order for costs in circumstances where the Magistrates Court does not have jurisdiction and the matter may not be transferred under sub-section (2) or (3) or struck out under sub-section (4)… .  This section is not applicable to the present case either.

12. [12]
    Ss (5) is somewhat supportive of the view that in the absence of the special circumstances referred to in ss (4) and on the magistrate being satisfied that the matter was able to be transferred to either the Supreme or District Courts the appellant was entitled to such transfer.  It is apparent in the present case from the magistrate’s endorsement that such a transfer was available in the opinion of the magistrate.

13. [13]
    I uphold the magistrate’s holding that he had no jurisdiction in the matter. I order that the appeal be allowed to the extent that the proceedings in the Magistrates Court be transferred to the District Court at Townsville. The order for costs is set aside. The costs of both parties of the proceedings in the Magistrates Court are reserved to the District Court judge who determines the matter. The appellant has succeeded on appeal as far as the submissions under s 5A of the Act were concerned. He was, however, self represented on appeal. I make no order as to the costs of the appeal.

14. [14]
    If s 5A(2) and (3) are construed as merely permissive it still seems that considerations of convenience and the avoidance of unnecessary costs favoured the exercise of the discretion in the appellant’s favour. The magistrate has recorded no grounds for the exercise of his discretion which support the making of an order for dismissal with costs. The orders should be set aside.