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Mackay Taxi Holdings Ltd v Lowe QMC 7
MAGISTRATES COURTS OF QUEENSLAND
Mackay Taxi Holdings Ltd v Lowe  QMC 7
Mackay Taxi Holdings Limited
Lowe & Lowe
Mackay Civil No M 14/19
Application to stay or strike out action in detinue
Magistrates Court, Mackay
21 June 2019
19 February 2019
Acting Magistrate J M Aberdeen
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.
For Plaintiff/Respondent: Mr G Smart (S R Wallace & Wallace)
For Defendant/Applicant: Mr R Bakker (R B Lawyers)
NUMBER: M 14/19
Plaintiff: MACKAY TAXI HOLDINGS LIMITED ACN 009 946 329
First Defendant: CHRISTOPHER GORDON LOWE
Second Defendant: ANNETTE JUNE LOWE
- 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.
- 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.
- 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. This occurred in about October 2017.
- One immediate effect of the abolition of Service Contracts was that the assumption upon which the subject Agreement was to continue in force, that is, that the Agreement would continue in force while the Plaintiff held a Service Contract with the Government, was no longer valid.
- This left remaining in Clause 2.1 the alternative continuation date of the Agreement, namely, “until such other date as the parties may agree”.
- It would seem to be the case that both parties continued to operate their respective businesses after the abolition of Service Contracts.
- There was apparently a telephone conversation involving a representative of the Plaintiff and the First Defendant on 20 December 2018, but no evidence of that conversation has been tendered.
- By an email of 21 December 2018, the Defendants advised the Plaintiff -
- (i)that the Defendants considered that the Plaintiff was in breach of the “Operators Agreement”;
- (ii)that pursuant to Clause 10 of the Agreement, the matter should, at that time, be referred to mediation;
- (iii)that the Defendants sought the Plaintiff’s agreement to proceed to mediation.
- By letter of 21 December 2018, the Plaintiff requested particulars of what was alleged to constitute the Plaintiff’s breach of agreement. The Plaintiff also observed that, in its opinion, its decision not to agree to continue the agreement was not such a matter as constituted a “dispute or difference” within the meaning of Clause 10 of the Agreement.
- The Plaintiff also demanded the return of its equipment by 3:00pm on the 28 December 2018.
- By email of 16 January 2019, the Defendants advised the Plaintiff that the relevant equipment (apparently still held by the Defendants) would be returned. However, removal of the equipment was a specialised task, and the Defendants raised the question as to who would pay for the removal by an appropriately-qualified person.
- In a further email of 17 January 2019, the Defendants noted that the Plaintiff had refused its request for mediation, and that it followed that the matter must be referred to arbitration, in accordance with Clause 10, within 30 days.
- By letter of 17 January 2019, the Plaintiff invited the Defendants to bring their vehicle to their depot at 12 Chain Street, Mackay, at 7:30am on the 18 January 2019, where a qualified person would remove the equipment fitted to the Defendants’ taxi.
- The Plaintiff, in the same communication, again requested particulars of what was alleged to have been the Plaintiff’s breach of agreement, by reference to the particular provision of the Agreement alleged to be in issue.
- By email from the Defendants’ solicitors of 17 January 2019 at 4:55pm, the Plaintiff was advised that the Defendants were unable to attend to have the equipment removed on 18 January 2019, but could attend at midday on Tuesday or Wednesday of the following week.
- There was then further brief correspondence referring to the difficulties involved in removing the equipment; and the Plaintiff indicated that it intended to proceed in an action for detinue in respect of the equipment should it not be returned by 2:00pm on 18 January 2019.
- In an email of 18 January 2019, the Defendants set out concerns held as to the removal process. The Defendants also referred to “breaches by [the Plaintiff] of the Operators Agreement”.
- The Plaintiff’s Claim in detinue was filed on 25 January 2019. The Plaintiff by that Claim sought the following orders –
- (i)Delivery up of chattels;
- (ii)In the alternative, damages to not exceed the jurisdiction of this Court;
- (iii)Interest; and
- The Defendants filed a Conditional Notice of Intention to Defend on 6 February 2019.
- By that Notice, the Defendants contended that –
- (i)this Court had no jurisdiction to grant the relief sought by the Claim; and/or
- (ii)that this Court should stay the Plaintiff’s claim due to failure to comply with the Operator’s Agreement of 25 January 2011.
- By Application filed 6 February 2019, the Defendants sought -
- A Declaration that these proceedings have not been properly started pursuant to Rule 16(a) of the UCPR; or
- Setting aside the Originating Proceedings pursuant to Rule 16(e) of the UCPR; or
- A stay of the proceedings pursuant to Rule 16(g) of the UCPR;
- Costs of the Defendants of the Application.
- I propose to firstly deal with the jurisdictional issue.
Jurisdiction to grant the relief sought by the Plaintiff:
- The Defendants’ application was heard before me on the 19 February 2019, and written submissions from each party were supplemented by oral submissions by the parties. I reserved my decision.
- The Defendants contend that an order for “delivery up” of chattels cannot be made in this Court; what the Plaintiff was seeking, in its claim for delivery up of the relevant goods was, in law, equitable relief, which was beyond the power of this Court to order. This Court could only order damages by way of relief in detinue.
- It is clear, as I understand the Defendants’ submission, that there is no challenge to the jurisdiction of the Court to entertain a claim in detinue. So much, it appears to me, cannot reasonably be disputed. What is in issue is the remedies which can be granted by this Court.
- Detinue is a personal action within the meaning of section 4(a) of the Magistrates Courts Act 1921 –
“…every personal action in which the amount claimed is not more than the prescribed limit, whether on a balance of account or after an admitted set-off or otherwise;”
- The earliest English Courts, founded upon the principle that the Sovereign was the fountain of justice, provided remedies which were manifold. The remedy was fashioned to the necessity of the case before it. To a modern legal mind, it could be said that these original prerogative Courts administered both law and equity. But that would be an anachronism to those Courts and to the litigants who brought their suits to those Courts – distinctions between “common law” and “equity” are entirely from a later period, and neither term had any technical significance to medieval adjudicators or litigants.
- The Sovereign could fashion a remedy to suit the case – to do what was just, in all of the circumstances. This flexibility, however, was to have a limited life expectancy. As circumstances changed, and Royal justice spread - often administered by trained lawyers as Judges and as legal representatives - the law began its journey to become the “common law”, and in doing so, developed a rigidity which was to limit the types of action, and remedy, which a common law Court would allow.
- The hardening of common law procedure led, in due course, to the increasing intervention of the Chancellor in legal disputes. The Chancellor continued to deliver what we would now call equitable remedies to such an extent that, towards the end of the fourteenth century, his own Court, that of Chancery, was established.
Remedies in Detinue at Common Law:
- One of the casualties of the developing rigidity of the common law was the power to enforce against a Defendant an order for delivery of chattels. It may not be possible to isolate a particular point in time where this change occurred. Cases seeking the return of charters (ie, documents evidencing a right to land, or inheritance) seemed to have continued for quite some time after 1200, and if there was no actual power to compel recovery of the document itself, the persistence of the action for this purpose seems unlikely. Nevertheless, by 1340, the common law had considered damages as the appropriate remedy in cases of detinue.
- Professor Barbour, in considering detinue during this period, observed –
“If the defendant persisted in retaining the chattel, the common law afforded no means by which its delivery could be compelled. The plaintiff in Detinue had to be content with damages, if worst came to worst; because in the rough generalization of early common law, ‘all things may be resolved into damages, as an equivalent’. So the law remained until modern times”.
- The extent to which this rule was to be applied was suggested in the comments by Newton CJCP and Paston JCP in a case from 1443: “…if the chattels [in this case, writings] are burnt the plaintiff will recover all in damages”; with the reference to “all” encompassing the value of the land evidenced by the charter in question.
- In 1505, Frowick CJCP restated the rule in the following terms –
“…in an action of detinue the judgment is that the plaintiff shall recover the goods or the value, and then a distringas issues to the Sheriff to distrain the defendant to deliver the goods, and if he will not the plaintiff shall have the value as assessed by the inquest; and so it is in the defendant’s election to deliver the same goods to the plaintiff or to pay the value.”
- To modern eyes, this is a curious situation indeed. The judgment itself is that the plaintiff shall recover the goods; yet there was no common law machinery – perhaps apart from the threat of distringas – allowing the recovery of the goods against an unwilling defendant. The judgment was in the alternative – return the goods, or pay the value - and the defendant was entitled to exercise the option.
- The common law courts, however, were prepared to use the jurisdiction they possessed, so far as they legally could, to try to compel restoration of the chattel by the Defendant. They did this by structuring their judgment in such a way as to encourage return of the chattels. The judgment at first instance in Taylor v Addyman provides an example –
“...it is adjudged, that the plaintiff do recover from the defendant the sum of 50l for his debt, and 7l 9s 2d for costs of suit, amounting together to the sum of 57l 9s 2d. And it is ordered that the defendant do pay the same to the clerk of the Court, at his office at County Court-house in Leeds aforesaid, on or before the 23rd day of December 1852.”
Indorsed upon this order was the following memorandum –
“Execution to be suspended, on the [chattels] being given up, and the costs paid, on the 23rd December instant”.
- This attempt to give real substance to the common law judgment is notable when one comes to examine the later Rules of Court of the inferior Queensland Courts pertaining to a judgment in detinue.
- The position as outlined by Frowick CJ, in 1505, remained the procedure at common law until it was varied by section 78 of the Common Law Procedure Act 1854 (17 & 18 Vict c. 125 s. 78):
“In the action of detinue … the plaintiff in form recovers the specific chattels sued for or their value; but as the defendant might hitherto have paid the value of them, this action was not strictly a means of recovering specific chattels …
The court may now order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining such chattel upon paying the value assessed.”
Remedies for detinue in Queensland:
- This English provision of 1854 was adopted in Queensland by sections 16 and 17 of the Common Law Practice Act of 1867. This, however, was confined in its operation to the Supreme Court. The 1867 Act was repealed by the Supreme Court Act 1995 which, in sections 24 and 25, largely reproduced the effects of the English Act of 1854. The 1995 Act was, in due course, itself repealed, but section 11 of the Supreme Court of Queensland Act 1991 expressly preserved all jurisdiction of the Supreme Court which had been granted by the 1995 Act.
- The District Court was first established under the District Courts Act of 1858. After separation, District Courts were consolidated under the District Courts Act of 1867. There was a further consolidation in 1891 by a statute of that year. These District Courts were abolished in 1921; but were re-established in 1958. Under the District Courts Act 1958, Mr I McG Wylie (as he then was) opined that the 1958 Act was “virtually a re-enactment” of the 1891 Act. In 1967, the District Courts Act of that year came into force.
- For all the changes, the civil jurisdiction of the District Courts appears to have been reasonably consistent, with jurisdiction being granted for all personal actions where the amount sought did not exceed $6,000 (or $10,000 where a vehicle was involved); partnerships, intestacies or legacies within the $6,000 limit; equitable claims where the only relief sought was money or damages (again up to the $6,000 limit); and a restricted jurisdiction in specific performance and rectification.
- The only specific mention of detinue in the 1891 Act was in Rule 154, which provided as follows –
“154. The judgment in detinue, if for the plaintiff, shall be for the value of the goods detained, together with a sum to be stated in the judgment by way of damages for the detention and costs; but it may be made part of the order that on payment of damages for the detention and costs, and return of the goods on or before a day to be named, satisfaction shall be entered.”
- The 1967 Act contained a very similar provision in Rule 237, to which Mr Wylie noted that, for an order for delivery or return of chattels, the plaintiff needed to proceed in the Supreme Court. The current jurisdiction of the District Court expressly includes cases involving the detention of chattels, and the Court is also endowed with all the powers and authorities conferred on the Supreme Court.
- Magistrates Courts in Queensland were established under the Magistrates Courts Act of 1921. Contemporary commentators noted that –
“The objective of the Legislature in the passing of the Magistrates Courts Act of 1921 seems to have been the embodying in a single Court of the powers and authorities theretofore existing in the District Courts and the Small Debts Courts of the State.”
- The jurisdictional limits of the Magistrates Court were laid out in section 4, and were granted in similar terms to those establishing the District Court, though with a lesser monetary limit. Once again, the only mention of detinue was in Rule 105 of the original Rules of Court, which was virtually identical to Rule 154 of the District Courts Rules of 1891.
- Until the passage of the Uniform Civil Procedure Rules, the Magistrates Court Rules of 1960 provided, in Rule 197:
“197. A judgment in detinue, if for the plaintiff, shall be for the value of the goods detained, together with a sum to be stated in the judgment by way of damages for the detention and for costs; but it may be made part of the order that on payment of damages for the detention and costs, and the return of the goods on or before a day to be named, satisfaction shall be entered.”
- The Rules of Court in respect of inferior Courts thus adopted the procedure, developed by the common law Courts, of giving judgment for the value of the chattel detained (+ damages for detention, and costs). In Noble v Noble, the Court of Appeal was concerned with an action for detinue in the District Court. In the course of his judgment, Thomas J observed, with respect to the form of judgment applicable to the District Court –
“Although paragraph 8 of the plaint seeks ‘delivery up’ of the various items, a claim for specific delivery of chattels is beyond the jurisdiction of the District Court (Kirwan v Mason …). However the District Court may make an order in terms that on return of the goods on or before a named day, pro tanto satisfaction of judgment may be entered (r. 237 of the District Court Rules, Form 65). Such a remedy is not coercive. It gives the defendant an alternative means of satisfaction of the judgment. The claim is therefore essentially one for damages for detinue.”
- In my opinion, his Honour’s reasoning applies with equal force to the judgment which could be recovered by the plaintiff, if successful, in the present action. In my view it is open to this Court, in the event the plaintiff in the present action succeeds, to deliver a judgment which follows the terms of s. 80(2)(c) of the Civil Proceedings Act 2011.
Pleading in the present case:
- His Honour’s judgment in Noble v Noble is also of note in that no indication is given that the claim for “delivery up” of the chattel is inappropriate. I accept that this is something of an anachronism – one pleads for a remedy which the Court has no power to provide or enforce. Should not that part of the plaintiff’s claim seeking “delivery up” be struck out for want of jurisdiction?
- >The reality of the situation is that this has been the practice at common law since (possibly) 1340; and as an Acting Magistrate sitting in this Court on an interlocutory application, I have no hesitation in following almost seven centuries of legal doctrine. The Plaintiff’s pleading in this case is in conformity with the practice of the Court in actions of detinue.
- The purpose served by the plea to “deliver up”, apart from compliance with long-standing custom, is that the Court and the defendant are placed on notice that the plaintiff wants the goods returned, and therefore seeks judgment, not simply for value of the goods, but for that value with the rider that return of the goods will result in satisfaction of judgment to the extent of the goods’ value.
- Accordingly, I find that this Court does have jurisdiction to hear and determine this action.
Should this matter be stayed to facilitate arbitration?
- The Defendants’ apply to have this action stayed under Rule 16(g) of the Uniform Civil Procedure Rules.
- The Defendants’ written submissions particularize their application by identifying the foundation for the requested stay as clause 10.1 of the Agreement between the parties, and consequently section 8 of the Commercial Arbitration Act 2013.
- Clause 10.1 of the Agreement is in the following terms –
Any dispute or difference whatsoever arising out of or in connection with this Agreement, shall be submitted to mediation in accordance with, and subject to: The Institute or [sic] Arbitrators & Mediators Australia Rules for the Mediation of Commercial Disputes.
If the dispute or difference is not settled within thirty (30) days of the submission to mediation (unless such period is extended by agreement of the parties), it shall be and is hereby submitted to arbitration in accordance with, and subject to The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitrators.”
- 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. 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.
- 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.
- The Defendants contend that, under the circumstances, a referral to arbitration is mandatory.
- 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”. 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) 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.
- 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.
- 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”. 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. The relationship between the parties continued, essentially, “at will”.
- In or about December 2018, the Board of Directors of the Plaintiff decided that it no longer wished to continue the Operator’s Contract with the Defendants.The result of the Plaintiff’s decision was to initiate the correspondence, which has already been outlined in summary above.
- The Plaintiff also argues that there is no “dispute” within the meaning of clause 10.1. The Defendants, the Plaintiff contends, do not agree with the Plaintiff’s decision to terminate the agreement; but the fact that the Defendants are not happy about that decision, does not result in a “dispute” which can be referred to arbitration.
- If, it is argued, the Plaintiff’s decision to terminate the agreement was capable of being a dispute referrable to arbitration, it would undermine the efficacy of clause 2.1 – the contract would not continue for so long as the parties agree, but rather for so long as the Defendants wished.
- What was agreed, was that, if the Plaintiff no longer had a “service contract”, then the contract would continue so long as both parties agreed. As at 28 December 2018, that mutual agreement was absent, and hence the contract was at an end.
- Section 8 requires that “an action is brought in a matter which is the subject of an arbitration agreement”. This requires (i) that there be an “arbitration agreement”, (ii) that there be a “matter”, ie a “dispute or difference” and (iii) that the “matter” in question is “within” the scope of the arbitration agreement.
- The Explanatory Notes to the Commercial Arbitration Bill 2012 indicate that clause 8 of the Bill “requires” a Court to refer a matter which falls within section 8 to arbitration. The normal meaning of “must”, in section 8, is precisely that. It seems to follow that, provided the terms of section 8 are satisfied, there is no residual discretion residing in the Court to decline to refer the matter as otherwise required.
- In nearmap Ltd v Spookfish Pty Ltd, a decision on the NSW counterpart to our Commercial Arbitration Act, Bergin CJ in Equity stated, at  –
“Section 8 of the Act introduced a significant change to the principles governing stay applications. The previously existing discretion that the Court "may" make an order staying the proceedings, has now been replaced with the mandatory provision that the Court "must" refer the parties to arbitration. The expression "stay" is not used in the Act. It has been replaced by the concept of referral to arbitration. Under the present provisions, if the statutory circumstances are established, the Court "must" refer the parties to arbitration: Gilgandra Marketing Co-Operative Ltd v Australian Commodities & Marketing Pty Ltd  NSWSC 1209 at ; Brazis v Rosati  VSC 385 at -.”
- Taking into account the clear indications from his Honour Judge McGill SC, and from New South Wales’ Chief Justice in Equity, it seems quite clear that, where section 8 operates, I have no discretion to decline to refer the matter, other than upon the grounds specified within section 8 itself, namely where the relevant agreement is “null and void, inoperative or incapable of being performed”. As a result, I accept that a referral to arbitration is mandatory where s. 8 is satisfied, and I must reject the Plaintiff’s appeal to the discretion of the Court.
Is there an “arbitration agreement”?
- The Plaintiff concedes in its submissions that the taxi dispatch services provided after October 2017 were provided “under the contract [ie Agreement] until 28 December 2018”.
- The Defendants maintain, through their submissions, that the Agreement of 25 January 2011 remained in force at all relevant times.
- There has been no argument, by either party, that the Agreement automatically came to an end when the holding of the “service contract” between the Plaintiff and the State Government ceased sometime in October 2017; or that since that event, there has been a contract by conduct, in the same terms as the Agreement, which has governed the relationship between the parties.
- The position appears to be that the parties, by their conduct, “agreed”, within the meaning of clause 2.1, to continue the contract, based upon their interpretation of clause 2.1 following the abolition of “service contracts”.
- Clause 10.1 is in very wide terms – “Any dispute or difference whatsoever arising out of or in connection with this Agreement..”.
- The matter sought to be litigated is the non-return of the Plaintiff’s equipment, and it is implicit within the claim that, having regard to the terms of clause 9.1, and the demands which have been made by the Plaintiff, the Plaintiff alleges that the relevant goods are being wrongfully detained by the Defendants.
- I have no hesitation in finding that an “arbitration agreement” is contained in clause 10.1; and further, that the “matter” in question concerns the retention, by the Defendants, of the Plaintiff’s equipment. This is, in my opinion, and having regard to clauses pertaining to the equipment contained within the Agreement, a “matter” arising out of, or in connection with, the Agreement.
- No argument has been addressed to me that clause 10.1, in these circumstances, is “null and void, inoperative or incapable of being performed”; and there is no basis upon which I could find that any of these limiting circumstances are present.
Is there a “dispute or difference”?
- The proceeding in question is the Plaintiff’s action in detinue to recover equipment used by the Defendants in the course of their business operating a taxi service.
- Clause 4.3 of the Agreement provides –
Service Provider’s Obligations
“The Service Provider [the Plaintiff] shall provide the Service Provider’s equipment to the Operator on or prior to the commencement date.”
- Clause 5.4 of the Agreement provides –
“The Operator shall during the term of this Agreement maintain the Service Provider’s equipment in a good and serviceable condition.”
- Clause 9.1 of the Agreement provides –
Return of Operator’s Equipment
“Upon the termination of this agreement for any reason, the Operator shall return to the Company within twenty-four (24) hours of such termination, all of the Service Provider’s equipment.”
- To comply with clause 9.1 of the Agreement, it would have been necessary for the Defendants to return to the Plaintiff all of the Service Provider’s equipment by 3:00pm on the 29 December 2018. That was not done.
- The Plaintiff has made demand of the Defendants to return the relevant equipment, and later extended the date for required return to close of business on 18 January 2019.
- The course of correspondence can be summarised as follows -
- 18/12/18 – the Plaintiff advises the Defendants that the contract between them is to be terminated as at 3:00pm on 28 December 2018; and Plaintiff requires return of plant and equipment by the same date.
- 20/12/18 – the Plaintiff again requires the return of plant and equipment by the aforesaid time and date;
- 21/12/18 – the Defendants advise that they consider the Plaintiff is “in breach of the Operator’s Agreement”, and that the dispute must be referred to mediation;
- 21/12/18 – the Plaintiff seeks particulars as to how it is alleged to have breached the Agreement; and advises that its decision not to continue the Operator’s Contract beyond 28/12/18 is not a dispute or difference within clause 10 of the Agreement;
- 04/01/19 – the Plaintiff requires delivery of its plant and equipment to its office by c.o.b. on 18/01/19; alternatively, the Plaintiff offers to collect the relevant goods from a nominated place;
- 16/01/19 – the Defendants state again that the Plaintiff “has breached the Operator’s Agreement; and advise the Plaintiff that it does not intend to return “Cabcharge equipment”, but will return the balance of the plant and equipment demanded; Defendants request “your client’s specialist” to attend at their premises to remove the equipment without causing damage to the Defendant’s property;
- 17/01/19 – the Plaintiff again requests particulars of the breach alleged by the Defendants; the Plaintiff extends the time for re-delivery of its plant and equipment to 7:30am on 18 January 2019; Plaintiff advises Defendants that it is entitled to lawful possession of the Cabcharge equipment; Plaintiff requests defendants to attend at its offices at 7:30am on 18/01/19 to have equipment removed;
- 17/01/19 at 4:55pm - by email – Defendants advise that they are “unable to attend” the Plaintiff’s premises on 18/01/19, without providing any further explanation; Defendants say they can attend “next Tuesday or Wednesday next week (preferably Wednesday) at midday;
- 18/01/19 at 9:54am - by email – Plaintiff extends time to attend at its offices to “close of business” on 18/01/19
- 18/01/19 – the Plaintiff provides documentation which, it says, supports its claim to lawful possession of the Cabcharge (and thus its legal entitlement to maintain detinue;
- 18/01/19 – the Defendants state that they “do not see the urgency of the return of the equipment”; and that they “have not said that they will not return the equipment”; and also state that “the issue of the removal of equipment from our client’s vehicle is part of the dispute that our clients have with your client concerning the “breaches” by your client of the Operator’s Agreement”; Defendants inter alia (i) raise concerns as to whether the taxi meter and camera will be affected by removal of the equipment; (ii) require written confirmation from the Plaintiff, prior to removal of equipment, that the taxi meter and camera will continue to function after removal of the equipment; (iii) require that the Plaintiff be responsible for any damage to Defendant’s vehicle or equipment;
- 18/01/19 at 12:18pm by email - Plaintiff advises Defendants that (i) whether Defendant’s camera continues to work after removal of equipment is irrelevant; (ii) Defendants are under an obligation to return the property; (iii) Plaintiff’s offer to remove equipment is a concession, and not a contractual obligation; (iv) if Defendants attend at Plaintiff’s premises for removal of equipment, that all reasonable care will be taken in the removal of the equipment, but no guarantees will be provided.
- Plaintiff’s claim filed 25 January 2019.
- There is no evidence before the Court as to (i) the nature of the “breach” initially referred to on 21/12/18, or (ii) of the “breach” referred to on the 16/01/19. The “breaches” referred to on the 18/01/19 include, it is said, the issue as to removal of the Plaintiff’s plant and equipment from the Defendant’s vehicle.
- The Plaintiff, by its letter of 21/12/18, appears to have assumed that the initial “breach” referred to by the Defendants was the Plaintiff’s decision to terminate the contract between the parties. In subsequent correspondence, the Defendants have neither confirmed nor denied that this is the case.
- The Defendants stated, on 16/01/19, that they would not return the Cabcharge equipment, but that they would return the other items demanded. In the course of subsequent correspondence, the Plaintiff provided to the Defendant documentation which might support its right to possession of the Cabcharge equipment, and hence the inclusion of that equipment within its claim for detinue.
- The Defendants have then, on 18/01/19, stated that they have not said that they will not return the equipment, which might appear, by implication, to depart from the position set out in their letter of 16/01/19.
- There is no evidence before me that the equipment the subject of the claim has been returned to the Plaintiff.
- It is necessary to ascertain the nature of the dispute between the parties in order to determine whether the arbitration clause in section 10.1 applies to it. The Defendants did not respond to requests for particulars by the Plaintiff; and the Defendants have not availed themselves of the opportunity to inform the Court, through the evidence of the First Defendant Mr Lowe, or otherwise, as to the nature of the “breach” to which they referred on either the 21/12/18 or the 16/01/19.
- On 18/01/19 the Defendants have referred to “breaches” of the Operator’s Agreement. This differs, by asserting the plural, from the references to a “breach” in their earlier correspondence.
- The Plaintiff argues that there is no “dispute”. This argument is based upon the premise that the Defendants have taken issue with the Plaintiff in respect of the Plaintiff’s termination of the contract.
- I have some difficulty accepting that that is the issue relied upon by the Defendants. At no time, in the course of correspondence, have the Defendants made any reference to the purported termination of the Agreement by the Plaintiff as being the “breach” relied upon in seeking a stay of proceedings.
- The Defendants, in their written submission, have urged that the Plaintiff, by the very fact it has commenced litigation, was in breach of the Agreement.
- This submission, it seems to me, must depend upon whether there was “a dispute or difference” between the parties. If there was no dispute or difference, then there would be no obligation to invoke clause 10.1. In the absence of any suggestion by the Defendants that there was improper termination of the Agreement, I am unable to identify any “breach” of the Agreement arising from the litigation, in and of itself, aimed at obtaining the return of its property following termination of the Agreement.
- Is there, then, a “dispute or difference” arising from the Plaintiff’s demands to the Defendant to return its property?
- The Defendants have not placed before the Court any indication or explanation as to why there is a “dispute or difference” arising from the claim. It would have been a simple matter, in my opinion, to do so.
- In its submissions as to the Court’s discretion, the Plaintiff describes the Defendants’ response to its claim as a “bare assertion” of a “breach”, which is not further particularised or explained. I think that is a fair description of what the evidence discloses. While the Court has no discretion where s. 8 of the Act is activated, the Plaintiff’s submissions on this point do inform the Court’s task in ascertaining whether or not there is a real dispute between the parties; and the proof of a dispute is a condition precedent to the operation of s. 8.
- If a party to a contract seeks to assert that there is a “dispute or difference” in order to invoke a dispute clause in the contract, then the dispute must be a bona fide contention and not merely a sham or “specious pretext”; and, as I have already indicated, the onus in proving the existence of a “dispute” in this matter rests upon the Defendants.
- I find that the Defendants have not satisfied that standard of proof; and, having regard to the conduct of the parties over the course of their dealings with each other, as set out in the correspondence annexed to Mr Lowe’s affidavit, I find, in particular –
- (i)that the Defendants have been deliberately vague in articulating the basis and nature of the “breach” to which they referred on 21 December and 16 January, 2018, the effect of which is to substantially impair the Court’s capacity to find that any dispute is a real and bona fide dispute. This is not to conduct an assessment of the strength or cogency of any defence, but rather to keep in mind the necessity that the mandatory requirements of s. 8 are satisfied;
- (ii)that the Defendants’ indication, on 16 January 2019, that they would be returning two of the items, and contesting only the Cabcharge equipment, when considered against their statement on 18 January 2019, that they “have not said that they will not return the equipment” - apart from being seemingly inconsistent – leaves me with a real doubt that there is, in fact, any “dispute”;
- (iii)that the Defendants’ failure to attend at the premises of the Plaintiff as requested on the 18 January 2019 to allow removal of the equipment by the taxi service provider, in the absence of any evidence as to the reason for this failure, raises further concern that the Defendants’ conduct in this matter may be substantially aimed at simply delaying the progress of the Plaintiff’s action.
- Accordingly, I find that the Defendants have not discharged the onus upon them to show, to the standard of proof required, that there is, in fact, a real “dispute or difference”; and I dismiss their application.
The adequacy of the Plaintiff’s claim for damages:
- The Defendants, in their final submission, object to the claim for non-compliance with Rule 155 of the Uniform Civil Procedure Rules. Rule 155 provides –
- (1)If damages are claimed in a pleading, the pleading must state the nature and amount of the damages claimed.
- (2)Without limiting rule 150(1)(b), a party claiming general damages must include the following particulars in the party’s pleading—
- (a)the nature of the loss or damage suffered;
- (b)the exact circumstances in which the loss or damage was suffered;
- (c)the basis on which the amount claimed has been worked out or estimated.
- (3)If practicable, the party must also plead each type of general damages and state the nature of the damages claimed for each type.
- (4)In addition, a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise.”
- The Plaintiff has not, within its pleading, stated the amount of the damages it is seeking. To this extent, it has not complied with Rule 155. The damages it seeks are expressed to be –
“in lieu of delivery up to be assessed, but not exceeding the monetary jurisdiction of the Court”
- One could argue that damages in detinue “in lieu of delivery up” could only refer to the value of the goods which remain undelivered following judgment. However, it is settled that damages in detinue may include (a) the monetary value of the chattels detained, and not returned, and (b) such damages as are incurred as a result of the failure to deliver up on the date of demand. Thus, if in this case, the Plaintiff had incurred costs, charges or other loss as a result, for example, of the continuing detention of the Cabcharge equipment, such losses may be recoverable in damages, in addition to the value of the unreturned chattels.
- I have no hesitation in finding that the pleading is defective in this respect.
- I also note that the value of the detained goods, based on their value, was $5,850, as stated by Mr Lucas in his affidavit. Obviously, this information has been available to the Defendants since the relevant document was served upon them. In this respect, at least, it is difficult to perceive prejudice or surprise as against the Defendants.
- What is not particularised in any way is the damages (if any) arising from fact of detention itself. While accepting that these damages may not finally crystallize until the action is concluded, the Defendants are entitled to be provided with the manner of calculation and basis of any such damages, and the dates relevant to such an assessment.
- It has long been the practice of the Queensland Courts to deal with procedural defects in such a way as to allow the merits of the particular claim to proceed to be determined, and not to be defeated by, in effect, a modern jeofail.
- Should the Plaintiff apply to amend its Defence in these respects, in order to bring it within the terms of Rule 155, I intend to hear any such application.
J M Aberdeen
24 June 2019
 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.
 The precise date of the demise of Service Contracts was not the subject of evidence.
 See document bundle attachment “B” to the First Defendant’s affidavit, letter from Plaintiff to Defendants dated 18/12/18 penultimate paragraph.
 Ibid final paragraph.
 Which I take be a reference to the equitable remedy for specific restitution of chattels: see R P Meagher, W M Gummow & J R Lehane, Equity: Doctrine and Remedies (1984) Chapter 22.
 That would be somewhat difficult in view of appellate decisions indicating the contrary: eg the Full Court in Hanson v Barwise  St R Qd 285 had no apparent difficulty in remitting the subject action, in detinue, to the Magistrates Court for judgment; and, as the Plaintiff has pointed out in submissions, in Pratten v Pratten  QCA 213, see at ,  and .
 F W Maitland, Equity; also The Forms of Action at Common Law (1910) at 302, 322, 355-359; Bullen & Leake, Precedents of Pleading (7th Ed, 1915) at 4. See also Taylor v Addyman (1853) 13 CB 309 [93 RR 547] per Jervis CJ at 323-324, Maule J at 326. Note also the respective commentaries to section 4 in T J Lehane, The Practice of the Magistrates Courts of Queensland (1963) at 9; A D Graham, M D Graham & L G Lukin, The Civil Jurisdiction of Justices (1925) at 7; and even G H Mason & W G Mayne, The Small Debts Practice (1901) at 37.
 It had so emerged (at least in respect of charters) no later than 1200: C H S Fifoot, History and Sources of the Common Law: Tort and Contract (1947) Chapter 2.
 There is a statement attributed to Professor Cairns in Morley & Martin’s Queensland Magistrates Courts (1994) [now a discontinued service] at  that “Detinue is a personal action, but it does not fall within any of those personal actions allowed by section 4(1) to be commenced in a Magistrates Court”. But see then-Rule 197 (previously Rule 105) of the Magistrates Courts Rules 1960, which indicates a different conclusion.
 This brief survey is drawn, somewhat loosely, from the observations by a number of commentators upon the nature of early equity: eg H D Hazeltine, “The Early History of English Equity”, in P Vinogradoff (ed), Essays in Legal History (1913) at 261- 285; the trilogy of papers consisting of G B Adams, “The Origin of English Equity” (1916) 16 Columb LR 87; W S Holdsworth, “The Relation of the Equity Administered by the Common Law Judges to the Equity Administered by the Chancellor” (1916) 26 Yale LJ 1; and G B Adams, “The Continuity of English Equity” (1916-17) 26 Yale LJ 550. There is also a useful discussion in D W Raack, “A History of Injunctions in England before 1700” (1985-86) 61 Indiana LJ 539.
 See eg Wulghes v Pepard (1310) 26 SS 13, in which, according to the record, the plaintiff succeeded with an order for recovery of the book in question: semble (1382) YB Mic 6 Ric II pl 1 (Seipp Number: 1382.039am) (Ames Foundation, at 54, Introduction 68-69).
 See (1340) YB 14 & 15 Edw III (RS) p 30 – “Note – Detinue of chattels – The plaintiff recovered damages and not the principal, because all things may be resolved into damages, as an equivalent”. But compare (1382-3) YB 6 Ric II (Ames Foundation) 54, and Introduction at 68-69.
 “The History of Contract in Early English Equity”, in P Vinogradoff (ed), IV Oxford Studies in Social and Legal History (1914) p 1 at p 33.
 (1443) YB 21 Hen VI pl 2 fol 35a-36d (Seipp Number: 1443.024). In D’Anvers Abridgement (1713 ed, vol 2, p 511) it is thus stated that: “In Detinue of Charters, if the Issue be upon the Detinue, and it is found that the Defendant hath burned the Charters, the Judgment shall not be to recover the Charters, for it appears that he cannot have them, but he shall recover the Value of the Land in Dammages. contra 17 Edw III 45b adjudged”. The same authority is cited, in French, in Rolle’s Abridgement (1668) Title: Detinue (E) p 607. Note also Littleton JCP in Colepepyr v Wody (1466) 47 SS 124. That this was indeed the law was accepted by the Court of Exchequer Chamber in Williams v Archer (1847) 5 CB 318 [136 ER 899].
 Langstone v Dyne (1505) Caryll 456 (116 Selden Society). This case was originally included in Keilwey’s Reports and referenced as “Keilwey 64b”. Although attributed to Keilwey for centuries, this report was by John Caryll, of the Inner Temple (d. 1523) and was edited by Professor Sir John Baker QC in 1999. The reference to “Keilwey 64b” appears in a large number of early cases and practitioner’s texts dealing with detinue.
 A “distringas” is described by Wharton’s Law Lexicon (1868) at p 188: “A distringas in detinue, a special writ of execution to compel the defendant to deliver the goods by repeated distresses of his chattels…”.
 This ultimate position of the common law may have owed something to Bracton: “Bracton expressly says that in actions to recover a moveable the defendant is bound to restore alternatively the thing or its price; and that if the plaintiff names no value the action fails. It is no doubt true that the circumstances under which the appeal or the action for res adiratae was brought, in practice ensured the return of the chattels in specie; but even if his words do not apply to the appeal of larceny, there seems no reason why they should not apply to this action for res adiratae as well as to the action of detinue”: Sir William Holdsworth, III A History of English Law (1977) at 322.
 An interesting example being Hall v White (1827) 3 C&P 136 [172 ER 357] where Best CJ, in an action for detinue, “left it to the jury to give such damages as would compel the defendant to deliver up the deeds, and they accordingly found their verdict for 450 pounds”.
 (1853) 13 CB 309 [93 RR 547].
 CLPA 1854; see R M Kerr, The Common Law Procedure Act 1854 (1854) pp v, and 50-51. For some brief observations on the passing of this Act, see Professor A D Smith’s unpublished Doctoral thesis, Some Comparative Aspects of Specific Implement in Scots Law (1989) at pp 181-183.
 That is not to say that the Bractonian position was unanimously embraced at all periods up to the passing of the CLPA 1854. Glanvill (d. 1190) written about 80 years before Bracton, explained the situation differently: “The cause of a debt is sometimes a loan for use, as when I gratuitously lend you some thing of mine to make use of in your service. When the service has been accomplished, you are bound to restore my thing to me in its original condition, if it still exists”: see G D G Hall, Glanvill (1965) at 128. Bracton, on the other hand, stated that “It would seem at first sight that the action in which a movable is demanded should be as well in rem as in personam since a specific thing is demanded and the possessor is bound to restore that thing; but in truth it is merely in personam, for he from whom the thing is demanded is not absolutely bound to restore it, but is bound alternatively to restore it or it’s price”: F Pollock & F M Maitland, 2 A History of English Law (2nd Ed, 1923) at 124. The view that the remedy was primarily for the return of the goods – and not damages - persisted for a long period: see eg Calwodelegh v John (1479) YB Hil 18 Edw IV for 23 pl 5 (Seipp Number: 1479.005) where Bryan CJ and Choke J were both of the view that, in detinue, the thing itself could be recovered, with damages in lieu if the thing could not be found. In Kettle v Bromshall (1738) Willes 118, Willes CJ said: “…in trover only damages can be recovered; but the things lost may be of that sort, as medals, pictures, or other pieces of antiquity, (and this seems to be the present case,) that no damages can be an adequate satisfaction, but the party may desire to recover the things themselves, which can only be done in detinue”. No lesser authority that Blackstone stated, in respect of conversion “...the plaintiff shall recover damages, equal to the value of the thing itself; which nothing will recover but an action of detinue or replevin”: 3 Commentaries on the Laws of England (1768) p 152 (citing Peters v Heyward (1623) Cro Jac 682 [79 ER 591]. Prolific legal author Joseph Chitty, in 1 The Practice of the Law in All its Departments (1813) at 814, expressed his view as follows: “It is however to be observed, that at law, in an action of detinue, the defendant has not, as has been supposed, the option of delivering up the goods or paying the value, but on the contrary, the judgment and execution in an action of detinue are absolutely for the restoration of the chattel, if the same can be found, together with damages and costs; and only in the alternative as to the value, in case the chattel should be destroyed or eloigned”. As late as 1966, Danckwerts LJ stated, in respect of execution upon detinue: “I carefully avoid the use of the words “election” or “option” or anything of that sort because it is not really a case of election so much as that the form of the order provides for satisfaction in one form, or another”: Metals & Ropes Co Ltd v Tattersall  1 WLR 1500, 1501. For further discussion, see Professor A D Smith op cit Ch 9, “The Detinue Judgment and the Defendant’s Election”, at 177-181.
 1 Cooper’s Statutes (1881) p 1004.
 See J L Woolcock & G Scott, Act and Rules relating to The District Court (1892).
 1967, s.66.
 1967, s.69.
 Woolcock & Scott op cit at 121 set out the form of judgment (Form 51) consistent with Rule 154, and the Warrant of execution (Form 82) in detinue.
 I McG Wylie, Queensland District Courts: Law and Practice (1968) at 378. This was confirmed by Hoare J in Kirwan v Mason  QWN 10; 62 QJPR 63: “Had the plaintiff proceeded in the District Court the judgment in detinue as provided by Rule 116 would, in effect, have given the defendant the option of returning the goods or paying the assessed value of the goods. In other words this rule does not entitle the plaintiff to an order for a specific delivery of chattels. In those circumstances it seems to me proper for the plaintiff to have proceeded in the Supreme Court”, for “as it were, a judgment in rem.”
 See Fin One Pty Ltd v Kucharski  QMC 17 per Magistrate Carmody, affirmed  QDC 35 per Everson DCJ.
 A D Graham, M D Graham & L G Lukin, The Civil Jurisdiction of Justices (1925) Notes to the Enacting Clause.
 The Magistrates Courts Rules 1922. See also Forms MC25 and MC26 which, by Rule 2, formed part of the Rules.
 See above.
 The authors of two early Queensland works on civil practice suggested that both the early District Court, and the Small Debts Court were empowered, in actions for detinue, to make orders for the delivery by the defendant of the chattel wrongfully detained, without giving the defendant the option of paying the assessed value of the chattel as an alternative: see J L Woolcock & G Scott, Act and Rules relating to the District Court (1892) at p 99; and G H Mason & W G Mayne, The Small Debts Practice (1901) at 216. In both instances, the authority of Winfield v Boothroyd (1886) 54 LT 574 (QBD) was cited in support. However, that decision (Day & Wills JJ) concerned the County Court which, pursuant to s. 89 of the Judicature Act 1873, was endowed with all the jurisdiction of the High Court of Justice – which included the power to make such orders under the CLPA 1854.
  2 Qd R 729 at 740.
 Defendants’ written submissions at .
 Ibid at .
 Ibid at .
 Ibid at  and .
 Transcript 1-5  & .
 Ibid at .
 Affidavit of Gerard Michael LUCAS filed 18/02/19 at .
 Letter Plaintiff to Defendants of 18/12/19, third paragraph.
 Plaintiff’s written submissions at 
 Ibid at .
 Affidavit of Mr Lucas at .
 Plaintiff’s written submissions at .
 Ibid at .
 Ibid at .
 The amount in issue being less than $6,000, and the cap on arbitration fees being $25,000.
 Ibid at  to .
 Ansett v Malaysian Airlines (2008) 217 FLR 376, 378.
 Assaubayev v Michael Wilson & Partners Ltd  EWHC 821 at .
 See US Healthcare Food Group Pty Ltd v Zouky & Anor  QDC 58 at  and fn 4 per McGill SC DCJ.
  NSWSC 1790.
 Transcript 1-5.
 It also follows that it is not necessary to consider the situation as to whether an arbitration clause survives the expiry of a contract.
 Defendants’ written submissions at  and .
 Northcliffe Constructions Pty Ltd v Rothrewel James Stein  NSWSC 1216 per Einstein J at .
 Paragraph  Statement of Claim.
 See eg Keane JA (as he then was) in Wade Sawmill P/L v Colenden P/L  QCA 455 at , citing General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd  1 WLR 644 at 650-651.
 At paragraph .
 See Justice B H McPherson, The Supreme Court of Queensland 1859-1960: History Jurisdiction Procedure (1989) at 68 and 103.
- Published Case Name:
Mackay Taxi Holdings Ltd v Lowe
- Shortened Case Name:
Mackay Taxi Holdings Ltd v Lowe
 QMC 7
Acting Magistrate Aberdeen
21 Jun 2019