DISTRICT COURT OF QUEENSLAND
CITATION:
Higgs & Anor v Rowe [2021] QDC 230
PARTIES:
MICHAEL HIGGS
(first applicant)
and
JEAN HIGGS
(second applicant)
vMAURICE ROWE
(respondent)
FILE NO:
1830/21
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
22 September 2021
DELIVERED AT:
Brisbane
HEARING DATE:
3 August 2021
JUDGE:
Richards DCJ
ORDER:
1. The application is granted.
2. It is ordered that Claim number M442/2021 be transferred from the Southport Magistrates Court to the Southport District Court.
3. Written submissions are to be provided within 7 days in relation to costs and further directions for the progression of the matter.
CATCHWORDS:
PROCEDURE – JURISDICTION – DEFAMATION – where the respondent filed a Claim and Statement of Claim in the Magistrates Court alleging defamation – where the applicants solicitors served a Conditional Notice of Intention to Defend asserting an election to proceed to a jury trial – where, for this reason, the respondent enclosed a consent order to be signed by a Registrar of the Magistrates Court to transfer the matter to the District Court – where, instead, the applicants filed an Originating Application in this Court to have the proceeding transferred to the District Court – where the applicants allege the Magistrates Court had no legislative power to permit the transfer of the proceeding to the District Court – whether the Magistrates Court lacked legislative power – whether the proceeding, in the circumstances, ought to be transferred to the District Court
LEGISLATION:
Civil Proceedings Act 2011 (Qld) s 26
Defamation Act 2005 (Qld) s 21, s 21(1), s 21(5)
Magistrates Court Act 1921 (Qld) s 4(1)
Uniform Civil Procedure Rules 1999 (Qld) r 16, r 16(i), r 144(4), r 666
COUNSEL: P Hackett for the applicants
B P Strangman for the respondent
SOLICITORS: Macquarie Legal for the applicants
ABKJ Lawyers for the respondent
Introduction
On 24 May 2021 the respondent filed a Claim and Statement of Claim in the Southport Registry of the Magistrates Court alleging defamation. In response to that Statement of Claim being served on the applicants on 16 June 2021 the solicitors for the applicants emailed a letter to the respondent’s solicitors indicating that there was no jurisdiction for the Claim to proceed in the Magistrates Court and that they would seek to have the matter struck out for want of jurisdiction. No reasons were given for taking this position.
The solicitors for the respondent emailed back the next day noting that the Magistrates Court was in fact vested with such jurisdiction, referencing s 4(1) of the Magistrates Court Act 1921 (Qld) in addition to a supporting Magistrates Court decision. No further correspondence was sent by the applicants’ solicitors until 5 July 2021 when the solicitors served a Conditional Notice of Intention to Defend asserting an election to proceed to a jury trial. This was the first time that the applicants’ solicitors had indicated they wanted to elect trial by jury and certainly there was no advance notice given. No Defence has been filed to date.
In reply to the Conditional Notice of Intention to Defend the solicitors for the respondent indicated that if the applicants wanted a trial by jury, they would consent to the matter being transferred to the District Court and they attached a Form 59A for execution together with a draft order so that the matter could be transferred seamlessly to the District Court at Southport.
The solicitors for the applicants ignored that letter and instead sent a letter by email enclosing an Originating Application and supporting affidavit filed in the Brisbane District Court on 21 July 2021. The solicitors for the respondent replied to the Originating Application indicating that they had already supplied documents agreeing to the transfer to the District Court and that they would agree to the Originating Application to be disposed of with no order as to costs. They also noted that the matter should proceed in the Southport Registry rather than the Brisbane Registry.
In familiar fashion the solicitors for the applicants ignored the reasonable offer of the respondent’s solicitors, did not respond to the suggestion that the matter should proceed in Southport and insisted on proceeding with the Originating Application.
Discussion
Section 21(1) of the Defamation Act 2005 (Qld) provides:
(1)Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.
(1A)Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if—
(a) the trial requires a prolonged examination of records; or
(b) the trial involves any technical, scientific or other issue that can not be conveniently considered and resolved by a jury.
(2)An election must be made at the time and in the manner prescribed by the rules of court for the court in which the proceedings are to be tried.
(3)An election may be revoked only—
(a) with the consent of all the parties to the proceedings; or
(b) if all the parties do not consent—with the leave of the court.
(4)The court may, on the application of a party to the proceedings, grant leave for the purposes of subsection (3)(b) only if satisfied it is in the interests of justice for the election to be revoked.
(5)In this section—
court means the Supreme Court or the District Court.”
At the hearing of this application the respondent argued that the right to elect trial by jury can be made only when the matter is within the jurisdiction of the District or Supreme Court and in this case, it is accepted that the damages will not come within the District Court monetary jurisdiction. I cannot accept the argument that the election for trial by jury cannot be made where a matter is initiated in the Magistrates Court. The respondent relies on the definition of “court” in s 21(5) of the Defamation Act 2005 (Qld) to argue that the reference to court in s 21(1) means a reference to a matter already before the District or Supreme Court. The applicants submit that s 21 gives all parties a right to elect trial by jury regardless of the court in which proceedings have commenced.
I accept the submission of the applicants that the election for trial by jury can be exercised in any proceeding. The practical effect of the election is that the matter must be transferred from the Magistrates Court to the District Court for this to take place. The reference to “court” in s 21 of the Defamation Act 2005 (Qld) in my view merely refers to the power of the court, once the election has been made, to order a trial without jury in certain circumstances.
Therefore, it is appropriate that the matter be transferred to the District Court from the Magistrates Court and that the matter be heard in Southport.
It was argued by the applicants that the manner of transfer to the District Court proposed by the respondent was not within the powers of the Registrar of the Magistrates Court and that there is a disconnect between rules 144(4) and 16(i) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). The disconnect being that the matter cannot be transferred to the District Court from the Magistrates Court. I disagree with that submission. There was no application made within 14 days pursuant to r 16 of the UCPR, therefore the Conditional Defence became unconditional and allowed the transfer by consent under r 666 of the UCPR. This was a sensible solution to the issue.
Most of the issues generated in this matter to date have arisen due to the applicants’ attitude to the proceedings. The applicants could easily have advised the respondent after service of proceedings that they wanted a trial by jury instead of simply claiming that the Magistrate’s Court did not have jurisdiction to hear the matter. Similarly, the applicants could have consented for the matter to be transferred from the Magistrates Court to the District Court as suggested by the respondent’s solicitors with no further fees incurred, however, the applicants chose to ignore that suggestion. Finally, they chose to file an Originating Application in the District Court in Brisbane when the matter clearly should be heard in Southport, and by doing so, ignored the suggestion that the matter should be heard in Southport. It was not until outlines were filed for this application that it was conceded the matter should be heard in Southport.
I accept the submission of the applicants that the application under s 26 of the Civil Proceedings Act 2011 (Qld) is a valid manner to apply for the Claim to be transferred to the District Court, however, I also accept the submission of the respondent that it was an unnecessary application generated solely by the obstructive attitude of the applicants.
Orders
The application is granted. I order that Claim number M442/2021 be transferred from the Southport Magistrates Court to the Southport District Court.
Given the matters outlined in this judgment concerning the conduct of the applicants, I am inclined to order the applicants pay the respondent’s costs, however I will take written submissions within 7 days in relation to costs and further directions for the progression of this matter.