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[1992] QCA 107
Court of Appeal (Qld)
1992-04-23
Original judgment source is linked above.
The applicant contended before me that her Honour was wrong in dismissing his application because, assuming that the respondent relied only on s. 11(1)(b) of the Service and Execution of Process Act, 1901 (Cth) it had not proved that the contract sued on was made or entered into within Queensland. He did not argue before me that, as against the defendant, Qintex, the action was not properly constituted pursuant to r. 9(a).
Paragraph 1 of the application before her Honour was misconceived in form. It should have been for a stay: see Flaherty v. Girgis [1987] HCA 17; (1987) 162 C.L.R. 574 at 583-7. However, it is not suggested that that affected her Honour's decision; that she would not have allowed an application to amend to seek a stay if she had decided the substantive question in the applicant's favour. Nor is it relevant before me except to explain the application to amend paragraph 1 of the summons.
Leave to appeal may be granted only if "some important question of law or justice is involved": The District Courts Act of 1967, s. 92(2). Mr Dorney Q.C., although formally contending that some important question of law was involved, quite properly accepted that he had difficulty in making that argument good; and he was unable to identify any important question of law involved in her Honour's decision.
His alternative argument, upon which he mainly relied, was that there was an important question of justice involved. That question, he said, was that a person should not be subjected to the jurisdiction of a court unless, in effect, the jurisdiction of that court is sufficiently proved. Stated in such general terms, the argument amounts to an assertion that every contest to jurisdiction under s. 11 (or r. 59) involves an important question of justice. The fallacy of such an assertion is obvious on its face. No doubt recognising this, Mr Dorney Q.C. argued that her Honour's decision on this question was clearly wrong and that that had the consequence that in this case an important question of justice was involved.
No doubt the likely correctness of the decision, leave to appeal from which is sought, is a relevant factor on an application for leave, at least in the sense that such an application is unlikely to be granted if the decision below is plainly right. No doubt also, at least generally, the greater the likelihood that the decision is wrong the greater is the injustice caused to the unsuccessful party. But when s. 92(2) speaks of an important question of justice, it is not speaking merely of the injustice which a party will generally suffer when a decision is made against that party which appears to be wrong. It is speaking of a question which goes beyond the correctness or otherwise of the decision. That is why Mr Dorney Q.C. was obliged at the outset to put his argument in such a general way. Merely demonstrating that a decision is arguably or even probably wrong does not establish that an important question of justice is involved.
Mr Dorney Q.C. also took me through the arguments advanced in paragraph 32 of Mr Robinson's first affidavit. It is fair to say that he advanced these only as secondary arguments, his primary one being that with which I have already dealt. And it is sufficient to say that there is, as I indicated during the course of argument, no important question of law or justice involved in any of them.
The application therefore must be refused with costs.
MINUTE OF ORDER: Application refused with costs
CATCHWORDS: INFERIOR COURTS - DISTRICT COURT - APPEAL TO SUPREME COURT - Application for leave to appeal from dismissal of application to strike out or stay by District Court Judge - whether "some important question of law or justice is involved" - whether injustice generally suffered by losing party suffices
Service & Execution of Process Act 1901 (Cth) s.11; District Courts Act 1967 s. 92(2); District Court Rules r. 9
Counsel: K. Dorney Q.C. with him P. Baker for the Applicant
K.C. Fleming Q.C. with him R. Traves for the Respondent
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American Express International Inc
Hewitt [1992] QCA 107