AUGUST 10, 1923 THE QUEENSLAND LAW REPORTER 22. Magistrates Court Jurisdiction - Locality - Defendant a resident of New South Wales-Service accepted by his solicitor in Queensland-Jurisdiction not patent on the plaint—Amendment -Application to amend-Refusal to hear-MandamusThe Magistrates Court Act of 1921 (12 Geo. V., No. 22)— Magistrates Courts Rules, 1922, rr. 33, 40, 176, 177. The plaintiff commenced an action in the Magistrates Court at Goondiwindi by a plaint wherein the defendants were described as Robert Fitzgerald Evans, of Merriwa, Boggabilla, in the State of New South Wales, and G. A. Nelson, of Merriwa North, in the State of Queensland. The substance of the action was thus stated:- 'The abovenamed plaintiff sues the abovenamed defendants for money payable for that the defendants wrongfully detain from the plaintiff the plaintiff's goods and chattels-that is to say (describing them), and the plaintiff claims a return of the said goods or their value, the sum of £117; or, in the alternative, for that the defendants wrongfully deprived the plaintiff of the abovementioned goods and chattels and converted the same to their own use and refused to give the same up to the plaintiff on demand, and the plaintiff has suffered damage thereby. And the plaintiff claims £117." It was not averred in the plaint chat Evans either resided or carried on business in Queensland, or that the cause of action or any material part of it arose within the State. Service of the plaint was accepted on behalf of the first-named defendant by a firm of solicitors who practised in Queensland, and on behalf of the other defendant, by their agent in Goondiwindi. On the withdrawal of the action against the second defendant, the solicitors filed a notice of defence on behalf of the first defendant, which set up absence of jurisdiction. At the hearing, defendant moved to strike out the action on the ground that the Court had no jurisdiction to entertain the claim; that the plaint did not disclose a cause of action cognizable by the Court; and that the plaint showed that the Court had no jurisdiction. Plaintiff then applied for leave to amend the plaint by inserting an allegation that defendant was carrying on business in Queensland, and by inserting "in Goondiwindi" in the body of the plaint (presumably to allege that the cause of action arose in the district). The Police Magistrate refused to allow any amendment, and struck out the action. The plaintiff obtained an order nisi for mandamus, and in his supporting affidavit, stated that he was prepared at the hearing to give evidence which would have established that the Magistrate had jurisdiction to hear the plaint. On the application to make the order absolute, Held, that it is not necessary that a plaint filed in a Magistrates Court should show on its face every fact material to found jurisdiction, or to bring the cause of action within the Rules which define the local jurisdiction of a Magistrates Court; that the plaint did not negative jurisdiction; that the Magistrate should have heard evidence and determined on the facts whether he had jurisdiction; and that mandamus should be granted. THE KING . THE POLICE MAGISTRATE AT GOONDIWINDI AND R. F. EVANS, 1st, 4th, 5th May, 1923. FULL COURT (MCCAWLEY C.J., MACNAUGHTON AND O'SULLIVAN J.J.). Counsel: Walsh; McGill. Solicitors: T. W. Biggs, agent for Leeper & Leeper, Goondiwindi; Morris, Fletcher & Cross, Brisbane. 23. Malicious prosecution-Evidence that prosecution terminated in favour of plaintiff-Nolle prosequi. WITNESS ACTION. In an action for malicious prosecution, the entry of a nolle prosequi is sufficient proof that the proceedings have terminated in the plaintiff's favour. Gilchrist v. Gardner (12 N.S.W.L.R. 184) followed. HILL V. VARLEY, 9th July, 1923. MACNAUGHTON J. (Supreme Court, Brisbane). Counsel Watson; H. D. Macrossan. Solicitors: McGhie & Chambers; Thynne & Macartney. 25 26 THE QUEENSLAND LAW REPORTER AUGUST 10, 1923 24. Will-Construction-Substitutionary gift-Gift to "children of my deceased sister"-Gift to children of any beneficiary under the will who should die in testator's lifetime-Child of late sister dead at date of the will, leaving issue. A testator devised and bequeathed his property to trustees upon trust for conversion, and directed them (inter alia) to pay one-third of the residue "to the children of my deceased sister K, provided always that if any male or female being a beneficiary under this my will shall die in my lifetime leaving a child or children who shall survive me the child or children shall take (and if more than one, equally between them) the share which his or their parent would have taken of and in the residuary trust funds if such paient had survived me and attained the age of twenty-one years." L., one of the children of the testator's deceased sister K., died before the date of the will, leaving a daughter who survived the testator. Held, that the daughter of L. was not included as a beneficiary under the above residuary gift. In re LYDIKSEN, CHRISTENSEN AND OTHERS. ERICKSEN AND OTHERS, 16th, 29th March, 1923, O'SULLIVAN J. Counsel: Wassell; Real. Solicitors: Morris, Fletcher & Cross; Nielson & Miller; Bouchard & Holland. 25. Magistrates Court Appeal Negligence Contributory negligence-Findings by Magistrate-Certain conclusions by Magistrate which were not findings of fact but were conclusions of law-Findings of fact manifestly wrong-Erroneous conclusions of law. Appeal-Judgment for plaintiff for damages-Damages assessed by Appellate Court. APPEAL FROM MAGISTRATES COURT. This was an appeal from a decision of a Magistrates Court. The facts are fully stated in the following judgment, which was delivered in Brisbane after the hearing of the case at Kingaroy Circuit Court. : LUKIN J. This is an appeal from the decision of the Police Magistrate at Kingaroy, whereon he entered judgment for the defendant in an action wherein the plaintiff sought to recover £200 damages alleged to have been caused by the defendant in the negligent driving of a motor car. The statement of the facts found by the Court required by s. 182 of the Magistrates Courts Rules is in these words: (1) That there is no evidence of negligence on the part of the defendant; (2) that there is evidence of contributory negligence on the part of the plaintiff, which was the direct cause of the accident; (3) that the plaintiff, at the time of the accident, was on his wrong side of the road; (4) that the defendant was driving on his right side of the road when the accident occurred. The argument on the appeal was heard by me at the last sittings of the Circuit Court at Kingaroy. I have considered the written depositions of the witnesses, heard argument on both sides, and, with the consent of both parties, have had the scene as well as the exact spot of the accident pointed out to me by an admittedly independent witness-Constable Riley-to whom the defendant, shortly after the event, pointed out the road, the double track, the point of collision, and the position and direction of marks made on the road by such collision. I found on examination that the witnesses on both sides were inaccurate in their description of place and distances; but in coming to my conclusion, having regard to the findings of the Magistrate, where there is any doubt on any question, I have assumed the evidence for the defence to be correct. The first two conclusions at which the Magistrate has arrived are not findings of fact but conclusions of law, with which, for reasons hereinafter appearing, I disagree. The third and fourth are findings of fact which are, to my mind, manifestly wrong. There are other questions of fact to which the Magistrate has not directed his attention, but which were, and are, necessary for a decision on the case. AUGUST 10, 1923 THE QUEENSLAND LAW REPORTER The road in question leads from Kingaroy to Nanango. At the particular place it is nominally 66 feet wide between two fences that distance apart, but is really much less, there being numbers of trees and bushes on either side of the unmade road, which is a worn track only. This worn track is, generally speaking, a single one, sometimes running along the centre of the nominal road, sometimes to the right, sometimes to the left of the centre, varying with the suitability and clearness from trees and stumps of the part of the road traversed. Occasionally there is a second slightly worn track running approximately parallel to the worn road, but it is obvious that all travellers going both ways generally use the worn track. When two conveyances meet on this worn track, one either must take to the grass on the side of the road, or each conveyance gives way partially to the other. The place where this collision occurred is about four chains from a turning where the road is the one track. About one chain from the turning a second, much less worn, track branches off and runs approximately parallel past the scene of the accident for some distance further, leaving about six feet of grass between such tracks, there being a few small bushes here and there on such intermediate grass. Outside the two tracks are stumps and trees dotted about, reducing the space available to traffic at the place of the accident to between 20 and 25 feet. The plaintiff was coming from the direction of Nanango along this well-worn track, as is obviously usual, having the less worn track on his left-hand side of the road, and driving a slow-moving vehicle drawn by one horse. A man named Sealey and the defendant were each driving a motor car along this road in an opposite direction-Sealey in front-under circumstances which leave no doubt in my mind that each was going at an unduly fast pace or, as the constable says in reference to the defendant, "I would say the defendant was travelling at a fair bat when he struck the sulky, to cause the skidding" that he had seen. It appears that Sealey and the defendant had been in town, apparently attending a Court in a case in which they were on opposite sides. Sealey says that the defendant was in the habit of racing him on the road; that on this occasion he passed the defendant on leaving town when the defendant was getting into his third gear; that he drove his car at the rate of 35 miles per hour up to the time of the accident when the defendant was attempting to pass him. The defendant's evidence is not in agreement with this. Having regard to the Magistrate's findings, I take the defendant's evidence as correct. The defendant says that Sealey passed him just as he was changing his gear; that he followed; that he did not go at the cate of 30 miles per hour; that he turned the corner after Sealey, four chains away from the point of the collision, at the rate of 20 miles an hour; that he turned into the lesser worn track on his right hand three chains away from the point of collision, intending to pass Sealey; that travelling along this second and right-hand track he got his front wheel level with Sealey's back wheel, and was practically so when the accident happened; that he saw the plaintiff when he was about nine yards away from him and not before, although when first giving his evidence he said he saw him 200 yards away, but he explained that mistake away by saying he had mistakenly said 10 chains instead of 10 yards. He says that it was not possible for him, when he saw the plaintiff, to pull on to Sealey's track. Another witness for the defendant, Clive Sapeer, who was in defendant's car, says he saw the plaintiff four chains away, and in the position in which the defendant's car was, the defendant had full view of the road and should have seen the plaintiff. The defendant's not seeing him is possibly explained away by the defendant's own evidence: "I was watching Sealey and part of the read, and was not looking right ahead." Constable Riley gave evidence that the defendant took him out to the scene of the accident and showed him where he (the defendant) intended to get past Sealey; where he had taken the right-hand track; where the defendant first saw the plaintiff; where the defendant apparently, on his first sight of the plaintiff turned to his left, slightly off the right-hand track on to the grass between the two tracks, and where he had collided with the plaintiff; the tracks and marks made by the defendant's car and the plaintiff's sulky." The constable gave evidence as to the distances: From the turn-off to the point of collision, 85 yards; from the point where the defendant first saw the plaintiff and attempted to turn off on the intermediate grass, nine yards; from the point of collision to the point of rest, four yards, this skidding mark being apparent diagonally across the grass between the tracks. The constable also gave evidence that the defendant could have seen the plaintiff coming along 400 yards away; that if the defendant was practically parallel (meaning the defendant's car with Sealey's car—a fact which the defendant 27 28 THE QUEENSLAND LAW REPORTER AUGUST 10, 1923 himself admitted) he would have a better view. He also said: 'I consider that if the defendant were in that position he could have avoided the accident. If defendant had kept a good look-out he could have seen the plaintiff coming and could have avoided the accident." The position was this: The plaintiff, as narrated above, saw the cars coming round the corner. At the pace, the foremost would have met him in approximately nine seconds on the worn roadway. He turned off on to the grass to go over to his left side and was immediately confronted with the defendant's car coming at a fast pace, and practically occupying the balance of the available part of the road. His horse stopped when on the less worn track, the sulky being on the grass between the two roads; whether the horse stopped or was pulled seems to me immaterial, because probably the horse would naturally be frightened of the on-rushing car, and the driver would recognise the difficult position in which the defendant had placed him. When the defendant saw the plaintiff immediately in front of him he had very little more than one second, according to a calculation of the admitted distance-nine yards-and the pace 20 miles an hour, to avoid a collision, and the inevitable accident happened. I think it is clear from this narration of the facts that the defendant was undoubtedly negligent in that, under the circumstances, he drove his car at too rapid a pace, and in that he did not keep a proper look-out, particularly when he was on his wrong side and about to pass a vehicle on his left, going at a rapid pace. I do not think it can be said that the plaintiff was in any way guilty of negligence, and certainly not of contributory negligence. It cannot be said that the plaintiff's conduct was the proximate cause of the damage he sustained. Symons v. Storey (30 C.L.R. 176). I think such damage was caused entirely by the negligence or improper conduct of the defendant in improperly and carelessly driving along the right hand without looking ahead, and placing the plaintiff in such a position on a narrow road that it was extremely difficult for the plaintiff to decide what he should do under the circumstances as they presented themselves to him in the few seconds at his disposal. Whatever the plaintiff did, a collision seemed inevitable unless the defendant saw him in time-which he in fact did not-to pull the car up and get behind Sealey's car or again on the worn road. The legal position of the plaintiff and the defendant may be summed up in either of two passages of Viscount Birkenhead's judgment in the recent case: Admiralty Commissioners v. s.s. Volute (1922 A.C. 129, at p. 136): "In all cases of damage by collision on land or sea there are three ways in which the question of contributory negligence may arise: A. is suing for damage thereby received; he was negligent, but his negligence had brought about a state of things in which there would have been no damage if B. had not been subsequently and severally negligent; A. recovers in full.'" In the present case, assume that contrary to my opinion the plaintiff was negligent in at first driving along this worn road, then in the position where the plaintiff was at the time of the accident there would have been no damage if the defendant had not been subsequently and severally negligent. Again, and in further quotation I substitute the words "the defendant" for "A." and "the plaintiff" for "B.", it then reads thus :-"The defendant's negligence makes collision so threatening that, though by the appropriate measure -the plaintiff, could avoid it, the plaintiff has not really time to think, and by mistake takes the wrong measure. The plaintiff is not guilty of any negligence and the defendant wholly fails." The Bywell Castle (4 P.D. 219). I think à fortiori in this case the plaintiff is blameless and the defendant should wholly fail. I think, then, that the appeal should be upheld, that the judgment of the Magistrate should be set aside, and judgment entered for the plaintiff for damages, which I assess-having regard to the evidence-at £80. Order accordingly, costs to be taxed by Registrar of Magistrates Court. I certify for five witnesses. I fix the costs of appeal at £18 18s. and £4, the costs of the depositions, being a total of £22 18s. Appeal upheld; judgment of Magistrate set aside; judgment RADUNZ v. USHER May 10th, 1923, LUKIN J. (Kingaroy Circuit Court). Counsel: Stanley; Richard on (solicitor). Solicitors: Bond & Feather; H. R. Richardson. SEPTEMBER 7, 1923 THE QUEENSLAND LAW REPORTER 26. Sale of goods, agreement for-Factor-Possession of goods under agreement Option to purchase-Hire and purchase agreement -Contract for hire-Disposition of goods by person having option of purchase-Bill of Sale-The Bills of Sale Acts of 1891 to 1896 (55 Vic., No. 23; 60 Vic., No. 11), s. 3, sub-sec. 4, s. 4 -The Factors Act 1892 (56 Vic., No. 8), ss. 10, 3-The Sale of Goods Act of 1896 (60 Vic., No. 6), s. 27, sub-sec. 2. By an agreement called a contract for hire, E. hired from O., the owner, a sawmill plant, value £150, on terms of £80 deposit and monthly payments of £7 for ten months; E. agreed to pay for the use or hiring of the plant as above; the hiring was terminable at the option of O. if payments fell in arrears for three months, and O. was then at liberty to remove the plant; on E.'s failure to perform the agreement, O. could terminate the hiring and re-possess himself of the sawmill plant without notice, and for that purpose enter by force; E. undertook to insure the plant to the extent of £150: if E., having fulfilled the conditions of the agreement, desired to purchase the sawmill plant at any time during the currency of the agreement, he was entitled to do so upon paying to O. a sum which, including the money paid for use or hire, amounted to £150, but that right, unless and until acted upon, was deemed to give E. no property in or right of ownership over the sawmill plant, and until such purchase E. held the property solely as bailee. E. took possession in October, 1921, and in January, 1922, he improperly and without consent of O., executed a bill of sale over the plant in favour of K. as security for an advance. The bill of sale was registered. E. made default in his payments to O., and in May, 1923, O.'s agent took possession of the plant. K. sent workmen to take possession and dismantle the plant, with the object of disposing of it under the bill of sale. When the bill of sale was executed, K. had no notice of O.'s claim and acted in good faith. Held, that there was no legal obligation to purchase and that the case fell within the principle of Helby v. Matthews ([1895] A.C. 471), and not of Lee v Butler ([1893] 2 Q.B. 318), and an injunction was granted restraining K. from interfering or dealing with the plant. Held, also, that s. 3 sub-sec. 4 and s. 4 of The Bills of Sale Act of 1891 bestowed no rights on K, because even assuming that the agreement was an unregistered bill of sale, if E. had no title to the property, K. could acquire none from him. OATES v. KENNA, 23rd May, 1923, SHAND J. Solicitors: Stephens & Tozer: Thynne & Macartney. Counsel: Walsh; McGill. 29 27. Practice-Appeal-Court of Petty Sessions-Supreme Court— An order was made by a Police Magistrate under The Deserted Wives and shall be final. District Courts were abolished by The Supreme Court Act of 1921, and by s. 3, sub-sec. 4, of that Act it was provided that where provision is made for an appeal to a District Court, the appeal shall lie to the Supreme Court or a Judge thereof. |