CHIDGEY and COMMONWEALTH OF AUSTRALIA

[2011] QDC 31

[2011] QDC 31

DISTRICT COURT

CIVIL JURISDICTION

JUDGE R JONES

No 3511 of 2010

DAVID STANLEY CHIDGEY	Appellant
and
COMMONWEALTH OF AUSTRALIA	Respondent

BRISBANE

..DATE 11/03/2011

JUDGMENT

HIS HONOUR:  This is an appeal against a decision of her Honour, Acting Magistrate Tynan, handed down on 15 July 2010.

The application that her Honour had to decide was brought by the Commonwealth of Australia under rule 292 of the Uniform Civil Procedure rules of Queensland, that is, it was an application for summary Judgment.

On 15 July 2010, after hearing both sides, her Honour ordered the defendant to pay the plaintiff the amount of $13,145.89 including $1,885.60 by way of costs.

A notice of appeal was filed on 26 November 2010.  The appeal is substantially beyond the time prescribed for the filing of such an appeal. The Commonwealth opposes the hearing of the appeal on two grounds; first, that it was filed out of time, and no sufficient reason to explain the delay has been provided.  In the alternative, if leave were to be granted then the appeal ought to be dismissed on the merits.

The Commonwealth adopted a fairly robust approach in allowing the defendant to articulate his grounds of appeal to allow me to assess the relative merits of the appeal that, no doubt, would have a bearing on my view as to whether or not leave ought to be granted.

The grounds of appeal are -
a) The Magistrate erred and should never have given a Judgment under the Uniform Civil Procedure Rules 1 1999.
b) The respondent filed and served an unsealed claim in the Magistrates Court of Queensland, the respondent's claim is therefore invalid.  The Judgment is therefore invalid.  Thereafter it is alleged - thereafter a number of other matters are referred to in subparagraphs (b), (c) and (d) which I do not intend to go into in detail other than to note that a central theme of the appellant's case is that the Commonwealth has acted in a heavy handed manner and perpetuated what he believes to be a mistake on the part of Centrelink.

During the course of argument consistent with at least one of the grounds of appeal, the appellant raised the fact that he was served with an unsealed claim and, as I've pointed out in the grounds of appeal, he therefore argues that the proceedings were invalid.

In support of his argument the appellant took me to Rules 16, rule 371 and rule 373 of the Uniform Civil Procedure Rules. In my view, none of those rules supported his argument and, essentially, the appellant, when taken to the details of those rules agreed.

The appellant also referred to the fact that Judgment was delivered in a closed Court.

It is true that, if it did in fact occur, that would be a highly unusual occurrence as the Courts of this State and the Commonwealth are, as a general rule, open to the public.  That the Judgment was delivered in a Closed Court is unusual but that would not be a basis for setting aside the Judgment, absent some other evidence as to why that would be a ground to set the decision aside and no such evidence was pointed to by the appellant.

In respect of the issue of being served with an unsealed or not stamped claim, leaving aside the matters to which I have referred concerning the rules of the Court, it seems to me that this argument became largely academic if not entirely academic and has no bearing on the outcome of this appeal.

Notwithstanding being served with an unsealed copy of the claim, the appellant filed a notice of intention to defend, a defence and appeared at the hearing of the summary Judgment application. And by, reference to the transcript, was given an opportunity to be heard in his defence.

As I have indicated, one of the central themes of the appellant was that the fundamental facts or at least some of the fundamental facts upon which the Magistrate acted were as a consequence of an error by Centrelink.

If that were so that might well provide good grounds for reviewing and setting aside the decision of her Honour, however, the appellant, in my view, has failed to satisfy me that such an error has occurred.

Another matter that was raised, although not argued before me, was that the matter should be dealt with by way of trial before a jury.  There is no merit in that proposition.

For the reasons given I have reached the conclusion that there has been no denial of natural justice accorded to the appellant in either the proceedings in the Magistrates Court or the proceedings before me.  The largely technical matters raised would not warrant setting the orders made below aside.  Also, as I have said, the appellant has not been able to show where the Magistrate below erred in reaching her conclusion.

Accordingly, in my view, the appeal ought to be dismissed on the merits.  When asked for reasons for the delay in filing the appeal the appellant, as I understood him, said that at least to some he was somewhat pre-occupied by the recent elections.  That does not provide an excuse for the delay.

Bringing all these matters together I would not grant leave to extend time in respect of the filing of the appeal but would note for the record that on the substantive matters as argued before me I consider that there would, in any event, be no basis for setting the decision made below aside.  For all these reasons the appellant is unsuccessful.  Now, I will reserve my right to tidy those reasons up in due course.

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HIS HONOUR:  All right.  The order is that the appellant is to

pay the respondent's costs of and incidental to the appeal on a standard basis.  Costs to be assessed.

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