Chidgey v Wellner

[2012] QDC 280

DISTRICT COURT OF QUEENSLAND

CITATION:

Chidgey v Wellner [2012] QDC 280

PARTIES:

DAVID STANLEY CHIDGEY
(Appellant)

v

UTZ WELLNER (Trading as Wellners Lawyers)
(Respondent)

FILE NO/S:

1760/2012

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

23/8/2012

DELIVERED AT:

Brisbane

HEARING DATE:

23/8/2012

JUDGE:

Samios DCJ

ORDER:

1. Appeal allowed.
2. The order for costs made by the learned Magistrate on 29 March 2012 is set aside. 
3. The order for costs made by the learned Magistrate on the 8th of December 2011, namely the plaintiff's costs thrown away on the 8th of December 2011 will be the plaintiff's costs in the cause, is reinstated.
4. Order the costs of the plaintiff on 29 March 2012 be costs in the cause of the QCAT proceedings.

CATCHWORDS:

APPEAL - Magistrates Court - appeal against costs order - where magistrate disqualifies himself from hearing matter - whether magistrate should have made neutral costs order

Magistrates Court Act 1921

Emanuel Management Proprietary Limited (In liquidation) v. Foster's Brewing Group Limited [2003] QSC 494

COUNSEL:

SOLICITORS:

The appellant was self-represented.
The respondent was self-represented.

1. This is an appeal against the decision of the learned Magistrate at Wynnum Magistrates Court who on the 29th of March 2012 ordered the appellant to pay the respondent's costs thrown away on a previous occasion in the sum of $4,915.  The appellant is the defendant in proceedings brought by the respondent as plaintiff.

2. The respondent's claim against the appellant is for fees the respondent claims are owing by the appellant to the respondent for conducting Family Court proceedings.  It seems the appellant claims what the respondent did in those Family Court proceedings did not warrant the payment of the fees because of alleged breaches of duty on the part of the respondent.

3. Despite a number of proceedings between the parties, even now the latest amended defence and counter claim of the appellant filed in the Wynnum Court on the 31st of January 2012, does not set out with particularity the appellant's claims.

4. The notice of appeal was filed in this District Court on the 4th of May 2012.  The decision of the learned Magistrate, if I've not already stated it, was made on the 29th of March 2012.  Therefore the appellant is seven days out of time. 

5. It is accepted on the hearing of this appeal today that he tried on four occasions to lodge something with the District Court Registry and he was sent away.  The history of this matter persuades me that the appellant and the respondent are locked in battle over these fees and have accessed the Court of Appeal, I think twice; the District Court, I think twice and been in the Magistrates Court on a number of occasions. 

6. It does seem to me the appellant either does not understand or does not want to understand the nature of the legal processes whereby there are applications in the course of proceedings which may resolve the issue in dispute in those applications but does not finally determine the rights of the parties.  The final determination of the rights of the parties is left to a trial.

7. Nevertheless, I am satisfied that it is proper in this case to extend to the appellant leave to appeal, despite being seven days late.  He represents himself and he has challenged most decisions that have been made that affect him.  There was no doubt he was going to challenge this decision, in my opinion.  The respondent would've been under no illusion that the appellant would not appeal the decision of the learned Magistrate made on the 29th of March 2012.  I do not consider the respondent is prejudiced in any way by the late filing of the notice of appeal. 

8. However, that is not the end of the matter.  The sum involved is below the minor civil dispute limit, which is $25,000.  Therefore, leave to appeal should not be given unless the Court or a Judge is satisfied that some important principle of law or justice is involved, section 45(2) of the Magistrates Court Act 1921.

9. The respondent has referred me to authorities regarding appeals against cost orders.  When a cost order is made that involves the exercise of a discretion as Justice Chesterman said in Emanuel Management Proprietary Limited (In liquidation) v. Foster's Brewing Group Limited [2003] QSC 494 at paragraph 30, "Nevertheless, the cases make it clear that leave should not be given unless there is an arguable case that applying the principles of House v The King, the discretion will be overturned on appeal.  That means there must be an arguable case that the Judge committed an error of law or misapprehended the facts or that the result is inexplicably inconsistent with the facts."

10. The respondent submits other cases show that, with respect to an appeal against the cost order, they are not had for the asking, not given as a matter of course, should not be given unless the applicant demonstrates that there is a cogent argument against the order and should not be given if there is simply an assertion of dissatisfaction or an assertion that the Judge may not have correctly applied the well-established principle.  The respondent also refers to the judgment of Justice Chesterman that I have already quoted.

11. It seems to me that on the 8th of December 2011 when the matter was before the learned Magistrate, the issue being agitated was that, on the part of the respondent, the matter had been set down for trial and the appellant had still not served an amended defence and counter claim as leave having been given by his Honour, Judge McGill, on the 21st of December 2007 for the appellant to do so.  That defence and counter claim - his Honour Judge McGill gave liberty to the appellant to replead in that order on the 21st of December 2007.

12. So therefore the parties were before the learned Magistrate on the 8th of December 2011 and a comprehensible amended defence and counter claim had not been filed and served.  The trial could not go ahead according to the learned Magistrate.  He, therefore, vacated the trial date and gave the appellant leave to amend his defence by 31 January 2012 and set the trial down for the 29th of March 2012.

13. As can be seen from the evidence before me, a document called "An amended defence and counter claim" was filed in the Wynnum Magistrate's Court, as I have said, on the 31st of January 2012 by the appellant.  It does not particularise the complaints the appellant has against the respondent.  It refers to victories the appellant has had in the Courts and, therefore, he should win the case.  That is my wording of his position as it seems to be evinced from what he has said before the learned Magistrate and his amended defence and counter claim filed on the 31st of January 2012 and even here today.

14. The learned Magistrate, I consider, gave the appellant the benefit of the doubt on the 8th of December 2011 that he may have misunderstood the processes and, therefore, the learned Magistrate ordered that the plaintiff's costs of that day would be the plaintiff's costs in the cause.  I've mentioned he ordered the amended defence and counter claim to be filed by 31 January 2012 and ordered a guillotine order that there be judgment for the respondent against the appellant for the amount of the claim together with interest and costs.

15. Then the matter came on before the learned Magistrate on the 29th of March 2012 and on this occasion the learned Magistrate said he could not hear the matter because he would have to disqualify himself.  The learned Magistrate said, "The appellant made a totally unfounded allegation and a slur on a competent and diligent person, namely the registrar of the Court.  The Magistrate said that the appellant had accused him of corrupt behaviour and neither the learned Magistrate nor another Magistrate could hear the matter because they could not appear to be impartial because a member of the Court staff had not been treated in the manner in which the registrar was treated.

16. The learned Magistrate decided to order the matter be transferred to QCAT pursuant to section 53 of the Act.  Then there was discussion about the defence and the learned Magistrate elected not to hear the matter.  The learned Magistrate adopted a position that he accepted what the registrar had told him.  I can see no complaint with that. 

17. However, he did not give the appellant an opportunity to go on oath about what had been said.  What may have happened in that respect I do not know, that is I do not know if the appellant would've entered the witness box and went on oath about what was said or not said.  He would've, of course, created an unseemly situation, so it is not surprising that the learned Magistrate adopted the view he did.

18. It became a question then again of the costs that were obviously going to be thrown away, that is the appellant on his own doing brought about a circumstance of the proceedings not being able to proceed on that day as far as the learned Magistrate was concerned. As the learned Magistrate said, he trusted the registrar's word completely and one would think that would have to follow even if the appellant got in the witness box.

19. Therefore, the learned Magistrate considered that the costs on the previous occasion had been thrown away by events that had occurred.  However, in my opinion having disqualified himself and indicating that he trusted the registrar's word completely he should not have made an adverse costs order against the appellant; that is, in my opinion, he should have found a neutral way to deal with the costs order in the circumstances which did not bear any criticism that he could not act impartially.

20. Therefore, I do come to the view, despite the authorities that have been referred to about appeals in relations to costs orders, that in this case there has been an error on the part of the learned Magistrate in making an adverse costs order.  In my opinion, the order that he should have made on the 29th of March 2012 was that the plaintiff's costs of the 29th of March 2012 be costs in the cause of the QCAT proceedings.  However, in my opinion, it follows he should have reinstated the order for costs made on the 8th of December 2011, that is that the plaintiff's costs thrown away on that date, the 8th of the 12th 2011, would be the plaintiff's costs in the cause and in that way those two orders for costs would flow to the plaintiff if the plaintiff was successful in the litigation.

21. Therefore, I allow the appeal.  I set aside the order for costs made by the learned Magistrate on 29 March 2012.  I reinstate the order for costs made by the learned Magistrate on the 8th of the 12th 2011, namely the plaintiff's costs thrown away on the 8th of December 2011 will be the plaintiff's costs in the cause.

22. I order the costs of the plaintiff on 29 March 2012 be costs in the cause of the QCAT proceedings and I will hear both of you as to what order I should make in relation to the costs of this appeal today.

23. As regards to the costs of this appeal, I consider the appellant has to some extent been successful however I do note it is on a point that he did not raise.  However, I do in the end come to the view there should be no order for costs of this appeal and therefore there'll be no order for costs of this appeal.