Coopers and Lybrand v Sheedy

[1993] QCA 60

[1993] QCA 060

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 194 of 1992

Brisbane

[Sheedy v. Coopers & Lybrand]

BETWEEN:

COOPERS & LYBRAND

(Plaintiff) Respondent

- and -

JACK SHEEDY

(Defendant) Appellant

Mr. Justice Pincus Mr. Justice Davies Mr. Justice McPherson

Judgment delivered 11/03/1993

Reasons for judgment of the Court.

APPEAL DISMISSED, WITH COSTS.

CATCHWORDS:	MAGISTRATES COURT - Jurisdiction to set aside summary judgment - r.193(1) Magistrates Court Rules.
CLAIM FOR ACCOUNTANTS' FEES - Entry of appearance and defence under r.76 Magistrates Court Rules no address for service - evasion of service
Counsel:	K. Dorney Q.C., with him J. Kimmins for the Appellant R. Derrington for the Respondent
Solicitors:	Stokes and Panettiere for the Appellant Carter Newell for the Respondent
Hearing Date(s):	4 March 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 194 of 1992

BETWEEN:

COOPERS & LYBRAND

(Plaintiff) Respondent

AND:

JACK SHEEDY

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the Eleventh day of March 1993

This is an appeal from a judgment of the District Court in which that Court dismissed an appeal against two decisions of Magistrates. The first of those decisions was a refusal of an application to set aside a summary judgment entered against the appellant on 23 January 1991, the ground being that the Magistrates Court had no jurisdiction. The second decision attacked in the District Court was a dismissal of an application to extend time for applying to set aside that summary judgment and also for an order that the judgment be set aside.

The District Court dismissed the appeal with costs; leave to appeal against the District Court's judgment was granted on the ground that an important question of law is involved in the case, namely whether the word "hearing" in r.193(1) of the Magistrates Court Rules is limited to the hearing of an action or a counter-claim. If it is so limited, then that Court has no jurisdiction under r.193 to set aside a judgment entered summarily on what is called in the Magistrates Court Rules a "judgment summons". The Magistrates Court Rule under which summary judgment was given is r.145 corresponding to Supreme Court O.18 r.1.

The only specific grounds of appeal mentioned in the notice of appeal filed in this Court had to do with the point just mentioned - that is, the construction of r.193(1) of the Magistrates Court Rules. However, the argument with respect to the jurisdiction of the Magistrates Court which was advanced by Mr. Dorney Q.C., senior counsel for the appellant, ranged somewhat wider. Mr. Dorney contended that the Magistrates Court may set aside a judgment entered under r.145 in the exercise of its power of reconsideration, implicitly given by r.290(2). Further, Mr. Dorney contended that the Magistrates Court has inherent or implied power to set aside a judgment entered against a party in the absence of that party. He submitted that the decision of the Full Court of the Supreme Court in Montes v. Barkley Motors (Bodyworks) Pty. Ltd. [1968] Qd.R. 556 dealing with a similar problem arising under the District Court Rules was wrong, in that it reflected too narrow a view of the inherent or implied power of inferior courts.

In our opinion, it is inappropriate to decide in the present case the questions of jurisdiction agitated by Mr. Dorney. That is so because even if it is held that the Magistrates Court has jurisdiction to set aside a judgment entered in favour of a plaintiff pursuant to an order made under r.145, the judgment here in question should not be set aside, as a matter of discretion. That is, the appeal must fail on the merits and we therefore say nothing as to the strength or validity of the arguments advanced for the appellant on the jurisdictional point.

The action in which judgment was entered was a claim for accountant's fees brought against the appellant, whose address was given in the plaint as "183 Orangegrove Road, Coopers Plains in the State of Queensland". An entry of appearance and defence under r.76 was filed, but it gave no address for service, although the form (No. 18) in Schedule 1 to the Magistrates Courts Rules requires that this be done. The only address of the appellant given on the entry of appearance and defence was that just mentioned, set out in the title to the proceedings. According to an affidavit of the appellant filed in the Magistrates Court, he has never resided or attended at that address. The entry of appearance and defence was therefore positively misleading, as the only address of the appellant which it contained was wrong.

The solicitors for the respondent had difficulty in serving the judgment summons under r.145. The plaint had been served at 179 Dunedin Street, Sunnybank, but the process server was unable to serve the judgment summons there. The solicitors posted the documents to a post office box, which they had been given as the forwarding address of the appellant, and also posted it to the registered office of Sheedy Holdings Pty. Ltd., described in the appellant's affidavit as "my company".

They also, by process servers, attempted to serve the appellant elsewhere, but without success.

One would have expected the judgment summons to have come to the notice of the appellant, having been served on the registered office of Sheedy Holdings Pty. Ltd.; that was the office of the firm of solicitors which, according to the appellant's affidavit, formerly acted for him. The evidence of the appellant is to the effect that he did not see the judgment summons, from which it would appear that his former solicitors did not forward the document to him; if that is so, one would have expected the matter to be explained by those solicitors, but no explanation is given.

Ultimately, having failed to serve the appellant personally, the respondent obtained an order for substituted service of the judgment summons. If the appellant is to be believed, the means of service adopted did not bring the judgment summons to his notice.

The whole difficulty, of course, was caused by the appellant's not having given an address for service. In a substantial affidavit giving much detail concerning his various addresses and mentioning, in particular, the entry of appearance and defence, the appellant gives no explanation for his failure to give an address for service. The inference is open that the failure was deliberate and it is strengthened by the fact that he evaded service of the plaint. The affidavit of C.A. Williamson shows that he attempted to serve the plaint on the appellant at 179 Dunedin Street, Sunnybank. A female answered the door and Williamson was told that "Jack" was not home. While Williamson was at the premises, a car entered the driveway driven by a man. Williamson asked that man if he was Jack Sheedy (the name the appellant ordinarily uses) and the man said "Mr. Sheedy isn't home". Williamson's affidavit says the man who said that is the same as a person shown in a photograph exhibited to his affidavit and it is not disputed that the man shown in the photograph is, in fact, the appellant. Mr. Dorney attempted to argue that the appellant, who did not contradict Williamson's affidavit, did not have it drawn to his attention, but there is no evidence to that effect.

If it was true, as the appellant asserts, that he had no notice of the judgment summons, that circumstance was due to his failure to give an address for service, which failure, one could only infer, was part of his policy of evasion.

In our view, the circumstances to which we have already referred would, in themselves, have made it right to dismiss the appellant's application to set aside the judgment against him. In determining the application on the merits, the Magistrates Court would and should, in our opinion, have taken into account against the appellant that his proposed defence to the respondent's suit had a thin and technical appearance. It was not in issue that the respondent had done work in relation to a business proposal in which were involved a company called LRL Constructions Pty. Ltd. and what the appellant's affidavit rather coyly calls "a company associated with me". That company, we were informed by the appellant's counsel, was Sheedy Holdings Pty. Ltd., mentioned above. The appellant's defence was to be that he did not himself engage the respondent to do any work for him; he "was always under the impression" that LRL Constructions Pty. Ltd. would not be charged, either.

The contemporaneous documents before the Magistrates Court recording the work which the respondent did give no support to either proposition. The documents mention the appellant himself as being in the process of "putting together a consortium" to achieve a purpose discussed in them and consistently refer to him, not to Sheedy Holdings Pty. Ltd. It does not appear that any challenge was made to the authenticity of those documents.

In our opinion, it would not have been a proper exercise of discretion on the part of the Magistrates Court to set aside the judgment entered pursuant to r.145, if it had jurisdiction to do so. The appeal must therefore be dismissed, with costs.