de Robillard v Lion Finance Pty Ltd

[2013] QDC 274

DISTRICT COURT OF QUEENSLAND

CITATION:

de Robillard v Lion Finance Pty Ltd [2013] QDC 274

PARTIES:

CHRISTIAN de ROBILLARD
(appellant)

V

LION FINANCE PTY LTD
(respondent)

FILE NO/S:

3569/12

DIVISION:

Brisbane

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

1 November 2013

DELIVERED AT:

HEARING DATE:

14 October 2013

JUDGE:

Samios DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

PRACTICE – default judgment – whether learned Magistrate erred by refusing to set aside default judgment – whether plaintiff obliged to plead facts in Statement of Claim to show plaintiff’s claim not statute barred – appeal – whether appellant entitled to appeal as of right – whether appellant had to show an important principle of law or justice was involved.

LEGISLATION
Limitation of Actions Act 1974 s 10
Magistrates Court Act 1921 ss 45(1) and 45(2)
Uniform Civil Procedure Rules r 283, r 290

CASES
Australian Iron & Steel Ltd v Hoogland (1961-1962) 108 CLR 471, 489
Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415, para 36
Darke v Eltherington & Anor [1963] Qd R 375, 380 per Hanger J
House v The King (1936) 55 CLR 499, 504-505
National Mutual Life Association of Australasia Limited v Oasis Developments Pty Ltd [1983] 2 Qd R 441 at 449 per MacPherson J
Pullen & Anor v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27, 36, 37
Robinson v Craven (1994) 63 SASR 267, 268, 270

COUNSEL:

Mr de Robillard appeared for himself

Mr Shaw, solicitor, for the respondent

SOLICITORS:

Mr de Robillard represented himself

Jones King Lawyers for the respondent

1. The appellant Mr de Robillard appeals against the decision of the learned Magistrate at Brisbane who on 13 August 2012 dismissed Mr de Robillard’s application to set aside a default judgment entered against him in favour of Lion Finance Pty Ltd on 21 November 2006.

1. The proceedings that led to the default judgment being entered against Mr de Robillard on 21 November 2006 were commenced by Lion Finance on 21 August 2001.  On that date Lion Finance filed in the Brisbane Magistrates Court a claim against Mr de Robillard in which Lion Finance claimed against Mr de Robillard the sum of $11,114.40 for monies alleged to be owing by Mr de Robillard to Lion Finance under an agreement in writing.  Lion Finance also claimed against Mr de Robillard interest.

1. The relevant particulars in the Statement of Claim filed with the claim are:

PARTICULARS

1.          The defendant was at all material times justly and duly indebted to Australia and New Zealand Banking Group Ltd … (“the Assignor”) in the amount of $11,114.40, being for a financial accommodation (“the Debt”) provided to the defendant by the Assignor at the defendant’s request, under an agreement in writing (“the Agreement”).

2.          On 18 April 2001, the Assignor effected an assignment in this jurisdiction to the plaintiff of the assignor’s right, interest and entitlement in and to the debt and the agreement for valuable consideration (“the assignment”).

3.          On 16 May 2001, the plaintiff gave the defendant written notice of the assignment with full particulars of the outstanding debt and at the same time made demand for payment of the debt by the defendant to the plaintiff in this jurisdiction.

4.          At the trial of this action, the plaintiff will refer to all the terms and conditions of the agreement for their true construction, full meaning and effect and incorporates the same into this pleading.

5.          The defendant has failed, refused or neglected to pay the debt, notwithstanding that demand has been made.

6.          The defendant is now justly and duly indebted to the plaintiff for the debt in the sum of $11,114.40 being for principal, interest and charges as at 17 August 2001 pursuant to the agreement.

7.          …

1. On 2 November 2001 Lion Finance requested the Registrar to give judgment against Mr de Robillard on the ground that Lion Finance claimed Mr de Robillard had defaulted by not filing a notice of intention to defend in response to the claim.  An affidavit of service sworn by a process server claimed that Mr de Robillard had been served with the Claim and Statement of Claim and a Form 1 notice to defendant on 7 September 2001 by handing the documents to “her” personally at corner of York and Market Streets, Sydney, 2000 in the State of New South Wales.  The application was supported by an affidavit of debt.  As Mr de Robillard had not filed a notice of intention to defend judgment was entered against Mr de Robillard on 2 November 2001 (the first judgment by default).

1. Mr de Robillard filed an application in the court on 6 June 2006 seeking among other things that the default judgment entered on 2 November 2001 be set aside. 

1. In his affidavit in support he said he was not aware of the first default judgment because he had not received a letter about it until he received a letter from Lion Finance’s solicitors in September 2005.  In addition he said he had not been served with the originating process.  Further, he said the Magistrates Court in Queensland does not have jurisdiction in this matter.  Finally, he said the Statement of Claim fails to plead the date of the alleged debt; which in any event is denied.

1. The solicitor for Lion Finance, Mr Bertelsen, in his affidavit said after the first default judgment was obtained examination summonses were issued out of the Downing Centre Local Court, but because service could not be effected of the summons, an enforcement did not proceed.  Mr Bertelsen’s affidavit is to the effect that Lion Finance did not progress enforcement during the years 2002, 2003 and 2004 and for the most part of 2005.  However, Mr Bertelsen does not say why enforcement was not progressed except that two attempts seem to have been made but service could not be effected.

1. Mr Bertelsen does state that on 22 August 2005 his firm received an email from Mr de Robillard claiming no knowledge of these proceedings.  Although his affidavit states the email is exhibited, the affidavit that I have from the file does not have that exhibit. 

1. The next step that seems to have occurred, according to Mr Bertelsen, is that at the end of September 2005 his firm received from the Downing Centre Local Court a notice of hearing whereby Mr de Robillard sought a stay of the proceedings. A stay was granted but for 14 days only to allow Mr de Robillard to initiate proceedings to set aside the first default judgment.  Mr Bertelsen states that as Mr de Robillard did not commence the proceedings to set aside the first default judgment, Mr Bertelsen’s firm requested that the writ of execution be reinstated and that the New South Wales Sheriff be notified.  Again there is asserted by Mr Bertelsen difficulties with service because Mr de Robillard apparently had left an address in Sydney on 26 April 2006.  Mr Bertelsen states the notice of non-levy further indicates that no forwarding address was left. 

1. In an affidavit filed on 1 August 2012 Mr de Robillard states he was not aware of the first default judgment and states “in 2006 I became aware that a default judgment had been entered against me”. 

1. On 15 September 2006 an application to set aside the first default judgment was heard by a learned Magistrate (at Brisbane).  The first default judgment was set aside.  The learned Magistrate also ordered that Mr de Robillard file a notice of intention to defend within 14 days and that he pay the costs.  The learned Magistrate disallowed Mr de Robillard’s application to dismiss the Statement of Claim and disallowed Mr de Robillard’s application for a stay of the orders.

1. There is no dispute that Mr de Robillard did not appeal the learned Magistrate’s orders made on 15 September 2006 and he did not file a notice of intention to defend within 14 days or at all. 

1. It is not disputed that Lion Finance on 17 November 2006 requested the Registrar to enter default judgment against Mr de Robillard, as Mr de Robillard had not filed a defence as ordered.  Default judgment against Mr de Robillard was granted on 21 November 2006 (the second default judgment).

1. In Mr de Robillard’s affidavit filed 1 August 2012, he said with respect to the orders that were made on 15 September 2006 they were made in his absence and he assumed were made in chambers based on the written submissions which had been lodged by both parties.  He said that despite the fact that those orders were apparently made by the court, the court did not advise him those orders had been made.  He states that as a result of not being advised that the orders were made, he did not comply with order 2, which required him to file a notice of intention to defend within 14 days of 21 November 2006 (presumably 15 September 2006). 

1. Despite what Mr de Robillard swore to in that affidavit about his absence at the hearing on 15 September 2006, the Magistrate’s file shows Mr de Robillard did appear before the Magistrate on 15 September 2006.  In addition the learned Magistrate’s reasons given on 13 August 2012 for dismissing Mr de Robillard’s application to set aside the second default judgment notes that Mr de Robillard was in court on 15 September 2006 when he was given leave to file the notice of intention to defend within 14 days and that he initially said he was not there and then said he overlooked the matter because he did not receive a formal order from the court.  The learned Magistrate notes in her reasons, and I can see from the court file, that on 23 May 2008 the Registry received a letter from Mr de Robillard in which he requested a copy of the order “so that I may lodge an application to dispute the order and see what can be done to set aside the defence (default) judgment.”

1. Mr de Robillard’s solicitor is Mr Kent.  Mr Kent’s affidavits show that Lion Finance issued a bankruptcy notice against Mr de Robillard on 9 September 2011 after having registered the default judgment in a New South Wales Local Court on 2 September 2011.  The sum of that judgment was $18,506.18. 

1. It appears to me this prompted Mr de Robillard to file an application in the Brisbane Magistrates Court to set aside the second default judgment.  That was filed on 1 August 2012.  The hearing took place on 13 August 2012 when the learned Magistrate refused to set aside the judgment.  It is from that order that this appeal is brought.

1. In Mr de Robillard’s affidavit filed 1 August 2012, he claims in addition to not being advised by the court that the orders made on 15 September 2006 had been made, he was not advised by Lion Finance.  He claims there is no record of the court writing to the parties at or about the time the orders were made by the court.  He claims he was not made aware the judgment creditor would be entering such default judgment prior to the same being entered.

1. When Mr de Robillard appeared before me on the hearing of the appeal, he seemed to me to say that a reason why he did not file a notice of intention to defend within the 14 days allowed by the learned Magistrate on 15 September 2006 was because Lion Finance did not give notice of their intention to enter default judgment (T1-34/35 – 1-35/25).  No authority was cited to me that is to the effect that Lion Finance were obliged to give Mr de Robillard notice of its intention to enter default judgment.  As far as I am concerned Lion Finance was not under any obligation to give notice to Mr de Robillard of its intention to enter default judgment.

1. I was told on the hearing of the appeal that the bankruptcy proceedings had been resolved because garnishee procedures have secured Lion Finance’s claim against Mr de Robillard. 

1. There is no dispute Mr de Robillard is a barrister in practice in New South Wales and that he also resides in New South Wales.

1. On the face of the Claim, Lion Finance carried on business in Queensland, and on the face of the Claim and Statement of Claim, payment by Mr de Robillard was required to be made to Lion Finance in the State of Queensland.

1. The notice of appeal states that the grounds for the appeal are:

1.          Her Honour, the learned Magistrate failed to consider all of the grounds of the Application.

Particulars:

Failure to consider mandatory regulatory requirements re: issue of Statement of Claim filed on 21 August 2001.

No proof of compliance with Service and Execution of Process Act in relation to service of the Statement of Claim.

2.          Her Honour failed to give reasons why she had rejected the other grounds of the Application.

3.          Having recognised that the Respondent had been guilty of ‘laches’ and having stated that such ‘laches’ could be rectified by reducing the amount the interest allowed in relation to the Default Judgment, Her Honour then failed to make appropriate orders in relation to reduction of interest.

1. In Mr de Robillard’s outline of argument dated 25 March 2013 he states the points of appeal are:

1.          There is no validly issued Claim and Statement of Claim.  The proceedings ought be stayed “ex debito justitiae”.

2.          The second default judgment was improperly and irregularly entered.  It ought be set aside “ex debito justitiae”.

3.          In the alternative,

(i)         the impropriety surrounding the issue of the Statement of Claim and entry of the second default judgment above; together with

(ii)       the lengthy delays on the respondent’s part in prosecuting its claim; and

(iii)      the history of the activities of the respondent and its solicitors constitute an “abuse of process”.

4.          Her Honour disregarded relevant issues and provided no reason for disregarding same.

5.          Her Honour took into account irrelevant considerations.

1. Mr de Robillard’s solicitor Mr Kent has sworn an affidavit exhibiting a copy of a report by the Consumer Credit Legal Service Inc (Victoria) headed “Selling Their Customers Out” and an undertaking to the Australian Competition and Consumer Commission given for the purpose of s 87B by Collection House Ltd and Lion Finance dated 31 January 2006 and accepted by the Australian Competition and Consumer Commission on 1 February 2006.

1. Mr Shaw, who appeared on behalf of Lion Finance on the hearing of this appeal, objected to those documents exhibited to Mr Kent’s affidavit being received as evidence on the hearing of this appeal.  I reserved my decision on the admissibility of those documents.

1. Section 45(1) of the Magistrates Court Act 1921 provides that any party who is dissatisfied with the judgment or order of a Magistrates Court in an action in which the amount involved is more than the minor civil dispute limit may appeal to the District Court.  At the time of the hearing of this appeal, the minor civil dispute limit is the sum of $25,000.  However, s 45(2) of the Act provides that where the amount is not more than the minor civil dispute limit, an appeal shall lie by leave of the District Court or a District Court Judge who shall not grant such leave to appeal unless the court or Judge is satisfied that some important principle of law or justice is involved. 

1. On the hearing of this appeal I have decided the amount involved is more than $25,000 and that Mr de Robillard’s appeal is as of right.  That is because Exhibit 1 shows Lion Finance has garnished $25,230.10 by 15 March 2013.  Although 15 March 2013 is a date after the appeal was instituted I have taken the view Mr de Robillard should be given the benefit of the doubt about the “amount involved” when it comes to whether he requires leave to appeal or not.

1. Regarding the learned Magistrate’s decision on 13 August 2012, her Honour took into account the issues of irregularity of the originating service.  Her Honour accepted the solicitor’s name should have appeared on the originating process and by inference did not.  Further, her Honour accepted the process server’s affidavit was poorly drafted by referring to “her”, whereas it should have referred to “he”.  Finally, her Honour accepted that there was no Form 1 attached to the oath of service but noted the process server swore the service of that Form 1.  However, her Honour took the view that those irregularities, while they assisted Mr de Robillard in having the judgment set aside in 2006, the circumstances had changed because Mr de Robillard was now aware of the Claim and Statement of Claim.  Further, that he had appeared personally on the hearing on 15 September 2006 and was fully apprised of the claim against him and orders that had been made, including that he file a notice of intention to defend within 14 days.  Further, her Honour noted that on 23 May 2008 the Registry received Mr de Robillard’s letter requesting a copy of the order “so that I may lodge an application to dispute the order and see what can be done to set aside the defence (default) judgment”.  Her Honour noted that Mr de Robillard did nothing.  Her Honour took into account Mr de Robillard’s ill health.  However, her Honour noted that Mr de Robillard came before the court having been provided with documents regarding the assignment and records of the ANZ and the assignor of the debt.  These documents are exhibited to Mr Kent’s affidavit filed on 13 August 2012.  Further, in the course of her Honour’s reasons she noted that a prima facie defence is the most cogent element of any application to set aside judgment (see National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441, 449 per MacPherson J). Her Honour noted the application was unusual, being a second application. She noted there was no explanation as to why a Defence was not entered as allowed by the court in September 2006. There was no explanation for why Mr de Robillard did not take any steps as foreshadowed under cover of his letter received in the Registry on 23 May 2008, which was over four years ago. Her Honour also noted Mr de Robillard did not swear to issues of which he has knowledge, namely issues with liability with the ANZ and disputes regarding that. Her Honour noted that the issue of prejudice to the plaintiff is not one which has swayed her. She states it is Mr de Robillard’s delay and his failure to swear to issues which are the greatest significance. She noted the plaintiff provided Mr de Robillard with documents he requested under cover of letter of 31 July 2012. She noted he did not depose to facts relevant to those documents. She also noted that while Mr de Robillard referred to the merits of the plaintiff’s claim, she said those must be put in issue by his own affidavit as to the merits of his defence, and that is something that he has not attended to. Therefore, her Honour dismissed the application.

1. Regarding judgments by default r 283 of the UCPR provides by subrule (3) that if the plaintiff files a request for judgment under subrule (2) the court, constituted by a Registrar, may give judgment. Further, subrule (10) of r 283 provides that if the court as constituted by a Registrar is considering whether to give judgment, the Registrar is not required to consider the merits of the plaintiff’s claim against the defendant.

1. In my opinion even if there were some irregularities in the documents when the first default judgment was entered, the second default judgment was regularly entered.  As the learned Magistrate found Mr de Robillard was, by the time the first default judgment was set aside, aware of the Claim and Statement of Claim and was present at the hearing when the order to file his defence within 14 days was made.

1. Finally, reference is to be made in the UCPR to r 290, which provides as follows:

“The court may set aside or amend a judgment by default under this division, and any enforcement of it, on terms, including terms about costs and the giving of security, the court considers appropriate.”

In my view this rule is to be taken to give the learned Magistrate in this case an unfettered discretion when considering whether to set aside the second default judgment.

1. Regarding the exercise of a judicial discretion, it is not enough that a Judge comprising the appellate court considers that if he or she had been in the position of the primary Judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he or she allows extraneous or irrelevant matters to guide or affect him or her, if he or she mistakes the facts, if he or she does not take into account some material consideration, then his or her determination should be reviewed and the appellate court may exercise its own discretion in substitution for his or her if it has the materials for doing so (House v The King (1936) 55 CLR 499, 504-505).

1. On the hearing of this appeal I took Mr de Robillard’s principal argument to be that as the Statement of Claim did not plead the date of the alleged debt, Lion Finance’s claim against him could or would be statute barred and therefore the Claim is not a valid Claim.

1. In Queensland s 10 of the Limitation of Actions Act 1974 provides that an action of the kind brought by Lion Finance against Mr de Robillard “shall not be brought after the expiration of six years from the date on which the cause of action arose”.

1. However, this section of the Queensland Limitation of Actions Act bars the remedy, but not the right.  It leaves the right untouched (Darke v Eltherington & Anor [1963] 2 Qd R 375, 380; Australian Iron & Steel Ltd v Hoogland (1961-1962) 108 CLR 471, 489; Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415, para 36; Robinson v Craven (1994) 63 SASR 267, 268).

1. Although it is for a plaintiff to plead and prove the elements of his cause of action, if the accruing of the cause of action in time is no part of the cause of action, the plaintiff need not allege or prove it (see Pullen & Anor v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27, 36). Further, in Pullen the Court of Appeal of Victoria said at p 37:

“As the decisions just cited illustrate, two things follow from the proposition that it is no part of a cause of action that time has not run under a statute of limitations which merely bars the remedy. The first is that the defendant must plead the statute if he wishes to avail himself of it: for when he says that time has run he is not traversing an allegation which the statement of claim should contain, but confessing and avoiding. The second is that the statement of claim is not demurrable (nowadays, may not be made the subject of an objection in point of law) by reason of its failure to show that the cause of action arose within the limitation period.”

1. Further, Robinson was a case where to a personal injuries claim no appearance was entered and no defence was filed.  Default judgment was entered.  It was held as the defendant had not filed a defence raising a plea that the action was statute barred the immunity from action confirmed by the statute was waived.  It was accepted by the court the plaintiff did not have to obtain an extension of time before entering default judgment.

1. In my opinion the accruing of Lion Finance’s cause of action in time was no part of the cause of action.  Therefore in my opinion, because of the authorities, Lion Finance did not have to plead in the Statement of Claim the date of the alleged debt.  In my opinion, it was sufficient for Lion Finance to plead “the defendant was at all material times” justly and duly indebted.  In my opinion it was for Mr de Robillard to plead the statute of limitations.  Further, by the time the matter was heard by the learned Magistrate Mr de Robillard had, in addition to the Claim and Statement of Claim, copies of what the learned Magistrate described as the documents regarding the assignment and records of ANZ and the assignor of the debt, which had been received by Mr de Robillard’s solicitor on 31 July 2012.  As the learned Magistrate noted, Mr de Robillard did not swear an affidavit which may have dealt with his dealings (if any) with ANZ and whether a defence based on the statute of limitations could be pleaded.  The documents I have referred to, which were referred to by the learned Magistrate, have Mr de Robillard’s name on them as the name of the account.  In my opinion, if these were not associated with the Claim, one might have expected Mr de Robillard to have sworn an affidavit deposing to facts relevant to these documents as stated by the learned Magistrate.  Therefore, in my opinion the learned Magistrate was correct to conclude Mr de Robillard did not demonstrate he had a prima facie defence on the merits (National Mutual Life Association p 449).

1. Regarding Mr de Robillard’s second point of appeal in his outline of argument dated 25 March 2013, I do not see anything that has been raised by him that could be said to be improper or irregular about the entering of the second default judgment.  I have referred to the learned Magistrate’s acceptance of irregularities.  However, those irregularities were expended before the second default judgment was entered.  I do not accept those irregularities made it improper or irregular to enter the second default judgment. 

1. In addition to matters raised by Mr de Robillard, he raised the undertaking given by Lion Finance and the report by the Consumer Credit Legal Service Inc (Victoria) headed “Selling Their Customers Out”.  While the undertaking states Lion Finance had pursued consumers for debts that the Commission considered to be statute barred and therefore Lion Finance was considered to have engaged in misleading or deceptive conduct, etc., I do not accept that undertaking and the report are relevant to the issues before me in this appeal.  That is because I do not accept the Commission’s view means that the Claim made by Lion Finance against Mr de Robillard was statute barred nor, having regard to the authorities I have cited, Lion Finance had to plead in the Statement of Claim the date of the alleged debt.  Further, the undertaking does not appear to me to prohibit Lion Finance’s entitlement to pursue Mr de Robillard. 

1. As I said earlier in these reasons, the claim on its face appeared to show that Lion Finance carried on business in the State of Queensland and that by implication there was an obligation on Mr de Robillard to pay Lion Finance in the State of Queensland.  Therefore in my view, on the face of the documents there was jurisdiction. 

1. Therefore, I rule the copy of the undertaking and the copy of the report are inadmissible on the hearing of this appeal. 

1. Further, in my opinion the learned Magistrate did not disregard relevant issues nor did she fail to give reasons for disregarding relevant issues.  Finally, in my opinion her Honour did not take into account irrelevant considerations.

1. While a satisfactory explanation for a failure to file a defence and any delay in making an application to set aside a judgment by default are relevant considerations on an application to set aside judgment (National Mutual Life Association p 449), in my opinion, the learned Magistrate was right to conclude that a defence on the merits was the most cogent element in this application to set aside judgment.  Despite Mr de Robillard swearing he had no dealings with ANZ or Lion Finance and denied owing the debt, it was open to the learned Magistrate in the exercise of her unfettered discretion to conclude that Mr de Robillard had not sworn a satisfactory affidavit as to the merits of his defence.  At the time the application was heard the learned Magistrate was correct to conclude Mr de Robillard was aware of the case being made against him by Lion Finance.  In my opinion, the learned Magistrate was correct to disregard at that stage of the proceedings between the parties the irregularities in the process.  Regarding delays, the learned Magistrate balanced those and in the end concluded that it was Mr de Robillard’s delay and his failure to swear to issues which were of greater significance.  In that regard, in my opinion the learned Magistrate did not make any error in this case.

1. Although Mr de Robillard complained he was not given a discount for interest I am not satisfied any error has been made by the learned Magistrate on the hearing of the application.

1. In my opinion the learned Magistrate correctly applied the law on the hearing of the application and made no error in exercising her discretion to order the application be dismissed. 

1. Therefore, the appeal is dismissed.

1. I will hear the parties on the question of costs.