Douglas v Yin

[2009] QDC 25

DISTRICT COURT OF QUEENSLAND

CITATION:

Douglas v Yin [2009] QDC 25

PARTIES:

WALSH HALLIGAN DOUGLAS (a law firm)

(plaintiff/respondent)

V

YIN, Xiaozhong

(defendant/applicant)

FILE NO/S:

13/04

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

17.02.2009

DELIVERED AT:

Brisbane

HEARING DATE:

Ex tempore

JUDGE:

Kingham DCJ

ORDER:

1.   The application filed 30 September 2008 is dismissed.

2.   The defendant to pay the plaintiff’s costs of and incidental to the application fixed at $7,414.15

CATCHWORDS:

JURISDICTION – DISTRICT COURT – Whether power to reopen application dismissed by a District Court judge

COSTS – INDEMNITY COSTS – Whether appropriate case to order

Uniform Civil Procedure Rules 1999 (Qld), r 667, r 668

COUNSEL:

A Barlow for the plaintiff/respondent

Mr Bell with leave to appear on behalf of the defendant/applicant

SOLICITORS:

Walsh Halligan Douglas for the plaintiff/respondent.

1. HER HONOUR: Mr Yin, the defendant, is the applicant in today's proceedings and is a former client of the plaintiff firm, Walsh Halligan and Douglas.  These proceedings relate to the firm’s costs of representing Mr Yin in Family Court proceedings.

1. There is a lengthy history and I won't attempt to give a comprehensive overview of the stages it has gone through.  These matters seem to me to be of particular significance to today's proceedings:

a)   On the 23rd of September 2004, the plaintiff firm obtained judgment against Mr Yin for a fixed sum of money with the issue of costs and interest to be reserved for consideration at trial; 

b)   After that, on the 18th of August 2005, the parties resolved all of the outstanding issues, including the matters of interest and costs by way of a document entitled "Acknowledgement of Debt and Deed of Agreement".  That document is annexed to an affidavit sworn by Mr Power and filed on the 11th of October 2007 and is signed by Yin.  No issue has been raised in the material before me about that document.

c)   On the 16th of October 2007, Judge Samios dismissed an application by Mr Yin to have the firm's Bill of Costs taxed and for reimbursement of any monies paid by or on behalf of the defendant by which the plaintiff was unjustly enriched.  When that matter came on before Judge Samios he dismissed that application and he ordered Mr Yin to pay the plaintiff's costs of that application. 

d)   Subsequently, there was correspondence sent by the plaintiff firm seeking to resolve all matters, including the costs as ordered by Judge Samios and that appears in an affidavit sworn by Mr McCormack, which exhibits the correspondence, and a Notice of Discontinuance and a proposed Acknowledgement of Debt and Deed of Agreement.  It is important to note that it is clear from the material that the plaintiff is not asserting that Mr Yin, in fact, signed those documents.  That material is put before me to demonstrate that the plaintiff firm sought to have Mr Yin execute those documents.  In fact, later correspondence notes that the documents were not returned to the firm. 

1. Mr Yin now seeks to reopen the application that was before Judge Samios, primarily on the ground of a denial of procedural fairness because, it is argued, the Judge who heard the matter misapprehended his jurisdiction and because he was misled, it is alleged, about both his jurisdiction and about certain factual matters argued before him.

1. I indicated to the parties earlier that I saw I had 2 questions that I must answer in relation to this application.  The first is, can I do what I am asked to do by Mr Yin - that is, does the court have that jurisdiction?  If the answer to the first question is in the affirmative, the second question is, should I, in the circumstances of the case, make the order sought?

1. It is my view that I have to answer the first question in the negative. It seems the only power that I might have to reopen the order made by Judge Samios is afforded by Rules 667 and 668 of the Uniform Civil Procedure Rules. Particularly I noted Rule 667 as potentially having an application in this case. Rule 667 does allow the Court to set aside an order made earlier if it has been obtained in a number of circumstances. The only one that could possibly apply is Rule 667(2)(b): that the order was obtained by fraud. It is because I identified that as a potential source of power that I noted that Mr McCormick's affidavit did not assert that Mr Yin has signed the documents annexed to it. That seemed to me to be the only specific allegation made before me that could possibly be said to indicate an order was obtained from this Court by fraud. I reject that assertion. There is no basis for me to exercise the power afforded to me under Rule 667 on the material currently before me.

1. As far as I can see it, there is no other jurisdiction for this Court to reopen or review orders made by another Judge of this Court. There are a number of avenues that may be open to Mr Yin to agitate the matters that he complains of. For the record I note that the nature of his complaints are: that he was overcharged by the firm; that he did not authorise a change in the charge-out rate to increase it over time; that the firm failed to provide the material in the way in which it was required to under the Family Law Act; that he now has evidence to support that assertion; that he has difficulties with the English language; and that, whilst he may have signed documents, he did not understand or did not pay attention to the documents he signed.

1. No doubt I have not comprehensively summarised the complaints that Mr Yin has about his dealings with the plaintiff firm.  That is a snapshot of what I understand to be his complaints.  It seems to me that Mr Yin has avenues open to him which are different to the application that is now before me.  There is, of course, the opportunity to appeal the decision of any Judge of this Court and if the appeal is lodged out of time, to apply for an extension of time, citing circumstances such as the difficulties in lodging an appeal when you are based in another country.

1. There is also the possibility of Mr Yin launching his own proceedings for unjust enrichment. This is what Judge Samios was referring to in his questions to the parties’ representatives at that earlier hearing.

1. I have concluded, as I said, that I have not got the power to reopen the application that was heard by Judge Samios.  I dismiss the application that is before me today; that is, the application filed on the 30th of September 2008.

1. Whilst I have not heard from the parties as to costs, I should note that in his written submissions counsel for the plaintiff has sought an order for indemnity costs against the defendant.  I accept that this is an application which had really no chance of success unless a factual basis was established for the power under Rule 667 to be exercised.  I am satisfied that if Mr Yin had been properly advised he would have adopted a different course of action to the one taken in this case.

1. Against the backdrop of this litigation and in particular, the earlier compromise that was reached between the parties, I think there is some basis for the application that is made for the plaintiff firm for an order for indemnity costs.  I would not make an order of that nature without hearing from the defendant.  It seems that to me, subject to hearing further from Mr Bell on Mr Yin's behalf, that the appropriate course is to give Mr Yin an opportunity to make a submission to me in writing as to the matter of costs, in particular whether I should make an award of indemnity costs against him.

1. The plaintiff, having indicated a preference for today proceeding with an application for costs assessed on a standard basis as fixed by this Court, I will order the defendant to the pay the plaintiff's costs of and incidental to the application fixed at $7,414.15.