Fehlberg v Bumford - [2017] TASSC 76

[2017] TASSC 76

COURT: SUPREME COURT OF TASMANIA

CITATION: Fehlberg v Bumford [2017] TASSC 76

PARTIES:  FEHLBERG, Shane Gregory
  v
  BUMFORD, Philip Jason
  BUMFORD, Jodie Maree

FILE NO:  2639/2017
DELIVERED ON:  19 December 2017
DELIVERED AT:  Hobart
HEARING DATE:  21 November 2017
JUDGMENT OF:  Geason J

CATCHWORDS:

Procedure – Ending proceedings early – Summary disposal – Setting aside.
Aust Dig Procedure [1306]

Time for Appeal – Extension of time.
Aust Dig Time for Appeal [387]

REPRESENTATION:

Counsel:

Appellant: F C Brimfield
Respondents: J Buckley

Solicitors:

Appellant: Ogilvie Jennings
Respondents: Tierney Law

Judgment Number: [2017] TASSC 76
Number of paragraphs: 29

Serial No 76/2017
File No 2639/2017

SHANE GREGORY FEHLBERG
v PHILIP JASON BUMFORD and JODIE MAREE BUMFORD

REASONS FOR JUDGMENT GEASON J

19 December 2017

By an order made on 17 July 2017, Magistrate S Cooper, sitting in the Civil Division of the Magistrates Court, made an order for summary judgment in favour of the respondents. Judgment was entered in the sum of $29,447.85, and an order for costs was made in their favour.
The appellant appeals those orders seeking an order from this Court setting aside the summary judgment.
Before the appellant can pursue his appeal, he requires an extension of time to do so. The last day for filing an appeal was 1 August 2017. The appeal was filed on 14 September 2017. He is 44 days outside the appeal period. Because a relevant consideration in determining that application is the merit of the case sought to be put, the Court will deal with that issue first.

The facts

On 11 April 2017, the respondents filed a claim in the Magistrates Court against the appellant for $29,957.85. By that claim, the respondents plead that:
(a)an agreement was entered into with the appellant to carry out plastering works;
(b)they performed those works and accounted to the appellant for costs;
(c)the appellant has not paid those cost.
On 15 May 2017, the appellant filed his defence to the claim. By his defence, the appellant asserts:
(a)that though the works were performed, he did not contract with the respondents to perform that work, but rather, the agreement was with the appellant's company, Core Building and Joinery (Core);
(b)that company was placed into liquidation after the invoice was rendered;
(c)therefore the respondents' debt is owed by the company in liquidation, and not the appellant in person.
On 13 June 2017, the respondents filed an interlocutory application seeking an order for summary judgment. An affidavit was sworn in support of the application by Philip Bumford, in obedience to r 115 of the Magistrates Court (Civil Division) Rules 1998 (the Rules). That rule says:
"115 Summary judgment
(1)   A party, at any stage of the proceedings, may apply to the Court for –
(a)   summary judgment in an action; or
(b)   the disposal of the whole or part of an action; or
(c)   immediate relief.
(2)   The party is to file an affidavit in support of an application under subrule (1) , specifying —
(a)   the reason any other party, on any possible view of the facts or law, does not have a good action or defence on the merits; or
(b)   the reason relief ought to be granted.
(3)   On hearing the application, the Court may –
(a)   enter judgment accordingly; or
(b)   grant the whole or part of the relief sought and order that the action continue in relation to the part not disposed of; or
(c)   make an order for an early trial; or
(d)   make any other order."
Importantly r 115(2)(a) directs an applicant to specify the reason it is said that "on any possible view of the facts or law" the respondents do not have a defence.
The affidavit filed by Mr Bumford deposed to the following:
"1   My full name is Philip Jason Bumford. I am one of the Claimants in the action The other Claimant is my wife, Jodi Maree Bumford. We are the proprietors of and partners in the registered business 'Huon Valley Plaster'.
2   I was asked by the Defendant to perform plastering work at the 'Old School House' in Dover. The Defendant was the head contractor for the renovation of that building.
3   Annexure 'PJB-1' is a copy of the quotation which I provided to the Defendant. It is addressed to the Defendant personally. He accepted it.
4   I performed the work required by and in accordance with the quotation.
5   Annexure 'PJB-2' is a copy of an invoice which I subsequently issued and gave to the Defendant. It is addressed to the Defendant personally.
6   The Defendant had not paid anything on account of the invoice.
7   Subsequently I became aware that the Defendant is the director of a company 'Core'. At no time prior to giving him the invoice did the Defendant mention that company or that he was acting on behalf of that company or any entity other than himself.
8   Accordingly, I believe that the Defendant has no defence to the action."
(It is not necessary to reproduce the annexures for the purposes of this decision).
At par 7, Mr Bumford deposes to the fact that after issuing an invoice for the work he became aware that the appellant was a director of a company. He says that the appellant had not mentioned that when they entered into the contract, nor that he was acting on behalf of a company (or any other). The affidavit addresses the basis for the respondents' belief as to the identity of the party with whom they were contracting. Relevantly for present purposes, the respondents recognise that there is a dispute on the facts going to the identity of the parties to the contract, and thus the liability of the appellant to the respondents.
Apart from putting its own version of matters, the affidavit does not specify the reason why, on any possible view of the facts or law, the appellant does not have a defence on the merits. The identity of the parties to the contract is a defence which puts in issue matters going to the legal right to receive payment for work done. It was for the applicants (the respondents in this appeal) to make the case for summary judgment, and in that respect the only question for the learned magistrate was whether, on the basis of the affidavit filed in support of that application, he could be satisfied that on any possible view of the facts or law there was no defence on the merits to the action, the subject of the summary judgment application.
His Honour's reasons on the summary judgment application were these:
"… I've read the application, I've read the affidavit of Mr Bumford, I'm satisfied as to service. Directing myself as to the law in accordance with Chuggv Goodwin, a decision of Magistrate Pearce, as he then was, I am satisfied on the basis of the affidavit that there should be summary judgment for the amount of the claim. I order accordingly. And there will be an order for costs."
His Honour's reasons do not disclose any analysis of the question required to be answered in determining whether to grant summary judgment. The affidavit of Mr Bumford disclosed the existence of a dispute as to the identity of the contracting parties. The determination of the application required a consideration of the competing claims, and the reason for the conclusion that the appellant did not, on any possible view of the facts or law, have a defence on the merits.
The appellant submits that there are a number of matters required to be established before summary judgment should be granted. In Spencer v Commonwealth of Australia [2010] HCA 28 at [24], French CJ and Gummow J said in respect of the power generally:
"The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence." [Footnotes omitted.]
Referring to the decision of Porter J in Woods v Deputy Commissioner of Taxation [2011] TASSC 68, the appellant identifies the following principles:
1The power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no other question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87.
2The court should refuse to enter summary judgment unless it is absolutely clear there is no case to be tried: Martin v NRMA Insurance Ltd [2000] FCA 773.
3Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way unless there is a high degree of certainty about the ultimate outcome of the proceedings if it were to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41, 201 CLR 552; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27, 227 ALR 425.
4Where there are factual issues capable of being disputed and in dispute, summary judgment should not be awarded to the respondent simply because the court has formed the view that the applicant is unlikely to succeed on the factual issue: Spencer v Commonwealth of Australia (above).
5A judge should not make an order for summary judgment unless fully dissuaded that there is no real question to be tried, that is, that there are no facts shown such as would lead to an inference that at a trial of the action the defendant might be able to establish a defence to the plaintiff's claim. A complete defence does not have to be shown: Port v Alexopolous (No 2) [2011] TASSC 37.
These principles were repeated by Magistrate Pearce (as he then was), in Chugg v Goodwin [2012] TASMC 38. Magistrate Cooper alluded to that decision, but apart from stating that he was directing himself in accordance with the law as summarised in that case, has not explained the way in which he applied it to the determination of the application. He was required to do so.
I am satisfied that, on the materials before the learned magistrate, he could not have been satisfied as to the matters about which satisfaction was required if the proceedings were to be brought to a summary conclusion without trial. There was, on the evidence before the learned magistrate a factual issue capable of being disputed, and in dispute. The affidavit in support of the application in fact disclosed the existence of a question to be tried. As such summary judgment should not have been awarded even if the court had formed the view that the appellant was unlikely to succeed on the factual issue, a proposition about which the Court is unable to express a conclusion because the learned magistrate did not give reasons for so concluding. In accordance with Fancourt v Mercantile Credits Ltd (above), this was a circumstance in which the power to order summary judgment should not have been exercised because it was not absolutely clear that there was no case to be tried.
In the circumstances, the Court is satisfied that the learned magistrate fell into error in granting summary judgment to the respondents.
As a footnote I add, that insofar as the appellant did not attend the hearing, r 75 of the Rules permits a magistrate to give judgment in default of an appearance. The magistrate did not proceed on that basis, determining instead the matter of the application for summary judgment. It is not necessary to consider the operation of r 75 in this appeal. Similarly the fact that the appellant failed to attend at the summary judgment application is not a relevant matter. It is for the applicant in the first instance to comply with r 115, and file an affidavit making the case that on any possible view of the facts or law there is no defence on the merits.

The extension of time application

In Burnett v FitzGerald and Browne [2017] TASSC 31, Brett J considered the principles which are applicable to the grant of an extension of time.
Rule 52 of the Supreme Court Rules 2000 is applicable. It provides as follows:
"52 Extension or abridgment of period
(1)   The Court or a judge may extend or abridge the period for doing any act or taking any proceedings allowed or limited by these rules or by any order of the Court or a judge on any terms the Court or judge considers just.
(2)   An extension of any period may be ordered although the application is made after the expiration of the period originally allowed or limited.
(3)   The costs of an application and an order made under subrule (1) are to be borne by the applicant unless the Court or a judge otherwise orders."
In Burnett v FitzGerald and Browne at [11], his Honour said:
"In cases which relate to an application for leave to appeal out of time, it is generally accepted that there are four matters to be taken into account:
(a)the length of the delay;
(b)the reason for the delay;
(c)whether the appellant has a fairly arguable case; and
(d)the extent of any prejudice suffered by the respondent if the application is granted.
See Jackamarra v Krakouer (1998) 195 CLR 516 per Brennan CJ and McHugh J at 520-521, referring to a judgment of the English Court of Appeal in Palatan Investments Ltd v Burt and Sinfield Ltd [1985] 1 WLR 942 at 946; 2 All ER 517 at 520; Tomko v Palasty (No 2) [2007] NSWCA 369."
As to the weight to be attributed to each of those factors, his Honour noted, at [12]:
"It is clear also from the cases cited that in the exercise of the discretion, no one factor will be determinative and the weight to be attributed to each factor will depend on the circumstances of the case. A reasonable explanation of delay, or the demonstration of substantial merit may mean that less emphasis is placed on other factors. As Hodgson JA noted in Tomko v Palasty at [14]:
'In my opinion, there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable'."
The appellant's delay amounts to 44 days. The appellant invites the Court to view that delay in two parts. The first, a delay of 17 days from the last day for filing an appeal, and which ends on 18 August 2017. During this period the appellant first received advice about his rights to appeal.
The second part, constituted by a period of 27 days, runs from 19 August until 14 September, when the appeal was filed. During this period the appellant told the Court that he was raising funds for an appeal whilst the relevant documents were prepared. The Court is prepared to accept that at some point during those 44 days, it was necessary for advice to be given and for documents to be prepared pursuant to instructions received based upon that advice. The proposition that the appellant used the time to raise funds to file an appeal is not supported by any evidence, and is not something to which he has deposed in his affidavit. In any event it is a matter of little moment in the Court's determination of the application. The Court notes that on 18 August, at the end of the first period, the respondents were advised of the appellant's intention to consider bringing an appeal. The effect of a solicitor giving notice to another party that an appeal was being contemplated may be material to questions of prejudice but the Court does not regard it as relevant to the issue of delay per se. It gives weight to the fact that no prejudice is claimed. That concession was properly made. There is no evidence to suggest that the respondents have been placed into a parlous financial situation by virtue of not having been able to enforce the summary judgment, and insofar as they have wasted costs as a result of taking steps to enforce that summary judgment, that prejudice can be ameliorated by an order for costs.
As to whether the appellant has a fairly arguable case, the Court has determined that question in the appellant's favour, and it is not necessary to repeat its reasons therefor.
The Court is satisfied that the delay is not a long delay, that it is satisfactorily explained, and that the appellant has an arguable case. It notes that there is no prejudice which will accrue to the respondents if the application is granted. The Court is satisfied that the appellant has demonstrated that the interests of justice require that the time for instituting the appeal be enlarged.
There will be an order extending the time for filing the appeal until 15 September 2017. The Court will further order that the appellant is to pay the respondents' costs of and incidental to the application to extend time.
For the reasons given, the Court is satisfied that the learned magistrate fell into error in granting the summary judgment application. It is satisfied that the order for summary judgment should be set aside.
The parties asked the Court to remit the matter to the Magistrates Court for hearing, before a different magistrate. The Court is satisfied that such order is appropriate. It orders accordingly.