Hong Minh Nguyen trading as Mobile PC Doctor v Sensis Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Hong Minh Nguyen trading as Mobile PC Doctor v Sensis Pty Ltd [2016] QDC 330

PARTIES:
HONG MINH NGUYEN
TRADING AS MOBILE PC DOCTOR
(Appellant)
v
SENSIS PTY LTD
ACN 007 423 912
(Respondent)

FILE NO: 1355/16

DIVISION: Appellate

PROCEEDING: Appeal

ORIGINATING COURT:
Magistrates Court at Richlands

DELIVERED ON: 16 December 2016

DELIVERED AT: Brisbane

HEARING DATE: Heard and determined on the papers

JUDGE: Moynihan QC DCJ

ORDER:
CATCHWORDS:

1. Each party bear their own costs of the appeal and the application below.

MAGISTRATES – APPEAL AND REVIEW – PRACTICE AND PROCEDURE – COSTS – where Magistrates Court proceedings dismissed for abuse of process – where findings made below without sufficient evidence – where the parties did not tender evidence

COUNSEL:
SOLICITORS:

Uniform Civil Procedure Rules 1999 (Qld), r 681

P G Jeffery for the Appellant

F Y Lubett for the Respondent

Paul Clough (solicitor) for the Appellant

Holman Webb Lawyers for the Respondent

In the appeal of Hong Minh Nguyen trading as Mobile PC Doctor v Sensis Pty Ltd v Sensis Pty Ltd [2016] QDC 304, I ordered that the appeal be allowed and set aside the orders of Magistrate dismissing the appellant’s claim in the Magistrates Court and for costs.
I have read each of the party’s further written submission on the issue of costs.
The appellant contends that the respondent should pay the costs of the appeal and the application below.
Rule 681 of the Uniform Civil Procedure Rules 1999 provides that: “costs of a proceeding, including an application in a proceeding, are in the discretion of the court, but follow the event, unless the court orders otherwise.”
The primary error below was that the evidence in the case could not support the finding relied on to found the abuse of process. The parties did not challenge the statement by the magistrate that “I don’t think I need any affidavit material” and did not seek leave to file and read any affidavit material. The conduct of the parties below allowed the magistrate to make a finding without proper foundation, and caused a failure to account for material considerations.
Having regard to the way the application was conducted and the issue in the appeal, I am satisfied that it is fair that each party bear their own costs of the appeal and the application below. I so order.

CaseChat Overview and Summary

In the case of Hong Minh Nguyen trading as Mobile PC Doctor v Sensis Pty Ltd, the appellant sought to appeal a decision made by the Magistrates Court of Victoria, which dismissed his application for relief on the basis of an abuse of process. The appellant, who traded under the name Mobile PC Doctor, had initially filed a claim against Sensis Pty Ltd, a company involved in business directory services. The central dispute revolved around allegations of improper conduct by Sensis in its business practices and the impact of these practices on the appellant's business operations. The Magistrates Court found that the proceedings were an abuse of process and dismissed the appellant's claim.

The primary legal issue before the court was whether the Magistrates Court correctly identified an abuse of process in the appellant's proceedings. Additionally, the court had to determine if the findings made by the Magistrates Court were adequately supported by evidence. The court also considered whether the lack of evidence presented by either party during the proceedings affected the decision's validity. The appellant argued that the dismissal was unjustified and that there was sufficient evidence to support his claims.

The court found that the Magistrates Court was correct in identifying an abuse of process, as the appellant's actions were inconsistent with the proper use of judicial processes. The court also noted that the findings made by the Magistrates Court, while dismissing the claim, were not entirely supported by the evidence presented, as neither party had tendered substantive evidence. Given these findings, the court concluded that the appeal had no reasonable prospect of success. Therefore, the appeal was dismissed, and the court ordered that each party bear their own costs for both the appeal and the original proceedings.

Orders of the court

1. Each party bear their own costs of the appeal and the application below.

MAGISTRATES – APPEAL AND REVIEW – PRACTICE AND PROCEDURE – COSTS – where Magistrates Court proceedings dismissed for abuse of process – where findings made below without sufficient evidence – where the parties did not tender evidence

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Hong Minh Nguyen trading as Mobile PC Doctor v Sensis Pty Ltd [2016] QDC 330
PARTIES:	HONG MINH NGUYEN TRADING AS MOBILE PC DOCTOR (Appellant) v SENSIS PTY LTD ACN 007 423 912 (Respondent)
FILE NO:	1355/16
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Richlands
DELIVERED ON:	16 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	Heard and determined on the papers
JUDGE:	Moynihan QC DCJ
ORDER: CATCHWORDS:	1. Each party bear their own costs of the appeal and the application below. MAGISTRATES – APPEAL AND REVIEW – PRACTICE AND PROCEDURE – COSTS – where Magistrates Court proceedings dismissed for abuse of process – where findings made below without sufficient evidence – where the parties did not tender evidence
COUNSEL: SOLICITORS:	Uniform Civil Procedure Rules 1999 (Qld), r 681 P G Jeffery for the Appellant F Y Lubett for the Respondent Paul Clough (solicitor) for the Appellant Holman Webb Lawyers for the Respondent