Johns v Marmalade Australia Pty Ltd

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DISTRICT COURT OF QUEENSLAND

CITATION:

Johns v Marmalade Australia Pty Ltd [2023] QDC 222

PARTIES:

GRANT DAVID JOHNS

(applicant)

v

MARMALADE AUSTRALIA PTY LTD

(ABN 56637723196)

(respondent)
FILE NO:

D10/2023

DIVISION:

Appellate

PROCEEDING:

Civil

ORIGINATING COURT:

Gympie District Court
DELIVERED ON:

17 November 2023 (Order 1 below)

29 November 2023 (Order 2 below and publication of reasons)

HEARING DATE:

17 November 2023

JUDGE:

Long SC

ORDER:

1.   The application for extension of time to file and serve the Notice of Appeal is refused and the ‘Notice of Appeal Subject to Leave’ filed on 3 July 2023 is set aside;

2.   No order as to costs.

CATCHWORDS:

APPLICATION FOR EXTENSION OF TIME TO APPEAL – Where the applicant applied for an extension of time to appeal an order made in the Magistrates Court at Gympie for default judgment – Where the applicant is an undischarged bankrupt and has no standing to make an application – Where the appeal was not competently brought in engaging the jurisdiction of the District Court to hear and decide it or to grant any relief to the applicant.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) rr 19, 283, 290, 748, 782, 783, 785, 967, 969A, 975A, 975D
Magistrates Courts Act 1921 (Qld) s 45

CASES:

Commonwealth Bank of Australia v Jorgensen [2011] QCA 376
Cummings v Claremont Petroleum NL
Di Iorio v Wagener [2016] QCA 97
Di Pan v Macarthur Central Shopping Centre Pty Ltd [2022] QCA 150
Horne v Commissioner of Main Roads [1991] 2 Qd R 38
Hunter Valley Developments v Cohen (1984) 3 FCR 344
Jorgensen v Body Corporate for Cairns Central Plaza Apartments [2020] QDC 300
Oliver v Samios Plumbing Pty Ltd [2016] QCA 236
Wren v Mahoney (1972) 126 CLR 12 (1996) 185 CLR 124
COUNSEL:

A Edmonds (sol) on behalf of the Respondent

No appearance on behalf of the Applicant

SOLICITORS:

Kerrs on behalf of the Respondent

Introduction

  1. In this matter the jurisdiction of this Court is potentially engaged pursuant to a form entitled “Notice of Appeal Subject to Leave”, filed by the applicant on 3 July 2023 in seeking to appeal an order made in the Magistrates Court at Gympie on 10 June 2022.  As is discussed in further detail below, this is effectively an application for an extension of time in which to make such an appeal. 

  2. That appeal is one sought to be brought against a default judgment entered pursuant to rule 283 of the Uniform Civil Procedure Rules 1999 (“UCPR”). It is therefore sought to be brought pursuant to s 45 of the Magistrates Courts Act 1921, which relevantly provides:

    “(1)   Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court—

    (a)in an action in which the amount, value or damage involved is more than the minor civil dispute limit; or

    ….

    may appeal to the District Court as prescribed by the rules.”

    Here and as will be seen, the amount involved exceeds the minor…

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Details
Case
[2023] QDC 222
Decision Date

CaseChat Overview and Summary

In the District Court of Queensland, the matter of Johns v Marmalade Australia Pty Ltd involved an application by the applicant, who is an undischarged bankrupt, for an extension of time to appeal a default judgment made by the Magistrates Court at Gympie. The primary legal issue before the court was whether the applicant, given their status as an undischarged bankrupt, had the legal standing to make such an application. Additionally, the court had to determine if the appeal was competently brought to engage the jurisdiction of the District Court.

The court examined the procedural aspects of the application, noting that the request for default judgment was not correctly signed, contrary to the requirements of the UCPR. Furthermore, the accompanying affidavit of debt was incomplete, lacking essential details required by the UCPR and court approvals. The applicant's failure to comply with these procedural requirements was highlighted as a significant issue. Moreover, the applicant's status as an undischarged bankrupt meant they lacked the standing to pursue an appeal, as established in previous cases such as Cummings v Claremont Petroleum NL and Commonwealth Bank of Australia v Jorgensen. This legal principle was reinforced by the High Court's observation that a bankruptcy order divests a person of their interest in property and liability for provable debts, thereby stripping them of the necessary standing to appeal.

The court concluded that the application for an extension of time to file and serve the Notice of Appeal was refused. The 'Notice of Appeal Subject to Leave' filed on 3 July 2023 was set aside, and no order was made as to costs.

Orders

Orders of the court

1. The application for extension of time to file and serve the Notice of Appeal is refused and the ‘Notice of Appeal Subject to Leave’ filed on 3 July 2023 is set aside;

2. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The reference to the purported request for default judgment is because there appears to be some deficiencies in the electronically filed request and accompanying documents. The allowance for electronic filing of documents is by UCPR 967 and 969A and particular provisions for filing such documents are to be found in Division 4 of Part 1 of Chapter 22 of the UCPR. Although these documents were accepted and acted upon as electronically filed:(a)it may be noted that the request for default judgment is not signed by the solicitor for the plaintiff but has the notification “Signature not required for electronically lodged documents”. The source of such contention is at least unclear. Whilst UCPR 975A(1) provides that UCPR 19 (requiring signature upon originating process) does not apply to an electronically filed document, the request for default judgment is not an originating process. In any event, the exemption in UCPR 975A(1) applies only “if it is not reasonably practicable to comply with that rule in relation to an originating process”. Further, UCPR 975A(2) provides:“(2)Without limiting subrule (1), it is reasonably practicable for a person to comply with rule 19 in relation to an originating process that is electronically filed if the originating process is an imaged document.”(b)More significantly, the request is accompanied by an unsworn form of affidavit of debt, which purports to annexe what is described as an affidavit of personal service on the defendant, on 3 May 2022. However, the paper copy of the electronic filing on the Magistrates Court file, does not include any such affidavit and it is understood to have been confirmed that neither does the electronic record of the filing.It must immediately be noted that the second difficulty may be complicated by the provisions of UCPR 975D and Approval 2 of 2018, of the Principal Registrar (Magistrates Court), in respect of the provision of “prescribed information” in respect of an “exempt affidavit”. Relevantly, for the application of UCPR 975D, Approval 2 was given on 27 September 2018 pursuant to UCPR 975D(3) and includes the following terms:“1.In relation to requests for default judgment under rule 283 UCPR:(i)Document: Affidavit of service of the claim on the defendantPrescribed information for the document:(a) the full name of person who served the claim;(b) the time, day, date and place of service of the claim on the defendant;(c) the manner of service on the defendant;(d) how the defendant was identified;(e) the name of the person before whom the affidavit was sworn; and(f) the date and place the affidavit was sworn.(ii) Document: Affidavit of debtPrescribed information for the document:(a) the full name of the person who made the affidavit;(b) whether the debt is still owing;(c) if some payment has been made, when payment was made, the amount of the payment and how much of the debt is still owing;(d) the name of the person before whom the affidavit was sworn; and(e) the date and place the affidavit was sworn.”

Ratio Decidendi

Legal Principle Established

On 17 November 2023, the applicant did not appear at the time appointed for the hearing of this matter and the legal representative of the respondent was heard in accordance with leave earlier granted, by telephone. Further documents which had been filed in the registry on 14 November 2023 (MFI-C) and also sent to the registry by email on 15 November 2023 (MFI-D and MFI-E) in reference to the applicant’s position in relation to this matter, were marked for identification. Notably and in response to the notification provided as to the listing of this matter for hearing, the response was in terms of “declining your offer”. Otherwise, the applicant purported to rely upon the “Endorsed Orders”, including the assertions that:“‘Judge Vasta’ has allowed remedy by allowing the ‘Defendant’ take the ‘Appeal’ to the ‘District Court’ to impugned the ‘Default Judgement’ of the ‘MAGISTRATES COURT OF GYMPIE’ to correct the matter that originally lead to the proceedings in matter SYG1515/2022 rather than looking behind the ‘Default Judgement’; Should the ‘Rules of a Court’ being a ‘technical argument’ supersede the ‘Appellants position of standing’ which in this matter would see an injustice done, then our position stands in ‘Equity’ to provide remedy by way of the now sealed ‘Endorsed Orders’”.Consideration As is pointed out for the respondent, an application of this type which seeks an exercise of discretion to allow an extension of time in which to bring an appeal, usually involves consideration of the explanation for delay, the merits of the appeal, any prejudice to the respondent and general considerations of fairness.[6] In this instance, the appropriate primary focus is upon the merits and more particularly, the contended inutility of the proposed appeal having regard to the legal inability or incapacity of the applicant, as an undischarged bankrupt, to pursue it, or indeed to have made this application.[6]See Jorgensen v Body Corporate for Cairns Central Plaza Apartments [2020] QDC 300 at [8], in reference to Di Iorio v Wagener [2016] QCA 97 at 28, Hunter Valley Developments v Cohen (1984) 3 FCR 344 at 349 and Horne v Commissioner of Main Roads [1991] 2 Qd R 38 at 41. That situation and the applicable principles to be applied in dealing with a similar situation, were explained by Bond JA in Di Pan v Macarthur Central Shopping Centre Pty Ltd.[7] In that case, his Honour noted the problem which confronts the applicant here, in the following terms:“[7]The problem facing her is that the fact of a sequestration order has certain legal consequences. The respondent has submitted to me that the judgment debt that they have obtained is a debt provable in the appellant’s bankruptcy; that the effect of her bankruptcy divests her of her interests in property and her liability for provable debts; and in those circumstances, the Court is bound to conclude that she has no interest such as would confer upon her the necessary standing to appeal against the judgment obtained in the District Court. As the High Court observed in Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 138 (citations omitted):‘… it is fundamental to the law of bankruptcy that the bankrupt is divested of both his interest in his property and liability for his provable debts.’”[8]Subsequently, reference was made to the noted observations of the High Court having been followed in Commonwealth Bank of Australia v Jorgensen[9] and Oliver v Samios Plumbing Pty Ltd.[10][7][2022] QCA 150.[8]Ibid at [7].[9][2011] QCA 376 at [10] and [11].[10][2016] QCA 236.