P and N and L and L Piskulovic Pty Ltd v Chester (trading as Green Scene Fencing)
[2011] QDC 106
•17 June 2011
DISTRICT COURT OF QUEENSLAND
CITATION:
P & N and L & L Piskulovic Pty Ltd v Chester (trading as Green Scene Fencing) [2011] QDC 106
PARTIES:
P & N AND L & L PISKULOVIC PTY LTD
(ACN 113 535 381)
(Appellant)
And
JASON PAUL CHESTER AND TONI MICHELLE CHESTER TRADING AS GREEN SCENE FENCING
(Respondent)
FILE NO/S:
D377 of 2010
M1520/09
PROCEEDING:
Appeal
DELIVERED ON:
17 June 2011
DELIVERED AT:
Townsville
HEARING DATE:
14 June 2011
JUDGE:
Baulch SC, DCJ
ORDER:
1. The judgment entered on 10 December 2010 in favour of the respondent be set aside and that the matter be remitted to the Magistrates Court to be dealt with according to law.
2. The matter be heard by a magistrate other than the magistrate who heard the proceedings which concluded on 10 December 2010.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where the matter came on for hearing before the Magistrates Court – where the plaintiff/applicant was present at the opening of the hearing but departed during a short adjournment and elected to take no further part in the hearing – where the magistrate had the plaintiff/applicant’s name called – where the magistrate proceeded to enter judgment in favour of the defendant/respondent without hearing evidence – where this judgment was described as ‘default judgment’ – where the defendant/respondent appeared before the magistrate to have default judgment set aside and a summary judgment in identical terms to take its place – whether the summary judgment entered was irregularly entered – whether the summary judgment should be set aside
Australian Coal and Shoal Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627
House and The Queen (1936) 55 CLR 499 at 505.
Seymour v Holm (1961) Qd.R. 214COUNSEL:
L Middleton R.F.D for the applicant
T Betts for the respondent
SOLICITORS:
Brad Robins Legal Centre for the applicant
Giudes & Elliot Solicitors and Notary for the respondent
The parties to this appeal are in dispute over a cost of fencing erected by the respondent for the plaintiff during 2009.
The respondent claims from the appellant the sum of approximately $20,000, said to be the balance due as a fair price for the erection of fencing.
The appellant says that the fencing was erected pursuant to a fixed price contract (the price being fixed at a considerably lower sum than that claimed by the respondent) and, in the alternative, that the amount claimed by the respondent is excessive if it is to be considered as a fair price.
When the matter came on for hearing before the learned magistrate on 30 November 2010, counsel for the respondent opened the case and there then followed some preliminary skirmishing concerning the state of the pleadings and non-compliance with the expert evidence rules.
The appellant did not fare well in the preliminary skirmish and its application for an adjournment was refused although the magistrate indicated that the matter of adjournment might be revisited during the course of the hearing if it turned out that the appellant was disadvantaged.
The appellant was so disappointed in the magistrate's rulings that it elected to depart the court room and take no further part in the proceedings.
When the court resumed, the learned magistrate had the appellant's named called and proceeded to enter judgment in favour of the respondents without hearing any evidence. The judgment was described by the magistrate as a judgment "by default".
On 10 December 2010, the respondent appeared before the magistrate again seeking to have the judgment of 30 November set aside and in its place a summary judgment entered in an identical amount. That application was not served upon the appellant. The application was successful and a judgment in identical terms was entered pursuant to the summary judgment rule on that day.
The appellant's complaints
The appellant complains that the magistrate was in error in refusing its application for an adjournment and further complains that the judgment entered on 10 December 2010 was irregularly entered and should be set aside.
Background
The appellant had sought and obtained an expert opinion on which it proposed to rely on the question of the reasonableness of the amount claimed by the respondents. That report had been made available to the respondent outside the time allowed by the rules but in sufficient time to allow for it to be considered by the respondent's advisors. The respondent had also obtained expert evidence but had not obtained it until on the eve of trial and was, apparently somewhat under- prepared on the day of the trial.
The proceedings at trial
The respondent, by agreement, proceeded to open its case and the appellant then took three objections to what was proposed.
First, the appellant objected to the calling of evidence of the respondent’s usual charge rate apparently proposed to be called from the respondent and from some other customers.
Second, the appellant objected to the respondent calling evidence about the difficulties encountered in respect of the performance of the work by way of explanation of the charging method, saying that such evidence should have been the subject of pleadings.
Thirdly, the appellant objected to the late delivery of the expert report.
The appellant sought an adjournment but its application was refused.
The appellant thereafter absented itself from the proceedings and did not return following a short adjournment of the proceedings.
On the resumption of the proceedings, the magistrate had the appellant's name called and when there was no appearance, proceeded to give the judgment "by default" that I have referred to.
The respondent's solicitors subsequently realised that a judgment by default pursuant to Uniform Civil Procedure Rules (UCPR r 283 could not be granted having regard to the nature of the claim and filed an application under the slip rule seeking to have that judgment set aside and in its place a summary judgment entered pursuant to UCPR r 292. That application was filed on 8 December returnable on 10 December 2010 and was not (and was never intended to be) served on the appellant.
During the course of submissions, I was handed a copy of the order made on 10 December 2010 and I note that the order was in these terms:
"1. That a default judgment obtained on the 30 November 2010 be set aside.
2. That summary judgment be entered in favour of the plaintiff against the defendant.
3. The defendant pay to the plaintiff $31,347.02 being:
Claim $20,051.00
Interest to 30 November 2010 $2,735.52
Costs (including filing fees and bailiff's fees) $8,560.50
4. There be no order as to costs of this application."
The notice of appeal is a lengthy document identifying fifteen separate grounds of appeal.
The matters which I am required to consider, however, are two:
(a) Was the magistrate wrong in refusing the adjournment?
(b) Was the judgment entered on 10 December 2010 irregularly entered?
The adjournment
The plaintiff sued for the reasonable cost of erecting fencing. The defendant alleged that the fencing had been erected under a fixed price contract or alternatively that the cost claimed was excessive.
The respondent opened its intention to call evidence of particular difficulties which would explain the price. The defendant alleged that this evidence should have been the subject of pleading.
I note that requests for particulars had been given and responded to. The reasonableness of the claimed cost was always an issue and the nature and extent of the work had (in my view, curiously) not been the subject of the appellant's request.
Thus, it seems to me that the morning of trial was too late to complain about the nature of the evidence relied on to prove that the price was reasonable and the failure to plead that evidence out in a statement of claim.
It seems to me that there was no obligation to plead the evidence which would support the respondent's case as to reasonableness of the price, particularly where there had been particulars sought and given and no complaint was made as to the adequacy of the particulars.
The late delivery of the expert report and a failure to comply with the rules relating to expert evidence was a more serious matter. However, the magistrate was aware that the case could not finish in one day and would have to be adjourned to another day to be completed and further told counsel for the appellant that any necessary adjournments would be allowed as the trial proceeded. Such adjournments would, of course, have allowed the appellant to give consideration to any evidence that it had not anticipated and to consider how such evidence could best be met.
There is much authority on the topic of appeal courts interfering with the discretionary judgments of inferior courts. I mention only Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627 and House and The Queen (1936) 55 CLR 499 at 505.
The principles which should guide me are these:
(a) discretionary judgment should be affirmed unless they are shown to be clearly wrong;
(b) that starting point will be overcome where it is shown that there has been error in acting on a wrong principle or giving weight to extraneous or irrelevant matters or failing to give weight or sufficient weight to relevant matters or mistaking the facts;
(c) if a magistrate acts on a wrong principle or makes an error of the type described above, then the Court should interfere;
(d) it should be acknowledged that where no particular error is identified if the decision is so clearly unjust that one can infer that the discretion has not been exercised properly, then the Court should intervene.
Here, having considered all of the material, I am satisfied that the learned magistrate's discretion has not been shown to have been exercised incorrectly. Court time is a valuable thing and the learned magistrate was entitled on the material before him, to conclude that the best course was to proceed and to allow any necessary adjournment and in that way to do justice between the parties.
I would dismiss the appeal against the learned magistrate's refusal to allow an adjournment.
The judgment
When the appellant chose to take no further part in the proceedings, there arose an opportunity for judgment to be obtained by the respondents.
It is necessary to consider whether the opportunity arises after:
(a) completion of the trial in the ordinary way (save for the absence of the party absenting itself);
(b) in default of appearance (as seems to have been the method relied upon when judgment was initially entered on 30 November 2010);
(c) after an application for summary judgment (as appears to have been thought appropriate on 10 December when the "slip rule" application was made);
(d) on application under Rule 474 (which seemed to me during the course of argument to be a suitable method save for the existence of the word "starts" in that rule).
There is little authority on the topic. No cases were referred to me by counsel and my own research has revealed only one relevant decision.
In Seymour v Holm (1961) Qd.R. 214 Wanstall J (as he then was) had to deal with an application which concerned the Supreme Court Rule which was the predecessor of Rule 476.
Wanstall J was asked to consider a situation where a party had assented himself from proceedings before a special referee ordered under Order 39 Rule 7 of the Supreme Court Rules and was speaking particularly of Order 39 Rule 33 which permitted the judgment to be set aside. He said this:
"I think the procedure adopted is properly and literally to be regarded as one of the stipulated modes of trial. The report thus obtained leads to judgment which is the end of all trials. But I think that this rule, on its face, is intended to be restricted to circumstances in which there has literally been a complete failure of a party to attend at trial. "
(Emphasis added.)
I note that Rule 31 of Order 39 provided that where the defendant did not appear "when (the) cause is called on for trial" and went on to provide that in the absence of appearance "the plaintiff may prove the plaintiff's claim, so far as the burden of proof lies on the plaintiff".
The present rule begins "if a defendant does not appear when the trial starts" then "the plaintiff may call evidence to establish an entitlement to judgment against the defendant, in the way the Court directs."
The case, in my opinion, provides support for counsel for the appellant's submission that Rule 474 is restricted to cases where there is a complete failure to attend rather than, as here, and in Seymour v Holm (supra), limited participation followed by a voluntary absence from the balance of the hearing.
While in Seymour v Holm (supra) the approach operated to make the position of the applicant to set aside the judgment more difficult in that it was necessary to rely upon the inherent jurisdiction of the Court, it seems to me to be equally appropriate to this situation where the appellant, having embarked upon a trial, voluntarily absented itself from the trial proceedings.
While I think the result is somewhat unsatisfactory in circumstances where the appellant failed to produce any material as to the merits. I note that the appellant did have material filed going to the merits and, on that basis, I think that it is appropriate to read the rule in the narrow way suggested by Wanstall J in the absence of any authority against it. The decision has stood the test of time since 1961 and should not be lightly departed from.
Thus I conclude that the judgment on 30 November and the judgment on 10 December 2010 were both irregularly entered and must be set aside. The trial having begun it should have continued to a conclusion in the ordinary way, notwithstanding the absence of the defendant.
Accordingly, I order that the judgment entered on 10 December 2010 in favour of the respondent be set aside and that the matter be remitted to the Magistrates Court to be dealt with according to law. In the particular circumstances of this case, it seems appropriate to order that the matter be heard by a magistrate other than the magistrate who heard the proceedings which concluded on 10 December 2010.
I will hear the parties as to costs.
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