Qasim v Pignataro

[2016] NSWDC 18

District Court

New South Wales

Medium Neutral Citation:	Qasim v Pignataro [2016] NSWDC 18
Hearing dates:	9 February 2016
Date of orders:	09 February 2016
Decision date:	09 February 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The summons filed in the District Court on 11 January 2016 is dismissed pursuant to r 13.1 Uniform Civil Procedure Rules 2005 (NSW). (2) The plaintiff is to pay the defendants’ costs of these proceedings on an indemnity basis pursuant to s 98 Civil Procedure Act 2005 (NSW).
Catchwords:	APPEAL – jurisdiction to hear appeal under s 39 Local Court Act 2007 (NSW) – proceedings in the Local Court General Jurisdiction – appeal from the Local Court should be brought in the Supreme Court and not in the District Court – appeal brought ten months out of time – no power to extend time under s 39(1) – grounds of appeal hopeless – appeal dismissed COSTS – application for indemnity costs granted
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98 Local Court Act 2007 (NSW), s 39 Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 13.1, 42.1 and 50.3
Category:	Principal judgment
Parties:	Plaintiff: Dr Shaheen Qasim First Defendant: Robert Pignataro Second Defendant: Mr McGrath and Mrs H Mitchell Third Defendant: Mrs Y Ren and Mr Tu
Representation:	Counsel: Plaintiff: Dr S Qasim (in person) Defendants: Mr T Bland   Solicitors: Plaintiff: Dr S Qasim (in person) Defendants: Strathfield Law
File Number(s):	2016/9530
Publication restriction:	None

Judgment

1. The plaintiff, Dr Shaheen Qasim, appeals from orders of the Local Court where judgment was entered against her by the owners of strata plan 11245 by way of summons filed on 11 February 2016. The application before me today is the application of the defendants, who are not the Owners of Strata Plan 11245 but the defendant in the Local Court, Mr Pignataro (of Strathfield Partners, the strata agents) and the other owners of two of the four properties in the owners corporation (Mrs Heather Mitchell and Mr McGrath and Mrs Wren and Mr Tu).

2. These defendants bring an application pursuant to r 13.1 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) for summary judgment on the basis that the plaintiff’s claim is sufficiently hopeless to warrant summary disposal.

3. The precise nature of the plaintiff's applications (if any) before me today is not entirely clear. Judging from an email sent by Registrar Grew, she had some discussion with him about changing the names of the parties. However, it has since been made clear, from what she has said to me in court that, while Registrar Grew noted in his email of 22 January 2015 that she “may wish to seek directions from the Court” in relation to amendment of the names of the parties to the proceedings, the plaintiff is in fact saying that the parties in the Local Court were the wrong parties, and what she is complaining about is that, rather than seeking to amend the names of the parties in this court.

4. The bases upon which the defendants seek summary dismissal are as follows.

5. Firstly, the appeal which is described in paragraph 1 of the summons as “brought under section 18(2) and section 19(1) of the Appeals Act” is in fact an appeal pursuant to s 39 of the Local Court Act 2007 (NSW). This section provides as follows:

“39 Appeals as of right

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

(2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness.”

6. The question of jurisdiction depends upon whether these proceedings were in the General Division or the Small Claims Division. Nothing could be clearer from the careful and extensive reasons of Magistrate Schurr of 16 April 2015 (at paragraph 47) than that these were proceedings which were at all relevant times in the General Division. Magistrate Schurr noted the circumstances of their having been transferred as “something of a mystery”, and most probably as a result of the complexity of the matter. As Magistrate Schurr notes at paragraph 47:

“I am satisfied that it was appropriate for the matter to have been dealt with in the General Division, given the complexity of the case, involving as it did references to the orders made and the history of litigation in the Consumer, Trader and Tenancy Tribunal and the arguments as to admissibility of evidence.”

7. This means that if the plaintiff is dissatisfied with the fact that the proceedings ended up in the General Division (as opposed to the small claims list from which there is an appeal to this Court under s 39(2)) that may be a matter which should be raised on appeal. However, the basis upon which any appeal can be brought from any decision in the General Division, as both Magistrate Schurr's decisions of 13 March and 16 April 2105 clearly were, would be to raise such an issue on appeal in the correct court, which is the Supreme Court, and not this Court.

8. This brings me to the second basis upon which the defendants submit this appeal is incompetent, namely the issue of delay in filing the appeal. The relevant period for the bringing of an appeal to any court is 28 days after the handing down of the decision of Magistrate Schurr, if not in relation to her decision of 13 March 2015 (this being in relation to issues of liability), then at least from 10 April 2015 (that being the date of Magistrate Schurr's decision on costs). The plaintiff’s appeal was, however, contrary to r 50.3 UCPR, not filed until 11 January 2016.

9. As I am satisfied that this was a matter in the General Division, I do not therefore have any power under s 39(1) to extend time. In the event that I have erred in that finding I would note that the circumstances in which a party could delay filing an appeal for a period of some eight months, without any explanation other than that there was a problem in obtaining access to the Owner’s Corporation’s books, would have to be exceptional. Although I encouraged the plaintiff to put before me the basis upon which she had not filed her summons for appeal earlier, she has only put before me complaints about not being given access to documentary material, all of which clearly predated the magistrate's findings.

10. I have asked her to give me copies of letters or emails where she wrote asking for material since that time, but it is clear that there is no such document. The sole piece of correspondence which appears to be available is a letter which is annexed to the summons, this being a letter of 5 June 2015 headed “Without Prejudice Save as to Costs”, and which I consider should not have been placed before the Court. It was put before the Court on the basis that the plaintiff made an offer and that it was not complied with, this being one of the grounds of appeal.

11. Next, I note, in relation to the issue of the lateness of the appeal, the hopelessness of the grounds is set out in that appeal in any event. The gravamen of the complaint of the plaintiff is that “matters have not been put in cross‑examination”, without any identification of what those findings are, in circumstances where I cannot see, from the extensive reasons given, that any such error occurred. The other grounds raised, namely the circumstances in which a letter of demand attached a list of expenses, which are complained of as not being a business record, raises an issue which is entirely irrelevant to the proceedings, given that this particular letter of demand appears not to have been referred to at all in the judgment.

12. The circumstances in which an extension of time would be granted would have to be exceptional if there is no ground that is apparent from the summons of any appellable error. This is not one of those cases.

13. Accordingly, I am satisfied that, in addition to being brought in the wrong court and the summons being filed so far out of time, even if I were to have power to grant an extension I would not have done so, the grounds of appeal are hopeless on their face.

14. The next problem that the plaintiff faces is that she has not brought this appeal against the party which obtained the judgment against her but against the managing agent and the other owners. This is a misconception of a very high order and, in my view, even if she were to seek an order correcting the name to the Owners of Strata Plan 11245, this being a body which obtained the judgment against her, it would be an order which I would not be prepared to make. The fact that she is, in fact, apparently seeking some kind of order replacing their names in the Local Court proceedings is a submission I have great difficulty in dealing with as it would be beyond the power of any court.

15. The fifth basis upon which the summary dismissal is sought is that the summons was not served. It has been made quite clear to me by Mr Bland that this is an issue upon which he seeks a ruling only really on an alternative basis, in that he seeks principally summary dismissal by reason of lack of jurisdiction under s 39.

16. I should nevertheless set out my observations in relation to failure to serve the summons. Dr Qasim tells me from the bar table that she sent a copy of the summons to Strathfield Partners on or after 11 January 2016. She does not produce a letter of service and I have affidavits from Robert Pignataro sworn on 8 February 2016 and from Michael Anthony James Carr on 8 February 2016. Those documents recite that the plaintiff's owners corporation obtained a bankruptcy notice on 7 September 2015 which was served on her on 29 September and that she, correspondingly, committed an act of bankruptcy on or about 4 October 2015.

17. He then obtained a creditors' petition on 10 November 2015 which was listed for its first mention in the Federal Circuit Court on 20 January 2016. It was during these proceedings in the Federal Circuit Court on 20 January and not prior to that date that the summons in question came to the attention of counsel who photographed the document with his smartphone. It is only since that date that the solicitors for the owners corporation have been aware of this summons and Mr Pignataro has stated that no such document has been served upon him. The circumstances in which I would ignore affidavits from a solicitor of the Supreme Court of New South Wales setting out such material would have to be extreme.

18. The circumstances in which this document came to the attention of the legal representatives of the owners corporation are most regrettable but the real problem with this appeal is the fundamental problem stated in a clear and simple way by Mr Bland at the commencement of this application, namely that this court has no jurisdiction. I should note that, even if these proceedings had been in the small claims tribunal, the grounds of appeal that are set out in the appeal fail to comply with section 39(2) in any event. I will add that into my judgment when I rewrite it.

19. It would be hard to imagine an appeal with a greater degree of hopelessness than the present. It is in the wrong court, it is brought months out of time, it is brought against the wrong defendants, the grounds set out in the summons are misconceived and, to add salt to the wound, it was not served or its existence known of by the defendant to these proceedings when it was shown to counsel on the first return date of a creditors' petition. These are matters, however, which are relevant essentially to costs.

Costs

20. On 13 March 2015 Magistrate Schurr made the following orders in the proceedings which are the subject of this appeal:

1. Verdict for the plaintiff in the sum of $8794.70.

2. The defendant to pay the plaintiff the amount of $1122 for accounting fees.

3. The defendant to pay interest on the rate of 10 per cent from 1 September 2014 to 10 October 2104, being 40 days calculated at $96.

4. The defendant to pay interest at a daily rate of $2.40 from 11 October 2014 until 13 March 2015.

21. Magistrate Schurr went on to make a costs order for the defendant to pay the plaintiff's costs as agreed or assessed and for any application for a different costs order to be made. Her Honour then went on to hand down a comprehensive judgment on costs issues on 10 April 2015 where her Honour varied the maximum costs order that she had previously made as ordinarily applying, an order the defendant pay the plaintiff's costs of proceedings on the ordinary basis as agreed or assessed, noting that she had granted the application to depart from the maximum costs rule (see paragraph 57).

22. Her Honour set out the history of the case in some detail, noting, among other issues, that by reason of the complexity of the proceedings it had been transferred from the small claims divisional to the general divisional (see paragraphs 28 and 47).

23. The circumstances in which the plaintiff brought her appeal almost eight months after the date of decision against the wrong parties and in the wrong court and without service of the claim in accordance with the rules is set out in my previous judgment dismissing the summons and I shall not repeat what I said.

24. The application before me now is an application for costs, this being firstly on the basis of costs should follow the event, r 42.1 UCPR, but secondly also pursuant to s 98 Civil Procedure Act2005 (NSW), that there should be an order for indemnity costs. The basis of this is that a letter was sent on 2 February 2016 which set out in very great detail most of the matters – in fact, all of the matters – which have been dealt with earlier in my judgment.

25. While I note that Dr Qasim says she did not receive that letter, notwithstanding the fact that it was addressed to her at the address at which she agrees she resides, nothing in the letter should have come as a surprise to her. In particular I note the section that is headed “The Summons is to be Heard in the Incorrect Jurisdiction”, “The Summons has no Proper Respondents”, “The Summons is Out of Time”, “There is no Error of Law”, each of which section sets out material which I have covered and which Dr Qasim should have appreciated when she was considering how to proceed with her appeal today.

26. Dr Qasim has advanced 10 reasons why she should not be ordered to pay indemnity costs. These are as follows:

1. She made an offer or settlement of costs in June 2015 and "they have not complied". This is in fact ground 3 of her summons. That is entirely irrelevant to the issue of what should happen in relation to the costs of this appeal.

2. The strata management company of which the first defendant is either an employee or a partner or perhaps both is under some form of police investigation. I make no comment as to whether this is in fact the case but whether it is or is not, that is no reason why indemnity costs should not be awarded, given the hopelessness of this appeal, it being brought in the wrong court against the wrong parties, filed well out of time and not served in accordance with the rules.

3. Dr Qasim submits that, "I'm the one who should be asking for indemnity costs," on the basis that she has been unfairly treated in the Local Court by her opponents. As a litigant in person, Dr Qasim is not entitled to anything other than the very limited costs in the form of disbursements that litigants in person are entitled to and this submission is misconceived.

4. The hopelessness of the case in the Local Court, particularly in relation to levies which she says were paid and the fact that these matters are now being investigated by the police - I think there is some rolling up of this ground with ground 2 above but I note it in any event. Those matters are irrelevant to the issues relevant to indemnity costs which are set out above.

5. Dr Qasim complains she has been "unfairly treated in the Local Court" and that Mr Pignataro, the first defendant, had named the wrong parties to the proceedings in the Local Court. This submission is misconceived for the reasons I have set out in my judgment.

6. Dr Qasim said, “I want indemnity costs of my June 2015”. This is a repetition of other grounds and in particular ground 1 and is misconceived.

7. The Court misdirected itself and handed down a judgment which no self-respecting judicial officer should hand down. I have read Magistrate Schurr's two long and careful judgments and I do not agree. In any event, this is not a matter which is relevant to the issue of indemnity costs.

8. Mr Bland of counsel has no right to act for the owners corporation as well as for the defendants in these proceedings. I am not sure if this is a claim of conflict of interest or precisely what the basis of the objection may be. It is, however, entirely misconceived in relation to the issues of indemnity costs and Mr Bland has every entitlement to appear, bearing in mind that these are the parties who are asserted to be said in place of the owners corporation.

9. There are other proceedings in this Court: in the course of hearing this application it transpired that Dr Qasim has started other proceedings against Dr Pignataro and other persons. I have made arrangements for those proceedings to be listed before me on 18 February for appropriate orders. These proceedings appear to have been commenced on 22 January 2016. Dr Qasim says that she has served them by post but service by post of an initiating process is not permitted under r 7.1 UCPR. The fact that there are other proceedings in this Court which Dr Qasim tells me means that these costs can be added to those costs seems to be some form of argument of a set off. If so, it is misconceived.

10. There has been not costs agreement provided and no costs assessment. Whether there has been a costs agreement provided or a costs assessment in relation to other costs is irrelevant to these proceedings. This Court is entitled to make costs orders and does so on a daily basis without requiring to inspect costs agreements. This ground is misconceived.

11. Dr Qasim denies receipt of the letter of 2 February 2016 which is attached to the affidavit of Mr Carr. I am indebted to Mr Bland for reminding me that, under section 36 of the Acts Interpretation Act, where a letter has been addressed to a valid postal address there is a presumption that it has been delivered within three days. Dr Qasim would, in those circumstances, have had ample time to consider the sensible and clear contents of that letter.

27. Accordingly, I am satisfied that by reason, in part, of the obvious hopelessness of the summons and the refusal by Dr Qasim of the generous offer to permit her to abandon the summons, which would have saved the Court a half day hearing which has now taken place, that it is appropriate that there should be an order for the plaintiff to pay the costs of these proceedings on an indemnity basis.

Orders

28. The orders I propose to make are as follows:

1. The summons filed in the District Court on 11 January 2016 is dismissed pursuant to r 13.1 Uniform Civil Procedure Rules 2005 (NSW).

2. The plaintiff is to pay the defendants’ costs of these proceedings on an indemnity basis pursuant to s 98 Civil Procedure Act 2005 (NSW).

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Decision last updated: 05 April 2016