Reefmore Pty Ltd v. Namoui Pty Ltd

[2009] QDC 41

[2009] QDC 41

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 52 of 2008

REEFMORE PTY LTD	Applicant
and
NAMOUI PTY LTD	Respondent

BRISBANE

..DATE 29/01/2009

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 404, r 703,

r 775, r 785 - Appeal by defendants against judgment "in default" by Magistrate when its representative withdrew on second day of trial upon Magistrate's refusal of an adjournment which the plaintiff had agreed to - appellant's outline of argument late because of delay in transcript being available - respondents refused costs on the indemnity basis.
HIS HONOUR:  This is an application by the respondent in an

appeal filed in Bundaberg against a Magistrate's entering

judgment in favour of the respondent.

The basis of the application is the appellant's failure to file the outline of argument as required by the Practice Direction.

Rule 775 of the UCPR picks up the requirements of such a Practice Direction for purposes of the Court of Appeal, and that's one of the Rules which applies in appeals to the District Court. See Rule 785.

The prospects of success of the appeal may be relevant, although, given Mr Ashcroft's approach, the only issue is costs of the present application.  For what it is worth, those prospects appear reasonable.

The Magistrate on the second day of the contested trial was faced with an application by a solicitor for the defendant, now appellant, for an adjournment on the basis of the indisposition of Mr Eastwood, the defendant's counsel, who was in another city.  Solicitors for the parties agreed there ought to be an adjournment and Mr Ashcroft communicated that agreement to the Magistrate without in any way seeking to resile from it.  There had been intimations from the Court that for its convenience it might insist on the matter proceeding.

Mr Ashcroft indicated that the plaintiff was able to proceed if that was what the Court required, and that in fact is what his Honour did.

The defendant had no one in a position to advance its case, although it ought to be noted that some evidence had been given on the first day on its behalf.

The Magistrate, expressly acting in part in default of the defendant's continued appearance when the solicitor had been asked to attend to secure the adjournment withdrew, gave judgment for the plaintiff.

In those circumstances, it seems to me there are reasonable prospects of the appeal succeeding, and a trial before another Magistrate being ordered.

Mr Ashcroft does not contest that.  He does submit that his client ought to have costs of the application and on the indemnity basis under Rule 703.

The outline of argument that the Practice Direction required the appellant to file was due on the 23rd October 2008, Mr Ashcroft's instructors were active in requesting that outline, and threatening the present application which is expressly authorised by Rules 775 and 785.  A Rule 444 letter was sent on the 23rd of December, 2008, in the difficult period surrounding Christmas.

On the 5th of January, 2008, the appellant's solicitors advised that the "long awaited" transcript of Day 2 of proceedings before the Magistrate had on that date been received, and been given to counsel.  Plainly the appellant would need that transcript to produce the most appropriate outline of argument, although one would think that some kind of outline of argument could have been produced anyway.

The advice of the 5th of January 2008, indicated that the transcript had gone to counsel but not when the Practice Direction would be complied with by provision of the outline.

The respondents in the appeal, present applicants, made good their threat to file the present application on the 14th of January, 2009, the deadline they had indicated was the 9th of January.

There was a flurry of activity by the appellant yesterday, an outline of argument being made available and material in response to this application being filed in Bundaberg.  It still needs to be served on Mr Ashcroft's instructing solicitors, although they have had available, for information purposes, unsealed copies.  Hence their application for costs.

Mr Eastwood for the appellant argues that his clients are entitled to costs or at least to an order that the costs be treated as costs of the appeal.  That does not seem to me just, given that the likely outcome of the appeal is that it will succeed, in my assessment, but I suppose one never knows.
In my opinion, a better performance by the appellant could reasonably have been expected, and the respondent was justified and acted reasonably, in proceeding as it did.

In those circumstances, I think it ought to have costs, but not on an indemnity basis.  I did not find anything in the appellant's performance which would justify it being condemned to have to pay costs on a punitive basis.

So, the order will be that the respondent's application filed 14th of January, 2009, for striking out of the appeal be dismissed, but that the appellant pay the respondent's costs of that application, to be assessed on the standard basis.

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