Walker v White

[1997] QSC 69

IN THE SUPREME COURT

OF QUEENSLAND

Cairns District Registry

Application No 31 of 1996

Before the Hon Justice White

[Walker v. White & Anor]

BETWEEN:

JOHN EDMOND WALKER
  Applicant

AND:

JUDGE MR PETER WHITE
  First Respondent

AND:

IRELANDS OF CAIRNS
  Second Respondent

JUDGMENT - WHITE J

Judgment delivered 16/04/1997

CATCHWORDS: JUDICIAL REVIEW - decision of Judge of District Court - s.43(1)(a) Judicial Review Act - other adequate provision - s.12(b).

Appearances:              Mr JE Walker appeared on his own behalf as applicant

Mr M Jonsson, solicitor for second respondent

Solicitors:MacDonnells for second respondent

Hearing Date:   14 March 1997

IN THE SUPREME COURT

OF QUEENSLAND

Cairns District Registry

Application No 31 of 1996

[Walker v. White & Anor]

BETWEEN:

JOHN EDMOND WALKER
  Applicant

AND:

JUDGE MR PETER WHITE
  First Respondent

AND:

IRELANDS OF CAIRNS
  Second Respondent

JUDGMENT - WHITE J

Judgment delivered 16/04/1997

The applicant ("Mr Walker") has sought review of the conduct of the first respondent, a Judge of District Courts, in making an order in chambers on 20 September 1996 striking out his action against the second respondent herein, ("Irelands").  The application for review was filed on 11 November 1996.  Mr Walker filed an amended application for review on 2 January 1997 in which he sought only that this court give directions as to the future conduct of the struck out action in the District Court.  In order for this court's jurisdiction to be enlivened it is necessary for the applicant to maintain his original application and this he did at the hearing before me.
Mr Walker commenced an action in the District Court at Cairns by Plaint No 150 of 1996 dated 9 August 1996 against Irelands as defendant. He sought relief pursuant to s.149 of the Credit Act 1987 to reopen a transaction relating to the provision of credit for the purchase of a motor vehicle. The pleading is short:

"The Plaintiffs claim is:

1.for an order of the Court pursuant to Section 149 of the Credit Act (1987) to Re-open the Transaction between the Plaintiff and the Defendant.

2.to Annul the Contract of finance between the Plaintiff and the Credit Provider and order the Defendant pay all cost instrumental to such annulment.

Facts relied on to prove the claim:

1.That the Defendant breached Section 118 of the Credit Act (1987) by making false representations to the Credit Provider as to the model, age, and real value and of the roadworthy condition of a vehicle, namely a Nissan 720 utility truck Reg No. 896-PGT, purchased by the Plaintiff on or about 21st day of May, 1996 and thus induced the Credit Provider to advance finance to the Plaintiff contrary to the interests of both the Plaintiff and Credit Provider.

The Plaintiff Requests that this matter be heard before a Jury."

Irelands filed a summons on 22 August 1996 to strike out the plaintiff's action as disclosing no reasonable cause of action.  Mr Walker received that summons some three weeks before the hearing on 20 September 1996 on 30 August 1996.  Immediately prior to the hearing the solicitor for Irelands handed to Mr Walker an outline of his submissions.  Mr Walker had no outline of submissions himself.  After some discussion with his Honour Mr Walker sought an adjournment of the hearing of the summons which his Honour refused and it is that refusal of which Mr Walker complains.  Alternatively he submits that he was not given an opportunity adequately to put his case.
           It is first necessary to say something about the procedure chosen by Mr Walker to challenge the decision below.  I should mention that when this matter was first mentioned before Cullinane J the first respondent District Court Judge was represented before him and, as is the usual course in such matters, agreed to abide the order of the court.
By s.4 of the Judicial Review Act 1991 the Act applies to a decision of an administrative character made under an enactment whether or not in the exercise of a discretion. It is immediately clear that the challenged decision is not a decision of an administrative character and is not a decision to which the Act applies. Accordingly an application for review pursuant to Part 3 of the Act may not be made. That is not, however, the end of the matter since the Act preserves the jurisdiction of the court to make orders having the same effect as the prerogative writs. Although Mr Walker did not do so Mr Jonsson, the solicitor who appeared for Irelands, characterised Mr Walker's application as an application for a prerogative order pursuant to s.43(1) and it is on that basis that I will deal with the application. Mr Jonsson suggested that mandamus was the appropriate prerogative order, but certiorari is, I think, the more apt remedy.
           Generally, prior to the introduction of the Judicial Review Act, an application for certiorari in respect of an interlocutory order by a Judge of District Courts would have been considered inappropriate. Section 28 of the District Courts Act 1967 (April 1996 reprint) provides

"A judgment given by a judge, or an action or matter brought before the judge or depending in the judge's court, shall not be removed by appeal, motion, writ of error or certiorari, or otherwise into another court, save and except in the manner and according to the provision of this Act."

A regime of appeals from District Courts to the Court of Appeal is found in Part 9, ss.118-120 of the District Courts Act.  Thomas J in Stubberfield v. Hill & Taylor (a firm) unreported decision No 371 of 1995 was of the view that s.18 of the Judicial Review Act has removed the effect of s.28 (s.27 in the judgment; the District Courts Act reprint of 12 April 1996 contains amendments and is renumbered) of the District Courts Act. With respect that does seem to be so. Section 18 provides

"(1)This Act has effect despite any law  in force at its commencement.

(2)However, this Act does not -

(a)affect the operation of an enactment mentioned in schedule 1, part 1..."

Schedule 1 lists statutory provisions which provide for non-review of decisions but makes no reference to s.28 of the District Courts Act.  It appears that a person who seeks to challenge a decision made in a District Court may bring an application for review seeking a prerogative order pursuant to s.43 of the Act.
           The Act provides in s.12(b) that the court may dismiss an application for review if adequate provision is made by a law other than the Judicial Review Act under which the applicant is entitled to seek a review of the matter by the court or another court.  Section 13(b) provides that the court must dismiss an application for review if it is satisfied having regard to the interests of justice that it should do so where provision is made by a law other than the Act under which the applicant is entitled to seek a review of the matter by another court or a tribunal authority or person.
The regime of appeals provided for in Part 9 of the District Courts Act allows any party who is dissatisfied with a final judgment of a District Court in an action or matter in which the sum sued for exceeds $10,000 to appeal as of right to the Court of Appeal.  In any other case the party must obtain the leave of the Court of Appeal to appeal to that court but it must involve some important question of law or justice.
           The question then is whether Mr Walker's application for review ought to be dismissed pursuant to s.12(b) (or s.13(b)) because adequate provision is made by the appeal provisions of the District Courts Act of which he has not availed himself. The clearest argument against dismissing pursuant to s.12(b) is the need to obtain leave from the Court of Appeal. It may well have been difficult to persuade the Court of Appeal that an important question of law or justice was involved in this matter. There are other disadvantages in the appeal regime including an obligation to provide security for the costs of the appeal (now removed in amendments to the District Courts Act by s.34 of the Justice Legislation (Miscellaneous Provisions) Act 1996) and, in some circumstances at least, a greater delay in having an appeal heard than having a judicial review application dealt with. I asked Mr Walker why, since his matter was within the limitation period, he did not simply commence a fresh action remedying, if possible, the defects identified in the court below. He said that that involved the cost of the filing fee for a plaint. Being self-represented he incurred no immediate costs in bringing this application for review. However he also indicated that he has now commenced an action against the credit provider in the District Court and it may be wondered at the utility of the present proceedings. Mr Walker did not indicate why he did not seek leave to appeal from the decision of his Honour refusing the adjournment.
           It is necessary to say a few words about the alleged facts giving rise to the action.  Mr Walker had approached General Motors Acceptance Corporation ("GMAC") for finance in respect of two vehicles which he was contemplating buying - a utility and a sedan motor vehicle.  It appears that GMAC approved finance in principle.  In due course Mr Walker identified the vehicles which he wanted in the saleyards of Irelands.  Irelands sold the vehicles to GMAC who in turn hired them to Mr Walker under contracts of hire purchase.  Mr Walker told his Honour that the finance for the utility was around $10,000 and for the sedan about $13,000.  There were two separate finance contracts and it is only the dealing with the utility about which Mr Walker complains.  Mr Walker maintains that Irelands made false representations to him and to GMAC as to the model, age and value and roadworthy condition of the utility.
The order sought to be reviewed is not a final judgment. It is unlikely that the Court of Appeal would have considered that this matter involved an important point of law or justice. It is necessary to consider whether s.12(b) ought to apply. This involves considerations of policy and the conduct of the work of the court as well as those peculiar to the matter under consideration. It is clear that parliament considered that there ought to be an end to litigation when modest sums of money are involved or when interlocutory decisions are made when it enacted s.118(2) of the District Courts Act.  The legislature has had opportunity to exclude applications for review pursuant to the Judicial Review Act from decisions made in either the Magistrates Court or District Court either where leave is required or otherwise and has chosen not to do so.  Indeed the most recent reprint of the District Courts Act of 12 April 1996 makes reference when dealing with the prerogative writs in Part 2 Division 3 to section 41 of the Judicial Review Act.  Further it cannot be supposed that parliament's attention has not been drawn to the judgment of Thomas J in Stubberfield and his identification of the likely result of making the Judicial Review Act available for review of decisions of the Magistrates and District Courts.  Since it is, in my view, unlikely that leave would have been obtained to appeal the impugned decision I conclude that adequate provision has not been made for the review of this matter and I ought to proceed to deal with the merits of the application.
           The only ground upon which the review is sought is a failure to accord natural justice to Mr Walker.  Fortunately the proceedings before the learned District Court Judge were fully transcribed.  It was not until page 7 of the transcript when the issues had been debated between his Honour and the solicitor appearing for Irelands and his Honour and Mr Walker for some time that Mr Walker said that he was finding the matter difficult and his Honour was asked by Mr Walker

"Well, perhaps there are laymen around who can get a grasp of these things occasionally Your Honour, but perhaps if Your Honour would indulge an adjournment until next week and I haven't had a lot of time to pursue this matter at all."

Mr Walker went on to say that he thought it would be very unjust to dismiss the application.  His Honour made enquiries as to when Mr Walker had received the summons and was told 30 August, almost three weeks prior to the hearing.
The major problem for Mr Walker identified both by the solicitor for Irelands and developed by his Honour was that there was no contract between Mr Walker and Irelands but only between Mr Walker and GMAC. Pursuant to s.149 of the Credit Act a court may at any time on the application of a debtor under a regulated contract reopen the transaction that gave rise to the contract if it appears to the court that in the circumstances relating to the contract it was unjust.  It was conceded below that a hire purchase contract may be a regulated contract and for the purposes of the application before the court it was assumed that it was.  After enquiry from his Honour Mr Walker indicated that he had contacted GMAC and asked that it join with him as  plaintiff in the action but the company had not responded.  Mr Walker said he then thought about seeking to have GMAC joined as a defendant in the action but added, "I have been away quite a bit of late and I haven't had time to chase this up very much at all ..."  Having explored the underlying facts with Mr Walker his Honour indicated to him that since he had had ample opportunity to prepare for the application brought by Irelands it was more than likely that he would be obliged to pay the costs thrown away by an adjournment and in his Honour's view Mr Walker would be no better off if he came back on another occasion.  His Honour was not available for some weeks.  His Honour after discussion suggested to Mr Walker that the only relief available to him under the Credit Act was against the credit provider GMAC and Mr Walker's complaints were against Irelands only.  The question of agency was canvassed but said to be irrelevant to this relief.  His Honour strongly advised Mr Walker to obtain some legal advice even if only to commence his action appropriately.
           From a perusal of the transcript it seems plain that his Honour heard Mr Walker and indeed gave him all assistance that was proper.  There was no suggestion by Mr Walker that he was disadvantaged by having only certain sections of the Credit Act in his possession at the time of the hearing as he maintained in this court.  There were issues of construction involved but Mr Walker did not indicate that he needed to look at the Act.  Had he done so, no doubt his Honour would have handed him the copy that he had.  Mr Walker has also complained that he had only minutes to peruse the outline of submissions of the solicitor for Irelands.  There is no principle or practice relating to natural justice or otherwise which requires a respondent to have submissions earlier in the absence of an order of the court to the contrary.  The material had been served in good time.
           His Honour gave reasons for striking out the action.  He referred to all relevant matters.  He concluded  that the Credit Act did not apply to the situation as pleaded and explained by Mr Walker.  That was the only basis advanced by Mr Walker for relief against Irelands (or GMAC).
           It is well recognised that the jurisdiction to strike out should be exercised only in the clearest of cases, General Steel Industries Inc v. The Commissioner for Railways (NSW) (1964) 112 CLR 125. His Honour gave Mr Walker a reasonable opportunity to state his claim and carefully went through the factual situation in order to see if there was a cause of action against Irelands. In Gamester Pty Ltd v. Lochart (1993) 67 ALJR 547 at p.549 the court held

"In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence which supports it.  But if the opportunity is not taken, the judge is not bound to set out on a search for support of evidence to support a claim which the party has failed to articulate intelligently".

There is no suggestion here that there was other evidence which might have been obtained had the adjournment been granted.  Neither was there any suggestion that there were any other legal arguments which might have been advanced in order to support the action against Irelands as constituted.  There was no possibility that other facts could have been advanced which would have brought the relationship between Mr Walker and Irelands within the purview of the Credit Act.  The action as constituted was ill founded as his Honour concluded.
           There was no error for failure to accord natural justice when Mr Walker was refused an adjournment.  Neither was there any jurisdictional error when the action was struck out.  The application for review is dismissed.
           Irelands has sought costs and in my opinion there is no good reason why Mr Walker ought not pay the costs of defending the application for review, but he may wish to make submissions to the contrary.  Those submissions must be made in writing addressed to my associate in Brisbane within 21 days of the Registrar in Cairns reading this judgment.