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  • {solid} Appeal Determined (QCA)

Simmons v Profcoll Pty Ltd

 

[2018] QCA 123

COURT OF APPEAL

FRASER JA

GOTTERSON JA

HENRY J

Appeal No 13171 of 2017

DC No 1183 of 2017

SEAN ANDERSON SIMMONS

Applicant

v

PROFCOLL PTY LTD

ACN 083 172 838

Respondent

BRISBANE

WEDNESDAY, 13 JUNE 2018

JUDGMENT

FRASER JA:  On the 3rd of April 2017 the applicant filed in the District Court a claim and a statement of claim.  The claim refers to “liable damage,” collusion, negligent practices by the respondent who failed to honour an agreement to bankrupt one Ormond for failing to pay a debt to the applicant, failure by the respondent to perform a service under a contract, fraudulent falsification of documents and a breach of the “Australian Legal Practitioner’s guidelines and procedures.”  That document did not advance any coherent claim.  On the same date, the applicant filed a statement of claim containing similarly incoherent statements.

Upon the respondent’s application for summary judgment, Judge McGill struck out the statement of claim on the ground that it was incomprehensible, gave the applicant leave to file and serve an amended claim and statement of claim and ordered that the claim be struck out unless an amended claim or statement of claim were filed by the applicant within the specified time.

The applicant thereafter filed an amended claim and amended statement of claim.  Upon a further summary judgment application by the respondent on 10 October 2017 Judge Burnett ordered summary judgment for the respondent against the applicant on all of the applicant’s claim and that the applicant pay the respondent’s costs in a fixed amount.

On 13 December 2017, after expiry of the relevant appeal period, the applicant filed an application in this court seeking leave to appeal.  Because the applicant appears for himself it is appropriate to treat that application as applying for an extension of time within which to appeal.  In that respect, the applicant relies upon what he states were various health problems, the pressure of his university studies, his lack of legal knowledge and some other matters.  If the proposed appeal were otherwise meritorious it might be appropriate to grant the necessary extension of time.  It is therefore necessary to examine the merits of the proposed appeal.

Most of the applicant’s very extensive submissions comprise a detailed discussion of what he submits is the law relating to his claims, together with very extensive citations of statutes and authorities, case law and otherwise.  For present purposes it is necessary to advert only to the matters which relate to the grounds upon which the primary judge gave summary judgment against the applicant.  As the primary judge observed, it is somewhat difficult to discern from the discursive amended claim exactly what are the causes of action upon which the applicant seeks to rely.  I will, however, give a broad outline of the factual basis of his claims as can be discerned by reference to the amended statement of claim and his various written and oral submissions in the District Court and in this Court.

The applicant alleges the following.  On 14 April 2010 he contracted with the respondent for the respondent to collect a debt of about $13,000 owed to the applicant by Ormond.  Ormond denied that he owed the debt and he made disparaging statements about the applicant to the respondent.  In 2010, shortly after 14th April, the applicant concluded that the respondent had not performed and could not perform its contractual obligations to recover the debt, including by bringing proceedings to bankrupt Ormond for non-payment.  In June 2010 the applicant terminated the contract with the respondent.

The applicant also alleges that the respondent represented by the terms of the contract that it was appointed both to collect the debt and to “instruct their solicitors where legal action is required.”  The applicant alleges that the latter was a fraudulent misrepresentation because the respondent is not a solicitor and does not supply legal services.

After the applicant terminated the contract with the respondent in June 2010 the applicant himself brought proceedings to recover the debt, in which he was successful.  The applicant claims that he suffered loss as a result of the respondent’s breach of contract, negligence, fraudulent misrepresentation and the collusion with Ormond.

One aspect of the claim in fraud relies upon the reference to “their solicitors” in the contract.  That expression is incapable of bearing the meaning which the applicant submitted that it did bear, that the respondent was a solicitor or employed solicitors or would necessarily engage solicitors.  The expression, “their solicitors,” plainly refers to the solicitors who the respondent engages on behalf of creditors to bring legal proceedings to collect debts.  The contract which the applicant signed with the respondent includes a statement immediately after the reference to instructing the solicitors that, “authority is always obtained before any legal action is taken, as there are costs involved.”  The applicant did not allege or adduce evidence to prove that he gave any such authority to the respondent.  The reference to instructing solicitors appears to be of no relevance to any potential claim by the applicant.

The applicant referred to a ledger prepared by the respondent which records statements made in the course of the contract.  One such statement was said to be made by Ormond in terms denying the alleged debt and disparaging the applicant and his business.  The ledger also records attempts by the respondent to contact the applicant, that the respondent sent a notice of intention to sue on 18 May 2010, that on 2 June 2010 the “legal” will be $1645.40, and on the same day that the applicant foreshadowed that he was sending a termination letter to the respondent.

The applicant contended that this supplied some evidence of fraud by the respondent.  There is patently no basis for that contention and there is no evidence in support of the claim of fraud.  As to the other claims, they are all clearly statute barred.  The cause of action for breach of contract arose upon the breach which necessarily occurred before the contract was terminated in June 2010 which was more than six years before the applicant commenced the proceeding in the District Court.  The limitation period for bringing an action for negligence or fraud or otherwise in tort or under the Trade Practices Act 1974 is six years after the accrual of the cause of action.

The applicant told the primary judge that his damages arose during the 14 months while he was trying to recover his $13,000 (which he submitted he had to do to to clear his name).  He confirmed in submissions in this Court that he incurred his losses during all of 2010 and into 2011.  There is no evidence or allegation to contradict these facts.  It clearly appears upon the only evidence before the District Court and before this Court that his causes of action accrued, if he had any such causes of action, in early June 2010.  He also made that explicit in a paragraph of a “summary of the facts” which was verified in an affidavit filed in the District Court.

In that paragraph the applicant made it clear that he terminated the contract with the respondent because he knew there was collusion between the respondent and Ormond causing detriment to his business.  He makes it clear that he terminated the agreement for that reason and he makes reference in this context also to the “liable damages” mentioned earlier in his claim.  The applicant referred to s 38 of the Limitation of Actions Act 1974 which so far as it is presently relevant, defers the commencement of the running of a period of limitation until after a plaintiff has discovered or could with reasonable diligence have discovered a fraud upon which the action is based.  If, which the material does not reveal, the applicant had a viable claim based on fraud, s 38 has no application because upon his own case and his own evidence he had discovered the fraud more than six years before the commencement of the proceedings in the District Court.

The applicant submitted that there should be an extension of time of the limitation periods.  In this context, he referred to having been unaware of his rights to sue and to various difficulties which he faced in June 2010.  There is, however, no statutory provision which enables this Court to extend the time within which the applicant might sue.

In the result, there was no error demonstrated in the decision by the District Court judge that the applicant’s claims were either unsustainable on their face or all statute-barred.  For that reason, I would refuse the application for an extension of time.

GOTTERSON JA:  I agree.

HENRY J:  I agree and add an examination of the transcript below demonstrates, contrary to an allegation in Mr Simmons’ application, that he was given fair opportunity to be heard.

FRASER JA:  I should add in relation to what Justice Henry has just said that I omitted to mention that procedural fairness point.  The applicant made detailed submissions about the law relating to procedural fairness, but it is plain, as Justice Henry has mentioned, that the judge gave the applicant an appropriate opportunity to explain the basis of his contention that his claims were viable and not statute-barred.

GOTTERSON JA:  I agree with the further reasons of the presiding judge.

FRASER JA:  The order of the Court is firstly that the application for an extension of time be refused.  The second order is that the applicant is to pay the respondent’s costs of the application.

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Editorial Notes

  • Published Case Name:

    Simmons v Profcoll Pty Ltd

  • Shortened Case Name:

    Simmons v Profcoll Pty Ltd

  • MNC:

    [2018] QCA 123

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Gotterson JA, Henry J

  • Date:

    13 Jun 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment DC1183/17 (No Citation) 10 Oct 2017 Summary judgment for the defendant against the plaintiff: Burnett DCJ.
Notice of Appeal Filed File Number: Appeal 13171/17 13 Dec 2017 -
Appeal Determined (QCA) [2018] QCA 123 13 Jun 2018 Application for extension of time refused: Fraser JA, Gotterson JA, Henry J.

Appeal Status

{solid} Appeal Determined (QCA)