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  • Unreported Judgment

Nelson v Brian Smith


[2010] QSC 184







Trial Division




Supreme Court


28 May 2010




7 May 2010


Cullinane J


The Application is to be dismissed


ADMINISTRATIVE LAW – JUDICIAL REVIEW – Judicial Review Act 1991 Part 5 – where the Applicants seek an Order for the matter to be remitted to the Magistrates Court in its minor debt jurisdiction for hearing


Sue Johnston for the Applicants

No appearances for the Respondents


SJ Law for the Applicants

No appearances for the Respondents


[1] The applicants have applied under Part 5 of the Judicial Review Act 1991 as amended for an order that the matter be remitted to the Magistrates Court in its minor debt jurisdiction for hearing.

[2] Although there appears to be some uncertainty on the part of the company itself, Altabay Pty Ltd was added as a respondent by order of the Court on 9 April 2010.

[3] In accordance with the usual  practice the respondent Magistrate was given leave to withdraw.

[4] The proceedings against the applicant related to expenses incurred by the company as a real estate agent.  The applicants had listed their property with the company but the house was not sold.

[5] The proceedings were instituted by a claim on 24 April 2009 in the form of a minor debt claim pursuant to the provisions of Division 2 of Part 9 of the UCPR dealing with such claims.  This provides for simplified procedures in respect of such a claim.

[6] The file of the Magistrates Court contains what is described as Exhibit 1 which is an email dated 19 December 2008 under cover of which are a number of tax invoices in support of the claim.  In addition there are a number of documents relating to the claim which were tendered at the hearing and form part of Exhibit 1.

[7] The defence which the applicants delivered was in rather peremptory terms:

"The defendants deny that $4,560.50 were incurred by the plaintiff as advertising and authorised expenses and deny that proper particulars of the expenses claimed have ever been delivered to the plaintiff."

[8] The defence was delivered on 22 May 2009.

[9] Rule 515 of the UCPR provides for the simplified procedures to be applied in such a case. 

"515(1) The following procedures are the simplified procedures

(a)except to the extent necessary to comply with chapter 14, part 2, a party is not required to disclose to another party a document in the possession or under the control of the party and directly relevant to an allegation in issue in a proceeding, unless the court otherwise orders;

(b)all parties must have all relevant documents available at the  hearing;

(c)if ordered by the court, or agreed in writing by the parties, a party must not appear by -

(i)a lawyer; or

(ii)a person who has a legal qualification under the laws, of this or another State; or

(iii)a person who is of the nature of a professional advocate;

(d)the court -

(i)is not bound by laws of evidence or procedure applying to a proceeding in the court; and

(ii)may inform itself of the facts in any way it considers appropriate; and

(iii)must observe the rules of natural justice; and

(iv)must record the reasons for its decision.

(2)Before making an order mentioned in subrule (1)(c), the court must    consider the following matters -

(a)the difficulty of any question of law or fact raised or likely to be raised in the proceeding;

(b)any prejudice likely to be caused to a party by the presence or absence of the representative;

(c)whether, under a contract of insurance, a party's rights in relation to the claim have been subrogated to an insurer;

(d)whether the order is fair and equitable to the parties.

(3)An agreement mentioned in subrule (1)(c) must be filed."

[10] It is noteworthy that the file does not contain any reasons by the Acting Magistrate who pronounced judgment.  However this is not the subject of any complaint by the applicants.

[11] Rather the applicants' grounds of appeal are limited to the refusal by the first respondent to grant a rehearing of the matter. 

[12] Rule 522 which forms part of  Division 2 provides as follows:

"522Failure to appear in a minor debt claim

(1)If neither party appears at the hearing of a minor debt claim, the court may dismiss the proceeding.

(2)If the plaintiff does not appear at the hearing but the defendant does, the court may --

(a)if the defendant admits part of the claim - give judgment for the plaintiff for the part of the claim the defendant admits; or

(b)if the defendant does not admit any part of the claim - dismiss the proceeding.

(3)If the plaintiff appears at the hearing but the defendant does not, the court may give the judgment or make the order the court considers just without requiring the plaintiff to give any evidence of the plaintiff's claim, unless it considers the giving of evidence desirable.

(4)For this rule, a party is taken to have appeared at the hearing if the party -

(a)files in the court before the date of the hearing an affidavit of the facts in issue with a copy of the documents the party considers relevant to the facts in issue as exhibits to the affidavit; and

(b)sends to the other party a copy of the affidavit.

(5)If the court is satisfied, on application made to it within a reasonable time after a judgment given in the absence of a party came to the notice of the absent party, there was enough reason for the party's absence, the court may set aside the judgment and its enforcement.

(6)The court must rehear a proceeding set aside under sub rule (5) then or at a later time set by the court.

(7)At any time during the hearing the court may give the directions for the conduct of the proceeding it considers appropriate and necessary to enable justice to be done between the parties.

[13] The only remedy sought by the applicants is a rehearing.

[14] On 3 August 2009 the matter came before the Acting Magistrate.  The file records the second applicant as appearing for "the defendant."

[15] There is an affidavit from the second applicant who said that she informed the Acting Magistrate that the first Respondent was committed elsewhere and asked for an adjournment so that he could attend.  She deposes that the Acting Magistrate refused to consider the application for an adjournment and after allowing a brief period for her to look at documents, the matter proceeded to judgment.

[16] As I have said the applicants have confined their complaint in support of the order in this court to the refusal of the first Respondent to grant a rehearing.

[17] The request for a rehearing by the applicant asserted that he did not appear and that the matter proceeded in his absence.

[18] The request does not set out the statutory basis upon which the rehearing was sought.

[19] The first Respondent refused to grant a rehearing stating that the matter had not proceeded ex parte.

[20] As I have said the record refers to the second applicant as appearing for "the defendant."  There is nothing on the face of the record suggesting that she appeared only on her own behalf.  In her affidavit she says that she sought on behalf of the first applicant to have the matter adjourned so that he might appear.  The Respondent entertained the application but refused it.

[21] In these circumstances and taking matters on the face of the record together with the second applicant's affidavit which was filed on behalf of both applicants it is in my view not possible to conclude that the first Respondent erred in concluding that the matter had not proceeded ex parte.

[22] The applicants contend that the first Respondent in any case failed to consider the provisions of s 44 of the Magistrates Court Act which provides for a right to apply for a rehearing.  It provides as follows:

"44New trial

(1)Subject to this Act, any party dissatisfied with any decision of a Magistrates Court may, at any time within 7 clear days from such decision, apply to the court for a new trial.

(2)The court may grant the same upon such terms as to costs or otherwise as it thinks fit, or in its discretion, may refuse the same with or without reasonable costs."

[23] I should mention that it seems to me that at least so far as any consideration of s 522 is concerned, if the Respondent had erred in holding that the matter had not proceeded ex parte this would be of assistance only to the first applicant. 

[24] It is therefore necessary to consider whether s 44 has any application to these proceedings.

[25] If s 44 is applicable it is difficult to see what role Rule 522(5) plays as s 44 gives a power to set aside much wider than that contained in Rule 522 (5).

[26] Similarly there already exists in UCPR  (R 667(2)(a)) a power to set aside an order made in the absence of a party.

[27] Rule 522 has of course now been deleted but it was in force at the time. 

[28] Division 2 of Part 9 provides for an informal process intended to provide a cheap and effective means of resolving disputes involving relatively small amounts.  It seeks to avoid delays arising from the taking of the usual steps associated with civil litigation.  Given the special and discrete way in which these claims are dealt with I think R.522 should be construed as providing for the only means by which  a judgment subject to these provisions can be set aside.  See Barraclough v Brown (1897) AC 615.

[29] In my view the applicants' claim must be dismissed.

[30] I order that the application be dismissed and I grant the parties leave to apply in writing within seven days on the issue of costs.


Editorial Notes

  • Published Case Name:

    Nelson & Anor v Brian Smith (Magistrate) & Altabay Pty Ltd

  • Shortened Case Name:

    Nelson v Brian Smith

  • MNC:

    [2010] QSC 184

  • Court:


  • Judge(s):

    Cullinane J

  • Date:

    28 May 2010

Litigation History

No Litigation History

Appeal Status

No Status