Quach v Suncoast Cafes Pty Ltd
[2025] QCA 22
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- Quach v Suncoast Cafes Pty Ltd[2025] QCA 22
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Quach v Suncoast Cafes Pty Ltd[2025] QCA 22
Quach v Suncoast Cafes Pty Ltd[2025] QCA 22
[2025] QCA 22
COURT OF APPEAL
BOND JA
GOTTERSON AJA
BRADLEY J
Appeal No 10222 of 2024
SC No 3768 of 2024
MICHAEL VAN THANH QUACH Appellant
v
SUNCOAST CAFES PTY LTD Respondent
BRISBANE
TUESDAY, 4 MARCH 2025
JUDGMENT
BOND JA: On 25 March 2024, the appellant filed an originating application in the trial division of the Supreme Court of Queensland.
On 10 April 2024, the application came before a Judge in the applications list. The respondent objected to the matter proceeding on the basis that, because there were substantial disputes of fact, the proceeding should have been commenced by claim and pleadings were required. The Judge agreed with the respondent and made orders requiring the proceeding to continue as if commenced by claim and that the appellant file a statement of claim within 28 days.
On 29 April 2024, the appellant filed a notice of appeal in respect of the decision to make those orders. The appeal was listed to be heard on 7 August 2024. It is convenient to refer to this appeal as “the first appeal.”
On 3 May 2024, the appellant filed a statement of claim in the proceeding. The respondent explained in correspondence to the appellant that it did not propose filing a defence while the appellant maintained the appeal by which he sought to overturn the orders made that the proceeding continue as if commenced by claim and that he should file a statement of claim. The respondent invited the appellant to withdraw the first appeal on more than one occasion.
On 18 July 2024 and despite those invitations, the appellant filed an application seeking default judgment.
On 29 July 2024, the appellant’s default judgment application came before the learned Chief Justice in the applications list. The respondent opposed the application and sought orders relevantly that, within 28 days of the court’s decision in the appeal, the respondent file and serve any notice of intention to defend and defence in the proceeding and that the appellant pay the respondent’s costs.
In ex tempore reasons for judgment, the Chief Justice dismissed the appellant’s application and made orders to the effect sought by the respondent. Her Honour explained,
The reason why a Defence has not been filed is explained in correspondence which was sent by the respondent’s solicitor to the applicant on each of 27 May 2024, 10 June and 24 June 2024. That is because of the appeal that had been lodged against the orders.
In each of those letters, the solicitor for the respondent said words to the effect that there seemed to be little utility to the appeal if the orders were to be complied with, in any event, and invited the respondent to withdraw the appeal but also outlined that the respondent would not take steps in the proceeding, including filing a defence, until either the appeal was withdrawn or the appeal had been determined. In each of those letters, the solicitor for the respondent also said that in the event the applicant elected to continue with the appeal, they would rely on this correspondence as to the issue of costs. As it turns out, the applicant has not taken up the offer to withdraw the appeal, and it remains listed for hearing on the 7th of August.
In terms of what is sought from the Court today, there is no basis on which to make an order for default judgment against the respondent. The applicant knows the proceeding is contested and knows why no Defence has been filed. I reject the submission that the respondent has recklessly refused to do anything. It has declined to file a Defence because there is an appeal on foot against the orders. The application to that extent will be dismissed, and I will make directions that the respondent file a Defence within a period of time following the conclusion of the appeal, which will have to be worded in such a way that it deals with the situation in the event the appeal is successful.
On 2 August 2024, the appellant filed a notice of appeal seeking to overturn the orders made by the Chief Justice. It is convenient to refer to this appeal as “the second appeal.”
On 7 August 2024, the appellant’s first appeal was dismissed with costs in an ex tempore judgment by the Court of Appeal: see Quach v Suncoast Cafes Pty Ltd [2024] QCA 143. The court found that there was no merit in the arguments which the appellant advanced.
The present appeal is the second appeal. For reasons which follow, the second appeal is similarly devoid of merit.
To commence a proceeding in the Court of Appeal, a party in the position of the present appellant must file a notice of appeal, amongst other things. Rule 747 of the Uniform Civil Procedure Rules provides that the notice of appeal must state “briefly and specifically the grounds of appeal”. The appellant’s notice of appeal identifies as the grounds of appeal merely “the respondent is in default”. That does not identify an arguable ground of appeal nor does it comply with the requirements of rule 747.
Further, Practice Direction number 3 of 2013 provides in relation to civil appeals at paragraph 15 that the appellant’s written outline and argument must:
- “(a)concisely state the grounds of appeal being argued and any grounds of appeal being abandoned;
- identify any error or errors said to have been made by the court or tribunal whose order is subject to appeal and the basis in principle or authority for that contention;
- where it is contended that a finding of fact should not have been made or that a finding of fact which was not made should have been made, set out the basis for that contention by reference to the evidence; and
- where it is contended that the decision-maker whose order is subject to appeal erred in law, the precise error or errors of law and the basis in principle or authority for that contention.”
In this matter, the appellant’s outline of argument states merely, (1) the respondent is in default, (2) orders sought be granted. That does not arguably comply with the requirements of the practice direction.
The failure by the appellant to comply with his procedural obligations under rule 747 and the practice direction renders the appeal an abuse of process. The appeal could be dismissed on that basis alone.
There are however two other reasons why the appeal must be dismissed.
First, in order to succeed on an appeal to this court, the appellant has to demonstrate that the order made by the Chief Justice is vitiated by some legal, factual or discretionary error: see Allesch v Maunz (2000) 203 CLR 172 at 180–181. Needless to say, the appellant has not done so in either his notice of appeal or his outline of argument.
When the appellant was invited to explain what his case was as to the error made by the Chief Justice, he made essentially two points.
First, he contended that the Chief Justice’s error was to convert something non-judicial into something which was judicial. The non-judicial component was that there had not been a defence. The appellant asserted that it was not the function of a court to order a party to file a defence. Somehow, he sought support in this argument from the Boilermaker’s Case (1956) 94 CLR 254. There is not the slightest support for this argument in the Boilermaker’s Case. It is, it must be said very clearly, part of the function of a judicial officer dealing with an application of the nature of that with which the Chief Justice was dealing to make orders of the nature of those that she made. The appellant’s first point is rejected.
The second point was that, contrary to what I have said about the inadequacy of his ground of appeal and his outline, it really was sufficient to say that the respondent was in default. That argument is also fallacious for the reasons I have identified.
The appellant’s argument did not identify any error by the Chief Justice. To the contrary, the reasons expressed by her Honour which I have earlier recorded reveal an unremarkable and obviously correct exercise of judgment in the circumstances.
Second, it must be observed that, even if the appellant could identify some arguable error by the Chief Justice, the appellant would need to overcome the fact that the appeal seeks to have the appellate court review a judgment on a matter of practice and procedure. Such matters often call for a degree of appellate restraint against interference with decisions made in the trial division in that generally an appellate court will not interfere unless, in addition to error of principle, the appellant demonstrates that the order will work a substantial injustice to one of the parties: see Adeva Home Solutions Proprietary Limited v Queensland Motorways Management Proprietary Limited [2021] 9 QR 141 at 12–14.
There is not the slightest suggestion that the order made by the Chief Justice works a substantial injustice to the appellant. The appellant’s appeal from her Honour’s order was always a complete waste of time. The institution of the second appeal and its continued prosecution after the first appeal was lost reflects a failure by the appellant to bring common sense to the conduct of litigation. The appellant’s conduct flies in the face of his obligations under UCPR rule 5. The only injustice caused to a party to litigation in this case is to the respondent.
I would order the appeal be dismissed.
GOTTERSON AJA: I agree.
BRADLEY J: I agree.
BOND JA: The order of the court is that the appeal be dismissed.
…
BOND JA: The respondent sought its costs. Costs should certainly follow the event. The respondent also sought that costs be ordered to be assessed on the indemnity basis.
The reasoning of the court as to the lack of merit of the appeal and the observations made in my judgment with which the other members of the court agreed that the appellant’s conduct flies in the face of his obligations under UCPR rule 5 are of a nature which justifies, in my view, an order that the costs of the appeal be assessed on the indemnity basis.
I would order the appellant pay the respondent’s costs of the appeal to be assessed on the indemnity basis.
GOTTERSON AJA: I agree.
BRADLEY J: I agree.
BOND JA: The order of the court is that the appellant pay the respondent’s costs of the appeal to be assessed on the indemnity basis.