Middleton v Laurel Springs Management Pty Ltd
[2001] QDC 80
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- Unreported Judgment
- Middleton v Laurel Springs Management Pty Ltd[2001] QDC 80
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Middleton v Laurel Springs Management Pty Ltd[2001] QDC 80
Middleton v Laurel Springs Management Pty Ltd[2001] QDC 80
DISTRICT COURT OF QUEENSLAND
CITATION: | Middleton & Middleton v Laurel Springs Management Pty Ltd [2001] QDC 080 |
PARTIES: | BRIAN MIDDLETON AND JANET MIDDLETON (appellants) and LAUREL SPRINGS MANAGEMENT SERVICES PTY LTD (respondent) |
FILE NO/S: | Appeal No. 28 of 2000 |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Maroochydore Magistrates Court |
DELIVERED ON: | 17 May 2001 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 11 May 2001 |
JUDGE: | K S Dodds DCJ |
ORDER: |
|
CATCHWORDS: | JUDGMENTS AND ORDERS – appeal from a Magistrate’s decision to set aside a default judgment – whether the respondent’s copy defence showed a defence on the merits. Cases judicially considered: Aboyne Pty Ltd v Dixon Homes Pty Ltd (1980) Qd R 142 National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd (1983) 2 Qd R 441 Yankee Doodles Pty Ltd v Blemvail Pty Ltd (Unreported, QSC, 23/6/99, Atkinson J) Rosing v Ben Shemesh (1960) VR 173 House v The King (1936) 55 CLR 499 Worldwide Production Pty Ltd v Hoffman (1982) Qd R 316 Palmer v Pemic (1980) WAR 61 Sharples v Northern Territory (1988) 91 FLR 11 Carr v Finance Corporation of Australian Ltd (1981) 147 CLR 247 Silk Textile Printers Ltd v Murray (1956) STRQD 496 Statutes judicially considered: r 290 UCPR r 430(2) UCPR |
COUNSEL: | Mr G Dehm for the appellants Mr A Maher for the respondent |
SOLICITORS: | Butler McDermott & Egan for the appellants Frank Carroll Solicitor for the respondents |
- [1]This an appeal against the decision of a Magistrate. Pursuant to rule 290 of the Uniform Civil Procedure Rules 1999 (UCPR) the Magistrate set aside a judgment obtained in default of filing a notice of intention to defend.
- [2]The judgment was regularly obtained. Whether it should be set aside required consideration of whether the respondent (defendant) had shown it had a prima facie defence on the merits, its explanation why it had not filed a notice of intention to defend within the time limited by the rules, any delay in moving to have the judgment set aside and whether the failure to file the notice of intention to defend and/or delay would cause some irreparable prejudice to the opposing party: Aboyne Pty Ltd v Dixon Homes Pty Ltd (1980) Qd R 142; National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd (1983) 2 Qd R 441; Yankee Doodles Pty Ltd v Blemvail Pty Ltd (Unreported, QSC, 23/6/99, Atkinson J); Rosing v Ben Shemesh (1960) VR 173.
- [3]To succeed the applicant must show that the Magistrate made some error in exercising the discretion to set aside the default judgment. If it is not sufficient that I may have taken a different course if I had been hearing the application: House v The King (1936) 55 CLR 499.
- [4]The application to set aside was made reasonably promptly. Judgment was given on 18 September 2000. Application to set it aside was made on 27 September 2000.
- [5]The explanation for the failure to file the notice of intention to defend was that a brief had been sent to counsel on 31 August 2000 to settle a defence and counsel had undertaken to contact the appellant’s solicitors to obtain an extension of time to file. This he did on 19 September 2000 but the judgment had already gone. Counsel’s delay was said to be due to being involved in other trials.
- [6]The only issue before the Magistrate was whether the respondent demonstrated it had a prima facie defence on the merits. The Magistrate considered it did.
- [7]The applicant’s (plaintiff’s) claim was for damages for defamation. They were owners and occupiers of a unit in a retirement village managed and administered by the respondent. On or about 5 July 2000 the respondent distributed documentary material to other occupiers of the village. That material dealt with income and expenditure with respect to management and administration of the village for the period 1 July 1999 to 30 June 2000. Included in the material was the assertion that certain fees specifying the amounts had not been received from the appellant. Further a calculation of the levy for residents was set out, which it was said did not include the appellant’s contribution not received. The levy was shown as $99 per unit, which it was said would have been $78.28 per unit if the appellants had “paid their dues”.
- [8]The appellant’s claim was that the publication was defamatory to the respondent’s knowledge. There was no service agreement or any other agreement or arrangement between the appellant and the respondent which gave rise to a liability in the appellant to pay money to the respondent for the time period concerned and the respondent was aware of that. The appellants had suffered injury.
- [9]The evidentiary material put before the Magistrate in support of the application included a copy of the respondent’s defence signed by the solicitor for the respondent exhibited to an affidavit of that solicitor. The reference to the copy defence occurred in paragraphs 10 and 13. Paragraph 10 was “filed herewith is a copy of the respondent’s defence and application to set aside default judgment”. Paragraph 13 was “exhibited hereto and marked with the letter “B” is a copy of the respondent’s intended defence--”. The only material put before the Magistrate by the respondent which could potentially be relied upon to show that the respondent had a prima facie defence on the merits was the copy defence. It asserted that there did exist a liability on the appellant to pay money to the respondent because of a levy imposed at an annual general meeting on 28 April 1998 and because of centre fees and water usage payments. It also pleaded that the words published were not defamatory, were merely explanatory of the village accounts, were not intended to cause embarrassment or hurt, and that the respondents had a apologised to the appellants. In the alternative, it pleaded that if the words were defamatory there was a lawful excuse for their publication.
- [10]The appellant also put evidence before the Magistrate to the effect that in January 2000 the respondent had initiated a minor debt claim against the appellant for payment of monies being levies and outgoings said to be due under a service agreement entered between them. The claim was for village centre fees, 1 January 1999 to 31 December 1999 $1314, levy $120, excess water $61.68. The appellants defended. The claim was struck out by consent on 28 April 2000 by a Magistrate who said it is “agreed between the parties before the court that the termination of agreement dated 2nd July 1993 has now been affected as from 30 October 1998. The claim before the minor debt court is struck out.” It appears plain the agreement being referred to was the service agreement upon which the claim was based.
- [11]Neither the copy defence itself nor any material contained in it was sworn to by the respondent’s solicitor in his affidavit as containing assertions which were true based upon the solicitor’s information and belief as is now permitted by rule 430(2) of UCPR.
- [12]Under the earlier rules an affidavit in support of an application to set aside a judgment in default of pleading was considered to usually require direct evidence from persons able themselves to swear to the facts: see Worldwide Production Pty Ltd v Hoffman (1982) Qd R 316; Palmer v Pemic (1980) WAR 61; Sharples v Northern Territory (1988) 91 FLR 11 even though such an application was an interlocutory application: Carr v Finance Corporation of Australian Ltd (1981) 147 CLR 247 at 248 per Gibbs J. In Sharples Asche J thought that the principle behind the rule requiring an affidavit from a person who was in a position to prove the defence or who had personal knowledge of events out of which the claim arose, was that a person who has a regularly obtained judgment is entitled to it unless assured the respondent has an arguable defence that is by “somebody who is personally concerned with that defence and is sufficiently personally concerned in that defence to make an affidavit concerning the details of that defence knowing full well the penalties of perjury”: see at 13.
- [13]Rule 430(2) now provides that an affidavit for use in an application because of default may contain statements based on information and belief, if the person making it states the sources of the information and the grounds for the belief. Statements so made may conceivably be of relevance to costs orders to be made on the outcome of the proceeding.
- [14]The material put before the Magistrate was inadequate to discharge the respondent’s onus to show a prima facie defence on the merits. The requirements of r 430 were not complied with. In my judgment it is not sufficient to discharge the onus to simply exhibit a copy of a defence said to be intended to be filed to an affidavit.
- [15]In National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd (1983) 2 Qd R 441, McPherson J said “that whether a respondent had a prima facie defence on the merits was the most cogent consideration, whether a judgment regularly obtained in default should be set aside”: at 449-450. In Silk Textile Printers Ltd v Murray (1956) STRQD 496, Jeffriess AJ said at 497, “in the case of a regular judgment it is almost an inflexible rule that there must be an affidavit of merits stating facts which show a substantial ground of defence before the court will interfere with the judgment. Furthermore, when such application is not thus supported it ought not to be granted except for some sufficient reason”.
- [16]The onus was upon the respondent to make a proper application if it wished the exercise of the Magistrate’s discretion. An undoubtedly busy Magistrate was led into error, acting upon the affidavit and the defence exhibited to it to show that there was a prima facie defence on the merits.
- [17]The appeal will be allowed. In view of the extent of the argument from on merits before me, I add the following: the appellant’s statement of claim alleged in paragraph 4 that there was no agreement or arrangement between the appellants and the respondent that could give rise to a liability on behalf of the appellants to pay money to the respondent. The draft defence denied that allegation and asserted that liability on the appellants to pay the charges to the respondent arose because of:
- a levy imposed per unit at the annual general meeting of residents on 29 April 1998;
- centre fees;
- water usage payments.
In the light of the minor debt claim and its outcome referred to earlier, I asked counsel for the respondent the source of the appellant’s liability to pay monies to the respondent in the absence of a service agreement. Counsel made a number of general statements but otherwise appeared unable to tell me the source of any such liability, statutory or otherwise. Apart from the claim of truth, the copy defence before the Magistrate asserted that the publication, if defamatory, was excused and a number of different bases for this were advanced. On the face of them, many appear of doubtful application, particularly if there was no liability in the appellants to pay monies to the respondent.
- [18]Rule 394 of UCPR may be considered in an appropriate case. It would not have been appropriate in this case. In any event there is no suggestion the Magistrate turned his mind to that rule.
- [19]The orders will be as follows: the appeal is allowed; the orders of the Magistrate setting aside the default judgment and granting leave to the respondent to file the defence are set aside; the defence filed is struck out.