Hazpro Property Ltd v Goddard Nominees Pty Ltd
[2005] QDC 46
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- Unreported Judgment
- Hazpro Property Ltd v Goddard Nominees Pty Ltd[2005] QDC 46
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Hazpro Property Ltd v Goddard Nominees Pty Ltd[2005] QDC 46
Hazpro Property Ltd v Goddard Nominees Pty Ltd[2005] QDC 46
[2005] QDC 046
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE ROBIN
HAZPRO PROPERTY LTD ACN 081 442 177 and HARRY PROSKEFALAS and SAM PROSKEFALAS | First Appellant Second Appellants |
and | |
GODDARD NOMINEES PTY LIMITED ACN 009 987 151 | Respondent |
SOUTHPORT
DATE 25/02/2005
ORDER
CATCHWORDS: | Appeal to District Court by defendant from judgment in Magistrate's Court – appeal grounded on Magistrate's refusal of adjournment at trial – no contest of evidence regarding merits of the dispute (which defendant/respondent asserted were non-existent) – according to appellant's affidavits their then solicitor advised that the trial would not come on on the trial dates advised by the Court (indeed, not till the following year), then, without advice to them sought an adjournment of the trial by applications prior to and at trial on fabricated, untrue affidavits purportedly by them – circumstances in which the Magistrate's discretion miscarried when he refused the adjournment. |
HIS HONOUR: This is a highly unusual appeal brought against a Magistrate's orders that the respondent have judgement against the appellants in the sums of $33,825.08 for claim, $10,227.06 for interest and $8,734.30 for costs in the Magistrate's Court at Southport on the 3rd of August 2004.
The first appellant company was lessee on the respondent of premises which I take to be commercial ones, pursuant to a lease, the second appellants were guarantors. It has been convenient for the Court to operate on descriptions of the circumstances given from the Bar table. The Court is told there was a three year lease but the lessee walked out some six months before the term expired. The respondent's claim was for the losses suffered.
The appellants engaged a solicitor, Yorke Mackereth to represent them, as he had done in relation to other matters (not necessarily litigous) previously. He filed a defence in the Magistrate's Court claim which has come under criticism by Mr Anderson who represents the respondent in the appeal. It, I am told, asserts total failure of consideration, which would seem a nonsense, and failure by the respondent to keep the premises in proper repair, also a nonsense, in Mr Anderson's submission, given that with exceptions he says are presently irrelevant the obligation to keep the premises in repair rested with the lessee - that extended, on what he said, to the asserted main problem of ingress of water.
In the Magistrate's Court the proceeding advanced toward trial. The Court sent out notices of 3rd and 4th August 2004 being set as the dates for trial. It is conceded by the appellants that they and Mr Mackereth had received the notice of trial; thus all of them were on notice of the trial dates mentioned.
From the accounts of the individual appellants, they proceeded on the basis that the solicitor was looking after the appellants' interest and received information from him that there would not be a trial until the following year, which would be 2005. Their affidavits say that as the fixed trial dates approached no contract was made by the solicitor in relation to it. Material before the Court, in affidavits of those two gentlemen and also Mr Pericleous, the son in law of one of them (and a co-director of the company) and the new solicitor, Mr Freiberg established that Mr Mackereth, about the 21st of July 2004 was alerted to the impending trial date.
As the affidavits before me, which Mr Anderson agreed could be read, would have it there was no contact whatever with them. Mr Mackereth proceeded to seek an adjournment of the trial. An application came before Mr Wilkinson SM on the 30th of July, seeking an adjournment on the basis of affidavits of Harry Proskefalas and Sam Proskefalas and an affidavit of his own. The two brothers say the affidavits are not theirs, were not signed by them and are not true. One particular in which they are not true is the assertions that no notice of trial date had ever come to their attention. These affidavits tell a story of inability of the deponents to attend at a trial on the dates in question because of commitments to run businesses in different Queensland towns. There is embellishing material regarding Mr Mackereth's supposed inability to locate those persons who might give other relevant evidence.
Mr Wilkinson refused the adjournment and a new application for an adjournment was made before the Acting Magistrate before whom the trial was listed. Mr Mackereth engaged Counsel who presented written submissions which are before the Court. There was also similar material from the respondent and there were oral submissions. The Court does not have the benefit of knowing what those were. The Magistrate's Court file it appears, has gone astray. There is what purports to be a copy of it made available which contains multiple copies of some material but no transcript and apparently no record of the Magistrate's reasons.
Mr Anderson has handed up what Mr Cronin, who appears for the appellants, accepts is copy of the Magistrate's Court reasons which it is convenient to set out here in full:
- Proceedings recorded G12.
- Application for adjournment by defendants opposed by plt
- I read the submission by Mr Radcliffe and Mr Anderson
- I read the written outline of argument submitted by Mr Radcliffe
- I read the affidavit of Mr Mackereth dated 30.7.04 and to all affidavit material attached to the claim
- In respect to the application for adjournment I note specific dates:
- request for trial date-executed by sol for defendants dated 11.2.04.
- directions hearing 25.03.04.
- notice of trial or action 5.4.04.
- the current application is 2 fold, 1st by - application pursuant to R668.
2ndly application before trail Magistrate
- I note the order of this court dated the 30.7.04
- I note the aplication of R5 the UCPR
- I respect to the application purportedly under R668 there are insufficient grounds to raise my judicial discretion to vary the order made by Mr Wilkinson Magistrate on the 30.7.04. I do accept there may be some factors which may be considered to by grounds by the defendants, however I do not consider these grounds/factors are sufficient in the circumstances
- In the alternative to an application for an adjournment I do accept the defendants are entitled to make a further application before me as trial Magistrate regardless of any previous application in the proceedings
- I do accept the defendant are not ready for trial, however I am genuinely concerned as to apparent failure by the defendant to properly prepare for a trial bearing in mind the request trial date executed on the 11.02.04
- I the interests of justice the specific application of R5 I consider I the exercise of my judicial discretion the application for adjournment not be granted
- I adjourn for a short pause to permit council to instruction upon resumption there is no formal appearance of defendant or legal representative
- I am not satisifed as to the various reasons why witnesses are unavailable on behalf of the defendants case, particularly as the subpeonas should not be considered to be a mere request for an appearance of a witness
- I proceed under the provisions of R476
- I give leave for Mr Anderson to amend the claim, a copy is submitted to the Court. Claim is amended. (I am satisfied all details and amended claim have previously been supplied to defts and all have been disclosed). I hear further submissions by Mr Anderson
- I further hear from the following witness Robert Howard Goddard, Dee Bishop
- I note the pleading as recorder on the file, I accept the sworn evidence of the witnesses, and I accept the submission by Mr Anderson
- I am satisfied on balance of probabilities that it is appropriate to make an order against the 2 defendants. I am satisfied as to all the terms claimed by the plt against the 2 defendants. I formally allow the costs as claimed by the plt. Accordingly I give judgment to the plt against the 1st deft and 2nd defendants in the following terms
Claim $33,825.08
Costs $8,734.30
Interest $10,227.06
There are some interesting questions potentially calling for consideration here in light of Mr Anderson's submissions. The principal grounds given in the notice of appeal relate to the Acting Magistrate's refusal of an adjournment which, as Mr Anderson says, the appellants are in the difficult position of saying he ought to have granted on material which was false.
It must be accepted that it is difficult to successfully maintain an appeal based on refusal of an adjournment. No doubt that is particularly the case where, as here, there is no affidavit material suggesting that the party seeking the adjournment has a more or less promising case to present in due course.
Mr Anderson went so far as to submit that in the absence of material about the merits, which he suggested could not be forthcoming in any event, given the terms of the lease, the appeal was hopeless. He relied in particular in what the New South Wales Full Court said in Vacuum Oil Proprietary Co Limited v Stockdale (1942) 42 SR (New South Wales) 239, in particular at 243, where the Chief Justice, the other two judges concurring, said,
"As a general rule (although not necessarily in every case, if some reason exists for departing from it: Collins' Book Depot Pty Ltd v Bretherton, the Court requires an affidavit showing, prima facie, that the defendant has a good defence on the merits: Evans v Bartlam, and also an explanation of his absence which shows justice requires that in the circumstances, it should be excused. And if there has been gross negligence on the defendant's part, the Court will be the more disposed to require at least a reasonably clear case of merits to be shown, to incline it to interfere".
That, of course, was a case of a default judgment. It recognises that there may be exceptional cases. Further, I am inclined to agree with Mr Cronin that the circumstances of a litigant who attends at a trial and strenuously seeks an adjournment of it might, depending on the circumstances, of course, command more sympathy than that of a litigant who fails to turn up, allowing matters to proceed in his absence to a judgment.
A majority of the High Court in Sali v SPC Ltd and Another (1993) 67 ALJR 841 may be seen as affirming the general rule that it is difficult for an appellant against the refusing of an adjournment, to succeed.
In that case, it was the Full Court of Victoria which had refused an adjournment. The minority judgment of Toohey and Gaudron JJ commands respect although, of course, not providing the ratio of the case.
Their Honours said at 848-49:
"In Carryer v Kelly, Asprey J A said of a refusal to grant an adjournment of a civil action until later in the day, because of the unavailability of counsel:
'An adjournment which, if refused, would result in a serious injustice to the party applying for it should only be refused if that is the only way that justice can be done to the other party.'
While not referring expressly to Carryer v Kelly, Kirby P. said much the same in Sydney City Council v Ke-Su Investments Pty Ltd. Although in dissent as to the outcome in the case before the Court of Appeal, the President said of an application for an adjournment:
'If not granted, although appeal courts will rarely intervene to review the refusal of an adjournment, they will do so if the discretion had not been exercised judicially or where its exercise was based upon the wrong principle or resulted in gross injustice.'
The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. Because these considerations are singularly within the knowledge of the court to which an application for an adjournment is made, there is an added reason why this Court should not interfere with a decision made on such an application.
Having regard to these matters, it is clear that the Full Court's decision to refuse an adjournment for two weeks was correct. Nevertheless, in our respectful view, the Full Court was in error in refusing the application to stand the matter down until 2.15 p.m. Marks J said that the Court had allocated two or three days for the hearing of the appeal and 'did not fix any other case to be heard this week'. Thus, if it had proved possible for the appellant to engage counsel, senior or junior, with a view to the appeal starting on Tuesday or Wednesday, there would have been no implications for other appeals waiting to be heard. There would have been some inconvenience to the respondents but their position could have been secured by a peremptory order for the payment of security for costs, past and future. There would have been some inconvenience for the members of the Court as there always is when a matter is adjourned, albeit briefly.
But in the end the principle enunciated in Carryer v Kelly holds good. The refusal to stand the appeal down until 2.15 p.m. was only warranted on the basis that the application to do so was no more than a ploy. There was insufficient material before the Full Court to support that conclusion. Nothing would have been gained by the appellant from the brief adjournment, other than an opportunity to secure counsel or to appear in person. The result was a serious injustice to the appellant. On the other hand, that was not the only way in which justice could be done to the respondents.
We reach this conclusion with reluctance given the history of the matter but in our view the Full Court did not give effect to the appropriate principle and a miscarriage of justice ensued. The appeal should be allowed, the orders of the Full Court refusing the application for an adjournment until 2.15 p.m. and dismissing the appeal should be set aside and the matter re-listed for hearing before that Court."
Examples can be found of successful appeals against refusal of adjournments, such as Maxwell v Keun [1928], 1 KB 645, which were referred to Sali. There it was the plaintiff who had difficulty in getting to a hearing and unsuccessfully sought an adjournment.
Atkin L J said, at page 657:
"The result of this seems to me to be that in the exercise of a proper judicial discretion no Judge ought to make such an order as would defeat the rights of a party and destroy them altogether, unless he is satisfied that he has been guilty of such conduct that justice can only properly be done to the other party by coming to that conclusion. I am very far from being satisfied that that is so in this case; on the other hand, I am quite satisfied that very substantial injustice would be done to the plaintiff by refusing the application that this case should be postponed, and that that is the result of the present order."
The judgments, of course, acknowledge, as the head note says, that the Court of Appeal ought to be very slow to interfere with the discretion vested in the trial Judge in relation to adjournments.
The High Court most recently considered such matters, although in a case about amendments, in State of Queensland v J L Holdings Proprietary Limited (1997) 189 CLR 146, at 152. In the leading judgment, reference was made to the famous passage in the judgment of Bowen LJ in Cropper v Smith (1884) 26 Chancery Division 700 at 710 that:
"It is a well established principle that the object of Courts is to decide the rights of the parties and not to punish them for mistakes they make in the context of their cases by deciding otherwise than in accordance with their rights", et cetera.
The appellants now rely on such authorities and also those which permit litigants to distance themselves from the inadequate performance of their legal representatives, notably Perdis v Nominal Defendant [2004] 2 Queensland Reports 64, especially at 70-71.
Fortunately, one rarely encounters a case as glaring as the present where, if the affidavits relied on are correct, it was not the perhaps all too familiar case of a solicitor who was careless or incompetent, but one who went off on a frolic of his own and even adopted apparently highly improper means.
In JL Holdings at 154, Dawson, Gaudron and McHugh JJ took the trouble to refer to Sali and in particular, the judgment I have quoted, also, Cropper v Smith, and made the point that "case management is not an end in itself".
Their Honours said,
"It ought always to be borne in mind, even in changing times, that the ultimate aim of the Court is the attainment of justice, and no principle of case management can be allowed to supplant that aim".
I am troubled by the Acting Magistrate's reference to the order made by Mr Wilkinson SM. He appears to me, with respect, to have misconceived things in attaching any relevance to what happened before Mr Wilkinson.
I would regard that exercise as a commendable one embarked on by Mr McKeneth, to get the adjournment issue resolved sooner, rather than later, not only so that the parties might know where they stood sooner, rather than later, but so that other litigants might have the opportunity to avail themselves of Court time made available if there was an adjournment.
In my own experience, pre-trial applications to vacate trial dates are extremely common. It is also extremely common for the view to be taken by the judge entertaining them that the application ought to be made at the trial.
It is true that the Acting Magistrate, consistently with the written submissions counsel had provided, acknowledged that a further application could be made to him for adjournment "regardless of any previous application in the proceedings". I cannot avoid construing what he said in context, however, as bespeaking a reluctance to depart from comity by deciding an adjournment application differently from Mr Wilkinson SM.
The reasons go on to "accept the defendants are not ready for trial", something of which he was critical,
For reasons he gave - which are easily understandable. The defendants were not there, although their lawyers were. Explanations which may well be fabrications by Mr Mackereth for the defendant's absence were before the Court, those are not particularly unusual. In my view, an important factor was the absence of the defendants, whose physical presence was presumably important if they were to present any likely defence. Although the reasons do not spell it out, what happened was that Mr Mackereth and counsel withdrew after the refusal of an adjournment. The plaintiff then presented short evidence to prove the essentials of what claimed. Of course, there was no-one there to test it. The judgment under appeal followed.
There is no suggestion that there was any history of delaying by the defendants. If there had been, it could well have changed my view of the matter. It was presented to the Magistrate as a case where the defendants wished to resist the plaintiff's claim but were not ready to do it. They sought an adjournment, having already done the Court the courtesy of applying for one the week before.
I am having some difficulty, in that situation, in understanding the way in which the Magistrate exercised his discretion. He may have harboured misgivings of the kind expressed by Mr Anderson today that the defendants were not genuine but in engaging in some tactic to avoid the trial.
On the material from the defendants which is before me, that was not the situation. Mr Anderson did not seek to cross-examine any of the proponents. It would be wrong to take from that that he accepts what they have said. He expressly invited the Court to contemplate that the brothers were complicit with Mr Makenroth in implementing some improper tactic. Alternatively, he said - and justifiably - the defendants had been on notice of the trial dates, and in the course of things one would expect them to have those well in mind and take steps themselves to ensure that nothing adverse to their interests happened on that day. They certainly did not do that - for reasons that they advanced.
Mr Cronin foreshadows that his clients have a counterclaim. The situation is that they have satisfied the orders made by the Magistrate. If they seek to get their money back, they are going to have to sue for it. That may occur by counterclaim if the matter is sent back to the Magistrate's Court for trial.
Mr Anderson accepts that his clients are at risk of facing proceedings at the suit of the appellants, but he argues strongly that his clients ought to keep the benefit of the judgment which they have. Although one would not expect him to make concessions, he did have to concede that theoretically that judgment may be one his client is not entitled to, as small as that possibility may be.
He complained on their behalf, and justifiably, of the penalty already suffered in respect of costs which will not be recoupable, given the way in which the Magistrate's Court scale of costs works out, although ostensibly victorious in the claim. There is no justification for being critical of his client, of course, but the observation might be made that it was open to his client to take the tactical decision that an adjournment of the proceeding might be appropriate before Mr Wilkinson SM or at the trial. They may also have taken that tactical approach when new solicitors came into the matter and applied to a third Magistrate to have the judgment set aside under section 44 of the Magistrates Court Act, that it might have been prudent to agree to that. That particular application never got onto the merits, as I understand it, because by the time Mr Frieberg's firm came into the matter the seven days allowed by the section had expired and the Magistrate took the view there was no jurisdiction to extend the time.
As scarce as might be cases in which an appeal against refusal of an adjournment succeeds, there are some. In my judgment, circumstances are such that this Court ought to accept that the Magistrate's discretion, as exercised on the 3rd of August last year, has miscarried.
The circumstances are that judgment is made as a matter of process rather than as a matter of potential merits being demonstrated by the appellants, the Court knows insufficient, or nothing about that. But even if their situation is as unpromising as Mr Anderson contends, I think they were entitled to a trial for which they had a realistic opportunity to prepare. On the material before this Court, there was the extraordinary conduct of their solicitor, and they did not get that.
I thought it right, as a test of the appellants' good faith, to suggest an order ought to be made that the allegations before this Court be brought to the attention of the authorities charged with the policing the conduct of solicitors. That could be a concern for Mr Cronin, who informed me that that step had already been taken. Nevertheless, I think it should be an aspect of the Court's orders, by which, it appears to me, it ought to be ordered that the appeal is allowed and the orders of the Magistrate made at Southport on the 3rd of August 2004 are set aside. Proceedings should be remitted to the Magistrates Court for trial.
I will hear Mr Cronin about this, but my inclination at the moment, in relation to costs, is to order that the appellants pay the respondent's costs of the appeal to be assessed, and I think it should be on the indemnity basis, in light of what has been said already. Of course, Mr Anderson's response to the situation, on behalf of his client, is the common one that his client ought to be left alone and the appellants ought to sue Mr Mackereth. While it is often the way things work out, I do not think it is the appropriate solution today.
The other order of the Court is that the affidavits of A S Frieberg and A Pericleous filed on the 28th of September 2004 and the affidavits of the individual appellants filed on the 29th of September 2004 - or copies of them - together with a copy of this Court's order and its reasons for judgment be sent to the Legal Services Commissioner. That is probably something for the Registry to attend to.
...
HIS HONOUR: I make the costs order as foreshadowed. It should be noted that the Court has Mr Cronin's assurance that Mr Mackereth is aware of the serious allegations made against him. He has been asked to provide the appellants with a statement to assist their attempts to thave the judgement set aside. This appeal is one that was advised by him in a letter that is in evidence (one advising the appellants of the outcome on 3rd August last year). Had he wished to be heard in the appeal, it was open to him to search the Court file to moniter the progress towards hearing.