SMB Car Transport Pty Ltd v Strategix Training Group Pty Ltd
[2012] QDC 155
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- SMB Car Transport Pty Ltd v Strategix Training Group Pty Ltd[2012] QDC 155
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SMB Car Transport Pty Ltd v Strategix Training Group Pty Ltd[2012] QDC 155
SMB Car Transport Pty Ltd v Strategix Training Group Pty Ltd[2012] QDC 155
DISTRICT COURT OF QUEENSLAND
CITATION: | SMB Car Transport Pty Ltd v Strategix Training Group Pty Ltd [2012] QDC 155 |
PARTIES: | SMB CAR TRANSPORT PTY LTD (applicant) v STRATEGIX TRAINING GROUP PTY LTD |
FILE NO: | 949/11 |
DIVISION: | Appellate |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 13 July 2012 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 27 October 2011 |
JUDGE: | Long SC, DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – JURISDICTION AND GENERALLY – SETTING ASIDE JUDGMENTS – where the applicant applies to set aside orders made in the appellate jurisdiction of the District Court including an order dismissing the applicant’s appeal for failure to prosecute – where there has been delay and failings by the applicant to meet procedural requirements – whether grounds exist to set aside orders under Uniform Civil Procedure Rules 1999 (Qld) r 667 – whether the orders were obtained “in the absence of” the applicant in circumstances in which the applicant where the applicant’s appeal was brought from the refusal of its application under UCPR 290 to set aside a default judgment given in the Magistrates Court – whether there is a real issue to be tried on the claim in the Magistrates Court. |
CASES: | Cook v D A Manufacturing Co Pty Ltd & Anor [2004] QCA 52. National Mutual Life Association of Australia v Oasis Developments Pty Ltd [1983] 2 Qd R 441. OPI Pacific Finance Ltd v Reef Cove Resort Ltd & Ors [2010] QSC 163. Rochfort & Anor v Habashy & Anor [2005] QCA 197. Sproule v Long [2000] QSC 232. Telstra Corporation Ltd v Ivory & Ors [2008] QSC 123. Wilkinson v Wilkinson [1963] P 1. |
LEGISLATION: | District Courts Act 1967, s 113. Magistrates Court Act 1921, s 45(1)(a). Trade Practices Act 1974, s 52(1). Uniform Civil Procedure Rules 1999, r 3, 5, 667(2)(a), 667(3), 668, 775, 785. |
COUNSEL: | A.M. Christie on behalf of the applicant. B.P. Wright on behalf of the respondent. |
SOLICITORS: | Walker Hedges & Co solicitors on behalf of the applicant. O'Neills Business Lawyers on behalf of the respondent. |
Introduction
- [2]There is, as context to this application, an unfortunate history of failings by the applicant, to meet procedural requirements of courts, with the consequences that orders have been made on the default of the applicant, on more than one occasion.
- [3]The application before the court, filed on 3 October 2011, seeks the setting aside of the order of the court made on 27 July 2011, in the following terms:
“The appeal be dismissed and the appellant SMB Car Transport Pty Ltd pay the costs of the respondent Strategix Training Group Pty Ltd in this matter.”
- [4]The appeal referred to, was that instituted by the notice of appeal filed in the Brisbane Registry on 25 March 2011, in respect of:
“The whole of the decision of the Magistrates Court of Queensland at Cleveland dated 25 February 2011 by which it was ordered that:
- The respondent’s application to set aside default judgment entered in the Magistrates Court of Queensland at Cleveland on 14 September 2010 is dismissed.”
- [5]A chronological history of relevant events is:
(a) By a claim filed in the Magistrates Court at Cleveland on 29 July 2010, the respondent sued for payment of outstanding fees for services provided to the appellant, by way of training of its employee truck drivers, pursuant to a contract made in August 2008;[1]
- (b)Judgement in default of appearance by the applicant was given on 14 September 2010;
- (c)On 28 January 2011, the applicant filed an application to set aside that judgment and on 25 February 2011, that application was dismissed by a Magistrate, at Cleveland;
- (d)On 25 March 2011, the notice of appeal against that decision was filed in this court;
- (e)On 5 July 2011, the registrar filed and posted and faxed to the applicant (and copied to the respondent) an “Intervention Notice – Registrar’s Reference”, referring to a direction that was made on 20 June 2011 that the applicant file an outline of argument and requiring attendance at the hearing of a reference before a District Court Judge at Brisbane, at 10.00 am on 27 July 2011; and
- (f)On 27 July 2011 and upon there being no outline then filed nor any appearance by or for the appellant at the District Court at Brisbane, the order was made dismissing the appeal. Later on that same day the applicant’s solicitors (who practice in Sydney) sought to electronically file an outline of argument for the appeal.
Jurisdiction
- [6]The application generally seeks an order setting aside the order made on 27 July 2011 and amongst other provisions of the Uniform Civil Procedure Rules 1999 (“UCPR”), makes specific reference to UCPR 667(2). On the hearing of the application it was identified that the court potentially had jurisdiction to entertain this application pursuant to that rule.[2]
- [7]More particularly and in the circumstances of this case, the basis of potential jurisdiction is found in UCPR 667(2)(a) and that requires findings that “the order was made in the absence of a party” and that the order is not “a default judgment”, within the meaning of UCPR 667(3).
- [8]The reference to “a default judgment” is a reference to a judgment entered pursuant to Part 1 of Chapter 9 of the UCPR, which chapter is headed “default” and provides for those circumstances in which judgment may be entered on the basis of some default by a party to proceedings governed by the rules. The obvious purpose of UCPR 667(3) is to require reference to the specific provision in UCPR 290, for applications to set aside or amend such a default judgment. The provisions in Part 1 of Chapter 9 of the UCPR relate to the exercise of the original jurisdiction of the court, whereas the order which is the subject of this application was made in the appellate jurisdiction of the court.
- [9]The appeal that was instituted in this court is one brought under s 45(1)(a) of the Magistrates Court Act 1921 and s 113 of the District Courts Act 1967. Accordingly the UCPR are made applicable to such proceedings, by UCPR 3 and UCPR 785 makes many of the provisions of Part 1 of Chapter 18 applicable to appellate proceedings in the District Court.
- [10]In part, the applicant’s submissions were directed at the effect and validity of practice direction 5 of 2001, as a source of power for the order made by this court on 27 July 2011. However those concerns were misplaced. As the applicant recognised, the practice direction only explains that a reference by a registrar to a judge of this court “may result” in an appeal being struck out. The power of the court to make the order is found in UCPR 775[3], which provides:
“775 Effect of failure to prosecute appeal
- (1)If the appellant fails to comply with any step required under these rules or a practice direction, including a practice direction about filing or serving an outline of argument, the Court of Appeal may, at or before the hearing of the appeal and of its own initiative or on an application by a respondent, dismiss the appeal for want of prosecution.
- (2)Subrule (1) applies unless an Act otherwise provides.”
- [11]It can be seen that this rule operates by express reference to the requirements of practice directions[4] and in this case, the specific failings were identified in the reasons given for the order made on 27 July 2011, as follows:
“This matter comes before the court by way of a registrar’s reference. Pursuant to practice direction 5 of 2001 the appellant was required, after filing a notice of appeal on 25 March 2011, to file an outline of submissions by 22 April 2011.
On 21 April solicitors for the appellant sought an extension of time which was granted; the extension was then given until the 13 May 2011. There was a further extension sought at that time, which was again granted, to 27 May 2011.
On 31 May 2011 there was an application for a further extension, awaiting the arrival of the transcript of the lower court proceedings. That extension was granted and the new date was then 14 June 2011. No outline was received by that date.
Solicitors for the respondent received from the solicitors for the appellant a copy of the transcript of the lower court proceedings dated 3 June, that is, the covering letter was dated 3 June 2011 so, its clear that the solicitors had it by that date. …
The registry then left a message with the appellant’s solicitors on 15 June with no response, another one on 16 June with no response. An email was sent on 17 June to those solicitors by the registry again with no response.
As a result of that, on 20 June a warning letter was sent to the appellant’s solicitors requiring the filing of the outline of argument by 4 July 2011. No such outline has been filed.”
- [12]The reasons go on to record, after considering the alternatives of dismissing the appeal or providing “one further opportunity to file this outline”, that:
“Submissions on behalf of the respondent are to the effect that this is a matter that’s gone on long enough and they’ve had ample opportunity to comply with the rules and requirements of the court. I agree with that submission; I don’t propose to give any further time in that regard.”
- [13]UCPR 667 is found in Chapter 16 which deals with the orders of a court. That chapter and UCPR 667 are of general application to the jurisdiction of the court, including its appellate jurisdiction. Accordingly this rule was correctly identified as being applicable, if it is concluded that the order made here falls within the meaning of the phrase “made in the absence of a party”, in UCPR 667(2)(a).
- [14]In Sproule v Long[5] McKenzie J concluded that the decision in Wilkinson v Wilkinson[6] supported the view that physical absence from the initial hearing may be sufficient to engage UCPR 667(2)(a), even when notice of the hearing had been appropriately given.[7] Otherwise the relevant circumstances as to notice and explanation for absence are matters to be weighed in the exercise of discretion.
Exercise of discretion
- [15]Clearly the relief provided in UCPR 667 is discretionary and in OPI Pacific Finance Ltd v Reef Cove Resort Ltd & Ors[8], Daubney J described the discretion as one that will not be exercised “just for the asking” and considered that at “the very least”, the court would expect “an explanation for the non-appearance” and a “good reason” for the exercise of the discretion. Here the explanation and good reason must, having regard to the basis upon which the court’s power was exercised on 26 July 2011, encompass the failing in relation to providing the outline of argument as much as a failure to appear on the registrar’s reference. Further in Telstra Corporation Ltd v Ivory & Ors,[9] A Lyons J observed that the discretionary power should not be exercised if there is no real question to be tried as it would be futile to do so. Albeit that Her Honour was there concerned with an application to set aside an order made to set aside a statutory demand, these observations generally reflect those made in cases dealing with a court’s power to set aside default judgments and emphasising that identified merit of the position of a party in default may well be an important consideration in setting aside any order made because of the default and allowing a matter to be heard on its merits.
- [16]In considering whether a regularly entered default judgment of a court may be set aside the relevant considerations generally are:
(a) Whether or not a satisfactory explanation has been provided for the failure to appear;
- (b)Whether or not there has been any delay in making the application;
- (c)Whether or not the party has a prima facie defence to the claim on which the judgement is founded.[10]
As to the consideration of those factors, McPherson J in National Mutual Life Association of Australia v Oasis Developments Party Ltd, said:
“Speaking generally, it may be said that it is the last of these considerations that is the most cogent. It is not often that a defendant who has an apparently good ground of defence would be refused the opportunity of defending, even though a lengthy interval of time had elapsed provided that no irreparable prejudice is thereby done to the plaintiff.”[11]
- [17]In the present case it must be kept in mind that this is an application by an appellant who has failed to pursue an appeal in a timely fashion rather than a defendant who has failed to put forward a defence as required by the rules. However, the principles discussed in these cases and in respect of the position of a delinquent defendant are of assistance by analogy (and as adapted to require demonstration of prima facie merit as to the appeal sought to be pursued). Moreover, such considerations are directly relevant to the test that ought to have been applied by the Magistrate in her decision made on 25 February 2011 which, for reasons that follow, is an issue of critical importance to determining this matter.
Discussion
- [18]In this case it has to be observed that there is not a great deal of weight that can be given to the little that has been provided by way of explanation for the failings that were identified, as the basis of the order made on 27 July 2011. In her affidavit[12], the solicitor for the applicant deposes to having her client’s instruction to pursue the appeal and as to having sent an outline of argument to the registry on 27 July 2011 but after the order dismissing the appeal had been made[13]. Further and having regard to the reasons given for that order[14], she unhelpfully asserts that the delay in filing the outline was only one day. She proceeds to explain that there were delays in obtaining the recording of the reasons for judgment of the Magistrate[15], with a copy of the audio recording only being received on 11 May 2011 and the professionally prepared transcription not being received until 1 June 2011. Otherwise, she simply asserts that in these circumstances, coupled with many communications with the deputy registrar “the date was unfortunately overlooked and was misdiarised”.
- [19]The solicitor otherwise seeks to explain why this application was not then filed until 3 October 2011, by reference to various communications, including by way of obtaining the advice of counsel and with the defendant’s lawyers, in an attempt to obtain “consent to reinstatement”. It may be accepted that having regard to the applicant’s position this was not an unreasonable course of action and it can be noted that the consent of the party who has the benefit of an order would be an alternative basis of the exercise of the court’s discretion under UCPR 667(2)(e).
- [20]Otherwise the applicant places emphasis upon what it claims (contrary to the assertion of the defendant) as to the merit of its appeal. The applicant emphasises the importance of demonstration that it has an arguable Defence to the claim made in the Magistrates Court. That is because whilst it may be sufficient if the applicant demonstrated an arguable ground of appeal in respect of the Magistrate’s decision not to set aside the default judgment; in order to establish that there is an absence of futility in this application, the applicant may also need to demonstrate that its appeal is viable, not merely in the sense that it may demonstrate some error in the Magistrate’s reasoning but also in the sense that there is a real issue to be tried in the claim made in the Magistrates Court.
- [21]It may be noted that the Notice of Appeal filed in relation to the Magistrate’s decision of 25 February 2011 alleges the following errors on the part of the Magistrate as grounds of appeal:
- (a)the Magistrate may have erred by actually purporting to determine the merits of disputes between the parties, rather than the identification of whether or not there is an issue to be tried;
- (b)the Magistrate improperly determined that the affidavit of Mr Mytkowski sworn on 25 February 2011was deserving of reduced weight because of its late presentation; or
- (c)in expressing concern and disappointment that the matter was not somehow resolved by “filing and lodging the claim forms in dispute and dealing with the matter by way of a consent order.”
- [22]With the benefit of the late outline of argument for that appeal[16] it can be seen that the applicant attempts to support those grounds by specific reference to the materials placed before the Magistrate and the transcript of the hearing and decision of the Magistrate. A copy of the transcription prepared for the applicant was tendered and admitted as exhibit 1 on the hearing of this application[17].
- [23]Reference to the transcription of the reasons provided by the Magistrate on 25 February 2011, demonstrates that whilst she was cognisant of the force of the respondent’s position in respect of the applicant’s delay in bringing application to set aside the default judgment and what she described as ‘hallmarks of a person who is attempting to delay their debts’, the nub of her decision was in a conclusion that the applicant had no defence to the claim. She specifically said that despite her concerns about ‘delaying tactic[s]’, ‘if there was a proper basis or a proper issue to be determined then I would set aside the judgment today’.[18]
- [24]On this application, the respondent maintains its position as to delay and also as to the absence of any triable issue or merit in the proposed defence to its claim. Therefore, the critical issue is to determine whether or not on the material placed before the Magistrate, on the application to set aside the default judgment, it was demonstrated that there was some issue to be tried.
Matters in issue on the claim
- [25]It can be noted that the Statement of Claim filed on 29 July 2010, after setting out the circumstances of the companies which are the parties to this proceeding and that from about 16 June 2008, the respondent commenced training of the defendant’s employees, in certain qualifications in order to meet some specific training guildelines, alleges there was, on 11 August 2008, a “service agreement” executed between the parties. Then and after referring to some specific clauses of that written agreement, the Statement of Claim continues:
“8. The plaintiff delivered to the defendant a series of invoices between October 2008 and November 2009 for each employee that commenced a training program and completed a training program in accordance with the terms and conditions of the ‘service agreement’.
- Full details of all outstanding accounts have been supplied by the plaintiff to the defendant.
- In breach of the terms of the ‘service agreement’ the defendant has neglected, failed and or refused to pay the balance of moneys owing in the sum of $28,250.”
- [26]In the proposed Defence which is an exhibit to the affidavit of Mr Mytkowski dated 25 February 2011, a number of allegations are made. However, the most relevant of those for present purposes, are those that respond to the critical part of the Statement of Claim (as set out above), as follows:
“8. The defendant denies the allegations contained in paragraph 8 of the Statement of Claim because:
- 8.1The plaintiff did not deliver a series of invoices as alleged.
- 8.2Because of the representations it was a term of the service agreement that the plaintiff would provide the defendant with commencement claim forms and completion claim forms for completion to allow the defendant to comply with the service agreement.
- 8.3Additionally or alternatively, it was a term of the a term of (sic) the service agreement implied in order to give the business agreement efficacy, that the plaintiff would provide the defendant with commencement claim forms and completion claim forms for completion to allow the defendant to comply with the service agreement.
- 8.4Additionally or alternatively, it was an express term of the a term of (sic) the service agreement, that the plaintiff would provide the defendant with commencement claim forms and completion claim forms for completion to allow the defendant to comply with the service agreement.
- 8.5Contrary to the representations, and in breach of the service agreement, the plaintiff did not provide the defendant with commencement claim forms and completion claim forms with the result the defendant could not complete the forms.
- The defendant denies the allegations in paragraph 9 of the Statement of Claim because:
- 8.6The defendant is not indebted to the plaintiff with the result there are no outstanding accounts.
- 8.7The defendant denies receiving full details of all outstanding accounts from the plaintiff in fact.
- The defendant denies the allegations contained in paragraph 10 of the Statement of Claim because the defendant has not breached the service agreement for the reasons set out in paragraphs 8 and 9 (above).”
- [27]The representations referred to are pleaded earlier in this proposed Defence, as follows:
“3.7 The representations were (‘the representations’):
- 3.7.1The plaintiff could provide training for a Certificate III in transport and distribution (road transport) for employees and sub-contractors of the defendant.
- 3.7.2The training would be at a cost of $4,000 per person.
- 3.7.3The cost of the training would be met by a $4,000 government grant.
- 3.7.4The training would be at no cost to the plaintiff.
- 3.7.5The plaintiff would attend to any paperwork necessary to obtain the grant.
- 3.7.6The defendant’s obligation would be to pay to the plaintiff the government grants the plaintiff caused the defendant to receive for the training.”
- [28]That pleading proceeds to make various allegations as to the falsity and/or lack of reasonable grounds for the representations and contains an assertion that the plaintiff had thereby engaged in conduct which was misleading or deceptive within the meaning of s 52(1) of the Trade Practices Act 1974, and subsequently contains a claim for relief pursuant to s 87 for contravention of s 52 of the Trade Practices Act 1974. However, the specific relief sought is not separately specified and it would appear that the relief sought on this basis is that reflected in paragraph 8.2 of the proposed defence.
- [29]On the hearing of this application the respondent provided a draft Reply to this proposed Defence.[19] In that reply paragraphs 3.7.1, 3.7.2 and 3.7.3 of the proposed Defence are admitted, but the remaining representations in 3.7.4, 3.7.5 and 3.7.6 are denied as being untrue in the sense that no such representations were made. The entirety of paragraphs 8, 9 and 10 of the Defence is denied on the basis that these allegations are not true and specifically on the basis that it was no term of the contract that the plaintiff would provide the claim forms.
- [30]However, it appears that both parties agree that whatever may have preceded it, there was a written service agreement executed.[20] That agreement is not expressed to be an entire agreement. However, it contains the following terms and conditions in respect of payment for the training to be provided and in respect of completion of claims for grants relating to that training:
“Commencement payment - $1500
The Client agrees to pay $1500 per trainee once the Federal Government commencement payment is received by the Client. All invoices are payable 10 business days after receipt of payment.
Cancellation
When a trainee cancels the traineeship before training has commenced, but after the commencement payment has been claimed, a $750 administration fee is payable to Strategix.
When a trainee cancels after training has started the full $1500 is payable to Strategix.
Completion payment - $2500
The client agrees to pay $2500 per trainee on completion of the training, and once the Federal Government completion payment has been received by the Client. All invoices are payable 10 business days after receipt of payment.
…
Commencement claim
The Client agrees to complete all commencement claim forms within 6 months from sign-up date, which includes obtaining signatures from a company representative, and from each trainee.
Where commencement claim forms are not completed within 6 months of sign-up date, the Client is liable to pay for all invoices issued by Strategixs within 10 working days (if claim forms have been issued by Australian Apprenticeship Centre).
Completion claims
The Client agrees to complete all completion claim forms within 2 months from completion date, which includes obtaining signatures from a company representative, and from each trainee (or providing a copy of a recent pay slip).
Where completion claim forms are not completed within 2 months of completion date, the Client is liable to pay for all invoices issued by Strategixs within 10 working days (if claim forms have been issued by Australian Apprenticeship Centre).
Other
The client agrees to assist Strategixs with the completion of all other relevant paperwork in a timely manner, including, but not limited to, record books and assessment tools.”
- [31]From these written provisions, it can be seen that, contrary to an assertion made in material filed by the respondent on this application[21], the contractual right of the respondent to obtain payment from the applicant was not unqualified. Whilst it may not have been necessarily dependent on the applicant receiving the government grant payments, it is at least arguable that it was dependent on claim forms having been issued by the “Australian Apprenticeship Centre” and then a relevant failure on the part of the applicant to “complete” the forms so issued.
- [32]Apart from a reference in the material filed on this application[22] to the programme having been overseen by the Australian Apprenticeship Centre, there is no explanation in any of the filed materials as to the precise role of that organisation or the circumstances as to the issue of any claim forms by it. Neither is there anything expressed in writing in the service agreement making clear how the forms so issued by that organisation were to be dealt with by the parties, so that the applicant’s obligations in respect of completing the forms were to be satisfied. Hence the significance of the applicant’s assertions as to the implication (from the alleged representations or otherwise) of an obligation upon the respondent to provide the forms to be so completed and to submit these completed forms for payment of the grants. The most recent material from the respondent expressly asserts that it had neither of these obligations[23] and it would therefore appear that neither was fulfilled, if there were such contractual obligations.
- [33]Also the parties appear to be at odds as to whether or not the applicant was even invoiced for the payments which are claimed from it.
- [34]In support of the application made to the Magistrate to set aside the default judgment, the applicant filed an affidavit sworn by the sole director and secretary of the company[24]. Mr Mytkowski therein provides an explanation that whilst his wife is actually the manager of the company, they were both overseas when the claim was filed and that after he received the claim in early to mid August 2010 and despite an intention to defend it, due to the pressure of work it was put aside and overlooked until notice of the default judgment was received. He otherwise deposes that all relevant forms supplied to the applicant were completed and that all payments where grants were received were made.
- [35]Subsequently and in a further affidavit sworn on 25 February 2011[25] the same deponent expanded upon his earlier affidavit. He further explains that it was his wife who typically attended to the business paperwork and that part of the reason for their overseas trip in 2010 was that his wife had been diagnosed with cervical cancer. He asserts that their business was severely disrupted by their departure and was in disarray when they returned and that because of his concerns about his wife’s condition, he did not realise the importance of the claim which he received shortly after their return and left it aside in its envelope and forgot about it until the notice of the default judgment was received. He proceeds to provide some explanation of his contact with the representative of the respondent in respect of the arrangements for driver training. Significantly he then asserts:
“19. It was possible to apply for this grant and to attend to training ourselves but I was approached by a Peter Hudson who told me he worked for the plaintiff company and that he could:
19.1 Provide training for the necessary new certification for employees and sub-contractors of the defendant;
19.2 Training would be at a cost of $4,000 per person.
19.3 The cost of the training would be met by the $4,000 government grant.
19.4 The training would be at no cost to the plaintiff.
19.5 The plaintiff would attend to any paperwork necessary to obtain the grant.
19.6 The defendant’s obligation would be to pay to the plaintiff the government grants the plaintiff caused the defendant to receive for the training.
- This seemed like the path of least resistance, that is it was a convenient and easy way to deal with the problem of retraining and we agreed to do so with the plaintiff.”
Then after some complaints as to what occurred in respect of the training and the provision of certificates to the drivers, he continues:
“24. We then experienced significant difficulties with filling out government paperwork.
- Peter Hudson didn’t attend to paperwork and I had to complain to the plaintiff about this.
- I am not sure but believe that I signed documents presented to me so that the grants could be obtained.
- A different fellow then the sales representative Peter Hudson and a different person than the fellow who showed the videos attended on me after the training was completed to have forms completed.
- He presented government forms to me and I signed them.
- He did not give me a copy and I did not keep a copy of them.
- He told me he was not from the plaintiff company, but that he was sent by them.
- I believe he was from a body with a name similar to the New South Wales Apprenticeship Board.
- I have signed all the documents the plaintiff has asked me to sign.”
- [36]It can be noted that in the affidavit filed by the respondent on this application[26] the following is stated in respect of part of Mr Mytkowski’s second affidavit.
“7. The statements in paragraph 19 of Mr Mytkowski’s affidavit are substantially what our staff would say to new customers. However, it would be made clear that the customer would be required to co-operate in completing the paperwork. In addition, the contract between the parties expressly states that payment would be due after a certain period, whether the federal grant had been received or not.”
In an earlier affidavit sworn by Mr Rota[27] and filed on the application made to the Magistrate to set aside the default judgment, reference is made to extracts from the respondent’s computer records setting out a log of telephone contacts with the applicant between November 2008 and January 2010 “detailing attempts to communicate with the defendant to discuss these outstanding invoices”. It is asserted that these records evidence difficulties in having the applicant attend to the issue of completion of the paperwork and that at least some of the paperwork was not properly completed.
Conclusion
- [37]In these circumstances it can be seen that the appellant does raise issues of some apparent validity in respect of the respondent’s entitlement to the claimed payments. Although there may be some merging of relevant considerations, on the respondent’s claim there is a need to not only determine what were the contractual obligations in respect of dealing with the grant claim forms but also to factually determine whether there has been a relevant failure on the part of the appellant to complete the forms so as to engage the written clause in respect of liability to pay. At the very least, it would be necessary not only to determine the meaning of the proviso “if claim forms have been issued by Australian Apprenticeships Centre”, but also to factually determine that this proviso had been satisfied.
- [38]There are also the considerations arising from what, on the affidavit material, appear to be uncontested representations as to the obligations of the respondent, in respect of the provision of paperwork for and the obtaining of the government grants.
- [39]These issues cannot and should not be determined on this application but are such as to indicate that there are real issues to be tried in this matter. Notwithstanding the underlying rationale of the UCPR, as expressed in UCPR 5 and the emphasis now placed by courts on case management and application of the rules to avoid undue delay or lack of diligence[28], the principles, I have referred to above, in recognition of allowing matters to be tried where there appears to be some substantial issue requiring adjudication at trial, remain apposite, at least where a party’s delay and default have not occasioned any unacceptable prejudice to another party.
- [40]In this case, the respondent rightly points to the general lack of expedition on the part of the appellant, who has not only defaulted in respect of its obligations twice (without any compelling circumstances of excusal as opposed to some explanation) and has not otherwise moved quickly to seek rectification of those defaults. The respondent points to the costs it has incurred in respect of all of the proceedings that have been invoked. Otherwise, there is no prejudice identified other than that which attaches generally to delay in having the relevant witnesses give their recollections in evidence. However, in this last respect, it can be noted that the issues and the collection and preservation of evidence in respect of them, have been identified and occurring since the application made to set aside the default judgment in the Magistrates Court.
- [41]The issue of costs may be dealt with together with any order made in granting the indulgences sought by the appellant and there is otherwise no sufficient issue of prejudice standing in the way of the relief sought by the appellant and appropriate to what has been identified, as the basis for that relief.
- [42]The matter presently before the Court is as to whether the orders made on 27 July 2011, dismissing the appeal and consequentially as to costs are to be set aside. However, if, as I have concluded, such an order is to be made then there will be a necessity to make incidental orders as to the future conduct of any appeal and as to the question of costs.
- [43]However, any appeal which may be heard would necessarily be conducted as a rehearing[29] and upon such an appeal the Court “has all the powers and duties of the Court that made the decision appealed from”.[30] The consideration that arises is that the conclusion which I have necessarily made on this application and as to the merit of the application made to set aside the default judgment in the Magistrates Court, may provide a sufficient and complete basis for allowance of the appeal, irrespective of whether or not any of the errors specified in the grounds of appeal were separately made out.[31] This is because the issue before the Magistrate was properly only as to whether the applicant should be allowed to defend and the conclusion I have reached is that such a determination was warranted on the materials considered on this application.
- [44]Particularly because of costs implications, the parties may wish to reflect on what has been identified in this reasoning and it is necessary to consider what utility might now be served in further hearing an appeal to this court, as opposed to getting this matter into a position where it might now proceed as a trial in the Magistrates Court.
- [45]Accordingly it is appropriate to make an order setting aside the order made in this Court on 27 July 2011. However, I will hear the parties as to the further orders that should be made in the light of these reasons.
Further orders
- [46]After the previous 44 paragraphs of these reasons were provided to the parties for consideration, those reasons were published on 13 July 2012 and upon further hearing the parties, the court ordered:
- To set aside the orders made in this Court on 27 July 2011;
- Dispense with further compliance with practice direction 5 of 2001;
- The appeal is allowed and the decision made in the Magistrates Court, Cleveland on 29 July 2010 is set aside;
- The default judgment entered against the applicant in the Magistrates Court at Cleveland on 14 September 2010 is set aside;
- It is directed that:
- (a)The respondent file and serve any amended statement of claim on or before 20 July 2012;
- (b)The applicant file and serve its notice of intention to defend on or before 27 July 2012;
- (c)The respondent file and serve its reply on or before 10 August 2012; and
- (d)On or before 24 August 2012, the parties file a request for trial.
- The applicant is to pay the respondent’s costs of and incidental to:
- (a)This application;
- (b)The appeal to this Court; and
- (c)The application made in the Cleveland Magistrates Court to set aside the default judgment, as agreed or to be assessed on the standard basis.
Footnotes
[1] This refers to a written agreement which appears to have contained specific terms and conditions in respect of arrangements for training which had been made and commenced earlier that year.
[2] Otherwise the applicant is confronted by difficulties of the kind discussed by McGill SC DCJ, in Australian Meat Holdings Pty Ltd v Higgs [2006] QDC 81.
[3] This is one of the provisions of Part 1 of ch 18, picked up by UCPR 785.
[4] Which may be made pursuant to s 69 District Court of Queensland Act 1967 and s 118D of the Supreme Court of Queensland Act 1991.
[5] [2000] QSC 232.
[6] [1963] P 1.
[7] As noted by Applegarth J in AMA v CDK & Ors [2009] QSC 287 at [20], footnote 12 and as is the case in this matter, in Sproule v Long the “physical absence” was of both the party personally and any legal representatives.
[8] [2010] QSC 163 at [23]-[24].
[9] [2008] QSC 123 at [73].
[10] See National Mutual Life Association of Australia v Oasis Developments Party Ltd [1983] 2 Qd R 441 at 449 and Rochfort & Anor v Habashy & Anor [2005] QCA 197.
[11] [1983] 2 Qd R 441 at 449-450 and cf: Cook v D A Manufacturing Co Pty Ltd & Anor [2004] QCA 52 at [19].
[12] Affidavit of Alexis King filed 26 October 2011.
[13] It can be noted that the formal sealed copy of the order was filed promptly by the defendant’s solicitor on 27 July 2011 and that this prevents the application of UCPR 667(1).
[14] See paragraph [10] above.
[15] Which were given in oral rather than written form on 25 February 2011.
[16] Exhibit A to the affidavit of Alexis King sworn on 7 October 2011.
[17] The process whereby a transcription is prepared for the Court was not completed and was effectively stopped when the order dismissing the appeal was made on 27 July 2011.
[18] See Exhibit 1 at pp 15-16; lines 643-681.
[19] See Exhibit JR2 to the affidavit of J Rota filed 21 October 2011.
[20] That agreement was exhibited to the earlier affidavit of Mr Mytkowski sworn 18 January 2011, as Exhibit A.
[21] Affidavit of J Rota filed on 21 October 2011 at [7].
[22] Ibid at [12].
[23] Ibid at [12].
[24] Affidavit of A Mytkowski, sworn 18 January 2011 and filed with the application on 28 January 2011.
[25] And therefore filed by leave of the magistrate at the hearing on that date and which is the affidavit which the applicant alleges was inappropriately considered by the magistrate as deserving of less weight because of its late provision.
[26] Affidavit of J Rota filed 21 October 2011 at [7].
[27] Affidavit of J Rota sworn 21 February 2011.
[28] Eg, see Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 445 at [22].
[29] See UCPR 765(1) and 785.
[30] See UCPR 766(1)(9) and 785.
[31] See paragraph [20] above.