Dipic v Bunning[2014] QDC 180

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal by the plaintiff Esad Esko Dipic in a civil proceeding in the Magistrates Court, against a decision of Magistrate Cornack at the Magistrates Court at Sandgate, delivered on 03 October 2013.

2. [2]
   The appellant and the respondents will be referred to in the course of this judgment as “the plaintiff” and “the defendants”, respectively.

Background

3. [3]
   The plaintiff had commenced proceedings against the defendants, Mr and Mrs Bunning, in the Magistrates Court at Sandgate on 30 January 2012. The pleadings are difficult to analyse, but it appears that the plaintiff’s claim was either in contract (an alleged breach of agreement) or in quasi-contract (a debt due for monies had and received).  There is reference to monies having been transferred “on trust” but the circumstances, it seems to me, do not really invoke any equitable jurisdiction or equitable remedy.

4. [4]
   In any event, s 11 Magistrates Court Act 1921 requires the claim to expressly state if the claim or any part of it is an equitable claim. It dies not so explicitly state that.

5. [5]
   See also the observations of Chesterman JA in Securities Exchange Guarantee Corporation Limited v Samuel Holdings Pty Ltd [2011] QCA 228, at paragraphs [65] to [69].

6. [6]
   The factual allegations, as best as I can divine from reading the material and reading the transcript of the proceedings below, were that:

1. (a)
   An agreement was made about 12 years prior to the commencement of proceedings: that is, in March 2000, whereby the plaintiff and his wife (Milada) were to give the defendants 100,000.00 deutsche marks (or, it appears, an amount equivalent to about $A83,172.00);

2. (b)
   It seems, from the oral submissions of the plaintiff, that the defendant’s were in Holland (at the house of the plaintiff’s mother perhaps) when the agreement was made.

3. (c)
   The defendants were to do several things to help the plaintiff and Milada to purchase a house or land in Australia, obtain materials to build a house and organise finance for the purchase of either or both of those things;

4. (d)
   In early 2001 the plaintiff or Milada, or both of them, demanded that the defendants comply with the agreement, it being alleged that the defendants “had not helped the plaintiff and Milada to purchase a home ‘with funds from the transfer’”;

5. (e)
   In early 2004 the plaintiff or Milada, or both of them, instructed solicitors to send a letter of demand to the defendants whom it was alleged had not adhered to the agreement;

6. (f)
   In December 2004 the defendants wrote to the plaintiff asserting that they were not indebted to the plaintiff or Milada, or both of them, because the money had been given to them by transfer as working capital, into a company “Dipa Designs” through another company “Brisbane Market Services Pty Ltd”;

7. (g)
   The plaintiff asserts that the money was given “on trust” to the defendants for the purpose of purchasing the property, not for any purpose to do with a business; and

8. (h)
   In November 2005 the plaintiff rejected a Deed of Settlement, prepared by the defendants, which asserted that there was no outstanding debt or obligation pursuant to the agreement.

7. [7]
   It is apparent that the parties were at odds with respect to the purpose for which the monies were provided by the plaintiff or Milada, or both of them or some other entity, to the defendants.

8. [8]
   It appears that the plaintiff had unsatisfactory experiences with some lawyers in the past and he was involved in other proceedings over a period of years prior to commencing his claim, in the Federal Magistrates Court and the Family Court of Australia. He had suffered a nervous breakdown. He had suffered a significant injury to a lower limb. He also apparently had advice and assistance provided by a legally qualified but non-admitted person, with the preparation of material for his claim. He had also sought and apparently received advice from QPILCH.

The defendants’ application

9. [9]
   The defendants brought an application in the Magistrates Court on 12 August 2013 seeking the following orders:

1. (a)
   dismissal of the plaintiff’s claim on the ground that it was statute barred; or alternatively

2. (b)
   summary judgment for the defendants on the ground that the plaintiff’s claim had not prospects of success; or alternatively

3. (c)
   that the plaintiff’s claim be dismissed for non-compliance with the UCPR; or alternatively

4. (d)
   an order that the plaintiff amend his claim.

The application for adjournment in the Magistrates Court

10. [10]
    At the hearing in the Magistrates Court on 03 October 2013 the plaintiff requested an extension of time to enable him to comply with an earlier order in the proceedings that granted him an adjournment for one month to enable him to meet the defendants’ application by, it seems, further amending his claim. The adjournment had been granted and the plaintiff ordered to pay the defendants’ costs in the sum of $750.00 by 19 September 2013.

11. [11]
    The plaintiff did not amend his claim and did not pay the costs. He said that he could not get a copy of the “account” to pay the costs.

12. [12]
    In the course of the hearing her Honour was sceptical about the plaintiff’s capacity to amend his claim or to make out a viable cause of action. Nevertheless she heard lengthy oral submissions from the plaintiff about the merits of the proceeding.

13. [13]
    What is apparent from the submissions below is that:

1. (a)
   the plaintiff did not commence the proceeding within the six year limitation period;

2. (b)
   the plaintiff’s claim had been amended four times;

2. (c)
   the company Dipa Design was his company;

4. (d)
   the money was transferred by Dipa Design to the defendants;

5. (e)
   the transfer was made in Holland; and

6. (f)
   the money came from the plaintiff’s sale of a house in Bosnia.

14. [14]
    Magistrate Cornack refused the application for adjournment and proceeded to hear submissions with respect to the defendants’ application.

Submissions in the Magistrates Court

15. [15]
    Mr Trotter for the defendants, in written and oral submissions, submitted that the plaintiff’s claim was commenced out of time. If it was a claim in contract, the limitation period arguably ran from the date of any breach of the agreement (rather than on the date of the agreement per se). He referred to several dates where there may have been an event constituting a breach, perhaps in 2001 or in 2004 (see paragraphs [3] (c), (d) and (e), supra) or a failure of consideration, perhaps in late 2005 (see paragraph [3] (g), supra). In any event, Mr Trotter submitted that the cause of action must have arisen on or after 31 January 2006 (six years prior to the date the claim was commenced: see s 10 (1) (a) of the Limitation of Actions Act 1974 (“the Act”)), if the proceeding was to have been commenced in time.

16. [16]
    Mr Trotter submitted that the claim was therefore statute barred and that the plaintiff had not made any application to extend the time for commencing the action, pursuant to the Act. He also submitted that there had been no acknowledgement of any debt by the defendants.

17. [17]
    Section 35(3) of the Act provides:

“Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, or a claim to the personal estate of a deceased person or to a share of or interest therein and the person liable or accountable therefore acknowledges the claim or makes a payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment.”

18. [18]
    The plaintiff had filed an Amended Reply, which was prepared by solicitors who were then acting for him, responding in paragraph 28(b) therein to the limitation defence pleaded by the defendants, to the effect that there had been an acknowledgment (in terms of s 35 (3) of the Act) of the plaintiff’s claim by the defendants, expressed in the following terms:

1. “(i)
   verbally during conversations between the first defendant and the plaintiff from 2000 to 2012; and

1. (ii)
   in writing in the written documents pleaded at paragraphs 30 and 33 of the Amended Amended Statement of Claim ”

19. [19]
    The only relevant asserted acknowledgment is in the Amended Reply, as in (ii) above, because it is said to have been in writing as required by s 35 (3) of the Act. The assertion in the Amended Reply in (i) above is verbal and is also out of time, the breadth of dates being on an unspecified date “from 2000 to 2012”.

20. [20]
    However, the acknowledgment in the Amended Reply in (ii) said to be in written documents (this information being by reference to the content of paragraphs 30 and 33 of the Amended Amended Statement of Claim), signed more than six years before the commencement of the claim. Hence they too are out of time; and neither made an admission of any debt but in fact, denied that there was any outstanding debt.

21. [21]
    There was therefore in fact no acknowledgment of a debt by the defendants, as alleged in the Amended Reply.

22. [22]
    Mr Trotter referred to irrelevant allegations in the plaintiff’s pleadings (for example, that the plaintiff had received advice that he may have a civil claim and his unsuccessful attempt to join the defendants in Family Court proceedings). 

23. [23]
    Mr Trotter sought summary judgment for the defendants, submitting that the plaintiff’s claim had no real prospect of succeeding; the claim was statute barred; there was no application for an extension of time (and indeed no evidence upon which such an application could be granted); and no acknowledgment that might bring the claim back into time.

24. [24]
    The plaintiff made oral submissions which traversed much of what he had earlier submitted in the course of advocating his application for an adjournment but which really did not address any relevant issues in or arising out of the defendants’ application.

Decision on the application

25. [25]
    Her Honour gave a decision on 03 October 2013 in which she traversed all of the submissions in detail. She referred to the agreement as being an oral agreement with nothing in writing; that the evidence about the transaction, its purpose and its implementation being oral and blurred, in effect, by the passage of time; that there were conflicting versions of the events within the evidence of the parties and as between them; and that the capacity of any court to determine what had in fact occurred was doubtful. She also referred to the claim being statute barred, that the proper claimant arguably was the company Dipa Designs and not the plaintiff, and that the jurisdiction for any claim appeared to be in Holland, where the agreement was made and the money transferred.

26. [26]
    Accordingly, her Honour found that the plaintiff’s claim had no real prospect of success. She gave judgment for the defendants against the plaintiff for all of the plaintiffs claim, pursuant to s 293 of the Uniform Civil Procedure Rules (“UCPR”). 

Decision on costs below

27. [27]
    The defendants sought an order for indemnity costs. Her Honour reserved that application and on 12 November 2013 gave a further judgment and ordered that the plaintiff pay to the defendants their costs in the sum of $6,733.00, assessed on the standard basis.

The plaintiff’s appeal

28. [28]
    The Notice of Appeal was made on a number of grounds, which are difficult to understand. However, doing the best I can, it seems that the plaintiff relies on the following, that:

1 The Magistrate erred in law in respect of - 
… breach of rules of natural justice;

… improper exercise of power; and

… insufficiency of evidence; and that

2 The Magistrate’s discretion miscarried.

29. [29]
    The plaintiff also maintained his bald and unsubstantiated allegations of dishonesty by the defendants in their submissions and otherwise.

30. [30]
    The plaintiff sought the following orders (as expressed by him in the application):

“1. Appeal allowed.

2. All of the orders appealed from are squashed.

3. Appellant is given leave to re-plead his application to the Court below.

4. Appellant is given leave to proceed with his claim in the Court below, but his cause is to go before another judicial officer.

5. Costs for a lump sum in the discretion of the Court.

6. Such varied or other orders as the Court may see met.”

Submissions in the appeal

31. [31]
    The plaintiff filed a written submission to similar effect. He also made oral submissions in the hearing before me.

32. [32]
    The defendants filed and served on the plaintiff a Notice of Contention, expressed in the following terms:

“1. On the hearing of the appeal the Respondent will contend that the decision of the Sandgate Magistrates Court should be affirmed on a ground other than a ground relied on by the Sandgate Magistrates Court.

GROUNDS OF CONTENTION

2. The Appellant is out of time to lodge the appeal in accordance with Uniform Civil Procedure Rules 1999 (Qld) r 748.

3. The Appellant discloses no grounds of appeal for the Court to consider because:

1. (a)
   the grounds for appeal pleaded are too vague and do particularise the grounds for appeal;

1. (b)
   insofar as the grounds for appeal are pleaded, they are suggestive of an appeal against an administrative decision of which this is not; and

1. (c)
   insofar as the Appellant pleads grounds for appeal under the Judicial Review Act 1991:

1. (i)
   the judgment of her Honour Cornack is not a decision to which the Judicial Review Act 1991 applies; and

1. (ii)
   the District Court is not the correct jurisdiction.

4. That the appeal be refused for the reasons given the learned Magistrate her Honour Cornack on 3 October 2013.

5. In the alternative, the decision of the Sandgate Magistrates Court be affirmed because the Appellant’s cause of action is statute barred as it was filed outside the time limit set by the Limitation of Actions Act 1974.”

33. [33]
    Mr Trotter, in written submissions supplemented by oral submissions, referred to the three issues that made the plaintiff’s claim one that had no real prospect of success:

1 the limitation period and the claim being statute barred;

2 the proper jurisdiction; and

3 the proper plaintiff entitled to commence proceedings.

34. [34]
    He addressed the grounds of appeal in the plaintiff’s submissions and submitted that the former were too vague and were without particularisation; that they appeared in their terms to suggest an appeal against an administrative decision or a judicial review, which is not what this appeal provision provides for; that there were proper reasons given for the refusal of an adjournment: that is, those reasons given in support of the award of summary judgment; that there was no evidence that the plaintiff, as a self-represented litigant in the application below, was under a legal disability, he having retained solicitors or having been in receipt of legal advice from divere other sources in the past; that he had previously had then benefit of an adjournment; that the Magistrate had listened to his oral submissions, made at length; that her Honour had the benefit of submissions and gave reasons for her decision; that the bald accusations against the character of the defendants were unsubstantiated; and that her Honour clearly did understand and analyse the relevant issues.

The appeal provision

35. [35]
    The appeal is to be determined pursuant to s 45 of the Magistrates Courts Act 1921:

“45 Appeal

1. (1)
   Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court—

1. (a)
   in an action in which the amount involved is more than the minor civil dispute limit; or

…

may appeal to the District Court as prescribed by the rules.”

Power of this Court on appeal

36. [36]
    On the hearing of the appeal I may do any of the following, pursuant to s 47 of the Magistrates Courts Act 1921:

“47 Jurisdiction of the District Court

On the hearing of an appeal or special case, the District Court may do any of the following—

1. (a)
   draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed;

1. (b)
   order a new trial on such terms as it thinks just;

1. (c)
   order judgment to be entered for any party;

1. (d)
   make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties;

1. (e)
   as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon;

1. (f)
   make such order with respect to the costs of the appeal or special case as it thinks proper.”

Discussion

37. [37]
    The plaintiff has, in my view, insurmountable difficulty in keeping this proceeding on foot. The evidence is substantially oral in respect of material issues; the pleadings are incompetent; there are several legal impediments to the viability and integrity of the claim, there are inferentially significant issues of credit that would require resolution in circumstances where the critical events are now over 14 years old and the availability of witnesses is inferentially uncertain. That much is evident from the material to which I have referred above. I will deal with some of those matters briefly in the following paragraphs.

The proceeding generally

38. [38]
    The facts and circumstances relied on by the plaintiff are difficult to ascertain with any degree of particularity or confidence. They would be no clearer in the future. Quite apart from the matters already discussed, the pleadings do not clarify the true basis of the plaintiff’s case and there is conflict within his own case as to the true state of historical affairs.

39. [39]
    However, all of this is of little consequence given the limitation issue, quite apart from the other legal defects in the proceeding. Hence there are four substantive issues to discuss.

The four issues

1. Summary judgment for the defendants

40. [40]
    The law about summary judgment, whether sought by a plaintiff or by a defendant, is now well settled by authority. The same test in an application by a plaintiff for summary judgment against a defendant applies to an application by a defendant for summary judgment against a plaintiff.

41. [41]
    Rule 293 UCPR provides as follows:

“r 293 Summary judgment for defendant

1. (1)
   A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against the plaintiff.

1. (2)
   If the court is satisfied -

1. (a)
   the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and

1. (b)
   there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”

42. [42]
    The relevant principle (as it applies to a defendant’s application) is stated in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, at [17] and [44]: whether the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and there is no need for a trial of the claim or the part of the claim.

43. [43]
    In Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd (2009) 2 Qd R 202, Chesterman JA wrote, at [24]:

“In practical terms I suspect the rule means that summary judgment should not be given where the fact upon which the parties’ respective rights depend are disputed, or where the respondent to the application for summary judgment adduces evidence as to the existence of fact which, if proved, would establish a defence or a right to relief. In other words, it is only where all the facts are known and/or are established beyond controversy that the court should embark upon determining whether to give summary judgment. Where relevant facts are controverted, or where it appears that facts may exist which would affect a right of action or defence, there should be a trial to determine the facts.”

44. [44]
    Holmes JA wrote of the “finer shades of meaning” in the difference of view from his Honour that her Honour held about the test, but wrote at [1] that:

“… a claim (or defence) which has ‘no real prospect of succeeding’ … implies, to me at least, a conclusion reached after a hard-headed assessment, rejecting spurious arguments…”

45. [45]
    In General Steel Industries Inc v Commisioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ wrote at page 130:

“…But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.  Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings … in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.  On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim.  Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

46. [46]
    In Chidgey v Wellner & Anor [2006] QDC 400, the court wrote:

“[19] On an application under r 292, the plaintiff carries the onus of showing that the requirements of the rule have been met.  Commonly, a defendant seeking to resist an application for summary judgment will file affidavit material on the basis of which it is sought to show that the requirement of the rules are not met, but it is not necessary to do so.  In principle, a defendant may be able to show that the requirements of the rule are not met, or simply that the plaintiff has failed to discharge the onus under r 292 by reference to the pleadings and the material filed in support of the application on behalf of the plaintiff.  The fact that there is no affidavit on behalf of the appellant was not necessarily fatal to success before the magistrate, or on appeal from the magistrate’s order.

[20] Furthermore on an application under r 292 a defendant is not confined to defences arising on the existing pleading.  That rule is directed to the apparent outcome at any future trial, and in its application must bear in mind that under the rules pleadings can be amended prior to, and indeed in some cases even during, a trial.  Accordingly, what is important for that rule is not whether the defendant has pleaded any ground which has a real prospect of succeeding, but whether a defendant really has no real prospect of successfully defending the claim.” 

 See also Bernstrom v National Australia Bank Ltd [2002] QCA 231.

47. [47]
    The question is whether there is there in this case a realistic, as opposed to a fanciful, prospect of the plaintiff succeeding on all or a part of his claim, in the circumstances such as I have described?

48. [48]
    In my view there is no real - or indeed any – prospect of the plaintiff succeeding in his claim. It is simply a matter whether summary judgment for the defendants was the appropriate means to terminate the proceeding.

2. Limitation period

49. [49]
    This issue is simply not able to be overcome by the plaintiff. The claim is statute barred. No application was made for an extension of the period of limitation and there is in all the circumstances no basis upon which an extension would be granted.

3. Proper plaintiff

50. [50]
    Whilst the movement of the monies is not absolutely clear, it seems that monies were paid into or acquired by the company Dipa Designs, which the plaintiff says is his company, in Holland. The company transferred money (from it’s funds) to the a company in Australia in which the defendants had an interest. The defendants may have received monies from that company. In any event, it is arguable that the plaintiff is not the person entitled to commence proceedings to recover any monies that were transferred and that he is and never was the proper party to make the claim.

4. Jurisdiction

51. [51]
    A contract is made within the jurisdiction when the last act necessary to create a binding obligation between the parties took place.

52. [52]
    The agreement was made in Holland. The monies were paid into a company in Holland and thence transferred to a company in Australia. If this is the correct history of the matter then there is no jurisdiction in the Australian forum to commence or to determine the proceeding. The correct Lex Loci Contractus is Holland: that is, the law of the place where the agreement was made. This includes an agreement where there is a quasi-contractual obligation.

53. [53]
    Section 4 of the Magistrates Courts Act 1921 describes the jurisdiction of the Magistrates Court. Rule 67 of the UCPR gives discretion to the court to give judgment when parties are incorrectly included or not included: Moon v Devanjul Pty Ltd as Trustee [2010] QSC 250 at [7]. However, that provision refers to additional persons or entities that may have an interesting the outcome of a case, not to the principal party or parties. It is not applicable to cases such as this.

Conclusion

54. [54]
    There are a number of bases upon which the plaintiffs claim would inevitably fail. It could have been struck out for want of jurisdiction or on the basis that the plaintiff was not entitled to commence the proceeding. Neither of those defects in the proceeding is open to be cured by amendments. The proceeding is in any event statute barred and that in my view is irremediable. An extension of the period limited for commencing any proceeding will not cure the other legal defects. Finally, the ordering of summary judgment for the defendants in all the circumstances is irresistible by the plaintiff. It is also another way of bringing the proceeding to an end.

55. [55]
    Three of the four of the other bases referred to above are raised in the Notice of Contention. Hence they are open for me to consider and act upon. However, in my view and based on the findings and observations above, the decision of the Magistrate was correct.

56. [56]
    The philosophy of the UCPR is a relevant consideration: the determination of the defendant’s application should reflect, in an holistic sense, the overriding philosophy of the UCPR, as expressed in r 5, which provides as follows:

“r 5 Philosophy – Overriding obligations of parties and courts

1. (1)
   The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

1. (2)
   Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality in facilitating the purpose of these rules.

1. (3)
   In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.”

57. [57]
    There is much in this case that favours an expeditious resolution of the proceeding. Summary judgment for the plaintiff is an appropriate means of so doing, for the reasons expressed above in respect of the evidence generally, the pleadings and in respect of the legal issues discussed above.

58. [58]
    The plaintiff’s case had no real prospects of success in terms of the considerations relevant to granting a summary judgment application for a defendant. Quite apart from the basis for a summary judgment for the defendants being an almost inevitable outcome on the facts and circumstances and history of the plaintiff’s claim, the plaintiff has insurmountable barriers to the continuation of his claim arising from the other issues, quite apart from anything else.

Disposition

59. [59]
    The appeal cannot succeed on any basis and is dismissed.

60. [60]
    I confirm the decision of her Honour and upon my own consideration of and findings made in the appeal, exercise the power open to this Court pursuant to s 47 (c) Magistrates Courts Act 1921 and give summary judgement to the defendants against the plaintiff for the whole of the plaintiff’s claim.

Costs

61. [61]
    The appeal had no prospects of success. However, the plaintiff had no legal representation either at all or in the customary sense of legal representation and I consider that any costs order should be on the standard basis.

62. [62]
    The plaintiff is to pay to the defendants their costs of the application, the appeal and the proceedings on the standard basis including reserved costs if any and previous costs orders made against him.

Orders

1. Appeal dismissed.

2. The plaintiff is to pay to the defendants their costs of the application, the appeal and the proceedings on the standard basis including reserved costs if any and previous costs orders made against him.