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Tilley v Metcalfe[2015] QDC 89

DISTRICT COURT OF QUEENSLAND

CITATION:

Tilley v Metcalfe; Metcalfe v Tilley [2015] QDC 89

PARTIES:

DAVID TILLEY

(appellant/respondent)

v

GLENDA JUNE METCALFE

(respondent/appellant)

FILE NO/S:

8/15 and 22/15

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

23 April 2015 ex tempore

DELIVERED AT:

Southport

HEARING DATE:

23 April 2015

JUDGE:

Samios DCJ

ORDER:

  1. Extend the time for filing the Notice of Appeal of Glenda June Metcalfe to 16 January 2015.
  2. Refuse to receive the further affidavit of David Tilley filed herein on 20 January 2015 and the further affidavit of Glenda June Metcalfe filed herein on 20 February 2015.
  3. Refuse the appellant David Tilley leave to appeal to the District Court from the decision of the learned Magistrate made on 28 November 2014.
  4. Refuse the appellant Glenda June Metcalfe leave to appeal to the District Court from the decision of the learned Magistrate made on 28 November 2014.
  5. The appeals of both parties are dismissed.
  6. No order as to costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPELLATE JURISDICTION – CLAIMS BETWEEN PARTIES – EXTENSION OF TIME – LEAVE TO APPEAL – REHEARING – where the relationship between the appellant/respondent and respondent/appellant came to an end – where the respondent/appellant commenced proceedings in the Magistrates Court against the appellant/respondent by way of claim for money owing – where the appellant/respondent commenced a cross-claim in the Magistrates Court  against the respondent/appellant for money owning – where the appellant/respondent appeals against the learned Magistrate’s decision on 28 November 2014 – where the respondent/appellant cross-appeals against the learned Magistrate’s decision on 28 November 2014 – where the amount in each appeal is below the minor civil dispute limit – where the respondent/appellant’s Notice of Appeal was filed out of time – whether the respondent/appellant should be granted an extension of time to file a Notice of Appeal – whether the further affidavit evidence of the parties should be received – whether the appeal is to be heard de novo or by way of rehearing – whether there is an important principle of law or justice involved in the appeals – whether leave should be granted to hear the appeals pursuant to section 45(2) of the Magistrates Courts Act 1921 (Qld)

Legislation

Magistrates Courts Act 1921 (Qld) s 45(1) – (2)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) sch 3

Uniform Civil Procedure Rules 1999 (Qld) r 748, r 765(1), r 766(1)(c), r 785(1)

Cases 

Allesch v Maunz (2000) 203 CLR 172, [23]

American Express International Inc v Hewitt [1993] 2 Qd R 352

Ramzy v Body Corporate for GC3 CTS38396 & Anor [2012] QDC 397

Wanstall v Burke [1925] St R Qd 295

COUNSEL:

The appellant/respondent represented himself

The respondent/appellant represented herself

SOLICITORS:

The appellant/respondent represented himself

The respondent/appellant represented herself

  1. [1]
    HIS HONOUR: The proceedings before me are appeals by Mr Tilley and Ms Metcalfe against the judgment of the learned Magistrate at Southport. On 26 November 2014, the learned Magistrate heard Ms Metcalfe’s claim against Mr Tilley for $16,930 and Mr Tilley’s counter-claim against Ms Metcalfe for $17,057.84. On 28 November 2014, the learned Magistrate gave judgment in favour of Ms Metcalfe against Mr Tilley after setting off Mr Tilley’s counter-claim for $4575.08 plus interest of $310.92.
  1. [2]
    The time for filing the notices of appeal was 28 days after the learned Magistrate’s decision, see rule 748 of the Uniform Civil Procedure Rules. As Court holidays were designated for each of the days from 22 December 2014 to 2 January 2015 inclusive, see practice direction number 6 of 2014, the date by which each party had to file a notice of appeal from the learned Magistrate’s decision was, on my calculations, the 7th of January 2015. Mr Tilley’s notice of appeal is within time. However, Ms Metcalfe’s notice of appeal is out of time. Her notice of appeal was filed, though, on 16 January 2015.
  1. [3]
    Mr Tilley objects to my giving Ms Metcalfe an extension of time for the filing of her notice of appeal. He has made written objections and supplemented those by oral submissions today. I have considered his objections and submissions. I have also heard from Ms Metcalfe in support of an application for an extension of time for the filing of her notice of appeal. In all the circumstances, I have come to the view that I should extend Ms Metcalfe’s time for the filing of her notice of appeal. Clearly, the period when these appeals were being considered was the Christmas period and both parties are representing themselves and the period of delay is very short, in my view. I do not accept that, in this case, she should be prevented from at least having her notice of appeal before the Court. In addition, I accept there would be no injustice to Mr Tilley were I to extend the time. I do, therefore, extend the time for the filing of the notice of appeal of Glenda June Metcalfe to 16 January 2015.
  1. [4]
    Both parties have, for the purposes of their appeals, filed affidavits. Mr Tilley filed an affidavit on the 20th of January 2015 and Ms Metcalfe filed an affidavit on the 20th of February 2015. Having considered all the circumstances, including the Magistrate’s decision and the evidence that was before him, I have come to the view that both parties have failed to show me special grounds for these further affidavits to be received. In my opinion, both affidavits, in effect, traverse the same facts that were before the learned Magistrate, although they might have expanded a little but those additional facts do not take the matter anywhere further than was before the learned Magistrate.
  1. [5]
    Further, in my view, the evidence sought to be adduced in these further affidavits could have been adduced before the learned Magistrate, when he embarked on the hearing on 26 November 2014. Therefore, although rule 766, sub rule 1, subparagraph c of the Uniform Civil Procedure Rules allows for further evidence to be received on an appeal, that is only if there are special grounds. As there are no special grounds, I therefore refuse to receive the further affidavit of David Tilley filed herein on 20 January 2015 and the further affidavit of Glenda June Metcalfe filed herein on 20 February 2015.
  1. [6]
    The background, as the learned Magistrate said, to the claim and the counter-claim is that Ms Metcalfe and Mr Tilley had moved in together in Mr Tilley’s house in 2009. There seems to be no dispute on the hearing today that the learned Magistrate was correct to say the original arrangement was that Ms Metcalfe would pay $200 per week for rent and contribute to one-half of the cost of utilities, such as electricity and telephone. They have also, at some point, went into a cleaning business together. No formal arrangement as to rent, sharing of expenses and income was ever entered into in writing. The learned Magistrate said the case, therefore, largely revolves around credibility of the parties as to what had been agreed.
  1. [7]
    The learned Magistrate asked the parties to write out, for his purposes, what their claims were. There seems to have been no dispute that Ms Metcalfe had advanced to Mr Tilley $24,930 but he had repaid her $8000, leaving a balance owing of $16,930. That was Ms Metcalfe’s claim in the proceedings. Mr Tilley’s claim was set out as follows:  rent owing by the plaintiff to the defendant, period September 23 2013 and November 19 2011:  $12,000. Number 2, money owing by the plaintiff to the defendant for work, parts, profit of motor vehicles per QCAT matter Q30/12 filed 12 January 2012:  $3700. Number 3, money owing by the plaintiff to the defendant relative to earnings from sale of calendars:  $210. Number 4, less final electricity account apportioned:  $147.84. Number 5, furniture, etcetera, including miscellaneous items:  $1000. Number 6, costs incurred in defendant’s various Court actions:  TBA. Subtotal $17,057.84.
  1. [8]
    The claims of each party, as outlined in those documents, was consistent with what was put in the claim and the defence and counter-claim by both parties. There was some variation but it is of no consequence. That is, the $1000 for the furniture was put to the Magistrate that it would be up to the learned Magistrate’s decision as to what amount to allow for the furniture and, in the end, $520 was the figure the learned Magistrate came to.
  1. [9]
    Referring to the learned Magistrate’s decision, he dealt with the claim of Ms Metcalfe and found that the balance was the $16,930. He found the real dispute between the parties revolved around the basis of Mr Tilley’s counter-claim. He noted the first item was the claim for rent. As to that, Mr Tilley was successful. The learned Magistrate found that the amount for rental of $12,000 was to be allowed. Ms Metcalfe, of course, in her notice of appeal, claims the learned Magistrate erred in not finding her entitled to monetary relief by omitting to add back $6000 paid rent in lieu of/indirectly paid by her to Mr Tilley during the period that was being dealt with by the learned Magistrate.
  1. [10]
    The most contentious aspect of the learned Magistrate’s findings is that, as to the $3700, he dismissed that claim. He noted it was a claim for repairs carried out by Mr Tilley to motor vehicles owned and sold by Ms Metcalfe. He noted that Mr Tilley relied on admissions and claims made by Ms Metcalfe in the QCAT application form. He noted the relevant page from the application was omitted from the affidavit. He noted whether this was done by design or by accident, he did not know. But he found it to be adverse to Ms Metcalfe’s credit. However, he noted that there was a statement made by Ms Metcalfe in the documents that $3700 was due by her to Mr Tilley for moneys earned for the profit of the cars.
  1. [11]
    However, the learned Magistrate found that, despite the admission in the QCAT application that this amount was owing by Ms Metcalfe to Mr Tilley, he noted from exhibit 3 that there was no claim for it and, at best, it seemed to him that it was a gratuitous acknowledgement that some money should be paid to Mr Tilley. However, he found there was clearly no agreement for the payment of the amount and there was no evidence that $3700 was a fair recompense for the work done. The learned Magistrate concluded, as there was no evidence before him either as to the agreement or as to the value of the work done, he did not see how it could be enforced at this stage. As I said, that part of the counter-claim, the learned Magistrate dismissed.
  1. [12]
    The third item which is in contention is the counter-claim for the $210. Again, the learned Magistrate found that Ms Metcalfe was not creditable as to her response to that claim. He noted she listed it in a document headed David’s Profit from the Supervalue Account. However, the learned Magistrate said the evidence on this issue was quite sparse. He accepted that Mr Tilley carried out some advertising work for Ms Metcalfe in respect of some calendars that Ms Metcalfe was promoting. And she somehow calculated that she owed him the sum of $210 for his work. However the learned Magistrate concluded there was no evidence of any agreement that this amount would be paid and there is no evidence that $210 was a fair recompense for the work done. Again the learned Magistrate dismissed this part of the counter-claim. Then there was no dispute that $147.84 was due for the electricity as that was admitted by Ms Metcalfe. I’ve already said that the $1000 for the furniture was reduced to $520 by the learned Magistrate as the parties left that to the Magistrate’s decision. Therefore in the end – allowing for the claim and setting off the items allowed in the counter-claim the learned Magistrate gave judgment for Ms Metcalfe for $4575.08 plus interest at 10 per cent being $310.92. A total of $4886. He dismissed the balance of the counter-claim.
  2. [13]
    Generally speaking Mr Tilley’s complaint is that there was no reason for the learned Magistrate to refuse to allow him the $3700 and the $210 which he claimed in his counter-claim. In particular Mr Tilley refers to documents filed by Ms Metcalfe in the QCAT proceedings, and in addition that the learned Magistrate made adverse findings on Ms Metcalfe’s credibility in the proceedings before the learned Magistrate. However section 45 of the Magistrates Courts Act 1921 subsections 1 and 2 relevantly provide:
  1. (1)
    Subject to this Act, any party who is dissatisfied with a 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 […]

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

  1. (2)
    Provided that––
  1. (a)
    where in any of the cases above referred to in subsection the amount is not more than the minor civil dispute limit, an appeal shall lie by leave of the District Court or a District Court judge, who shall not grant such leave to appeal unless the court or judge is satisfied that some important principle of law or justice is involved.
  1. [14]
    Both the claim and the counter-claim were not more than the minor civil dispute limit. That limit is $25,000 – see Queensland Civil and Administrative Tribunal Act 2009, schedule 3. Therefore both parties in my view require the leave of this Court to proceed with the appeals; however, leave is not to be given unless the Court or Judge is satisfied that some important principle of law or justice is involved. As to that his Honour Judge McGill SC DCJ in Ramzy v The Body Corporate for GC3 CTS38396 & Another [2012] QDC 397 at paragraph 41 referred to the leading authority on an application of this test. That is, Wanstall v Burke [1925] St R Qd 295, a decision of the full Court. His Honour Judge McGill quoted the passage where Griffith CJ said:

The practice we have always laid down …[is] of not granting special leave to appeal unless we are of opinion that the case is one of gravity, or involving some important question of law, or affecting property of considerable value;  or unless it is a case which is otherwise of public importance, or is of a very substantial character.

  1. [15]
    As his Honour Judge McGill noted in paragraph 42:

It has also been said that an important principle of justice requires that there be a question going beyond the consequence of the decision for the immediate parties to the proceeding (quoting American Express International Inc v Hewitt [1993] 2 Qd R 352).

  1. [16]
    Certainly there was evidence that Ms Metcalfe had offered to pay Mr Tilley the $3700 and for helping her with the cars. Further there was evidence that she stated she had an amount of $210 in a Supervalue account to be paid to him. The learned Magistrate though was alive to these pieces of evidence. He also had the evidence of the parties that was given before him orally. Nevertheless the learned Magistrate concluded that he was not satisfied there was agreement reached for the payment of these sums of money. Clearly that was something the learned Magistrate was entitled to conclude in the case before him. That is, a case of parties who had lived together, had had arrangements about expenditure and had made offers of payment which had not been made and then the relationship came to an end and the parties sought to claim moneys due from one to the other.
  1. [17]
    It does not follow that the learned Magistrate had to find on the evidence before him that agreement had been reached to make that payment. That is, enforceable agreement to make those payments. Once the parties were in dispute then it became a matter of whether the learned Magistrate was satisfied to the requisite standard of proof that agreement had been reached which would then be enforced by the learned Magistrate. In all the circumstances, having considered the evidence before the learned Magistrate, and the submissions that have been made both in writing and orally in this case by both parties, in my opinion there is no important principle of law or justice involved in this case.
  1. [18]
    Therefore I refuse the appellant Glenda June Metcalfe leave to appeal to the District Court from the decision of the learned Magistrate made on 28 November 2014. Further I refuse the appellant David Tilley leave to appeal to the District Court from the decision of the learned Magistrate made on 28 November 2014. If I were wrong in that respect I would hold that the appeals before me are not to be appeals de novo as claimed by the parties. The appeals would be by way of re-hearing – see rules 765 sub-rule 1 and 785 sub-rule 1 of the Uniform Civil Procedure Rules. In that respect for the reasons I’ve already given I’m satisfied that the learned Magistrate made no error of law or of fact or in the exercise of his discretion on the hearing of the claim and counter-claim – see Allesch v Maunz (2000) 203 CLR 172 paragraph 23. Therefore for completeness I dismiss the appeals of both parties. Now, do either of you have any submissions to make on my dismissal of the appeals?  That is, the only matter that I could think of is whether any question of costs arises.
  1. [19]
    APPELLANT TILLEY: Well, look - obviously, your Honour, in my case I understand your judgment. I just want to add, if I may, that I take some exception to the Magistrate’s assessment of – there was no agreement between the parties for the moneys to be paid. Your Honour, why I’m saying this – and this was actually the heart of my appeal anyway – that I don’t think he gave enough weight to the facts, and the facts were that, look, no matter what the respondent says we lived together as man and wife under one roof. We – that’s the way it was.
  1. [20]
    HIS HONOUR: Yes. I’m not going to hear all the facts all over again, Mr Tilley
  1. [21]
    APPELLANT TILLEY: No, no. I understand.
  1. [22]
    HIS HONOUR: What do you say: should I make an order for costs, or because both of you have in effect lost, that I make no order as to cost for either party?
  1. [23]
    APPELLANT TILLEY: Well, I don’t – I mean, I guess I can’t make an order for costs, really, your Honour, if we’re dismissing an appeal, can we?
  1. [24]
    HIS HONOUR: No. I just asked just in case. So Ms Metcalfe, do you have any submissions to make?
  1. [25]
    APPELLANT METCALFE: No, your Honour.
  1. [26]
    HIS HONOUR: Yes. I make no order as to costs.
Close

Editorial Notes

  • Published Case Name:

    Tilley v Metcalfe; Metcalfe v Tilley

  • Shortened Case Name:

    Tilley v Metcalfe

  • MNC:

    [2015] QDC 89

  • Court:

    QDC

  • Judge(s):

    Samios DCJ

  • Date:

    23 Apr 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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