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  4. Woolnough v Macrossan and Amiet Pty Ltd (ABN: 361 316 593 84) Trading as Macrossan and Amiet - [2016] QDC 20

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Woolnough v Macrossan and Amiet Pty Ltd (ABN: 361 316 593 84) Trading as Macrossan and Amiet[2016] QDC 20

Woolnough v Macrossan and Amiet Pty Ltd (ABN: 361 316 593 84) Trading as Macrossan and Amiet[2016] QDC 20

DISTRICT COURT OF QUEENSLAND

CITATION:

Woolnough v Macrossan and Amiet Pty Ltd (ABN: 361 316 593 84) Trading as Macrossan and Amiet [2016] QDC 20

PARTIES:

TIMOTHY EARL WOOLNOUGH

(appellant)

v

MACROSSAN AND AMIET PTY LTD (ABN: 361 316 593 84) TRADING AS MACROSSAN AND AMIET

(first respondent)

and

GENE PATTERSON

(second respondent)

FILE NO/S:

D 104/15

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Mackay

DELIVERED ON:

18 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2016.

JUDGE:

Smith DCJA

ORDER:

  1. The appeal is struck out.
  1. I will hear the parties on the question of costs.

CATCHWORDS:

APPEAL- LEAVE TO APPEAL- Whether important question of law or justice

Magistrates Courts Act 1921 (Q) s 45

Queensland Civil and Administrative Tribunal Act 2009 (Q) schedule 3

Uniform Civil Procedure Rules 1999 (Q) rr 69, 292, 982

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

Gibson v Nominal Defendant [1996] QCA 240

COUNSEL:

Self- represented appellant.

Solicitors for the respondents.

SOLICITORS:

Self-represented appellant.

Macrossan and Amiet for the respondents.

Introduction

  1. [1]
    This is an application by the respondents to strike out the appellant’s appeal, or parts of the Notice of Appeal.
  1. [2]
    The appellant has sought to appeal the decision made in the Magistrates Court at Mackay on 8 September 2015 whereby the magistrate dismissed the appellant’s application to set aside a judgment.

Background

Pleadings

  1. [3]
    On 29 April 2015 the first respondent, a legal firm in Mackay, sued the appellant for $1,258.98 alleged to be monies owing by him to it for legal services provided. The statement of claim alleged that in or about February 2015 the appellant retained the first respondent to provide legal services to him and further legal services were provided in the period February to March 2015. As a result of this invoices were issued to him totalling $1,258.98. It was alleged that despite demand the appellant had failed to pay those fees.
  1. [4]
    The appellant filed a defence in June 2015 alleging that he had spoken to Gene Patterson (the second respondent) of Macrossan and Amiet regarding his legal case against the Isaac Regional Council. He alleges that he left documentation with Mr Patterson in relation to the case and within a couple of days heard from him in the form of a bill and, therefore, believes that he did not owe the money to the first respondent.

Hearing on 11 August 2015

  1. [5]
    The matter first came before the Magistrates Court on 11 August 2015 at which time the first respondent sought judgment pursuant to r 292 of the Uniform Civil Procedure Rules(“UCPR”).  Documents in support of application were served on or about 2 July 2015.[1]  In a further affidavit Ms Roberts swore that the plaintiff had provided legal services to the appellant in the sum sought and he had refused to pay the sums.  She deposed that the defence did not appear to disclose any reasonable action and no sufficient defence had been advanced.[2]  The invoices addressed to the appellant were exhibited to the affidavit. 
  1. [6]
    The matter proceeded in the appellant’s absence before a magistrate at Mackay on 11 August 2015 and judgment was granted.

Hearing on 8 September 2015

  1. [7]
    The appellant applied to set aside that judgment by application. The application was heard at Mackay Magistrate Court on 8 September 2015.
  1. [8]
    In an affidavit in support of the application the appellant swore that he thought the matter was on 14 August 2015 not 11 August 2015 and had made a mistake. He swore that he wished to defend himself in the action. He did not file any material which supported any defence to the action.
  1. [9]
    At the hearing before the magistrate two letters of advice were tendered. The first dated 10 February 2015 in which the second respondent confirmed instructions given and noting that “in the circumstances we do not see how we can assist you in any way with respect to this matter”. This was after the solicitor had referred to a number of documents which had been left with him to consider. In a further letter dated 18 March 2015 the second respondent referred to an attendance at the office on 2 March 2015 and advising the appellant as to a cause of action against the Council with respect to two matters. The account was enclosed.
  1. [10]
    Despite submissions to the contrary the magistrate considered there was no triable issue and as a result the application to set aside the judgment was dismissed.

Notice of Appeal

  1. [11]
    The appellant has filed a Notice of Appeal in the District Court against the decision dated 8 September 2015. In effect, although it is difficult to precisely ascertain, the defendant seems to be alleging that the second respondent failed to follow instructions which he had given to him. He further, in addition to seeking that the appeal be allowed, seeks $100,000 from the first respondent. I note also that Gene Patterson was joined by him as second respondent when Gene Patterson, the second respondent, was never a party to the action in the Magistrates Court.

Appellant’s outline

  1. [12]
    The appellant also filed an outline of submissions in which he alleges that he spoke to Gene Patterson, mentioned his concern with the Isaac Regional Council and told him he was out of work and had no money but despite that the second respondent said that he would look at his documents. He alleges he took the documents to the meeting arranged and understood that the second respondent was going to take his case on. He says that the second respondent failed to follow his instructions. He alleges further that no one from the firm has been prepared to discuss the bill with him. He further alleges that a warrant was registered on the title of his property which is worth in excess of $650,000 and the property had been listed for a public auction on 27 November 2015 when the sum owed is only just under $3,000.
  1. [13]
    The first respondent has had the matter referred to a Judge of the District Court pursuant to UCPRr 982. 

Respondent’s submissions

  1. [14]
    The respondents’ submissions are as follows:
  1. (a)
    The second respondent should not be joined and has been improperly included as a party and should be removed pursuant to r 69(1)(a) of the UCPR;
  1. (b)
    Section 45 of the Magistrates Court Act1921 (Q) provides that leave to appeal is necessary where the amount involved is less than $25,000.  No leave has been sought and there is no important principle of law or justice requiring leave in this case;
  1. (c)
    The outline of argument fails to comply with the practice direction;[3]and
  1. (d)
    The claim for $100,000 was never pleaded in the defence and should be struck out.

Oral submissions

  1. [15]
    At the hearing of this matter on 12 February 2016, it became evident to me that the appellant had received the respondents’ outline of submissions only shortly before the hearing. I gave the appellant the opportunity of an adjournment to consider the matters raised therein but he did not avail himself of this opportunity. He informed me that his main argument was that the District Court had no jurisdiction to hear the matter as the value of the land was in excess of $750,000. He did not wish to respond in any detail to the respondents’ submissions. The appellant’s wife also informed me that she had actually paid the judgment debt. I wondered whether the matter needed to proceed at all in light of that. The matter was stood down so the parties could discuss it to come to a resolution but that did not seem to be possible and the appellant alleged his wife had paid the debt without his knowledge and continued to allege that the debt was not owed.

Further written submissions

  1. [16]
    After the matter was reserved a written statement from the appellant’s wife was received by associate via email. This statement which is unsigned alleges that:
  1. (a)
    Mrs. Woolnough had no choice but to pay the bill because a “writ” had been taken out by the respondent on their property.
  1. (b)
    She paid the bill without the knowledge of the appellant.
  1. (c)
    She alleges that the appellant told the second respondent he was out of work and had no money.
  1. (d)
    The respondents have refused to discuss the bill.
  1. (e)
    The respondent has refused to remove the writ despite the bill being paid and a further $3600 is owing.
  1. (f)
    There was a clerical error in the court receipt.
  1. [17]
    The respondents have objected to these further submissions as it is submitted it amounts to further unsworn evidence. In further written submissions filed on 16 February 2016 the respondents also submit that:
  1. (a)
    The evidence is not sworn;
  1. (b)
    The evidence was not included in the defence or presented in the Magistrates Court;
  1. (c)
    The evidence is largely irrelevant;
  1. (d)
    The appellant should not be entitled to put in further evidence.  
  1. [18]
    Finally in terms of submission on 17 February 2016 the appellant filed a submission via email. Again this is an unsworn statement. He alleges:
  1. (a)
    The bill of $1005 is not his.
  1. (b)
    He told the second respondent he had no money.
  1. (c)
    The Magistrate asked his witnesses to leave the room leaving him with no defence. 

Disposition

  1. [19]
    Section 45 of the Magistrates Court Act1921 (Q) provides:

“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
  1. (b)
    in an action for the recovery of possession of land if—
  1. (i)
    the value of the land is more than the minor civil dispute limit; or
  1. (ii)
    the annual rental of the land is more than the minor civil dispute limit; or
  1. (c)
    in proceedings in interpleader in which the amount claimed or the value of the goods in question is more than the minor civil dispute limit; or
  1. (d)
    in a proceeding under the Property Law Act 1974, part 19, division 4, subdivision 1;

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 (1) 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. (b)
    an appeal shall not lie from the decision of the Magistrates Court if, before the decision is pronounced, both parties agree, in writing signed by themselves or their lawyers or agents, that the decision of the court shall be final.
  1. (3)
    Within the time and in the way prescribed by the rules, the appellant must give to the other party or the other party's lawyer notice of the appeal, briefly stating the grounds of the appeal.
  1. (4)
    Notice of appeal shall not operate as a stay of execution upon the judgment, but the execution may proceed unless the magistrate or a District Court judge otherwise orders.
  1. (5)
    In this section—

minor civil dispute limit means the amount that is, for the time being, the prescribed amount under the Queensland Civil and Administrative Tribunal Act 2009.”

  1. [20]
    The amount prescribed under the QCAT Act is $25,000.[4] 
  1. [21]
    Leave to appeal should have been sought by the appellant under s 45 of the Magistrates Court Act1921 (Q).  He has failed to seek leave to appeal and it is true that the period of time within which leave to appeal should be sought has passed.  Despite this I will consider whether there is some important principle of law or justice in this case. 
  1. [22]
    In American Express International Inc. v Hewitt[5]it was said that an important principle of justice requires that there be a question going beyond the consequence of a decision upon the immediate parties to the action or matter. 
  1. [23]
    Davies JA at p 353.40 stated:

“…it is not speaking merely of the injustice which a party will generally suffer when a decision is made against that party which appears to be wrong.  It is speaking of a question which goes beyond the correctness or otherwise of the decision… merely demonstrating that a decision is arguably or even probably wrong does not establish that the important question of justice is involved.”

More than a mere error in the exercise of a judicial discretion must be established.[6]

  1. [24]
    I do not consider in this case that the appellant has put forward any evidence, nor is there any evidence on the material, that there is an important principle of law or justice involved in this case. The case simply concerns the payment of legal fees, the evidence revealed that instructions had been given and advices have been given to the appellant[7]; the legal fees appear to be reasonable and, in the circumstances, I do not consider that an important principle of law or justice is involved here.  Further, the fact is the judgment debt has also apparently been paid, so it is difficult to see that there is any important question of law or justice involved.
  1. [25]
    Even considering the matters raised in the unsworn statements of Mr and Mrs Woolnough no important principle of law or justice arises. Many of the matters raised relate to matters after the judgment was given and the application to set aside the judgment was refused and are not relevant to whether the Magistrate erred in refusing to set aside the judgment.
  1. [26]
    In the circumstances, I strike out the appellant’s appeal.
  1. [27]
    As to the argument concerning the outline of argument, I would not be prepared to strike out the appeal on that basis. The fact is the appellant is unrepresented and has raised sufficient for the conduct of the appeal and the respondents are in a position to be able to file written submissions in support of their position. I do not strike out the appeal on that basis.
  1. [28]
    If I am wrong concerning my conclusion as to the leave point I would order the removal of Gene Patterson’s name as second respondent, pursuant to r 69 of the UCPR.  He was never a party to the proceedings below and should not be joined here.
  1. [29]
    I would further strike out that part of the Notice of Appeal where damages are sought for $100,000 as no counterclaim in that regard was brought in the Magistrates Court.

Orders

  1. [30]
    In the circumstances, my formal orders are:
  1. The appeal is struck out.
  1. I will hear the parties on the question of costs.

Footnotes

[1]  Affidavit of Caitlin Elise Roberts filed 11 August 2015 – Document 9.

[2]  Affidavit of Caitlin Elise Roberts sworn 1 July 2015 – Document 8.

[3]  Paragraph 2, District Court Practice Direction No. 5 of 2001.

[4]  See Schedule 3 to QCAT Act.

[5]  [1993] 2 Qd R 352.

[6] Gibson v Nominal Defendant [1996] QCA 240 at p10.

[7]  See letters referred to above at [9]. This evidence is objective evidence contrary to the appellant’s assertions in his defence, outline and unsworn statement. 

Close

Editorial Notes

  • Published Case Name:

    Woolnough v Macrossan and Amiet Pty Ltd (ABN: 361 316 593 84) Trading as Macrossan and Amiet

  • Shortened Case Name:

    Woolnough v Macrossan and Amiet Pty Ltd (ABN: 361 316 593 84) Trading as Macrossan and Amiet

  • MNC:

    [2016] QDC 20

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    18 Feb 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
American Express International Inc v Hewitt [1993] 2 Qd R 352
2 citations
Jump To
Cite 1 - [1993] 2 Qd R 352
Cite 2 - [1993] 2 Qd R 352
Gibson v The Nominal Defendant (Queensland) [1996] QCA 240
2 citations
Jump To
Cite 1 - [1996] QCA 240
Cite 2 - [1996] QCA 240

Cases Citing

Case NameFull CitationFrequency
Woolnough v Macrossan and Amiet Pty Ltd (No 2) [2016] QDC 301 citation
1

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