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Aguilar v Egnalig QDC 291
DISTRICT COURT OF QUEENSLAND
Aguilar & Anor v Egnalig  QDC 291
MARIA LOUISA (MALOU) AGUILAR
Magistrates Court at Brisbane
23 November 2016.
District Court at Brisbane
28 October 2016
Dick SC DCJ
APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – where the appellant failed to appear at the application for summary judgment – where the appellant failed to comply with orders – where there was unacceptable delay in withdrawing admissions – where the appellant must demonstrate some legal, factual, or discretionary error – whether the learned magistrate gave reasons for the decision to refuse to set aside judgment
Bawden v ACI Operations Pty Ltd  QCA 293
Attorney-General (Qld) v Lawrence  QCA 347
White v Commissioner of Police  QCA 121
Mr Stephens, Alexander Law for the appellants
Mr Desacola, Winthrop Mason Lawyers for the respondent
- This is an appeal from the decision of the learned magistrate to refuse to set aside judgment.
- The plaintiff in the Magistrates Court proceedings was a client of the first and second appellants who operated a migration agency business until they were respectively banned and suspended by the office of the Migration Agents Registration Authority (“MARA”).
- The Statement of Claim was filed in the Magistrates Court on 13 November 2014 and was based on a breach of contract, misrepresentation, fraud and negligence in the sum of $150,000.00 plus interest and costs. Essentially, the plaintiff’s case was that she had paid money to the defendants, but that the defendants had not provided the service in return (and could not produce any evidence of work having been undertaken in relation to a visa application). On 17 December 2014 a Defence was filed by Carrolls Law Practice. On 16 January 2015 an Amended Defence was filed by Carrolls Law Practice.
- In April 2015 the plaintiff applied to the court for orders:
- That the defendant deliver their list of documents within seven days; and
- The defendants deliver within seven days copies of all the documents requested by the plaintiff from their list of documents.
- On 7 May 2015 the then defendants filed a Further Amended Defence. At this time the defendants were being represented by Stephens & Tozer Solicitors.
- On 24 June the solicitor for the plaintiff wrote to the defendant solicitors requesting a response to the question of whether the defendants would be agreeable to either obtaining their records directly from the Australian Tax Office (“ATO”) or signing an authority which would allow the plaintiff to obtain those records on their behalf. On the same day the plaintiff solicitors wrote to the defendant solicitors pressing for the filing of the Second Further Amended Defence. The tax records were relevant to an allegation in the Statement of Claim that both the defendants owned and operated the business, whereas in the Defence the defendants denied it.
- On 29 June 2015 the plaintiff brought an application for disclosure, to strike out pleadings, particulars and costs.
- On 16 May 2015 the plaintiff solicitors sent the defendant solicitors a letter outlining numerous defects in relation to their Further Amended Defence and a letter serving a Request for Further and Better Particulars of the Further Amended Defence.
- On 20 May 2015 the defendants delivered their list of documents by email. On the same date the plaintiff sent the defendants a letter outlining numerous deficiencies in the disclosure. On 28 May 2015 the plaintiffs send the defendants an email noting that they had agreed to provide their amended pleadings by Friday 29 May 2015.
- On 31 May the plaintiffs sent the defendants an email noting that the defendants had not provided the pleadings within the agreed time but allowed an extension to 1 June 2015.
- On 2 June 2015 the plaintiffs sent the defendants a letter serving a notice pursuant to rule 444 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) and raising the following issues:
- (a)The failure of the defendants to comply with their duty of disclosure in accordance with rule 211 of the UCPR;
- (b)The defendant’s failure to provide a Second Further Amended Defence which complied with rule 165 and rule 166 of the UCPR; and
- (c)The failure of the defendants to provide Further and Better Particulars in the Further Amended Defence.
- On 5 June 2015 the defendants sent an email response to the plaintiff pursuant to rule 455 of the UCPR indicating that the defendants had provided disclosure of all documents in their possession or control which were directly relevant to the proceedings and indicating that there would be a Second Further Amended Defence provided by 12 June 2015.
- On 9 June 2015 the plaintiffs sent the defendants a letter noting that their disclosure remained deficient. In addition, the plaintiff requested the defendants obtain relevant records from the ATO, the MARA and the Department of Immigration and Border Protection, or, alternatively, give the plaintiff authority to obtain those records on their behalf.
- On 13 June 2015 the plaintiff sent the defendants two emails pressing for a response to their previous letters. On 15 June 2015 the defendant sent the plaintiff an email enclosing various documents. On 16 June 2015 the plaintiffs again wrote, noting they had not specifically responded to the request for access to their ATO records and allowing the defendants up to 18 June 2015 to provide a satisfactory response.
- On 19 June 2015 the plaintiff sent the defendant two emails pursuing responses. On the same day the defendants sent an email requesting an extension to 24 June 2015 to provide the amended pleadings and Further and Better Particulars. The request was granted.
- On 23 June 2015 the plaintiff’s solicitors sent an email to the defendant solicitors informing them that she would proceed with her application for disclosure if the request for access to ATO records was not granted. In response, the defendants requested an extension to 25 June 2015 to provide amended pleadings and Further and Better Particulars. The request was granted.
- On 25 June 2015 the defendant sent two emails to the plaintiff purporting to deliver the Second Further Amended Defence and answers to their request for Further and Better Particulars. The plaintiff was of the view that those documents had failed to adequately address many of the issues raised by the plaintiff in previous correspondence. Nor had the defendants specifically responded to the numerous requests for access to their ATO records and so the plaintiff pursued the application for Further and Better Particulars as well as Further Disclosure.
- On 10 November 2015 Chief Magistrate Rinaudo ordered the striking out of parts of the pleadings, particulars and costs.
- The striking out of paragraphs of the Second Further Amended Defence resulted in the corresponding paragraphs of the plaintiff’s Statement of Claim being deemed to have been admitted.
- At the hearing on 10 November 2015, neither the defendants nor solicitors on their behalf attended the hearing. There was no notice of an excuse or explanation for non-attendance. However, on the afternoon that the order was made, Cruise Lawyers sent a letter to the plaintiff’s lawyers indicating that they were not in a position to proceed with the hearing of the matter and emailed a copy to the court.
- A sealed copy of the order was taken out and on 18 November 2015 the plaintiff applied for summary judgment. The application was returnable to 14 December 2015.
- On 18 November 2015 solicitors for the plaintiff wrote to Mr Cruise, the principal of Cruise Lawyers, enclosing a copy of the application for judgment.
- On 14 December 2015 the application was adjourned to 15 January 2016.
- On 15 January 2016 Magistrate Cull ordered that there be summary judgment against the defendants pursuant to rule 291 of the UCPR or, alternatively, pursuant to rule 225(2B) or rule 163 of the UCPR.
- At the first return date for the application for summary judgment on 14 December 2015, the court file notes that Mr Cruise appeared by telephone and that the matter was adjourned until 11.00am on 15 January 2016 for one hour. There was an order that Mr Cruise, the solicitor for the first and second defendants, pay the plaintiffs costs of $579.00.
- On 10 March 2016 an application to set aside judgment was filed.
- In support of the application to set aside judgment, the male defendant explained that in February 2015 he engaged the services of Stephens & Tozer Lawyers to assist in the defence of the matter because he needed to engage a lawyer with a working knowledge of migration law. Stephens & Tozer amended the defence and the latest amendment was filed on 6 July 2015. Mr Aguilar said that on 5 August 2015 he terminated the services of his lawyers “as I found they were not accepting all my instructions.” He said that on 7 August 2015 he instructed Mr Cruise to handle the case. He said he was not aware of the orders made by the Chief Magistrate on 10 November 2015 until he was notified by his lawyer after the lawyer had checked the file on 10 February 2016. He said the first time he was aware his previous lawyer did not attend court on 15 January 2016 was on 17 January 2016, when he received the transcript of the proceedings. He says the delay in adhering to the orders of 10 November 2015 and the failure to appear on 15 January 2016 “was occasioned by the failure of Leo Cruise to advise us of his failure to appear and to comply with the order.”
- On the first appearance before the featured Magistrate, His Honour pointed out that the defendants had filed a notice that they were acting in person on 7 August 2015.He also pointed out that Cruise Lawyers had never been on the record, although there was a note that Mr Cruise appeared by telephone. The learned Magistrate also pointed out there had been no compliance with any of the orders made by the Chief Magistrate.He pointed out that summary judgment was given on the basis of their failure to comply with the magistrate’s orders.
- His Honour said:
I see that I made orders in – on 27th April 2015 requiring the defendants to make proper disclosure and serve a request for trial date within seven days or sign a request for trial date seven days after having been served with it. Apparently those orders weren’t complied with either, were they Mr Desacola?
No, your Honour.
- His Honour said further:
Yes. Because in the transcript of Magistrate Cull’s decision, when she gave judgment she said with – referred to their admissions on the pleadings without any appearance and without compliance with the orders of the Chief Magistrate she said she didn’t have any hesitation giving judgment, clearly upon the admissions made in the proceedings.
- Later his Honour said:
The point is that the admissions were made and they’re in the further amended defence that was the basis of their defence at the time the summary judgment application was bought, but quite apparently admitted all of the elements of the causes of action. A mere assertion that plaintiffs can’t – the plaintiff can’t succeed is not enough (emphasis added).
- His Honour further said:
As I’ve pointed out, four separate defences have been filed by your clients. The – there’s never been an application to withdraw admissions that I can see, and the proceeding was – went to judgment on the basis that – of the admissions made in the defences and the deemed admissions consequent upon the Chief Magistrate striking out paragraphs in the second further amended defence.
- Mr Markwell, appearing for the appellants, said “They haven’t been represented competently, your Honour.”The matter was then adjourned to 20 May.
- His Honour queried why he would accept assertions made by Mr Aguilar as to things done without instructions in relation to the filing of the Second Further Amended Defence by Stevens & Tozer. His Honour referenced the Affidavit of Mr Aguilar filed 19th of May “where he is effectively disavowing any knowledge of the Second Further Amended Defence and the admissions and statements contained within it”.
- Mr Iskander replied “Well, he says he was not - was not given the opportunity to review them.”
- His Honour also pointed out that there was nothing in the affidavit to explain that a solicitor appeared on 14 December 2015 and applied to have the summary judgment application adjourned to 15 January 2016. He also pointed out that the female defendant had appeared in person on 7 August 2015 at the application for disclosure and was given the submissions of the plaintiff, and so was fully aware of what was being applied for and the reasons for it.
- Finally the parties appeared on 3 June 2016. By that time Robert McArdle, a solicitor employed at Stephens & Tozer, had filed an affidavit. Mr McArdle swore that he met with both defendants on 19 May 2015 and with the first defendant on 28 May 2015, 29 May 2015, 3 June 2015 and 5 June 2015, and that those meetings related to the drafting of the Second Further Amended Defence and answers to the plaintiff’s requests for further and better particulars and the conduct of the matter generally. He said he also spoke to the first defendant by telephone on numerous occasions regarding the pleadings and he had sent and received significant email correspondence relating to the pleadings. He said that the draft amended defence was emailed to the defendant, who instructed the pleadings were accurate. His Honour said that as he read it:
…giving summary judgment was essentially because of the complete failure to comply with the orders of the Chief Magistrate fortified by the admissions made in the Second Further Amended Defence.
- His Honour went on to say that he accepted the evidence of Mr McArdle in its entirety and, where it conflicted with the evidence of the male defendant, his Honour accepted Mr McArdle’s evidence.His Honour pointed to the ten pages of detailed instructions in writing which was appended to Mr McArdle’s affidavit.There was no evidence or appearance by Mr Cruise to explain the failure to appear.
- His Honour found:
... there’s no proper explanation been given, in my view, for the failure to, firstly, file any material in opposition to the application for summary judgment that was brought in November of 2015 (emphasis added). There’s not been any proper explanation for the failure to comply with the Chief Magistrate’s orders which were the catalyst for the application being brought (emphasis added). And there’s no proper explanation been given as to the failure to, firstly, appear, and secondly, file any material in opposition to the application for summary judgment beyond the bland assertion that “I didn’t know anything and nobody told me,” which I find difficult to accept having regard to the apparent very detailed interest Mr Aguilar was taking in the case whilst Mr McArdle had conduct of it, as demonstrated by the extensive instructions he gave.
I also don’t accept that he didn’t know anything about the contents of the second further amended defence and didn’t approve the - their filing (emphasis added). I accept Mr McArdle’s evidence on the point.
Later his Honour said:
I am not satisfied that any proper reasons had been given for failures to comply with court orders in the past and failures to appear, and I don’t accept allegations – I don’t accept that allegations of incompetence by various practitioners have been made out on the evidence. In my view, Mr Aguilar’s taken a keen interest in the proceedings all the way through, as his written instructions to Mr McArdle demonstrate. I don’t accept that there was no clear direction in the matter.
- His Honour heard evidence from Mr McArdle and from Mr Aguilar. It is apparent that Magistrate Shearer did consider the following issues:
- (a)There was a failure to explain the lack of appearance at the application for the summary judgment;
- (b)The appellant was aware of the application for summary judgment (Mr Cruise appeared by telephone on 4 November 2015);
- (c)There was a failure to explain the non-compliance with the order of 10 November 2015;
- (d)That on the basis of the deemed admissions and withdrawn sections that there were no merits in the matter; and
- (e)That the defendants knew and gave instructions for the deemed admissions.
- It is well-established that there is a duty on the part of judicial tribunals to give reasons for their decisions, and the failure to give reasons, which ought to be given, can amount to an appealable error.
- The respondent argues that this did not happen here. However, the transcript reveals exactly why the learned Magistrate ruled the way he did. It is submitted that both by express statement and by obvious inference the learned Magistrate did so.
- On the 19 May 2016 the appellants applied to withdraw the Admissions. In respect of the application to allow the Withdrawal of the Admissions I am of the view that the learned magistrate did consider how and why the admissions were made and found that they were made on the basis of detailed instructions to Mr McArdle. He considered the delay in making the application to withdraw the admission and found it unacceptable.
- The magistrate’s decision whether or not to set aside the summary judgment was clearly a discretionary one.
- In Attorney-General (Qld) v LawrenceMuir JA (with whose reasons Fraser and White JJA agreed) summarised the applicable legal principles in relation to the appellate court’s role when reviewing a judge’s exercise of discretion based on findings of fact. His Honour said “Before an appellate court can interfere it must be shown that the primary judge acted on a wrong principle, failed to take a material consideration into account, took into account an immaterial consideration”.The appeal court is also required to give due deference and attach a good deal of weight to the magistrates view.
- Fundamentally the appellant must demonstrate some legal, factual or discretionary error.While this is not an appeal against the granting of the summary judgment by Magistrate Cull, it is my view that the learned Magistrate here was entitled to conclude that in granting summary judgment Magistrate Cull must necessarily have been satisfied that the appellants had no real prospect of successfully defending all or part of the respondent’s claim and there was no need for a trial of the claim.
- The appeal is dismissed. The appellants are to pay the respondents costs of and incidental to the appeal.
 Uniform Civil Procedure Rules 1999 (Qld) Rule 166(5).
 Transcript of Proceedings before Magistrate Shearer 18/04/2016, T1-3 line 21.
 Transcript of Proceedings before Magistrate Shearer 18/04/2016, T1-4 line 26.
 Transcript of Proceedings before Magistrate Shearer 18/04/2016, T1-5 line 19.
 Transcript of Proceedings before Magistrate Shearer 18/04/2016, T1-5 lines 44 – 47; T1-6 line 1.
 Transcript of Proceedings before Magistrate Shearer 18/04/2016, T1-7, lines 32 – 36.
 Transcript of Proceedings before Magistrate Shearer 18/04/2016, T1-7, lines 43 – 47.
 Transcript of Proceedings before Magistrate Shearer 18/04/2016, T1-10, lines 38 – 43.
 Transcript of Proceedings before Magistrate Shearer 18/04/2016, T1-11 line 30.
 Transcript of Proceedings before Magistrate Shearer 20/05/2016, T1-7, lines 15 – 28.
 Transcript of Proceedings before Magistrate Shearer 20/05/2016, T1-7, line 30.
 Transcript of Proceedings before Magistrate Shearer 03/06/2016, page 3 line 12.
 Transcript of Proceedings before Magistrate Shearer 03/06/2016, page 3 line 15.
 Transcript of Proceedings before Magistrate Shearer 03/06/2016, page 3 line 26.
 Transcript of Proceedings before Magistrate Shearer 03/06/2016, page 4 lines 9 – 22.
 Transcript of Proceedings before Magistrate Shearer 03/06/2016, page 4 lines 33 – 39.
 Transcript of Proceedings before Magistrate Shearer 03/06/2016, page 4 line 14.
 Transcript of Proceedings before Magistrate Shearer 03/06/2016, page 4 lines 10 – 13.
 Transcript of Proceedings before Magistrate Shearer 18/04/2016, T1-10 lines 40 - 43.
 Transcript of Proceedings before Magistrate Shearer 03/06/2016, page 4 lines 20 – 39.
 Bawden v ACI Operations Pty Ltd  QCA 293.
 Transcript of Proceedings before Magistrate Shearer 03/06/2016, page 4 line 27.
  QCA 347.
 Attorney-General (Qld) v Lawrence  QCA 347 .
 White v Commissioner of Police  QCA 121 at  per Morrison JA (Muir JA and Atkinson J agreed).
 White v Commissioner of Police  QCA 121 at  per Morrison JA (Muir JA and Atkinson J agreed).
- Published Case Name:
Aguilar & Anor v Egnalig
- Shortened Case Name:
Aguilar v Egnalig
 QDC 291
23 Nov 2016
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QDC 291||23 Nov 2016||-|
|Notice of Appeal Filed||File Number: Appeal 13391/16||21 Dec 2016||-|
|Appeal Determined (QCA)|| QCA 175||18 Aug 2017||-|