Nguyen v Sensis Pty Ltd[2016] QDC 304

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 17 November 2015, the appellant filed a claim for breach of contract in the Richlands Magistrates Court, within the limitation period, against the respondent for the amount of $42,400 in damages plus interest and costs.
2. [2]
   The respondent brought an application, which was heard on 15 March 2016, to have the claim struck out or stayed as an abuse of process. The abuse was said to have occurred because the appellant had previously had a claim in the District Court for the same cause of action. By agreement between the parties (except as to costs), that claim was dismissed for want of prosecution on 9 March 2016, and the appellant was ordered to pay the respondent’s costs of and incidental to the proceeding in the District Court.
3. [3]
   The respondent did not contend before the magistrate that, after having its costs paid, it suffered any particular prejudice beyond the claim continuing in the Magistrates Court (see T 1-7 L 4-6; T 1-7 L 19-24; T 1-8 L 42-44). The appellant made clear to the magistrate that he had filed a notice of discontinuance in relation to the claim in the District Court and that, at least as far he was concerned, the application for the order dismissing the claim in the District Court was not opposed because “it was always within the minds of these parties that this matter would continue but in this court” (see T 1-15 L 18-19; also see T 1-15 L 41-44; T 1-16 L 6-7; T 1-16 L 25-27; T 1-18 L 17-18; T 1-19 L 8-13).
4. [4]
   The magistrate, relying on an obiter dicta statement by McGill DCJ in Bendeich v Clout [2003] QDC 305 at [57], held that it was “a blatant abuse of process to commence other proceedings when you knew the first proceeding were doomed to failure because of a lack of prosecution for a period of more than two years.”
5. [5]
   The appellant’s claim in the Magistrates Court was dismissed and he was ordered to pay the respondent’s costs of the action and the application.

The appeal

6. [6]
   The appellant appeals on the ground that “The court below erred in finding that the proceedings were an abuse of process.” The particular errors relied on by the appellant in his written and oral submissions were: that there was insufficient evidence to support the magistrate’s finding; and that the magistrate acted on a wrong principle in dismissing the appellant’s claim for abuse of process: see Dinsdale v The Queen (2000) 202 CLR 321 at 325-326.
7. [7]
   The appeal is under s 45 of the Magistrates Courts Act 1921 (the Act). Section 45(1) of the Act relevantly provides:

8. [8]
   The minor civil dispute limit is defined under s 45(5) of the Act as being “the amount that is, for the time being, the prescribed amount under the Queensland Civil and Administrative Tribunal Act 2009” (the QCAT Act). Schedule 3 of the QCAT Act provides that the prescribed amount is $25,000, and so this appeal is one as of right.
9. [9]
   The nature of such an appeal, as indicated by s 45(1) of the Act, is determined by the relevant rules, specifically the Uniform Civil Procedure Rules 1999 (the UCPR). Thus this appeal is brought pursuant to r 783 of the UCPR. Rule 765, made applicable by r 785, provides in subrule (1) that an appeal under Chapter 18 of the UCPR is an appeal by way of rehearing. Rule 765(2) provides that:

“However, an appeal from a decision, other than a final decision in a proceeding, or about the amount of damages or compensation awarded by a court is brought by way of an appeal.”

10. [10]
    ‘Appeal’ in that subrule means by way of strict appeal: see Kambarbakis v G & L Scaffold Contracting P/L [2008] QCA 262 per Holmes JA (as her Honour then was) at [30]-[31].
11. [11]
    In this case, while there was no final judgment on the merits of the case by way of trial or otherwise, the term ‘final decision’ in r 765(2) holds a wider meaning. The magistrate’s order of dismissal should be classified as a final decision in the proceeding for the purposes of the UCPR as it brought the proceedings below to an end, precluding further consideration of all questions raised by that claim: see De Innocentis v Brisbane City Council [2000] 2 Qd R 349 at 357 per Chesterman J (with whom Pincus and Thomas JJA agreed). Therefore this appeal is by way of rehearing.
12. [12]
    The rehearing involves a review of the record of proceedings below rather than a completely fresh hearing. The court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits: see Fox v Percy (2003) 214 CLR 118 at 125. On such an appeal, the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing any witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions: see Mbuzi v Torcetti [2008] QCA 231 at [17].
13. [13]
    Both parties submit that the order for dismissal made by the magistrate below was discretionary in nature and engages the principles in House v The King (1936) 55 CLR 499 at 504-505. However, to issue a stay or order a dismissal of an action which is judged to be an abuse of process is not discretionary – the court cannot refuse to act where proceedings are an abuse of process or strike out a proceeding where they are not: see Cosenza & Anor v Gill & Ors [2016] SASC 154 at [11] and Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 at 264. However, in any event, when reviewing the magistrate’s decision on an appeal such as this the court must examine whether the magistrate “acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration.”: see Batistatos at 264, quoting R v Carroll (2002) 213 CLR 635 at 657, and Cosenza [2016] SASC 154 at [11].
14. [14]
    The powers of this court on an appeal under s 45 are set out in s 47 of the Act, which provides that:

“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;
2. (b)
   order a new trial on such terms as it thinks just;
3. (c)
   order judgment to be entered for any party;
4. (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;
5. (e)
   as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon;
6. (f)
   make such order with respect to the costs of the appeal or special case as it thinks proper.”

15. [15]
    Additionally, for an appeal pursuant to the UCPR, the court is further given the powers enumerated in r 766(1). This rule relevantly provides that the appeal court:

16. [16]
    For completeness, s 113 of the District Court of Queensland Act 1967 provides that on appeal from the Magistrates Court, this court has the same powers that the Court of Appeal has to hear an appeal.

The issue

17. [17]
    The respondent sought to defend the magistrate’s decision on several bases. It contends the magistrate was correct to apply the obiter statement by McGill DCJ in Bendeich at [57]; and that the fact that the original proceeding had been struck out for want of prosecution and that there was another claim for the same cause of action was of itself sufficient to prove an abuse of process. The respondent also contends that the facts admitted by the appellant in oral submissions made in the hearing below, in the absence of any other evidence from the appellant, were sufficient to establish an abuse of process.
18. [18]
    The relevant passage from Bendeich at [57] is:

“once a plaintiff has had one reasonable opportunity to pursue a particular cause of action against a defendant, after that comes to an end, whether because of dismissal on the merits, or because of dismissal for breach of a peremptory order, or because of dismissal for want of prosecution, it should ordinarily be seen as an abuse of process to commence another action against the same defendant for the same cause of action. There is in my opinion no reason to treat the third of these situations differently, particularly in the light of rules 5(3) and 389 [of the UCPR].”

19. [19]
    The parties do not contend that the Magistrates Court had no power to deal with matters it found to be an abuse of process: see Power v Heyward [2007] 2 Qd R 69 at 72, Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors [2013] QSC 130 at [26], and Williamson v Trainor [1992] 2 Qd R 572 at 580.

Discussion

20. [20]
    The requirement to conduct a real review of the evidence to determine whether there has been any legal or factual error is telling in this case. There was no agreed statement of facts. The magistrate said: “I don’t think I need any affidavit material.” The parties did not challenge that statement, and did not seek leave to file and read their affidavit material. The magistrate’s findings of fact and his decision were based entirely on the oral submissions made by the parties. There is little evidence as the parties did not, except to the limited extent detailed below, admit any facts in their oral submissions. Neither party sought to lead further evidence in the appeal.
21. [21]
    The magistrate made only the following findings of fact:

“It is undisputed that some years ago a claim for the same cause of action, but a larger quantum of damages, was filed in the District Court. No action was taken between 2013 and 2015 over a period of more than two years on that claim. Subsequently, an application was made by the defendant to have the matter dismissed for want of prosecution. That order was made earlier this year by her Honour Judge Richards in the District Court. In the meantime, in November 2015, the plaintiff had filed parallel proceedings in this court for exactly the same cause of action, but seeking a lesser quantum of damages and therefore that’s why a different jurisdiction.”

22. [22]
    From that the magistrate, after referring to Bendeich at [57], went on to find:

“The case appears to be directly on point. It seems to be exactly what’s happened in this case and it seems to me to be a blatant abuse of process to commence other proceedings when you knew the first proceeding were doomed to failure because of a lack of prosecution for a period of more than two years.”

23. [23]
    The appellant’s counsel, in answer to questions from the magistrate, did admit that the claim in the Magistrates Court was, except for the amount claimed, fundamentally the same as that in the District Court; that no action was taken in relation to the District Court action for two years; and that the claim in the District Court was dismissed for want of prosecution. His answers also clearly raised that there was a real issue as to why the appellant agreed to the claim in the District Court being dismissed for want of prosecution and as to how the claim in the Magistrates Court would be dealt with. For example, one such exchange included:

“it was always within the minds of the parties that the matter would end within the District Court and it would continue in this court, your Honour. That’s why it wasn’t opposed. Because it was never raised that that was an issue in that court, but it remains an issue here.” (See T 1-15 L 41-44)

24. [24]
    A court that decides a question of fact when there is no evidence in support of the finding makes an error of law: see Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390 at 418.
25. [25]
    The magistrate’s primary finding that the appellant knew that the claim in the District Court was “doomed to failure because of a lack of prosecution for a period of more than two years” cannot be supported either on the evidence or as a matter of law. There was no evidence as to the appellant’s state of mind and it could not be inferred from the limited so-called ‘admitted facts’. Further, the fact that no step had been taken in the action for two years would not of itself doom the proceedings to fail, as it is open for a party to apply under r 389(2) of the UCPR for leave to proceed. This finding is sufficient to allow the appeal.
26. [26]
    However, it is useful to examine how the magistrate applied what was said in Bendeich at [57]. Bendeich is not directly on point, as Judge McGill was not deciding the question of whether a matter should be dismissed for want of prosecution or whether a subsequent proceeding should be dismissed as an abuse of process. Rather, the question for resolution in Bendeich was whether leave to proceed should be granted after no step had been taken by the plaintiff in that case for over seven years, with the last step in the proceeding by any party having been made by one of the defendants five years previous. Further, the circumstances referred to by Judge McGill are somewhat different to the circumstances of this case. Judge McGill was stating the ordinary position where one claim comes to an end by being dismissed and another claim is thereafter commenced. The fundamental distinction is that in this case the claim in the Magistrates Court was commenced before the District Court claim was dismissed.
27. [27]
    Importantly, the magistrate proceeded on the understanding that the statement was authority for the principle that to bring a claim within the limitation period identical to one which was previously dismissed for want of prosecution is of itself an abuse of process “as it would render meaningless the order of the District Court dismissing a claim for want of prosecution at any time prior to the expiration of the limitation period”. Judge McGill made clear that the position stated by him was merely an ordinary position, and is not conclusive. In Birkett v James [1978] AC 297 at 321, 328 and 334, a decision which concerned a second action in anticipation that a strike-out motion, for want of prosecution, would dispose of the first action, it was observed that a plaintiff could not be prevented from launching a fresh action even where they had previously had an identical proceeding dismissed for want of prosecution, unless it were an exceptional case. That principle was applied in Queensland in Madden v Kirkgard Ellwood & Partners [1983] 1 Qd R 649 and Williams v Zupps Motors Pty Ltd [1992] Qd R 493. Neither case has been overruled but the position on Birkett appears to have changed, in the context of the UCPR, but the extent of the shift is not clear: see Cooper v Hopgood & Ganim [1999] 2 Qd R 113 and Quinlan v Rothwell [2002] 1 Qd R 647.
28. [28]
    In any event, the focus is now concerned not so much with a particular event happening, but with the objective effect of the impugned act on the continuation of the action for the party seeking dismissal. The majority of the High Court in Batistatos made reference to a number of previous authorities in establishing the proper approach to determining abuses of process. At pages 266-267 of the judgment, their Honours relevantly quoted:

“In Ridgeway v The Queen, Gaudron J explained:

“The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are ‘frivolous, vexatious or oppressive’. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case.

…

Earlier, in Rogers v The Queen, McHugh J observed:

“Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.”” (citations omitted)

29. [29]
    There is no requirement that there be oppressive conduct by the plaintiff. Attention must be directed to the impugned act of the plaintiff and the objective burdensome effect upon the defendant of the action continuing, taking into account the circumstances of the case: see Batistatos at 281. Their Honours refused to follow Birkett to the extent that it was inconsistent with this approach.
30. [30]
    Brocx v Hughes (2010) 41 WAR 84 was a case involving a question of whether it was an abuse of process to bring a claim anew after it was previously dismissed for failure to comply with a springing order. In that case, Justice Newnes held that a party’s right to invoke the court’s jurisdiction for the same matter is not unlimited. His Honour further noted that it “would bring the administration of justice into disrepute, and be “productive of serious and unjustified trouble and harassment” to the defendant, if a party whose action had been dismissed by reason of their contumacious conduct could simply institute and proceed with a fresh action and, until the limitation period ran out, could continue to repeat that if and when the same fate befell them”: see Brocx at 102. His Honour refused to follow Birkett to the extent it was inconsistent with this finding.
31. [31]
    Birkett is no longer applied in its original form. However, the law remains that merely bringing an identical action to one previously dismissed for want of prosecution does not of itself constitute an abuse of process. The applicant for dismissal must show more than this. It will depend on whether, in all the circumstances of the case, the objective burdensome effect of doing so does render the continuation of the action unfair, an unjustifiable oppression or diminishes public confidence in the administration of justice.  That the bare fact of bringing fresh proceedings is not enough was made clear by Justice Buss in Brocx at 89, and Justice Newnes held similarly at 97, that the mere fact a proceeding was dismissed for failure to comply with a springing order does not ordinarily make a subsequent proceeding for the same cause of action an abuse of process. He said that “each case must, of course, depend upon its own facts and circumstances”: see 102 [98]; and 100-102 [92]-[97]. Importantly, the Queensland Court of Appeal has acknowledged a plaintiff’s ability to bring a fresh action within the limitation period where one had previously been dismissed for want of prosecution, citing Birkett, in Sirriss v Bowman [2012] QCA 108 at [11]. Further, Justice Fraser stated in obiter in Mango Boulevard P/L v Spencer [2010] QCA 207 at [117], that an application for dismissal for abuse of process was the appropriate response for a defendant in a situation such as this. However, his Honour said nothing about the circumstances in which that order would actually be granted upon such an application.
32. [32]
    The appellant has not, on the evidence, engaged in contumacious conduct. This is not a case where the appellant has disobeyed any orders of the court either deliberately or otherwise. Nor was there any issue of duplicity at the time of the hearing of the respondent’s application below, given that the District Court proceeding had been dismissed the previous week. It was clear that the circumstances of this case involved a real issue as to what had taken place as between the parties concerning the institution of the claim in the Magistrates Court and in the lead up to the plaintiff agreeing to the order dismissing the claim in the District Court for want of prosecution. Applying the correct test, it was necessary to determine the circumstances between the parties so as to decide whether to allow the plaintiff to maintain the claim in the Magistrates Court would be unjust, unfair, oppressive, or would bring the administration of justice into disrepute. This relevant and material consideration was not taken into account. Further, the state of the evidence was not sufficient to determine whether there had been an abuse of process in the circumstances of the case.

Conclusion

33. [33]
    The evidence in the case could not support the finding relied on to found the abuse of process; the magistrate wrongly applied the test to determine if there was an abuse of process in this case, and failed to take into account material considerations.
34. [34]
    For the above reasons I order that the appeal should be allowed; the orders of the magistrate on 15 March 2016, dismissing the appellant’s claim in the Magistrates Court and the order for costs, are set aside.

Costs

35. [35]
    Subject to any submissions either party wishes to make my provisional view is that given the issues in the appeal, each party should bear their own costs of and incidental to the appeal. I order that the parties are at liberty to make submissions in writing for an order as to costs of the appeal, to be served on the other party and filed before 4pm on 14 December 2016.