Bucknell v Parker[2018] QDC 36

DISTRICT COURT OF QUEENSLAND

[1] The appellant seeks leave to appeal an order of the Magistrates Court made on 5 September 2016 granting summary judgment for the first and second respondents pursuant to rule 293 Uniform Civil Procedure Rules 1999 (“UCPR”).

[2] As for the reasons discussed below the appellant requires leave to appeal this decision, the application for leave to appeal was heard along with the merits of the appeal.

BACKGROUND

[3] The appellant is a grazier whose property is located at Woodstock in Queensland. On 16 September 2015 the appellant initiated proceedings in the Magistrates Court Townsville against the first and second respondent for damages in the sum of $25,000. The amended claim and statement of claim filed by the appellant on 12 October 2015 alleged that:

• On 18 September 2009 a fire ignited on the appellant’s property in the immediate vicinity of a new powerline being constructed by Powerlink Queensland on an easement which traversed the appellant’s land. However, no damage was suffered by the appellant from the fire at this time largely because of the intervention of the appellant in preventing it from entering his property;
• On attending the fire Powerlink assumed responsibility for the fire and gave an undertaking to compensate the appellant for any losses he incurred as a result of the fire;
• The second respondent was commissioned by Powerlink to investigate the cause of the fire;
• The second respondent negligently held out the first respondent as a fire investigation expert;
• On 23 and 24 September 2009 the first respondent negligently undertook an investigation into the cause of the fire;
• Following on from the investigation, the first and second respondents prepared and published a Fire Investigation Report into the fire which discounted that a cigarette could have caused the fire. This report was biased in favour of Powerlink and concluded that the fire had been deliberately lit by a person other than any person known to be working in the area at the time;
• On 15 October 2009 the fire breached fire breaks and despite the best efforts of the appellant, the fire entered his property and burnt out some 80 percent of the property;
• As a result of the negligence of the first and second respondents, the appellant suffered loss by reason that Powerlink relied upon the negligent report to refuse to compensate the appellant for his loss and damage caused by the fire;
• The loss and damage suffered by the appellant was particularised as $6,000 for labour and machinery costs, $9,500 for replacement fencing and $9,500 for loss of income, that being a total of $25,000.    

[4] On 1 December 2015 the first and second respondents filed a defence denying the allegations of negligence alleged in the statement of claim and asserting that no cause of action in negligence was made out on the facts pleaded. On 8 January 2016 the appellant filed a reply in which, inter alia, the basis upon which it was alleged that the first and second respondents were negligent was further pleaded.

[5] The appellant has throughout the proceedings below and in the present appeal been self-represented.  

[6] A settlement conference ordered by the court failed to result in a settlement of the action. Further applications were dealt with by the court after this which are not relevant to this appeal. On 25 August 2016 the first and second respondents made application for summary judgment.

[7] The summary judgment application was heard and determined on 5 September 2016 in the Magistrates Court Townsville. The magistrate granted summary judgment to the first and second respondents. This appeal relates to the making of that order.

Grounds of Appeal

[8] The appellant relies upon 13 grounds of appeal. Those grounds raise six principal contentions which can be summarised as follows:

1. The magistrate erred in finding that no duty of care existed between the appellant and the first and second respondents (Grounds 1, 2, 3);

2. The magistrate erred in failing to have regard to the entirety of the pleadings, in particular the reply filed by the appellant, when determining the application for summary judgment (Ground 4);

3. The magistrate failed to apply the simplified procedure rules contained in Chapter 13, Part 9, Division 2 UCPR when determining the application (Ground 5, 11 and 13);

4. The magistrate failed to apply the correct test when granting summary judgment (Grounds 6, 7 and 8);

5. The magistrate failed to have regard to various other matters when determining the application (Grounds 9 and 10);

6. The magistrate failed to have regard to the first and second respondents filing their defence out of time when determining the application (Ground 12).

How the appeal is to be determined

[9] The appellant is appealing an order of the magistrate court pursuant to section 45 Magistrates Courts Act 1921 (Qld) (“the Act”). Because the quantum of the appellant’s claim did not exceed $25,000, and therefore does not exceed the minor civil dispute limit,^[1]the appellant requires leave to appeal: section 45(2). Leave shall not be granted unless the court is satisfied that “some important principle of law or justice is involved”.^[2]

[10] In Ramzy v Body Corporate for GC3 CTS38396 & Anor [2012] QDC 397, McGill DCJ expressed the principles to be applied to an appeal under section 45 of the Act at [41]-[42] as follows:

[41]  Under this subsection I “shall not grant such leave to appeal unless [I am] satisfied that some important principle of law or justice is involved.” The leading authority on the application of this test is Wanstall v Burke [1925] St R Qd 295, a decision of the Full Court. MacNaughton J, with whom O'Sullivan J agreed, said that the effect of the test laid down by the statute was to adopt the practice applied by the High Court at that time under the Judiciary Act 1903 (Cth) s 35(1)(b) in relation to certain applications for special leave to appeal to that court. He quoted a passage where Griffith CJ said:

“The practice we have already 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.”

[42]  The approach of the majority has been frequently followed by the Full Court and more recently the Court of Appeal. In Johns v Johns [1988] 1 Qd R 138 Williams J with whom the other members of the Court agreed, noted that the test had been followed by the Full Court in Kavanagh v Loch [1930] St R Qd 317, and in Scagliotti v Boyd [1962] Qd R 481. His Honour noted that attention had been drawn to the use in the similar expression then contained in s 92 of the District Courts Act 1967, dealing with appeals to the Court of Appeal from the District Court, of the word “question” rather than “principle”, which may have had a narrower connotation, but did not consider it necessary to decide that: p 141. 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: American Express International Inc v Hewitt [1993] 2 Qd R 352.” (footnotes omitted)

[11] More recently, in Credit Corp Services Pty Ltd v Tang [2017] QDC 247, Morzone DCJ helpfully added at [13]-[14] and [16]:

[13]  This court has the same powers as the Court of Appeal when hearing an appeal. Those powers are contained in Part 3 Division 1 of the Supreme Court of Queensland Act 1991, and the relevant rules, in particular Chapter 18 Part 3. By virtue of rule 785 of the UCPR, Part 1, other than rules 746, 753, 758, 766(3), 767, 776 and 777, applies to appeals to the District Court, with necessary changes, and subject to any practice direction of the court in which the appeal is brought.

[14]  The mode of the appeal is by rehearing. This court effectively tries the matter over again on the record before the trial magistrate. (footnotes omitted)

………..

[16] This court’s appellate function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.^[3]The appellant must demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.^[4]”

Whether leave should be granted

[12] Whilst pursuant to section 45 of the Act the appellant must first be granted leave to appeal before the merits of the appeal can be considered, the issues raised in the appeal make it expedient that I review the proceedings and the evidence before the magistrate as well as the grounds relied upon by the appellant in order to determine whether leave should be granted and, if so, whether the appeal should be allowed.  

[13] The order made by the magistrate for summary judgment in favour of the first and second respondents was made pursuant to rule 293 UCPR. The rule provides:

293Summary judgment for defendant

3. (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 a plaintiff.

3. (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

2. (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.

[14] Rule 293 has been subject to much judicial consideration. In Maguire v Racing Queensland Limited [2012] QSC 219, Atkinson J observed at [18]-[20] with respect to the rule:

“[18]  Prior to the introduction of the UCPR, the approach to summary judgment was a strict one. The test required that summary judgment be awarded in only the clearest of cases, where one party had no prospects of success. It was framed in various terms by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW):

"so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".^[5]

[19]  Since the introduction of the UCPR there has been some disagreement as to whether the introduction of the UCPR has caused any change to this approach.

[20]  In my view it has.^[6]The plain and unambiguous words of rules 292 and 293 provide that summary judgment can be ordered if there is “no real prospect of succeeding” and there is no need for a trial. There is no reason to depart from the clear wording of these rules and imply a higher standard with reference to previous tests. It is consistent with the English interpretation of rule 24.4 of the Civil Procedure Rules (UK), which is in similar terms to rules 292 and 293, to allow judgment to be entered summarily where the prospect of success is “fanciful‟ as opposed to “real‟, rather than to confine the operation of those rules to cases where even the most creative and speculative of arguments could not come to the respondent’s aid.^[7]”

[15] As her Honour went on to note, the underlying philosophy of the UCPR expressed in rule 5, is “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”, which in her Honour’s view indicated a departure from the way in which summary judgment applications were previously determined and was consistent with summary judgment being more readily given in order to bring to an end unmeritorious proceedings.^[8] 

[16] At the hearing of the application the respondents relied upon the Court of Appeal’s decision in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 as stating the approach to be applied in determining an application under rule 293. In Salcedo, Williams JA, with whom the President and Atkinson J agreed, expressed the approach to be applied as follows:

• Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial;^[9]
• An approach that requires an applicant for summary judgment to establish that the action was "bound to fail", or was "one which cannot possibly succeed", or was one which had "no prospect of success" or was "hopeless" was not the correct approach;^[10]
• "The words 'no real prospect of succeeding' do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success or . . .they direct the court to the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success."^[11]

[17] Salcedo has not been overturned by any subsequent decision of the Court of Appeal and it “ought now be regarded as settled law”^[12]in terms of the approach to be applied on an application for summary judgment. Indeed, the principles explained in Salcedo continue to be applied by both inferior courts^[13]and by the Court of Appeal.^[14]

[18] Obvious from the language of rule 293 and the approach to the rule explained in Salcedo and subsequent authorities, a clear case was required before the magistrate was permitted to order summary judgment. Indeed an order for summary judgment could only have been made if the magistrate was satisfied: (1) the appellant had no real, as opposed to a fanciful, prospect of succeeding on his claim; and (2) there was no need for a trial of the claim.

[19] As summarised earlier, the appellant’s claim arises out of the loss and damage suffered by the appellant as a result of a fire which started on 18 September 2009 (according to the appellant on an easement traversing his land)^[15]and which some weeks later, on 15 October 2009, spread onto the appellant’s property resulting in a large part of the appellant’s property being burnt out. There is a dispute as to what caused the fire. In the amended statement of claim the appellant alleges that the fire started in the vicinity of a power line being constructed by Powerlink on an easement running through the appellant’s land. The statement of claim does not expressly allege that Powerlink caused the fire.

[20] The claim against both the first and second respondents is based entirely on the fire investigation report which was undertaken by the first respondent who was at the relevant time an employee of the second respondent. In that report the first respondent concluded that:^[16]

• The fire had been deliberately lit;
• It was probable the offender walked to the point of origin;
• The fire was not accidently lit by a cigarette smoker;
• Natural causes were ruled out;
• There was insufficient evidence to identify the offender.

[21] The appellant’s claim against both respondents alleges that the fire investigation report prepared by the first respondent was negligently undertaken and a result of the negligence in preparing the report the appellant suffered loss. In paragraph 10 of the amended statement of claim the appellant pleaded the causal basis which he says rendered the respondents liable in negligence for his loss:

“10. As a direct result of the negligent Fire Investigation report by the First and Second Defendants, the plaintiff suffered loss as Powerlink relied on the said negligent report and refused to compensate the plaintiff for his economic loss on the basis that it was not responsible for the fire.”

[22] In his reply to the defence the appellant further alleged:

• Both respondents owed him a duty of care as they were commissioned as fire investigators to investigate the cause of the fire which entered his property causing him loss and damage;
• That although neither respondent was commissioned by the appellant to investigate the fire nevertheless they both owed him a duty of care by reason that they were “employees of the State”, that the appellant held the land the subject of the claim under a lease arrangement with the State of Queensland and that it followed that he was owed a duty of care by the respondents;
• A number of shortcoming in the investigation of the cause of the fire and in the preparation of the report.

[23] In paragraph 3 of the reply the appellant again pleaded the basis upon which he alleged the first and second respondents were liable in negligence for the loss claimed: 

“3. The plaintiff suffered loss and damage by reason of the negligence and breach of duty of care of both the first and second defendants as Powerlink (and Government Ministers) relied on the findings of the Fire Investigation Report provided to them by the first and second defendants in their denial of responsibility for the fire and this can be evidenced by numerous correspondences from Powerlink and other parties, and therefore they did not compensate the plaintiff for his economic loss as a result of the fire.”

[24] It will be apparent from the appellant’s pleadings that his cause of action against both respondents relates directly to Powerlink’s refusal to compensate the appellant for his loss and damage caused by the fire. The appellant’s claim against the respondents can be summarised this way: the appellant was negotiating with Powerlink for compensation for loss he suffered as a result of the fire; the respondents then conducted the fire investigation which absolved Powerlink of any liability for causing the fire; as a consequence Powerlink withdrew from any negotiations to pay compensation to the appellant; the fire investigation was carried out negligently by the respondents and this resulted in the report wrongly absolving Powerlink from any liability for the cause of the fire; therefore the respondents are now liable for the loss of compensation that would have been paid to the appellant by Powerlink as a consequence of Powerlink, relying upon the negligent report prepared by the first respondent, withdrawing from negotiations.

[25] There was evidence before the magistrate that the appellant may have commenced proceedings against Powerlink in relation to the loss and damage caused by the fire.^[17]On the face of it Powerlink was the obvious defendant in respect to the action for damages resulting from the fire where it was alleged that it or an employee caused the fire. At the hearing of the summary judgment application and on this appeal the appellant was given leave to be assisted by Ms O'Callaghan as a McKenzie friend. It is telling that in the course of oral submissions opposing the summary judgment application Ms O'Callaghan explained to the magistrate:

“So your Honour, this matter occurred in 2009 and years of writing letters to ministers, Powerlink, Queensland Parks and Wildlife – which we have a letter ….. stating they don’t agree with their own investigators assertions. We’ve spent years writing letters to the Department about this matter. We’ve had – we were, you know, not powerful in financial resources, we couldn’t start chasing that then. This is a last resort. So as a method of last resort we attempted to get some justice in this matter by making claims against all parties involved because in our view they are all negligent…. So we made small claims against each party.

  …….

One was Powerlink, one was Powerlink and John Collin the contractor, and one was Neil Parker and Queensland Parks and Wildlife, all for the amount of $25,000. All however had different losses. So when the fire happened in 2009 we wrote a letter to the chief executive of Powerlink estimating our costs as $149,000 losses. The claims submitted …. Totalled $75,000. The outcome with Powerlink was there were other matters involving easement issues, access issues, that … were causing tension, and they proposed to settle those issues and – if we withdrew the claim, and resolve the claims if we withdrew the claims – serve notice of discontinuance. So that was agreed in a confidential agreement.”^[18]

[26] The relevance of this explanation to the magistrate is that it provides a better understanding as to why the appellant elected to commence proceedings against the respondents and why he chose to do so separate to any claim he may have had against Powerlink.

Whether the appellant had a claim in negligence against the respondents

[27] As I have observed already, whether the magistrate should have granted summary judgment to the respondents depended upon whether the appellant had any real prospects of succeeding against either respondent in his claim for negligence and whether there was a need for a trial of the appellant’s claim. Ultimately, a determination of whether the appellant did have any real prospects in succeeding in his claim against either respondent depended first and foremost on whether either respondent owed him a duty of care in preparing the report. The cause of action was pleaded as an action in negligence. The salient features relevant to whether the appellant was owed a duty of care by either respondent included:

1. (a)
   Neither respondent was an employee of Powerlink;
2. (b)
   Neither respondent caused the fire the subject of the claim;
3. (c)
   The second respondent was engaged by Powerlink to conduct the fire investigation after the fire had initially started;
4. (d)
   The first respondent, as an employee of the second respondent, was tasked to carry out the fire investigation;
5. (e)
   There was no relationship, direct or indirect, between the appellant and either respondent. Specifically, the appellant did not engage either respondent to undertake the fire investigation or provide a report;
6. (f)
   The fire investigation report was provided to Powerlink;
7. (g)
   The fire investigation report made a determination as to the cause of the fire;
8. (h)
   It appears that Powerlink acted on the report in discontinuing negotiations with the appellant regarding compensation for the fire.

[28] It is trite to say that neither respondent is liable for the loss suffered by the appellant which is the subject of the claim unless they owed the appellant a duty to take reasonable care to avoid causing the appellant loss or damage. Whilst there is no single test in assessing whether or not a duty of care exists, in general a duty of care will only be owed if a defendant ought reasonably to foresee that their conduct may be likely to cause loss or damage to a plaintiff.^[19]As was succinctly explained by Kirby J in Graham Barclay Oysters Pty Ltd v Ryan & Ors (2002) 211 CLR 540 at 622–623 [230]:

“There are certain 'standard questions' (Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 475 [115]) that dissect the composite notion of common law liability in negligence. Relevantly, those questions analyse the concept in terms of: (1) the duty of care; (2) the scope of the duty; (3) the breach; and (4) the causation of damage. Although these issues are commonly considered separately, it has been pointed out many times that 'each element can be defined only in terms of the others' (John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 241–242) and, for example, that 'the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it' (Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487). These words teach an important lesson. Excessive analysis and undue intellectual subdivision of what is basically a unitary concept can lead a decision-maker into over-sophisticated elaboration of a notion that is, at its heart, a reflection of practicality and common sense.

[29]  Relevant to the present appeal, in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] 75 NSWLR 649, Allsop P at 676 [102]-[103] summarised the approach to be taken in determining whether a duty of care exists as follows:

“[102]  This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

[103]  These salient features include:

1. (a)
   the foreseeability of harm;

2. (b)
   the nature of the harm alleged;

3. (c)
   the degree and nature of control able to be exercised by the defendant to avoid harm;

4. (d)
   the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

5. (e)
   the degree of reliance by the plaintiff upon the defendant;

6. (f)
   any assumption of responsibility by the defendant;

7. (g)
   the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

8. (h)
   the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

1. (i)
   the nature of the activity undertaken by the defendant;

10. (j)
    the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant;

(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l) any potential indeterminacy of liability;

(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n)the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;

(o) the existence of conflicting duties arising from other principles of law or statute;

(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

[30] It is important to note that the appellant’s claim in negligence against both respondents was not for property damage resulting from the fire. Rather, the claim might be characterised as one being for economic loss, the economic loss being the compensation the appellant had expected to receive from Powerlink from the fire had negotiations been concluded.

[31] Characterised this way, it is useful also to make reference to Moorabool Shire Council v Taitapanui (2006) 14 VR 55 in which Ormiston and Ashley JJA at [70]-[71] conveniently summarised the law as it relates the existence of a duty of care where the claim is for pure economic loss: 

“[70]   Over the past 30 years, there has been recurrent, intensive, consideration - at the highest judicial levels in Australia and elsewhere - of the circumstances in which a duty of care will arise to avoid causing pure economic loss. No occasion arises in this appeal to rehearse at any length the chain of case law through which the principles have been developed and refined. It is sufficient for present purposes if we identify what appear to us to be pertinent considerations, as the law now stands in Australia.

[71]  The categories of case in which a duty of care with respect to pure economic loss is to be found are properly to be seen as special. Foreseeability of loss, and an unbroken chain of causation, are necessary elements, but by themselves are not sufficient. An additional element which must be present has been variously described as involving one or more of known reliance or dependence of the plaintiff; the assumption of responsibility by the defendant; or the control exercised, or exercisable, by the defendant over the circumstances affecting the plaintiffs interests. What ultimately determines whether a duty of care arises is the character of the relationship between the plaintiff and the defendant. Matters such as those which we have just mentioned, and others, bear upon the resolution of that question in the particular circumstances of particular cases; though not all of those matters will be at the forefront in every case. The question to be answered is whether, having regard to the salient features of the particular case, the connection between the parties is sufficiently close - though not necessarily physically close - as to give rise to a duty of care. When the defendants acts or omissions arise in connection with the discharge of statutory duties or the performance of statutory functions, the statutory framework is itself a salient feature to which consideration must be given.”

[32] As noted earlier it is obvious that there was no direct relationship between the appellant and respondents. Indeed the respondents undertook the fire investigation on behalf of Powerlink and any contractual or other relationship for the provision of the report was exclusively between the respondents and Powerlink. Therefore the circumstances giving rise to the appellant’s claim do not fall within one of the accepted categories of relationship which would impose a duty of care on the respondents. The appellant argues however that in the circumstances it should be found that the law imputed a duty owed by the respondents to the appellant. The appellant concedes that the duty is a novel one but nevertheless one that the law recognises.

[33] Thus the appellant argues that having regard to the salient features, including that Powerlink was negotiating payment of compensation with the appellant for the damage caused by the fire prior to the investigation report being prepared by the respondents, it was reasonably foreseeable that Powerlink would rely upon the report in determining whether or not to pay the appellant any compensation. In such circumstances the respondents ought to have known that if the report concluded that the fire had been deliberately lit then Powerlink would refuse to compensate the appellant for his loss. The appellant argues that as a consequence the respondents owed him a duty to take reasonable care in investigating the fire and reporting to Powerlink thereon. 

[34] In the course of submissions I was referred by the appellant to the High Court’s decision in Perre v Apand Pty Ltd (1999) 198 CLR 180 as supporting the argument that even in novel circumstances, that is circumstances that don’t fall within an already recognised duty of care situation, the law may still impose a duty of care on a defendant providing the loss suffered by the plaintiff was reasonably foreseeable. As a general proposition that is no doubt correct, for as was observed by McHugh J in Perre at [99]:

“[99]   None of these three categories applies in this case. The present case is therefore novel in terms of the categories. But that does not mean that no duty of care was owed to the Perres. “The categories of negligence”, said^[20]Lord Macmillan, “are never closed”. The issue of duty must be decided by reference to the few general principles that appear to govern all cases of pure economic loss.”

[35] The appellant also places reliance upon the New Zealand Court of Appeal decision of South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd; Mortensen v Laing [1992] 2 NZLR 282 as supporting his argument that a duty of care existed between he and the respondents. However an analysis of that decision provides no such support for the appellant’s argument.

[36] The decision in South Pacific did consider whether a fire investigator employed by an insurance company to conduct a fire investigation into premises destroyed by fire owed a duty of care to the insured of the premises, it being alleged that the fire investigation was conducted negligently. The court concluded there was no duty of care owed. Separate reasons were given by the Judges comprising the court for reaching that conclusion. One such consideration which the court regarded as telling against the imputation of a duty of care on the fire investigator was that the insured had an existing remedy against the insurer to recover under the policy of insurance.

[37] I have set out earlier what Allsop P considered in Caltex Refineries to be some of the “salient features” from which a duty of care might be imputed where a claim is for economic loss as it is here. They provide useful guidance. In the end, it is clear to me that having regard to the circumstances relied upon by the appellant to impute a duty of care on the respondents, the respondents did not owe the appellant any duty of care in the preparation of the fire investigation report. There are a number of reasons for arriving at this conclusion. First, applying the reasoning of Ormiston and Ashley JJA in Moorabool Shire Council, here, there was neither a foreseeability of loss nor an unbroken chain of causation which are necessary to establishing a duty of care in a claim for economic loss. It is plainly obvious that the respondents were tasked to prepare a report for Powerlink into the cause of the fire. There is no evidence that either respondent was involved in any negotiations which Powerlink might have been engaged in with the appellant. What the respondents were tasked to undertake was the provision of what might be described as an expert report. That report was provided to the party commissioning it. In my view there is no basis for finding that it was reasonably foreseeable that the respondents ought to have known that providing the report to Powerlink would somehow cause economic loss to the appellant.

[38] Secondly, and arguably more importantly, the appellant’s claim proceeds on the basis that the report prepared by the respondents was negligently prepared. However the respondents report is the only report that was conducted into the cause of the fire. There is no contradictory investigation report opining that the fire was caused by Powerlink. Whilst I accept that the appellant genuinely believes that Powerlink did start the fire through its negligence or that of one of its employees, that belief relies upon either unproven facts, what is tantamount to hearsay allegations or opinion evidence for which the appellant is unqualified to give. It is obvious that the fundamental defect in the appellant’s case against the respondents is that it is based upon an assertion that the fire investigation was carried out negligently. Yet that is not a finding that a court could make on any view of the evidence relied upon by the appellant. 

[39] Thirdly, if there was evidence that the fire was caused by Powerlink then the proper defendant is Powerlink. That the appellant elected to discontinue any action he might have had against Powerlink, and instead commence proceedings against the respondents “as a last resort” and because he believed that “all parties involved” were negligent, also suggests that the appellant paid insufficient regard to whether liability could be attached to the respondents. Whilst there was no policy of insurance under which the appellant may have had a claim against Powerlink, nevertheless if it were established that Powerlink caused the fire then the appellant would have been entitled to seek damages from Powerlink for any loss caused by the fire. Applying the same reasoning as the court in South Pacific, the remedy available to the appellant against Powerlink is also telling against the respondents owing a duty of care to the appellant.  

[40] As was conceded by the appellant in submissions, he made no attempt to obtain his own investigation report as to what caused the fire. Whilst there were reasons why he chose not to, inevitably what that means is that there is no basis whatsoever to conclude that the report prepared by the respondents was undertaken negligently resulting in Powerlink being wrongly advised as to the cause of the fire.

[41] Finally, the appellant’s case against the respondents was that it was the fire investigation report which caused Powerlink to withdraw from its negotiations with the appellant to pay compensation. Again, there is simply no evidence that is so. It might be assumed that Powerlink did place a great deal of weight on the report to deny liability. But it may equally be the case that the report simply confirmed Powerlink’s own determination that it had not caused the fire.  At best what the appellant might show is that negotiations were broken off after the report was provided. But that is entirely different to finding that it was the fire investigation report which caused Powerlink to end the negotiations with the appellant.    

[42] For these reasons it is clear, in my view, that the appellant could never establish any cause of action against the respondents in relation to their preparation of the fire investigation report, and the magistrate was correct is giving summary judgment to the respondents.

[43] Despite this conclusion, it is necessary that I also specifically deal with the grounds of appeal relied upon by the appellant. Grounds 1, 2 and 3 relate to the finding by the magistrate that no duty of care existed between the appellant and respondents. For the reasons already given the respondents did not owe the appellant a duty of care in preparing the fire investigation report and the magistrate was entirely correct in making that finding. Those grounds of appeal can be dismissed.

[44] Ground 4 relates to a complaint that the magistrate failed to have sufficient regard to the entirety of the pleadings, including the reply, when determining the application. I am satisfied that the magistrate was fully cognisant of the appellant’s argument as to why the respondents owed him a duty of care. Even if it could be said that he did not expressly avert to the reply, there was no misunderstanding on the magistrate’s part as to the basis upon which the appellant said he was owed a duty of care. Moreover, having reviewed all of the evidence, I like the magistrate am satisfied that summary judgment should have been given to the respondents pursuant to rule 293. There is no substance to this ground of appeal.

[45] Next it is argued in grounds 5, 11 and 13 that the magistrate failed to apply the simplified procedure rules when determining the application. It is true that given the quantum of the appellant’s claim it fell to be determined under the simplified procedure rules contained in Chapter 13, Part 9, Division 2 UCPR.^[21]But the appellant’s complaint is in my view somewhat misguided.

[46] As might be suggested from its description, what the simplified procedure rules create are simplified procedures for hearing and determining minor claims. Rule 515 sets out the simplified procedures which apply to such claims. They include removing the disclosure obligations ordinarily imposed on a party under the UCPR. They also preclude a legal practitioner from representing a party unless ordered by the court.

[47] So far as the complaint raised by the appellant is concerned, rule 515(1)(d) expressly provides that the court is not bound by rules of evidence or procedure and may inform itself of the facts in any way it considers. Moreover, by rule 516(2)(a), in deciding a minor claim the court must make orders “it considers fair and equitable to the parties to the proceeding” and under rule 516(2)(b) the court may dismiss the claim if it considers it appropriate to do so.

[48] There is nothing contained in the simplified procedure rules which excludes the operation of rule 293. The simplified procedure rules are also to be read in conjunction with rule 5, that the purpose of the rules is “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”. To a large extent the simplified procedure rules are the epitome of that purpose. But what is abundantly apparent from the simplified procedure rules is that they confer broad powers on a court hearing and determining a minor claim. To that end, there is nothing contained in the simplified rules which would prevent one party from bringing a summary judgment application. This is entirely consistent with the court being obliged to make orders which it considers just and fair to the parties.

[49] Here the respondents made application for summary judgment. That application could only be successful if the magistrate were satisfied of those matters contained in rule 293(2) UCPR. The complaint made by the appellant seems to be that the magistrate was required to hear the claim, which would have likely included the evidence of witnesses, before he was entitled to determine the claim. This is not so. Clearly the magistrate was entitled to determine, on application of one of the parties, whether summary judgment should be given. He was entitled to do that on the pleadings. There was no error on the part of the magistrate determining the summary judgment application without first conducting a hearing of the claim.

[50] Grounds 6, 7 and 8 relate to a complaint that the magistrate applied the wrong test when determining the application. I have set out earlier the test to be applied when determining a summary judgment application and the decision of the Court of Appeal in Salcedo correctly expresses the approach to be taken when deciding such an application. In my view the magistrate did apply the correct test when determining the application and there is no substance to any of these grounds of appeal.

[51] Grounds 9 and 10 relate to a complaint that the magistrate failed to have proper regard to the fact that the respondents had not foreshadowed they would be making a summary judgment application for many months after pleadings had closed and in failing to investigate the evidence relating to causation of loss before making his decision. Again for the reasons given earlier, there was no basis upon which to impute upon the respondents any duty of care to the appellant in the preparation of the report and the magistrate was entirely correct in his reasoning process. Further, it was irrelevant to the magistrate’s considerations when the respondents elected to bring an application for summary judgment.

[52] Finally, ground 12 relates to a complaint that the magistrate failed to have regard to the fact that the respondents filed their defence out of time. It is true that the respondents did file their defence out of time. The appellant elected not to seek judgment in default when this occurred. Once the defence had been filed therefore it was of no relevance that it had been filed out of time so far as the summary judgment application was concerned. Rather the summary judgment application had to be determined by reference to rule 293 UCPR. There is no substance to this ground of appeal.

[53] In conclusion, having carefully undertaken a review of the evidence and the grounds of appeal, I am not satisfied that the appeal involves some important principle of law or justice and therefore leave should not be granted under section 45 of the Act to appeal the order of the magistrate. I would add for completeness that even if I were wrong in my conclusion that leave to appeal not be granted, for the reasons given I would dismiss the appeal.

Costs

[54] Having dismissed the application for leave, the only remaining matter to be decided is whether costs should be ordered against the appellant and, if so, on what basis. In the interests of expediency both parties were invited to file submissions on costs at the conclusion of argument on the appeal. On the basis that the appeal was dismissed the respondents seek an order that the appellant pay the respondents costs on an indemnity basis. The appellant submits that there should be no order as to costs.

[55] Section 47(f) of the Act confers on the court a discretion to order costs in respect to an appeal under section 45. So far as is relevant section 47 provides:

“47Jurisdiction of the District Court

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

  …..

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

[56] Rule 681 UCPR, which deals with the general rule about costs of a proceeding, provides as follows:

“681General rule about costs

3. (1)
   Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.

3. (2)
   Subrule (1) applies unless these rules provide otherwise.”

[57] The practical effect of rule 681 is that generally the unsuccessful party to a proceedings will be ordered to pay the costs of the successful party. The rational for this general rule was explained by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at 97, where his Honour observed at [66]-[67]:

“[66]  By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs. As Devlin J said in Smeaton Hanscomb & Co Ltd v Sassoon I Setty, Son & Co (No 2),^[22]when setting aside an arbitrator’s costs award:

the arbitrator is not directing his mind to one of the most, if not the most, important of the elements which ought to affect his discretion, namely the result of the case. Prima facie, a successful party is entitled to his costs. To deprive him of his costs or to require him to pay a part of the costs of the other side is an exceptional measure.

The combined force of the sentiments recognised above by Mason CJ, regarding the need for consistency in order to avoid injustice, and by Devlin J, regarding the most significant factor affecting the costs discretion, provides the jurisprudential basis for the important principle commonly referred to as the “usual order as to costs”.

The usual order as to costs

[67]  The expression the “usual order as to costs” embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.”

[58] Having dismissed the appellant’s appeal, in my view there is no reason to depart from the usual rule that costs should follow the event. The respondents were entirely successful in resisting the appeal. Moreover, the respondents requested the appellant to withdraw his appeal after submissions were filed on the basis that he had no prospects of succeeding and foreshadowed that an application for costs would be made if the appeal was dismissed.^[23]

[59] The appellant resists the making of a costs order for various reasons including that the respondents themselves were late in filing their defence to the claim in the Magistrates Court. Be that as it may, what I am dealing with is an appeal from a decision of a magistrate to order summary judgment. What fault, if any, on the part of the respondents in filing a defence is of no relevance as to whether costs should now be ordered where the appellant elected to pursue an appeal which in my view had no merits and after being clearly informed by the respondents that an application for costs would be made if the appellant continued with the appeal. The usual rule that costs follow the event should be applied here.

[60] The respondents also argue that the appellant be ordered to pay costs assessed on an indemnity basis. The power to order costs on an indemnity basis is conferred under rule 703 UCPR. The principles governing the award of costs on an indemnity basis are well settled and were explained in the often quoted judgment of Sheppard J in Colgate-Palmolive v Cussons Pty Ltd (1993) 118 ALR 248, where at 256-257 his Honour held:

“2.  The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this court the provisions of O 62, rr 12 and 19, and the Second Schedule to the rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.

3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of court) or a decision of an intermediate Court of Appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v British Transport Commission and Handley JA in Cachia v Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.

4. In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes (39 Ch D at 141) said the court had a general and discretionary power to award costs as between solicitor and client ′′as and when the justice of the case might so require”. Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston ([1982] 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo:′′ the categories in which the discretion may be exercised are not closed”. Davies J expressed (at 6) similar views in Ragata.

5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.”

[61]The appellant is of course self-represented. As a general rule courts are less inclined to order indemnity costs against a self-represented litigant than against a represented litigant.^[24]As was explained by Kenny J in Ogawa v University of Melbourne No 2 [2004] FCA 1275 at [42]:

“[42] Generally speaking, courts are more reluctant to make orders for indemnity costs against litigants in person than against legally represented litigants, although, in an appropriate case, they will make such an order. In Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] Hodgson CJ in Eq observed:

… I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while still remaining an impartial determinant of a dispute. The Court may in those circumstances refrain from making orders against litigants in person for conduct that might be considered as justifying orders for costs against represented litigants. By the same token, litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they would otherwise be, by not focusing accurately on the real issues in the case. Conduct of that nature by legally represented parties would often lead to orders for indemnity costs. Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event.”

[62] A court of course is not precluded from ordering costs on an indemnity against a self-represented party.^[25]The respondents submit that the circumstances here justify such an order. Those circumstances include:

1. (a)
   That the appellant’s application for leave to appeal was brought with wilful disregard of both the known facts and established legal principles; The appellant was clearly made aware, both in the Magistrates Court proceedings and in the respondents submissions filed for the appeal, why it was that at law he had no arguable cause of action against the respondents;
2. (b)
   The appellant was put on notice by the respondents that indemnity costs would be sought were his appeal dismissed;
3. (c)
   The appellant has used the appeal process as a vehicle to reventilate his own theories as to the merits of his case at first instance which is not the role of the court;
4. (d)
   The appellant has in pursuing the appeal made and maintained allegations which ought never have been made;
5. (e)
   The appellant has unduly prolonged the proceedings having been put on notice more than 12 months ago of the deficiencies in his claim and the appeal.

[63] There are a number of features to this appeal which might well justify costs being ordered on an indemnity basis. The respondents have of course been put to the expense of resisting an appeal which having regard to my reasons for dismissing the appeal lacked any merit. As I noted above, the irresponsible pursuit of an appeal which cannot succeed because of a known legal impediment or is otherwise hopeless is one such basis upon which costs on an indemnity basis might be ordered. However, it is abundantly clear both from the submissions made by the appellant in the Magistrates Court and on this appeal, the appellant clearly has maintained his belief that he had an arguable cause of action against the respondents and that the magistrate in ordering summary judgment was in error. The appellant is self-represented. This appeal, although lacking merit, was not in my view vexatious. In the circumstances I am not satisfied that the conduct of the appellant in pursuing the appeal was such that the ordinary rule that costs be assessed on a standard basis should not apply.

[64] My orders therefore are:

1. The application for leave to appeal is dismissed.

2. The appellant is to pay the first and second respondents costs of the appeal to be calculated on the standard basis.