Taylor David Pty Ltd v Walker
[2020] QDC 334
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- Unreported Judgment
- Taylor David Pty Ltd v Walker[2020] QDC 334
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Taylor David Pty Ltd v Walker[2020] QDC 334
Taylor David Pty Ltd v Walker[2020] QDC 334
DISTRICT COURT OF QUEENSLAND
CITATION: | Taylor David Pty Ltd v Walker [2020] QDC 334 |
PARTIES: | TAYLOR DAVID PTY LTD ACN 143 938 603 (applicant) v ROBYN WALKER (respondent) |
FILE NO/S: | BD 717/20 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 31 August 2020, ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 August 2020 |
JUDGE: | Barlow QC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – FROM MAGISTRATES COURT – BY LEAVE OF COURT – amount claimed in the Magistrates Court was less than the minor civil dispute limit – whether interest accrued since the commencement of the proceeding is included in the “amount involved” in the proceeding – whether leave to appeal is required APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – FROM MAGISTRATES COURT – BY LEAVE OF COURT – applicant seeks to appeal a decision to award indemnity costs in favour of the respondent – whether there are important questions of law or justice which merit the granting of leave to appeal – whether leave to appeal should be granted PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – UNREASONABLE CONDUCT OR DELINQUENCY RELATING TO PROCEEDINGS – respondent seeks costs on the indemnity basis – respondent submits that the appellant was responsible for delays in the progress of the matter – respondent submits that the costs of bringing the application exceed the difference between the amount over which the application for leave to appeal was brought – whether bringing the application for leave to appeal was justified – whether indemnity costs should be ordered Magistrate Courts Act 1921, s 4, s 4AAA, s 45 Uniform Civil Procedure Rules 1999, r 150(3), r 159 Platinum Investment Group Proprietary Limited v Anderson [2018] 3 Qd R 305, cited |
COUNSEL: | M Walker for the appellant AJH Morris QC for the respondent |
SOLICITORS: | Enyo Lawyers for the appellant Australian Law Partners for the respondent |
Whether leave to appeal is required
- [1]By notice of appeal filed in this court on 6 March 2020 pursuant to section 45 of the Magistrate Courts Act 1921, the appellant sought to appeal against a decision of Magistrate Shearer made on 7 February 2020, in which his Honour dismissed the appellant’s application for an order dispensing with the signature of the defendant on the request for trial date and ordered that the plaintiff pay the defendant’s costs of that application on the indemnity basis. The appeal does not seek to appeal the substantive order refusing to dispense with the signature of the defendant on the request of trial date. It seeks only to appeal the order for costs and, in particular, the order that the costs be paid on the indemnity basis.
- [2]The question arises whether the plaintiff needed the leave of this court to commence this appeal because, in the claim in the Magistrates Court, the plaintiff seeks the sum of $24,589.25 as a debt alleged to be due and owing to it pursuant to an agreement, and it also claims interest pursuant to an agreement. It is not in dispute that the amount of the substantive claim, or the debt, is less than the minor civil dispute limit, as that term is defined, in the Magistrates Courts Act. “Minor civil dispute limit” means the amount that is, for the time being, the prescribed amount under the Queensland Civil and Administrative Tribunal Act 2009, and that amount is $25,000.
- [3]The appellant submits that, under section 45, no leave is required because, in this action, the “amount involved” is more than the minor civil dispute limit when one takes into account the interest that has accrued since the commencement of the proceeding in the Magistrates Court on 1 April 2019. It is significant that, as at that date, or at least as described in the statement of claim annexed to the claim, the amount of interest then claimed was $226.86, so that the total amount then claimed was less than the minor civil dispute limit of $25,000.
- [4]The appellant submits that, since that claim was made, interest has continued to accrue under the agreement on which the plaintiff is suing at the rate of 7.5 per cent, as shown in the notice under rule 150(3) of the Uniform Civil Procedure Rules and, therefore, the amount involved in the proceeding as at the date that this appeal was commenced was more than $25,000 and therefore leave is not required. I should add that leave is required if the amount is not more than the minor civil dispute limit pursuant to subsection 45(2)(a) of the Magistrates Courts Act.
- [5]The appellant submits that there is a relevant distinction between “the amount involved” in a Magistrates Court civil proceeding and “the amount claimed”, which words appear in the section of the Magistrates Courts Act giving jurisdiction to that court, that is, section 4(a). That paragraph says that every personal action in which the amount claimed is not more than the prescribed limit may be commenced in the Magistrates Court.
- [6]Both section 4 and section 45 of that Act have been amended by amendments that commenced on 25 May 2020. Paragraph 4(a) is now subsection 4(1)(a) and it now provides that every personal action in which the amount, value or damage sought to be recovered is not more than the prescribed limit may be commenced in a Magistrates Court.
- [7]There is now a section 4AAA which provides that, in calculating whether, for that part of the Act – Part 2, jurisdiction – an amount, value, damage or sum claimed or sought to be recovered in an action is more than the prescribed limit, the following amounts must not be considered, that is, relevantly, an amount of interest that is payable as of right whether because of a law, agreement or otherwise, or an amount of interest that may be awarded by a court, including, for example, under section 58 of the Civil Proceedings Act.
- [8]Subsection 45(1)(a) now provides that in an action in which the amount, value or damage involved is more than the minor civil dispute, a party may appeal to this court.
- [9]Counsel for the appellant, Mr Walker, referred me to a decision of Justice Burns in the Supreme Court in Platinum Investment Group Proprietary Limited v Anderson [2018] 3 Qd R 305. In that case, the claim when filed, even if interest were added, fell within the monetary jurisdiction of the District Court but, by the time the application before his Honour was filed, the amount of interest brought the claim in excess of the jurisdiction of the District Court. The applicant sought to have the matter transferred to the Supreme Court as a result. His Honour made an order transferring the matter to the Supreme Court, saying in his reasons, that:
Without section 68(3)(c) [of the District Court Act], there would be little room for doubt that a claim for agreed interest should be taken into account because it constitutes part of the debt sued upon. So, like the principal sum allegedly due under the deed, the claim for interest under the deed is part of the “amount, value or damage sought to be recovered” within the meaning of section 68(1)(a). There is nothing about such a claim that can be regarded as additional to, or superimposed on, the amount that might otherwise be recovered by the applicant on its substantive cause of action and certainly nothing that depends on the discretion of the court.
- [10]Section 68(3)(c), to which his Honour referred, has a similar effect to the new section 4AAA of the Magistrates Courts Act. Mr Walker submitted that his Honour’s decision makes it clear that, in the absence of section 4AAA, before that section was enacted, the “amount involved” for the purpose of section 45 is the amount then the subject of the claim, including any interest claimed on the principal amount set out in the statement of claim.
- [11]Mr Morris QC, who appeared for the respondent, submitted that jurisdiction under Part 2, and particularly section 4, is focused on the time that the claim commenced in the Magistrates Court. That remains the case after the amendments were made. Section 45, in referring to the amount involved, proceeds on the basis of a single amount involved which, he submitted, is consistent with section 4, in which one amount forms the basis of the claim. Section 45, Mr Morris submitted, does not say the amount that is, or has become, involved and therefore does not provide for any increase in the amount that is the subject of the claim as made on the date the claim was filed.
- [12]Mr Morris gave an example of why that is the appropriate construction of section 45(1)(a). A person might bring a claim in detinue in the Magistrates Court for gold that was valued at the time of the filing of the claim in the sum of $24,500. It would be absurd if, in determining whether leave was required to appeal from a judgment, the answer to the question depended on the value at the date of the notice of appeal, or the notice of application, or the notice of judgment below of that gold, where gold, as with many items of property, fluctuates, sometimes considerably, in its value. Therefore, he submitted, section 45 and section 4 should be read together and as both referring to the amount claimed or involved at the time the proceeding was commenced.
- [13]I would add that there may also be difficulties in determining what the amount involved is at the date of an order or judgment, particularly, as in this case, where the order was an interlocutory order and there is no calculation of the amount involved, if that includes interest.
- [14]Mr Morris also submitted that the claim, on its face, does not claim interest beyond the date on which the claim was filed because the notice under sub-rule 150(3) provides that the plaintiff claims $24,589.25 as a debt or, alternatively, as damages for breach of an agreement and $226.86 for interest calculated pursuant to an agreement. As I’ve said before, those sums do not amount to $25,000 in total and there is no paragraph of the statement of claim in which the entitlement to interest under the alleged agreement is pleaded, nor is there any other place in the statement of claim where it is pleaded that interest would continue to accrue after the date of the claim.
- [15]Mr Walker submits that the only sensible reading of the statement of claim is that interest is claimed from the dates shown in the table under that notice until judgment. Relevantly, he points me to sub-rule 150(3) and rule 159 of the Uniform Civil Procedure Rules. Sub-rule 150(3) provides that:
If the plaintiff’s claim is for a debt or liquidated demand only (with or without a claim for interest), the plaintiff must state the following details in the statement of claim:
- (a)particulars of the debt or liquidated demand;
- (b)if interest is claimed—particulars as required by rule 159;
- [16]It goes on with paragraphs (c), (d) and (e) that are not relevant at the moment.
- [17]Rule 159 applies if a party intends to apply to the court for an award of interest, whether under the Civil Proceedings Act, Part 8, or otherwise. A party must allege in the party’s pleading particulars of the amount or amounts on which the interest is claimed and the interest rate or rates claimed and the day or days from which interest is claimed and the method of calculation. Mr Walker submits that all of those matters are set out in the sub-rule 150(3) notice in the statement of claim in this case.
- [18]The requirements of rules 150 and 159 are designed to allow the parties to know exactly what the case is that the plaintiff brings against the defendant. If the plaintiff claims interest under a contract, the plaintiff is obliged to plead that the contract provides for the payment of interest at a certain rate, or at all, and particulars of how that interest is claimed and, in my view, it should make it clear on the statement of claim that interest is claimed until judgment either pursuant to the contract or, if the claim is made otherwise, pursuant to some other right, including under the Civil Proceedings Act. This statement of claim does not do that.
- [19]In my view, those absences in the statement of claim are fatal to the plaintiff’s argument because it does not, in the statement of claim, demonstrate any entitlement to the payment of interest under an agreement; it does not even plead it. But even if it did, with all due respect to the view expressed by Justice Burns in Platinum, in my view the clear intention of the Magistrates Courts Act, both under section 4 and under section 45, is that the amount involved in the claim determines what one might call the lower jurisdictional limit of the Magistrates Court. In other words, if an order is made on a claim that is for less than the upper limit of the jurisdiction of QCAT, namely, $25,000, the prescribed limit, leave is required to appeal from that order or judgment.
- [20]That is particularly the case where, as in this case, one might say that one cannot determine whether the amount involved, if that were to include any interest that had accrued, is more or less than the minor civil dispute limit. One looks to the amount involved in the action by looking at what is the amount claimed in accordance with the jurisdiction of the court under section 4 and the question is whether that amount claimed, namely, the amount involved in the proceeding, is more than the minor civil dispute limit when one has to consider whether or not leave is required to appeal. So, in my view, the appellant requires leave to appeal in this case.
Whether leave to appeal should be granted
- [21]The applicant for leave to appeal submits that there are three important questions of law or justice which merit this court granting it leave to appeal from the decision of Magistrate Shearer to award indemnity costs in favour of the respondent on the application before his Honour. Those three questions are said to be: (a) whether a party who serves a request for trial date under rule 467, following which events occur that are relevant to the readiness for trial, is required to serve a new request for trial date before applying under rule 469 to dispense with the signature of the opponent; (b) whether a party can waive the obligation of another party to make disclosure; and (c) whether applications under rule 469 are determined on the basis of affidavit evidence of the readiness for trial of both parties at the date of the hearing, or whether they are determined on the basis of the contents of the request for trial date delivered by the requester before the application was made.
- [22]Paragraph 45(2)(a) of the Magistrates Court Act 1921 provides that, where the amount involved in an action in the Magistrates Court is less than the minor civil dispute limit, an appeal shall lie by leave of the District Court or a District Court judge, who shall not grant such leave to appeal unless the court or judge is satisfied that some important principle of law or justice is involved.
- [23]In this case, the question about which leave is sought to be appealed is whether the magistrate ought not to have ordered that the plaintiff pay the defendant’s costs of the application on the indemnity basis. There was no real question before his Honour as to whether the plaintiff should pay the defendant’s costs of the application itself: the real question was whether they should be payable on the indemnity basis. His Honour took into account the history of how the application had come before him and particularly that, when the plaintiff – who is an incorporated legal practice acting for itself at the time in that proceeding – had signed a request for trial date, the matter was not ready for trial and could not possibly have been conceived as being ready for trial from the plaintiff’s view, or as far as the plaintiff was concerned.
- [24]To my mind, none of the important questions of law or justice which are said to arise in this appeal, if leave were granted, do arise. The questions that are said to arise really are side-winds to the real question, which is whether there was any basis on which it could be said that the magistrate was clearly wrong in deciding that it was appropriate to award indemnity costs against the plaintiff, who is an officer of the court, or a practice comprised of officers of the court, where an officer of the court – a solicitor, no doubt a director of that plaintiff – signed a certificate and a request for trial date on the basis that, as far as that plaintiff was concerned, the matter was ready for trial, when that was not true.
- [25]The magistrate had found that the request for trial date effectively was not a valid request for trial date because the plaintiff had not, at the time it was signed, completed its disclosure obligation nor filed a replied and answer that it intended to serve. While the plaintiff says it had completed its disclosure obligation because it enclosed the request for trial date when serving a list of disclosable documents, the duty of a party to this proceeding to make disclosure is a two-fold obligation: first to deliver a list of the documents to which the duty relates and secondly, at a party’s request, delivering to the party copies of the documents mentioned in the list. Clearly, that dual obligation involves giving the other party a reasonable time within which to make such a request after the list of documents has been filed, and until that reasonable time has passed, the party serving the list cannot truthfully certify that, so far as that party is concerned, all necessary steps in the proceeding are complete.
- [26]Similarly, a party cannot certify that all necessary steps are complete when it has not filed or served a reply and answer on which it proposes to rely. It was on that basis that the magistrate decided to exercise his discretion in favour of ordering that the plaintiff pay the defendant’s costs of the application on the indemnity basis. A solicitor who is an officer of this court should be very careful before certifying that a matter is, so far as that solicitor’s client is concerned, ready for trial.
- [27]Particularly where the solicitor is the party concerned, it seems to me that there could not have been an error in the exercise of the magistrate’s discretion, whether or not I or anyone else would have ordered indemnity costs for him to do so. The reasons for the magistrate doing so do not raise any of the three questions of law or justice that are said to arise because there is only one question: that is, whether the magistrate could not properly exercise his discretion in the circumstances which he described. In those circumstances leave to appeal is refused.
Costs
- [28]The respondent, in the light of my dismissal of the applicant’s application for leave to appeal, seeks an order that the applicant pay the respondent’s costs of the appeal on the indemnity basis. Two reasons for the indemnity basis are put forward. First, as indicated by an affidavit filed on 1 July 2020 that had been affirmed by a solicitor from the solicitors acting for the respondent, that person deposed to delays in the applicant complying with directions for the filing and service of its outline of argument and the failure of the applicant to have served or filed a certificate of readiness of the appeal, or the application. The second ground is that it must be clear that the costs of this application for leave far exceed the difference between standard and indemnity costs in the Magistrates Court, being the amount over which this application for leave to appeal has been brought. If this application was made in order, or in an attempt, to clear the reputation of the applicant solicitors, not only have they failed in that attempt but there is no reason in any event why a respondent should have to bear any costs arising from an attempt to clear a solicitor’s reputation because of a decision of a magistrate.
- [29]Mr Walker, for the applicant, submits that delay in progressing the appeal is not a good reason for me to order indemnity costs. I should add that that affidavit was filed in support of an application by the respondent to have the application for leave to appeal set down for hearing and it was set down for hearing by Judge Sheridan, who reserved the costs of that application. Mr Walker also submitted that it was reasonable for the applicant to make this application; there were important and difficult questions of law, including the construction of the Magistrates Court Act. There were reasonable grounds to bring the appeal and therefore, there should be no order as to indemnity costs although I understood it not to oppose an order that the applicant pay the respondent’s costs on the standard basis.
- [30]One matter, it seems to me, that is relevant to my decision on this issue, is how the applicant sought to benefit by making this application. The amount involved is very relevant to that and it seems to me that the applicant would have known, before commencing or deciding to commence this application, that the costs of running this application would be considerably higher than the differential in costs between indemnity and standard costs of the application in the Magistrates Court which it had been ordered to pay.
- [31]There would have to be a very good reason to bring an appeal in those circumstances that would merit or justify bringing the appeal and subjecting the respondent to a similarly high amount of costs. If, as Mr Morris posited may be the case, the appeal or the application for leave was brought in an attempt to clear the reputation of the solicitors, who had been severely criticised by the magistrate, the applicant has failed in that respect and, in any event, that is not a basis on which the respondent should have to bear any of her costs.
- [32]For these reasons and for the reasons that I have given for dismissing the application, particularly that no important question of law or justice arises, it seems to me that, the applicant having failed in the application, he ought pay the respondent’s costs of the application on the indemnity basis, and I so order.