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Queensland Food Corporation Pty Ltd v Dermark Pty Ltd[2023] QDC 76

Queensland Food Corporation Pty Ltd v Dermark Pty Ltd[2023] QDC 76

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Food Corporation Pty Ltd & Anor v Dermark Pty Ltd [2023] QDC 76

PARTIES:

QUEENSLAND FOOD CORPORATION PTY LTD ACN 604479629 trading as QLD Food Corporation

(first appellant)

and

COLLINS INTERNATIONAL (AUSTRALIA) PTY LTD ACN 094416207 trading as Collins International

(second appellant)

v

DERMARK PTY LTD trading as Turnbury Orchard

(respondent)

FILE NO/S:

BD No 3089 of 2021

DIVISION:

Civil

PROCEEDING:

Appeal from the Magistrates Court

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

10 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2023

JUDGE:

Sheridan DCJ

ORDERS:

  1. The appeal is allowed.
  2. The parties are to file an agreed draft order by 12 May 2023, or if the parties are unable to agree the draft order, each party is to file and serve the draft order they contend should be made by 12 May 2023.
  3. If the parties are unable to agree the draft order, the appellants are to file and serve submissions by 17 May 2023 and the respondent is to file and serve submissions by 19 May 2023.
  4. The submissions filed by each party are to be no more than four pages in length.
  5. The appeal is otherwise adjourned.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM MAGISTRATES COURT – where Magistrate gave judgment in favour of respondent in relation to an agreement for the consignment of mandarins – where appellants appeal against decisions of Magistrate – whether Magistrate erred in refusing appellants’ application to recuse herself – whether Magistrate erred in refusing to allow director of appellants to give evidence – whether Magistrate erred in refusing to adjourn trial – whether Magistrate erred in dismissing second appellant’s counterclaim – whether a new trial should be granted

LEGISLATION:

Magistrates Court Act 1921 (Qld), s 45

Uniform Civil Procedure Rules 1999 (Qld), r 188, r 280, r 374, r 390, r 765, r 782, r 785

CASES:

House v The King (1936) 55 CLR 499, cited

R v Magistrates’ Court at Lilydale; Ex Parte Ciccone [1973] VR 122, cited

Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, applied

South Australia v O'Shea (1987) 163 CLR 378, cited

Allesch v Maunz (2000) 203 CLR 172, cited

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, cited

Tyler v Custom Credit Corp Limited [2000] QCA 178, applied

Teelow v Commissioner of Police [2009] QCA 84, cited

JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272, cited

Lehmann v Warren & Anor [2017] QDC 69, cited

Australian Partners Pty Ltd v Kerr [2018] QDC 148, cited

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, cited

Charisteas v Charisteas [2021] HCA 29, applied

COUNSEL:

A Fronis for the appellants

M Plunkett for the respondent

SOLICITORS:

GLR Law for the appellants

Thynne + Macartney Lawyers for the respondent

  1. [1]
    This is an appeal against decisions of the learned Magistrate given on 26 November 2021 and 30 November 2021. By her final decision on 30 November 2021, the Magistrate gave judgment in favour of the respondent in an amount of $80,957.21 including $7,392.71 for interest and $30,000 for costs.
  1. [2]
    The decision on 26 November 2021 related to an application subsequently brought after the hearing but prior to the delivery of judgement for the Magistrate to recuse herself from further deciding the matter.
  1. [3]
    The grounds of appeal relate to decisions made by the Magistrate in the course of the trial and confirmed by her decision on 30 November 2021 and the decision made on 26 November 2021 declining to disqualify herself from further hearing the matter.
  1. [4]
    The orders sought on the appeal seek for all orders made by the Magistrate to be set aside and for the matter to be remitted to the Magistrates Court with the form of order seeking that the matter be heard by a different Magistrate.
  1. [5]
    In this judgment, I will refer to the parties by their respective titles in the present appeal, so as to avoid the confusion caused by the fact that the first and second appellants were the first and second defendants and the respondent was the plaintiff below.

The Proceedings

  1. [6]
    By a statement of claim filed 24 May 2018, the respondent sued the first and second appellants for the payment of $43,564.50 as monies owing for non-payment of the purchase price for a consignment of 1134 cartons of Honey Murcott mandarins. The mandarins were to be exported to China.
  1. [7]
    It was alleged that the agreement was partly oral and partly in writing. Insofar as it was oral, it was said to consist of a conversation between Mr McLay on behalf of the respondent and Ms Liang on behalf of the first and/or second appellants.
  1. [8]
    A defence and counterclaim was filed on 27 June 2018 with a further amended defence and counterclaim filed on 28 November 2018. A further copy of the further amended defence and counterclaim, filed on 28 November 2018, was filed on 18 October 2021. Both documents were in the same terms.
  1. [9]
    By the defence, it was alleged that the first appellant was not a proper defendant. It was alleged the agreement was between the respondent and the second appellant. The second appellant denied the terms of the agreement as pleaded by the respondent. In its defence, the second appellant alleged that during a conversation between Mr McLay and the second appellant it was agreed that the mandarins would be class I and suitable to be exported to China. It was further alleged that there was a text message between the two which stated that if the mandarins were not of suitable size or quality the respondent would agree to a discount or set-off of the purchase price.
  1. [10]
    The defence alleged that the mandarins were not fit for the purpose of being supplied to China and were not of merchantable quality. It was alleged that there was a consequent loss of profits from the sale of the mandarins in China and sought to set off this loss against the claim and make a counterclaim for this loss in the amount of $141,539.80.

Interlocutory Orders

  1. [11]
    The matter appeared to progress slowly with the matter not progressing to trial until 26 October 2021.
  1. [12]
    Two procedural orders became the subject of discussion before the Magistrate, being an order made by A/Magistrate Ehrich dated 9 November 2018 and an order made by A/Deputy Registrar Cook dated 3 April 2019.
  1. [13]
    The order dated 9 November 2018 required the appellants by 16 November 2018 to:
  1. File and serve a further amended defence and counterclaim;
  2. Provide documents to the [respondent] as requested on 6 September 2018; and
  3. File and serve further and better particulars as requested by the [respondent] on 6 September 2018.
  1. [14]
    The order dated 3 April 2019 ordered that:
  1. By 14 March 2019 the parties perform the duty of disclosure by giving a list of documents to the other parties.
  2. By 21 March 2019 the parties undertake disclosure by delivering scanned copies of the documents in .pdf format.
  3. By 21 March 2019:
    1. (a)
      the [appellants] provide a list specifying the name and field of expertise of each expert the [appellants] intend to call to give evidence in the proceeding;
    2. (b)
      the parties provide a list specifying the name and position of each lay witness the parties intend to call to give evidence in the proceeding.
  4. By 14 April 2019:
    1. (a)
      the appellants must provide any expert reports;
    2. (b)
      the parties must produce any witness statements.
  5. By 21 April 2019 the [respondent] must inform the defendants whether it intends to obtain any expert reports in reply.
  6. By 12 May 2019 the [respondent] produce any expert reports in reply.

Events Immediately Before the Hearing of Evidence

  1. [15]
    The hearing before the Magistrate was called on at 9.09 am. At that time Mr Trotter, as counsel for the respondent, announced his appearance, apologising for being late and explaining that the board downstairs had an incorrect court room number.
  1. [16]
    Upon announcing his appearance, Mr Trotter told the Magistrate that he had spoken by phone to counsel for both of the appellants moments ago and counsel had asked him if he knew where they were supposed to be. Mr Trotter said to the Magistrate that counsel for the appellants thought the matter was due to start at 10.00 am.
  1. [17]
    The Magistrate then asked Mr Trotter if he was the son of Mr Trotter, to which Mr Trotter answered that Richard was his father and Tim was his uncle. The Magistrate enquired as to the state of health of one of them and there was a short further exchange.
  1. [18]
    In answer to the offer by Mr Trotter to step outside and call the appellants, the Magistrate said that she was calling them now.
  1. [19]
    The Magistrate said to Mr Trotter that he could have a seat and said, “[w]e will wait for them to come.” The Magistrate then asked whether there were any orders in respect to affidavits in the matter or not.
  1. [20]
    Mr Trotter said there was an order which he thought might have been made on 4 April 2019, or April anyway, and he said, “Wherein the court ordered both parties to provide written statements – not affidavits, but written statements for any lay witness.”
  1. [21]
    Mr Trotter commented that it was probably a matter for her Honour as to whether the parties were bound by their statements and added that his client had complied within the time frame provided in the order but the appellants had provided their written statement some two years late. The Magistrate responded, “Why isn’t it in affidavit form?”
  1. [22]
    Mr Trotter indicated at this point that the other side were heading over to court now.
  1. [23]
    The Magistrate observed that the time the matter had been in the list “is an appalling state of affairs.” Mr Trotter commented that there had been a settlement conference back in April 2020. When asked, Mr Trotter said that there was an agreed statement of facts between the parties; though he said they had only received the response from the appellants yesterday and that meant certain parts were agreed but not others.
  1. [24]
    Mr Trotter said although there was an agreed list of documents which had been presented to the other side, no response had been received. Mr Trotter said they had prepared a bundle of documents for the court.
  1. [25]
    The Magistrate then enquired as to whether there were any directions made as to witnesses giving their evidence in chief by affidavit as envisaged by the Uniform Civil Procedure Rules 1999 (Qld).[1] When Mr Trotter told the Magistrate that there were no directions in that regard, the Magistrate commented:

“How did the matter get listed in those circumstances? The purpose of the Act is to streamline the facilities to avoid viva voce evidence to be given to the court as determined by Mr [Cairns] back in the nineties.”

  1. [26]
    Mr Trotter then referred to the order made in April 2019 and said it “set statements”. Her Honour noted the term, “statements”, and commented, “It’s affidavits.” Her Honour then asked whether there were any other procedural orders. Mr Trotter referred to an order about further and better particulars. Her Honour asked to be given a copy of the order.
  1. [27]
    It would seem that at about this point counsel for the appellants, Ms Varshney, arrived at court and announced her appearance.
  1. [28]
    Counsel for the appellants apologised for the mix up and her lateness of arrival at court. She explained that her instructions were that the matter was to start at 10 am. The learned Magistrate responded that the court starts at 9 am and that the list shows it starting at 9 am and stated, “indeed, if you check the list, it shows that, in fact … it’s at this very court.”
  1. [29]
    Counsel explained that the matter could not be found on the list. That statement was confirmed, according to the transcript, by an unidentified speaker. That resulted in the learned Magistrate saying, “apologies accepted.”
  1. [30]
    The learned Magistrate then told Ms Varshney that she had been talking to Mr Trotter and that she understood that at this stage there was agreement in respect to the facts.
  1. [31]
    Ms Varshney agreed there were some admitted facts.
  1. [32]
    The Magistrate observed that the registered owner of the respondent company was at the back of the court and the registered proprietor of the import/export company was also present in the court.
  1. [33]
    There was discussion between counsel and the learned Magistrate in relation to the terms of the agreement between the appellants and the respondent with her Honour summarising what she understood to be the agreement. The Magistrate asked as to why none of the facts, as she had relayed them, were in the agreed facts.
  1. [34]
    Ms Varshney explained that the facts were not agreed because the respondent purports that the agreement was in different terms to that purported by the appellants, due to a number of text messages which went between the parties which the appellants say amended the terms of the contract from the written document. Mr Trotter commented, “Your Honour can see a bit of a parole evidence issue arising …” The learned Magistrate responded, “I can see that” and then observed, this time in the presence of both counsel:

“And at no time during the course of these proceedings have any orders been made for the proper conduct of this matter in relation to preparation of affidavits of evidence-in-chief; do I have that correct?”

Both counsel agreed that statement was correct.

  1. [35]
    In response, the Magistrate stated:

“And the matter was listed by the registry for a period of two days on the basis of that somehow magically when the court heard the matter, the matter would proceed by way of viva voce evidence in contradiction to the fundamental rules laid down in the Uniform Civil Procedure Rules …”

  1. [36]
    Ms Varshney said she understood her Honour’s comment and, while not using it as an excuse, explained to her Honour that she had been briefed very late in the matter and was not across the interlocutory applications that had occurred. The Magistrate then observed that there had been few interlocutory applications in the matter, and commented, “it wouldn’t take you 10 nanoseconds to get across that.”
  1. [37]
    The Magistrate then stated:

“There haven’t been no proper orders made in accordance with the rules. Neither has there been any – there has been some suggestion that statements of witnesses: that’s not evidence. The envision of the Civil Procedure Rules is to make the determination of civil matters in an efficient manner, as opposed to in an ancient Dickensian manner.”

  1. [38]
    The Magistrate asked whether there was any agreed document list and then said that she was determining whether she was going to hear this matter or not.
  1. [39]
    Reference was made by Mr Trotter to a list of documents, including a notice to admit documents. Ms Varshney then indicated that she wished to make an application under r 188 of the UCPR to withdraw admissions which had been made. Before being allowed to make any submissions, the Magistrate responded, “No chance … Buckley’s and none. Come on, really? No.” The Magistrate further commented, “Right. Admissions made are done; right? You’re stuck with it.” Ms Varshney simply responded, “Thank you, your Honour.”
  1. [40]
    The Magistrate continued:

“Right. That’s like saying, now we get to court, and now we don’t like it, and now we will change our story, and we’re pleading guilty, but, no, we’re not agreeing to the facts. Forget it. Not happening. This is the real world down in here in this court.”

  1. [41]
    The Magistrate then enquired as to whether there is any possibility of the parties reaching an agreement, observing, “you can’t always get what you want. No one will come out with what they want in relation to this matter.” The Magistrate asked if the parties had an ongoing relationship and was told they did not.
  1. [42]
    The Magistrate then directed her comments to Ms Varshney, acknowledging that she was “caught on the back foot”, and enquired as to whether she had just received late instructions and observed, “And you’re managing as well as you can in the circumstances”.
  1. [43]
    The Magistrate then stated that “There must be some wriggle room. Everybody has got wriggle room.” The Magistrate then observed:

“What I am thinking of doing is not proceeding with the trial at this particular moment because of the difficulties of not having proper affidavits and nothing properly prepared. But is there an opportunity for both parties to see whether they can reach an agreement on it in a period of an hour?”

  1. [44]
    Mr Trotter then suggested that his client could swear to the truth of his statement as his evidence-in-chief. The Magistrate then enquired as to the status of the documents. It is clear from the transcript that each party was able to present to the Magistrate their client’s bundle of documents, but there was no agreement, as the bundles had only been provided that morning; though Ms Varshney indicated that her client was happy with the documents contained in the respondent’s bundle.
  1. [45]
    The Magistrate then directed her attention to the parties’ statements. Mr Trotter indicated that there was a signed statement of Mr Roger McLay, though he was not sure it would be on the court file as he understood it had not been filed. Ms Varshney said she was instructed that the statement of Ms Lisa Liang was filed on 29 May 2020.
  1. [46]
    Referring to the order of 3 April 2019, the Magistrate observed that, “By 14 April 2019, the parties were to produce affidavits.” In response to the statements made by counsel, the Magistrate stated that meant Mr Trotter’s client got his in on 5 November 2020 and Ms Varshney’s client on 29 May 2020, and observed, “So you’re both out of time.”
  1. [47]
    The Magistrate (or her clerk) continued to search the court file and the Magistrate then commented, “We do not have that affidavit of Ms Liang … Not in there, not in those papers, not anywhere.”
  1. [48]
    Ms Varshney informed the Magistrate that her instructions are that there is an affidavit dated 2 April 2021 of Ms Lisa Liang and that is the second affidavit. Ms Varshney said she was instructed it was filed in court and was provided to the other side but said they do not have a sealed copy. The Magistrate responded, “I don’t believe anything … unless I’ve got a sealed copy.”
  1. [49]
    The Magistrate stated:

“Well, we’ve got no material by your client on the court file – nothing – and we’ve been through the entire court file. So this is your problem, not my problem. So the only matter that can be now moved forward, of course, is one would envisage, because of the non-compliance with your client in respect to filing material, that I have an affidavit here from Denmark Proprietary Limited – from Mr McLay – and nothing from your client. To suggest that I am going to now proceed by viva voce evidence in the matter would be a ridiculous suggestion. So what do you propose?”

  1. [50]
    In response to the Magistrate’s statement, Ms Varshney said, “Your Honour, in the best interests of justice, I would be required to ask for an adjournment in the matter.” The Magistrate immediately responded, without hearing any submissions, “Well, I’m not going to give you one … You can make your application. Please do so … Non- compliance with court orders is quite clear what the results of that would be.”
  1. [51]
    Ms Varshney reminded the Magistrate that the respondent also did not comply with court orders, to which the Magistrate responded, “But I’ve got his and I haven’t got yours, and you’ve told me you’ve filed it, and I don’t have it. So you can’t even produce it with a sealed copy; can you?”
  1. [52]
    A further exchange occurred with Ms Varshney again stating her instructions were that it had been sent to the court and the Magistrate again observing that it was not on the file and her solicitor could not even produce a sealed copy. The Magistrate noted the matter had been commenced in 2018 and that it was now nearly hitting November 2021 and said, “your application for an adjournment would have to be refused.” The Magistrate observed that the more complicated issue is whether Ms Varshney’s client should be allowed to give viva voce evidence and commented, “I presume that argument will be opposed.” Mr Trotter confirmed it would.
  1. [53]
    Ms Varshney requested the matter be stood down. In permitting that course, the Magistrate reminded the parties that she intended to comply with the UCPR, and referred to the obligations of solicitors to come to court with sealed copies of documents, noting the difficult position in which Ms Varshney found herself and suggesting that both parties should consider their position and said to Mr Trotter, “Because while it might be looking all roses over your side of the stump, nothing is guaranteed in this court, that’s for sure.”
  1. [54]
    Upon the court resuming, Ms Varshney confirmed her client’s position was to seek leave to provide viva voce evidence through Ms Liang. The Magistrate enquired as to the relevant rule. That led to a significant exchange regarding the requirements of the UCPR and the alleged non-compliance with orders made, with the focus on the requirements in relation to witness statements and provision of further and better particulars.
  1. [55]
    Mr Trotter referred to r 374 which gave the court power to give judgment following a failure of the appellants to comply with orders and sought an order for the counterclaim to be struck out for failure to prosecute under r 280. In making the application to strike out for a failure to prosecute, Mr Trotter referred the court to the decision of the Court of Appeal in Tyler v Custom Credit Corp Limited.[2] Mr Trotter did not make any submissions by reference to that case.
  1. [56]
    Mr Trotter acknowledged that the bringing of each of his applications would require an abridgement of time.

Summary as to Pre-trial Steps

  1. [57]
    The applications under r 374 and r 280 were brought without notice nor on proper material. They were evidently made following the Magistrate’s enquiries as to the state of play. There is a lack of evidentiary clarity about the progress of the proceedings. This was not the fault of the appellants.
  1. [58]
    As best as it appeared, it would seem that the position facing the Magistrate was as follows:
  • The Magistrate was unable to locate on the court file any affidavits or statements filed on behalf of the appellants; and in particular there was no affidavit or statement able to be found on the court file of Ms Liang dated 29 May 2020 or 2 April 2021;
  • Mr Trotter accepted his client had received a copy of the 2021 witness statement of Ms Liang but not the May 2020 statement;
  • No copy of any affidavit sworn by Ms Liang was able to be produced;
  • The witness statement of Mr McLay for the respondent was filed and served on 5 November 2020, and an affidavit of Mr McLay, deposing and adopting his statement, had been filed in the court on 15 February 2021;
  • The further and better particulars of the appellants were filed in the court on 18 October 2021 (a week prior to the commencement of the trial) but no service copies were provided. A copy of the further and better particulars had been provided to the respondent on or about 7 October 2018 (some 3 years earlier); though the copy provided to the respondent’s solicitor was unsigned, not sealed and was missing an attachment; and
  • There were no court orders requiring the filling of affidavits or statements, but only the production of statements (which it was accepted meant to the other side).

Interlocutory Orders Before Hearing of Evidence

  1. [59]
    In approaching her consideration of the applications, the Magistrate made it clear that she was proceeding on the basis that the affidavits filed on behalf of the appellants had never been received by the court, indicating that she had made due enquiries of the registry, and also stated that failure to serve a sealed copy meant there was not service.
  1. [60]
    The Magistrate stated that questions arose as to the consequences for the appellants’ instructing solicitors failing to comply with court orders and questioned whether that would be defined as contempt for a solicitor not to comply with court orders and the Magistrate made it clear that, whatever she intended to do with the matter, the matter would not be adjourned and would be “moving forward today”. The Magistrate indicated to counsel for the appellants that she needed to have some frank discussions with her client and observed that it may be that the client wishes to dismiss the services of the solicitor.
  1. [61]
    The Magistrate dismissed the counterclaim saying:

“In light of my comments, which I’ve carried on with, I suppose, since I commenced this proceeding at nine o’clock this morning to forensically discover a cornucopia of non-compliance with court orders by the practitioner acting on behalf of the defendant, I find the overwhelming non-compliance with court orders has arrived me to the view that I could invoke a number of rules under the Civil Procedures Rules under [r] 280 and consideration of it. It must be, to use an old adage, that justice laid is justice denied.

The necessity to balance the rights of people who bring applications against people who wish to bring defences and counter-claims – it must, in the circumstances, that the counter-claim, which is contained within in exhibit number 3, will be dismissed on the reasons that I have outlined repeatedly during the course of this morning, and I dismiss the counter-claim. The matter can proceed on the issues of the plaintiff and the defence as filed, excluding the counter-claim … Are you ready to proceed?”

  1. [62]
    Ultimately, the Magistrate did not make an order under r 374(5)(a) but required the hearing of the claim to proceed.
  1. [63]
    Counsel for the respondent then brought an application that the appellants should not give viva voce evidence because of the non-compliance “with the rules to give us her statement so we have it all pegged down”. Mr Trotter agreed with the statements made by the Magistrate that he was at a disadvantage because, as the Magistrate commented, “you don’t know, really, what she’s going to say until she gives it … And, therefore, you don’t know what issues that your client needs to clarify in his evidence-in-chief.”
  1. [64]
    The Magistrate confirmed the application was that Ms Liang not give viva voce evidence and that the only right which should remain is the right of the appellants’ counsel to cross-examine the director of the respondent.
  1. [65]
    In response, counsel for the appellants submitted that the statement of the respondent was not provided in compliance with the order. The Magistrate commented that the statement of the respondent was provided almost two years before the hearing and “with nothing coming the other way.” The Magistrate stated to counsel for the appellants, “there’s nothing that we could say that you’ve filed that would support your clients’ material, no further and better particulars. In the interests of justice on the application of the balance, I could see no reason why your client should be allowed to proceed to give viva voce evidence in relation to this matter.”
  1. [66]
    Further, counsel for the appellants submitted that a statement was provided to the other side on 5 April 2021. The Magistrate stated that she could not rely on anything the counsel’s instructing solicitor would tell her “because there is no material that indicates her position, and due search of the court file has not revealed what she has told you in instructions.”
  1. [67]
    Mr Trotter did not respond, and certainly did not correct the record to indicate, as he had done previously, that a statement had been received. Mr Trotter simply confirmed that the Magistrate could make the orders pursuant to r 374(5)(d).

The Hearing

  1. [68]
    The matter proceeded with Mr McLay, as director of the respondent being sworn. By his evidence-in-chief, he confirmed the contents of his statement. The appellants’ counsel was given an opportunity to cross-examine Mr McLay. On the second day of the trial, the expert called on behalf of the appellants and who had filed a report, was cross-examined by the respondent’s counsel.
  1. [69]
    In accordance with the order made, no evidence was given by Ms Liang.
  1. [70]
    At the conclusion of the trial, the matter was adjourned to a date to be fixed, with orders made for the giving of written submissions.

Application for Recusal

  1. [71]
    Subsequent to the trial, on 22 November 2021, an application was brought by the appellants for the Magistrate to recuse herself from hearing and determining the proceedings any further. The application relied on the Magistrate’s conduct in discussing the matter with counsel for the respondent, Mr Trotter, prior to the arrival of counsel for the appellants at court and relied on various statements made during that exchange.
  1. [72]
    The Magistrate’s decision on the application was given on 26 November 2021, with the Magistrate dismissing the application and declining to disqualify herself from hearing and determining the matter.
  1. [73]
    In giving her decision, the Magistrate identified the relevant test to be applied by reference to the High Court decision in Charisteas v Charisteas.[3] The Magistrate referred to the passage from Charisteas where the High Court stated the apprehension of bias principle is that a judge is disqualified “if a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”[4] The Magistrate continued to quote from the statements made by the High Court in Charisteas where it was noted:[5]

“Its application requires two steps: first, ‘it requires the identification what it is said might lead a judge … to decide a case other than on its legal and factual merits’; and second, there must be articulated a ‘logical connection’ between that matter and the feared departure from the judge deciding the case on its merits.”

  1. [74]
    The Magistrate concluded that the facts in the case were clear and commented:

“the Court was open and recording at all times; counsel for the [appellants] was not in attendance, initially, at the required time; the transcript reveals an expiration of the documents as lodged by the parties to be able to assist the Court, for the plaintiff – the hearing in the presence of counsel; counsel for the [appellants] was informed in brief of these discussions; when counsel for the [appellants] arrived over one hour late, and the matter then commenced.”

  1. [75]
    The Magistrate noted the submission for the appellants’ counsel suggesting that there was conduct in the Court indicative of familiarity or association with Mr Trotter. The Magistrate noted that there was no evidence that she had ever met Mr Trotter prior to the trial commencing, neither that or at any time before, during or after conclusion of the proceedings had she had communications or associations with any of these legal practitioners or their parties or their witnesses.
  1. [76]
    The Magistrate observed that, “[i]t could never be the case that civility between practitioners in the Court should be dispensed with.” The learned Magistrate considered that a level of civility was also extended to the appellants’ practitioner. In so doing, the Magistrate considered that her forensic examination of the court file revealed that the appellants’ practitioner “had lied to the Court” by instructing her counsel that she had filed affidavits dated 29 May 2020 and 2 April 2021, noting the concession by the appellants’ counsel that her instructions were not correct. The Magistrate commented that, “If there was ever a moment of incivility, this would have been it, but none was shown.”
  1. [77]
    The Magistrate further observed, in refusing the application, that Mr Trotter had initially misinformed the Court in the Magistrate’s presence, and “at a later date he corrected himself on the record.”
  1. [78]
    The Magistrate further noted that exploring with parties the prospects of settlement is “a prudent and necessary practice in an attempt to resolve issues”, as too is a “vigorous determination of facts to establish the documents relied upon” and “the need to determine compliance with court orders.” The Magistrate observed that the fact that a party is disaffected by court rulings does not automatically give rise to an apprehension of bias.

Judgment on the Trial

  1. [79]
    On 30 November 2021, the Magistrate gave her decision in the matter.
  1. [80]
    The Magistrate confirmed the making of her order to strike out the counterclaim and that the evidence in the trial was given by two witnesses, Mr McLay, the director of the respondent, and Mr Wu, the author of the survey report, who gave evidence by telephone through a Mandarin interpreter.
  1. [81]
    The Magistrate found Mr McLay to be a “credible, reliable, honest, and direct witness” and said that she accepted his evidence in its entirety. The Magistrate found that Mr Wu was clearly in a business relationship with Ms Liang. She stated that no evidence was given as to his qualifications and that he never could be described as an expert. She found the essence of his evidence to be “untruthful, unreliable and contrived, for the benefit of the [appellant] companies”.
  1. [82]
    In addition, the Magistrate found that Ms Liang had “devised an elaborate rouse of dishonesty to deprive the plaintiff of monies owing from the fruit. Further, Ms Liang has created this deception to avoid paying the money due and owing, and that this deceit has involved Mr Wu in China and other parties unknown.” The Magistrate found there had been collusion between Mr Wu and Ms Liang and that the only logical conclusion was that the fruit in the survey report was not Mr McLay’s fruit.
  1. [83]
    The Magistrate concluded that there had been no payment and that the respondent had proved their claim on the balance of probabilities.

Nature of Appeal

  1. [84]
    The respondent’s claim is above the minor dispute limit, and as such, the appeal is by way of right under s 45(1)(a) of the Magistrates Court Act 1921 (Qld). Pursuant to r 765, r 782 and r 785 of the UCPR, the appeal is by way of a rehearing.[6]
  2. [85]
    The characteristics of an appeal by way of a rehearing are well established. It is necessary for the appeal court to make up its own mind on the basis of the findings of primary fact made at the previous hearing. It is necessary for the appellant to show that the decision being appealed is incorrect.[7]
  1. [86]
    The appellants contended on the appeal that the learned Magistrate:
  1. (a)
    should have recused herself;
  1. (b)
    should have allowed Ms Liang to give evidence;
  1. (c)
    should have granted an adjournment; and
  1. (d)
    should not have dismissed the counterclaim for want of prosecution.
  1. [87]
    The last ground technically arises from a decision made on the first day of the trial but ultimately, they all led to the judgment given on 30 November 2021. The appeal was filed on 16 December 2021, well within time. To the extent that leave is required to appeal against the decisions made on the first day of the trial, leave should be granted to appeal out of time.

Grounds for Appeal

Ground 1 The Magistrate’s Refusal to Recuse Herself

  1. [88]
    In relation to the refusal of the Magistrate to disqualify herself, it is said that the Magistrate erred in failing to disqualify herself from the matter for apprehended bias.
  1. [89]
    The appellants argue that the refusal by the Magistrate to allow the appellants’ director, Ms Liang, to give oral evidence arose from the Magistrate’s erroneous finding made during discussions which took place between the Magistrate and Mr Trotter prior to the arrival of opposing counsel. It is submitted that the appellants’ counsel was disadvantaged because she was not present when those discussions occurred and was therefore not aware of the full context surrounding the subsequent statements made by the Magistrate.
  1. [90]
    The appellants also rely upon the enquiries made by the Magistrate of Mr Trotter about his family. It was submitted that these enquiries, and one made later during the course of the proceedings, tended to show some familiarity between the Magistrate and Mr Trotter and his family.
  1. [91]
    In all of the circumstances, it was submitted that a fair-minded lay observer would consider the Magistrate may not bring an impartial mind to the matter she had to decide.
  1. [92]
    The applicable principles are well established.[8] The test is whether a fair mind lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is to decide.[9] The principles give effect to the requirement that justice should both be done and be seen to be done, reflecting the fundamental requirement of an adversarial trial that it be conducted by an independent and impartial tribunal.
  1. [93]
    The reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. Gibbs CJ and Mason J in Re JRL; Ex parte CJL,[10] in adopting what was said by McInerney J in R v Magistrates’ Court at Lilydale; Ex Parte Ciccone,[11] stated:

“The sound instinct of the legal profession-judges and practitioners alike--has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”

  1. [94]
    The principle shows how ill-advised it was for the Magistrate to embark upon a discussion with one counsel prior to the arrival of opposing counsel about his family and the proceedings, particularly as those discussions involved some contentious matters.
  1. [95]
    The tone of those discussions and later discussions about the proceedings, including the abrupt way in which some of the submissions made by counsel for the appellants were dealt with and some of the comments made about her solicitor, reinforce the doubt that a person might have as to whether the Magistrate might bring an impartial mind to the proceedings.
  1. [96]
    Nevertheless, the matters raised in those discussions regarding the proceedings were subsequently repeated in the presence of the appellants’ counsel. Insofar as the submission is put on the grounds that the appellants’ counsel would not have understood the subsequent statements made by the Magistrate and so that she could fully respond, I do not accept it. Insofar as the submission is put more broadly, I will deal with it when considering the next ground of appeal.
  1. [97]
    The comments which were suggestive of familiarity with the Trotter family were comments which would have been preferable not to have been made but I do not consider those comments were such that it could be said the Magistrate was not going to decide the case other than on its legal and factual merit.
  1. [98]
    Notwithstanding some misgivings as to the way the hearing was conducted, the Magistrate, in my view, did not err when she refused to recuse herself at the time the application was made.

Grounds 2, 3 & 5 – Grounds Arising Out of Ms Liang Not Being Able to Give Evidence

  1. [99]
    The agreement which was the subject of the proceeding was partly oral and partly in writing, and insofar as it was made orally, it is accepted by both parties that any oral communications occurred between Mr McLay, on behalf of the respondent, and Ms Liang. The only dispute was whether Ms Liang was representing the first or second appellant.
  1. [100]
    Given the issues in dispute, it was submitted by counsel for the appellants the evidence of Ms Liang was crucial to the defence case.
  1. [101]
    Further, it was submitted that, notwithstanding the absence of evidence from Ms Liang, the Magistrate proceeded to make findings against Ms Liang, including her involvement in creating a deception to avoid paying the money due and owing, and that deceit has involved Mr Wu in China and other parties. It was submitted that those findings essentially amounted to findings of fraud, and Ms Liang was never given notice of the making of the allegations nor the opportunity for the allegations to be put to her in cross examination.
  1. [102]
    It was submitted the Magistrate was clearly incorrect about the requirement for an affidavit to be filed and incorrect that oral evidence is not the usual way in which evidence is given.
  1. [103]
    Counsel for the respondent submitted that the decision by the Magistrate to refuse the evidence of Ms Liang was justified by “the continued non-compliance with court orders by the Appellants.” Reference was made in the written submissions to a failure to provide the further and better particulars of the amended defence and counterclaim for almost three years and the failure to provide witness statements and expert reports for two and a half years.
  1. [104]
    The realities are, however, that the respondent had received the further and better particulars prior to trial and was evidently prepared to request a trial although the copy received was unsigned, unsealed and missing an attachment. It is difficult to see how it could be said the respondent had been prejudiced.
  1. [105]
    As to the alleged failure to file the written statements, no order had ever been made for the written statements to be filed, and there was certainly no order requiring the evidence-in-chief to be given by affidavit.
  1. [106]
    The respondent had received the second statement dated 2 April 2021, some time prior to the matter proceeding to trial. As to non-compliance with the court order as to the time for the production of statements, the respondent’s statement was not produced on time either.
  1. [107]
    The respondent never brought an application requesting provision by the appellants of the witness statement, nor requiring the filing of evidence sworn by affidavit.
  1. [108]
    Given the receipt by the respondent of the April 2021 statement some period before the trial, it is difficult to see on what basis the respondent could allege they would have been prejudiced in proceeding to cross-examine Ms Liang at trial.
  1. [109]
    Rather, it seems the Magistrate simply concluded that the non-provision of an executed affidavit amounted to a “significant impediment” for the respondent and that it meant the respondent would be “caught by ambush” in relation to the evidence-in- chief. That view is contrary to the UCPR which requires evidence at trial started by claim to be given orally.[12]
  2. [110]
    Concerningly, notwithstanding that counsel for the respondent had earlier accepted that the respondent had received a statement of Ms Liang, counsel did not attempt to correct the statements by the Magistrate as to disadvantage to the respondent. Rather, counsel adopted the statements made by the Magistrate.
  1. [111]
    If there was a concern that Ms Liang be held to her previous statement, or that the trial should be run by way of written evidence-in-chief, then it would have been a simple exercise to require that Ms Liang confirm in her evidence-in-chief the contents of her witness statement.
  1. [112]
    A party is entitled to be given a sufficient opportunity to present their case.[13]
  1. [113]
    The refusal to allow Ms Liang to give evidence, despite her being present in court and able to be cross-examined, despite the requirement of the rules that evidence be given orally (in the absence of an order to the contrary), despite her evidence being of critical importance on the pleadings, and despite there being no evidence of actual disadvantage to the other party, was a complete denial of procedural fairness.
  1. [114]
    The error was compounded by findings of fact being made about Ms Liang in the judgment; despite the Magistrate not having heard her.
  1. [115]
    The decision to disallow the giving of oral evidence was wholly disproportionate to the breach of orders actually made.
  1. [116]
    To the extent that the making of the order seems to have at least started with the view that different orders should have been made, and that the orders required affidavits be served, it was also wrong.
  1. [117]
    It was much too late to change the regime for the conduct of the trial, and, as stated earlier, the witness’ statement could easily have been accepted as the evidence-in- chief of the witness.
  1. [118]
    That the order might have been made because the Magistrate wrongly understood that the respondent did not even have a copy of the statement, or wrongly considered they did not have a copy of the statement because it was not sealed, is no excuse. It should have been corrected by opposing counsel. As mentioned earlier, the law proceeds on the basis that evidence be given orally, and unless orders are specifically made, there is no requirement that parties be supplied with summaries of evidence or statements of witnesses prior to trial. In the case of oral agreements or representations, there is every reason why such statements or affidavits not be supplied.
  1. [119]
    The conduct of the Magistrate amounted to a denial of procedural fairness, particularly in circumstances where there can be no dispute that the evidence of Ms Liang was critical to the case for the appellant.
  1. [120]
    These grounds of appeals are upheld.

Ground 4 – Refusal to Grant an Adjournment

  1. [121]
    By this ground of appeal the appellants argue that the decision to refuse to grant an adjournment amounted to a denial of natural justice. This ground is an alternative to the previous grounds regarding the refusal to permit Ms Liang to give evidence.
  1. [122]
    It is almost impossible to conclude, as mentioned in dealing with the last ground of appeal, that it was reasonable of the Magistrate to take the view that Ms Liang could not give or be allowed to give her evidence orally, either because of non-compliance with orders relating to those matters or the Magistrate’s own view of how evidence should be given in matters before her.
  1. [123]
    Nevertheless, rather than deny the appellants the right to be heard, the obvious course would have been to allow an adjournment.
  1. [124]
    Whether or not an order for costs should or would have accompanied such an order is academic and not argued. It would not necessarily be concluded that it would have been accompanied by an order for costs against the appellant. The respondent sought the trial notwithstanding the deficiencies in compliance by the appellants with orders and there is no reason why the trial could not have proceeded with oral evidence from Ms Liang. There was no actual evidence of prejudice. The issues in dispute were of relatively small compass. Why the respondent would not have wanted to simply get on with the trial is an open question.
  1. [125]
    If necessary, I would have upheld this ground.

Ground 6 – Dismissal of the Second Appellant’s Counterclaim

  1. [126]
    In giving her reasons for decision on 30 November 2021, following the conclusion of the trial, the Magistrate confirmed her decision made earlier in the trial and stated:

“The counterclaim of the defendant’s company was struck out at the commencement of these proceedings for failing to comply with court orders – evidence in exhibit number 1, 2 and 3 – and the deliberate misleading the court by indicating that two affidavits have been filed on behalf of the defendants, which was, and proved to be, untruthful.”[14]

  1. [127]
    It is apparent from both the Magistrate’s decision and statements made by the Magistrate in the course of the hearing that the non-compliance being relied upon was both the failure to provide the further and better particulars and the failure to file the witness statement. In giving her decision on 30 November 2021, the Magistrate referred to the deliberate misleading of the court in relation to the alleged filing of two affidavits.
  1. [128]
    Earlier, I dealt with the factual position as to both the particulars and the witness statements. The particulars do not seem to have been filed until a week prior to trial and that set does not seem to have been served, but the respondent had some form of the particulars well prior to the hearing date and requested a hearing date despite any deficiency in the form they had been provided. The respondent had a statement from Ms Liang and had not sought for that statement to be presented in a different form. There was no evidence of actual prejudice.
  1. [129]
    Compounding these factual matters is that in making the order to strike out the counterclaim, the Magistrate made no mention of the criteria referred to by Atkinson J in Tyler, and clearly did not consider them.
  1. [130]
    In this case, the Magistrate’s belief as to the non-compliance by the appellants became the only consideration. The Magistrate had no regard to the material the respondent had already received, that the matter was set down for trial at the time of the application, that there was no evidence of actual prejudice, and that there was no suggestion that a fair trial could not be had by reason of any delay.
  1. [131]
    The criteria referred to in Tyler are important; even though, like all criteria, some will carry more weight than others, some may not be relevant in a given case and there may be relevant additional considerations; as that decision recognised. The rule is discretionary and requires, as Tyler shows, a balancing exercise between the considerations to which reference was made.
  1. [132]
    The Magistrate made errors of fact in making the order, failed to take into account relevant considerations, and failed to engage in a principled consideration of the relevant matters, making appellate court intervention possible and necessary.[15]
  2. [133]
    There was no proper basis for the counterclaim to be struck out at that time.
  1. [134]
    This ground of appeal is upheld.

Orders

  1. [135]
    At the conclusion of the oral submissions, counsel for both parties argued that, if the appeal was to be upheld, the appropriate course was to enable the parties to make further submissions as to the terms of any order and submissions as to costs.
  1. [136]
    Given those submissions, it is appropriate to enable the parties to file a draft order reflecting these reasons. It would be appropriate to include in the draft order, if agreement can be reached, the order as to costs.
  1. [137]
    The agreed draft order should be filed by 12 May 2023. If the parties are unable to agree the draft order, each party is to file and serve the draft order they contend should be made by 12 May 2023.
  1. [138]
    If the parties are unable to agree the draft order (including the order as to costs), the appellants are to file and serve submissions by 17 May 2023 and the respondent is to file and serve submissions by 19 May 2023.
  1. [139]
    The submissions are to be no more than four pages in length. All documents can be filed by forwarding the document by email to the associate to Judge Sheridan.
  1. [140]
    The final order will be determined in chambers.
  1. [141]
    The orders I make are:
  1. The appeal is allowed.
  1. The parties are to file an agreed draft order by 12 May 2023, or if the parties are unable to agree the draft order, each party is to file and serve the draft order they contend should be made by 12 May 2023.
  2. If the parties are unable to agree the draft order, the appellants are to file and serve submissions by 17 May 2023 and the respondent is to file and serve submissions by 19 May 2023.
  3. The submissions filed by each party are to be no more than four pages in length.
  1. The appeal is otherwise adjourned.

Footnotes

[1] Uniform Civil Procedure Rules 1999 (Qld) [UCPR].

[2] [2000] QCA 178 [Tyler].

[3] [2021] HCA 29 [Charisteas] .

[4] [2021] HCA 29, [11].

[5] [2021] HCA 29, [11].

[6] JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272, [5]-[8]; Lehmann v Warren & Anor [2017] QDC 69, [10]; Australian Partners Pty Ltd v Kerr [2018] QDC 148, [10].

[7] Allesch v Maunz (2000) 203 CLR 172, 181; Teelow v Commissioner of Police [2009] QCA 84, [4].

[8] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50.

[9] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50.

[10] [1986] HCA 39; (1986) 161 CLR 342, 346, 350-351.

[11] [1973] VR 122, 127.

[12] UCPR, r 390(a).

[13] South Australia v O'Shea (1987) 163 CLR 378, 405.

[14] Exhibits 1 and 2 were the orders made by the Magistrates Court referred to in paragraph [12] above and exhibit 3 was the further amended defence and counterclaim.

[15] House v The King (1936) 55 CLR 499.

Close

Editorial Notes

  • Published Case Name:

    Queensland Food Corporation Pty Ltd & Anor v Dermark Pty Ltd

  • Shortened Case Name:

    Queensland Food Corporation Pty Ltd v Dermark Pty Ltd

  • MNC:

    [2023] QDC 76

  • Court:

    QDC

  • Judge(s):

    Sheridan DCJ

  • Date:

    10 May 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Australian Partners Pty Ltd v Kerr [2018] QDC 148
2 citations
Jump To
Cite 1 - [2018] QDC 148
Cite 2 - [2018] QDC 148
Charisteas v Charisteas [2021] HCA 29
4 citations
Jump To
Cite 1 - [2021] HCA 29
Cite 2 - [2021] HCA 29
Cite 3 - [2021] HCA 29
Cite 4 - [2021] HCA 29
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
3 citations
Jump To
Cite 1 - [2019] HCA 50
Cite 2 - [2019] HCA 50
Cite 3 - [2019] HCA 50
Ebner v Official Trustee in Bankruptcy (2000) HCA 63
3 citations
Jump To
Cite 1 - (2000) HCA 63
Cite 2 - (2000) HCA 63
Cite 3 - (2000) HCA 63
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
JJ Richard & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272
2 citations
Jump To
Cite 1 - [2010] QDC 272
Cite 2 - [2010] QDC 272
JRL; Ex parte CJL [1986] HCA 39
2 citations
Jump To
Cite 1 - [1986] HCA 39
Cite 2 - [1986] HCA 39
Lehmann v Warren [2017] QDC 69
2 citations
Jump To
Cite 1 - [2017] QDC 69
Cite 2 - [2017] QDC 69
R. v Magistrates Court at Lilydale (1973) VR 122
2 citations
Jump To
Cite 1 - (1973) VR 122
Cite 2 - (1973) VR 122
Re JRL; Ex parte CJL (1986) 161 CLR 342
2 citations
Jump To
Cite 1 - (1986) 161 CLR 342
Cite 2 - (1986) 161 CLR 342
South Australia v O'Shea (1987) 163 C.L.R 378
2 citations
Jump To
Cite 1 - (1987) 163 C.L.R 378
Cite 2 - (1987) 163 C.L.R 378
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
2 citations
Jump To
Cite 1 - [2009] QCA 84
Cite 2 - [2009] QCA 84
Tyler v Custom Credit Corp Ltd [2000] QCA 178
2 citations
Jump To
Cite 1 - [2000] QCA 178
Cite 2 - [2000] QCA 178

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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