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Heran v Joseph Douglas Realty Pty Ltd[2024] QDC 104

Heran v Joseph Douglas Realty Pty Ltd[2024] QDC 104

DISTRICT COURT OF QUEENSLAND

CITATION:

Heran v Joseph Douglas Realty Pty Ltd [2024] QDC 104

PARTIES:

STEPHEN HERAN

(appellant)

v

JOSEPH DOUGLAS REALTY PTY LTD

(respondent)

FILE NO:

1213 of 2024.

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Southport Magistrates Court

DELIVERED ON:

Judgment delivered ex tempore on 24 May 2024.

Reasons delivered 10 July 2024.

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2024.

JUDGE:

Byrne KC DCJ

ORDERS:

  1. The appeal be heard as an appeal in the strict sense.
  2. Leave to rely on the affidavit of Mr Anthony Delaney filed 22 May 2024 containing exhibits ATD-1 to ATD-17 is refused, save that leave is granted for exhibit ATD-17.
  3. Leave to rely on the affidavit of Mr Anthony Delaney filed 22 May 2024 containing exhibits ATD-1 to ATD-2 is granted.
  4. Leave to rely on the affidavit of Billy Trembath affirmed 23 May 2024 is refused.
  5. The appeal is allowed.
  6. The order of (the Magistrate) in the Southport Magistrates Court dated 10 April 2024 is varied such that order 3 is vacated with the other orders remaining extant.
  7. The respondent is to pay the appellant’s costs of the appeal.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the respondent commenced proceedings in the Magistrates Court claiming monies owing under a contract – where the appellant, at a directions hearing, indicated an intention to apply for leave to adduce expert evidence at trial in accordance with an earlier consent order – where leave for the appellant to rely on expert evidence at trial was refused by the Magistrate at that hearing – where the appellant appeals that decision – where consideration must be given to the interests of justice – whether the Magistrate failed to give adequate reasons – whether the Magistrate failed to properly assess the relevant features in refusing leave.

LEGISLATION:

District Court of Queensland Act 1967 (Qld) s. 118.

Magistrates Courts Act 1921 (Qld) ss. 45(1), 47.

Uniform Civil Procedure Rules 1999 (Qld) rr. 32, 367, 765(2), 765(4), 766(1), 766(2), 785.

CASES:

AK v Western Australia (2008) 232 CLR 438.

Allesch v Maunz (2000) 203 CLR 172.

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219.

Hamra v The Queen (2017) 260 CLR 479.

Mackellar Mining Equipment Pty Ltd v Thornton [2019] QCA 77.

Wainohu v New South Wales (2011) 243 CLR 181.

COUNSEL:

Mr. A.C. Harding for the appellant.

Mr. M.A. Goldsworthy for the respondent.

SOLICITORS:

Delaneys Lawyers for the appellant.

Bell Legal for the respondent.

  1. [1]
    On 20 April 2023 the respondent commenced proceedings in the Southport Magistrates Court claiming monies owing under a contract, namely $147,000 and interest.  The claim was therefore for more than the minor civil dispute limit. 
  2. [2]
    Central to the respondent’s case was a document it asserted had been both signed and amended by the appellant. So far as is relevant, the appellant pleaded in his defence that he signed the document, but denied signing beside the purported amendments. 
  3. [3]
    In the course of case management, on two occasions, Orders were made requiring, in effect, the filing of any expert reports by certain nominated dates.  The last such date imposed on the appellant was 6 March 2024, unless leave was granted.  These orders will be considered in more detail below. 
  4. [4]
    The respondent had been served with a short form handwriting analysis expert report on 19 December 2023, but no report complying with the requirements of the UCPR had been served or filed.  On 7 February 2024, the appellant became aware that the long form of the same expert report may not be available by the required filing date.  Some correspondence passed between the solicitors on the topic, the contents of which need not be presently considered. 
  5. [5]
    On 15 March 2024 a long form of the expert report was served on the respondent. 
  6. [6]
    On 10 April 2024, a directions hearing was held in advance of the trial, listed for a one day hearing on 11 June 2024.  At that directions hearing, the appellant’s solicitor indicated an intention to obtain a hearing date for an application for leave to adduce that expert evidence. The Magistrate, at the suggestion of the respondent, ordered, amongst other things:

“Leave for the defendant to rely on expert evidence at the trial is refused.”

  1. [7]
    Her Honour gave no reasons for that order, other than what can be gleaned from the course of submissions.  It is that order which is the subject of the present appeal. 
  2. [8]
    Since filing the appeal, the appellant filed an application for leave to rely on the expert evidence at the trial, which was made returnable in the Southport Magistrates Court on 29 May 2024.  It was common ground that that application was liable to be struck out as an abuse of process if the order the subject of the appeal remained on foot.
  3. [9]
    At the hearing of the appeal, I gave judgment, although the orders as they appear on the coversheet have anonymised the name of the Magistrate, who is named in the actual orders. What follows are my reasons for those orders.

Grounds of appeal

  1. [10]
    The appellant relied on five grounds of appeal. They need not be reproduced verbatim.  It is sufficient to say that error was asserted by in refusing leave for the appellant to adduce the expert report at trial, that the Magistrate failed to properly exercise the discretion in refusing that leave, that the Magistrate erred by failing to give reasons, or adequate reasons, for the decision to refuse leave to rely on the expert evidence at trial and that the Magistrate erred by failing to properly assess the likely prejudice to the parties in assessing the application for leave to rely on the expert evidence. 

An appeal in the strict sense or by way of re-hearing?

  1. [11]
    As the Claim was for an amount more than the minor civil dispute limit, an appeal as of right was open to this Court.[1] That was common ground on the appeal, even though the form of the Notice of Appeal sought leave to appeal.
  2. [12]
    Section 47 of the Magistrates Courts Act 1921 outlines the powers of this Court on appeal.  They do not include a power to receive further evidence.  The power to do so is a characteristic of a Court conducting an appeal by way of re-hearing.  The absence of that power suggests the present appeal is to be conducted as an appeal in the strict sense.[2]
  3. [13]
    Rule 785 of the UCPR applies many, but not all, of the rules concerning appeals to the Court of Appeal to appeals to the District Court from the Magistrates Court.  Pursuant to r 765(2), an appeal from an interlocutory order “is brought by way of an appeal”.  That this is a reference to an appeal in the strict sense is exemplified by r 765(4), which allows the appeal to “proceed by way of re-hearing” if it is “in the interests of justice”.
  4. [14]
    Pursuant to the combined operation of rr 766(1)(c) and (2), evidence may be received on an appeal from an interlocutory order without special leave.  In my view that power is only available for evidence of events occurring prior to the judgment and where the appeal is to be heard by way of re-hearing.  Curiously, further evidence may be given as to evidence of events occurring after judgment “in any case” even though the appeal may be heard as an appeal in the strict sense.  The power to receive that evidence is subject to the usual considerations for the admission of further evidence.  These are often concerned with the reliability of the evidence and its ability to affect the outcome of an issue.[3]

An appeal in the strict sense or by way of re-hearing?

  1. [15]
    The appellant sought to introduce evidence by way of two affidavits from Mr Delaney.  The larger affidavit was concerned with events - mostly correspondence between the solicitors - prior to judgment but also included the transcript of the hearing below.  The smaller affidavit was concerned with matters occurring after judgment, namely the allocation of the hearing date on 29 May 2024 and a file note of the discussion with Registry staff about that. The respondent sought to rely on an affidavit of Mr Trembath which attested to further correspondence exchanged with the appellant’s solicitors prior to the judgment below.
  2. [16]
    Each party objected to the admission of any material, apart from the transcript of the proceedings below, tendered by their opponent that dealt with matters that occurred prior to judgment, unless the appeal was conducted by way of re-hearing. 
  3. [17]
    I have concluded that the appeal is appropriately conducted in the strict sense.  That is the manner in which it is to be conducted unless it is in the interests of justice to conduct it by way of re-hearing. 
  4. [18]
    The strongest argument for the appellant as to the appeal being heard by way of re-hearing is that the prejudice to the appellant is greater if assessed on 29 May 2024 rather than on 10 April 2024.  That is, when assessed at the later date, there is less time before the trial for the respondent to consider any response by way of expert report.  Accordingly, there is a risk that the appellant’s argument would be treated more unfavourably on 29 May 2024 than it would have been on 10 April 2024.
  5. [19]
    However, in my view, if the appeal were heard in the strict sense and was allowed, the delay under consideration on the re-hearing below would likely be attributed to the error below and the proper exercise of discretion would be to not count that passage of time unfavourably to the appellant.  For that reason the respondent’s submissions as to the interests of justice cannot be accepted.
  6. [20]
    Although overlooked by me in the course of argument, an appeal by way of re-hearing is to be conducted on the basis of the law, evidence and circumstances as known at the time of the appellate hearing.  That was five days prior to the listed application for leave in the Magistrates Court, which is not materially different in point of time.  Accordingly, the same considerations would have applied had the matter been heard by way of re-hearing.
  7. [21]
    Therefore, it is the closeness in time between the hearing of the appeal and the listed application in the Magistrates Court which tellingly counts against any finding of it being in the interests of justice to conduct the appeal by way of re-hearing.  Further, it is preferable that, if necessary, there be an avenue of appeal as of right to the District Court from the decision concerning leave rather than one by leave from the District Court to the Court of Appeal.[4] 

Determination of the issues on the appeal

  1. [22]
    It is necessary to outline some further factual matters.
  2. [23]
    On 31 October 2023, as a consequence of an unsuccessful settlement conference, the Deputy Registrar directed the appellant to file any expert report within 21 days. That direction evidences the fact that the possibility of an expert report had been raised at the settlement conference. As noted earlier, a short form report was subsequently served on 19 December 2023. It had never been filed.
  3. [24]
    On 7 February 2024, a series of orders were made, by consent. They included:

“3. The defendant is to file and serve any expert report he intends to rely upon at trial by 6 March 2024.

  1. Should the defendant not file and serve an expert report pursuant to order 3, the Defendant is precluded from relying on any expert evidence at trial without leave of the Court.”
  1. [25]
    Additionally, the matter was listed for pre-trial directions on 10 April 2024. By that date, the trial listing of 11 June 2024 had been allocated.
  2. [26]
    In the course of oral submissions at the directions hearing, the appellant’s solicitor told her Honour that an application for leave would be made, and that he hoped to have that date allocated at the directions hearing. He correctly observed that the terms of the order on 7 February 2024 permitted an application for leave to be made as late as during the trial itself, although he accepted that an application at that stage would face difficulties. Broadly, he indicated that the report had not been served and filed by 6 March 2024 due to his own leave and leave taken by the expert. He told the Magistrate that a copy had now been served. Given the history of the orders made, he accepted that he had been “dilatory” with respect to the matter. He submitted that the report was crucial to the defence.
  3. [27]
    The respondent’s Counsel told her Honour that he was unsure if they could immediately engage an expert to consider the appellant’s expert report, and that a minimum of four weeks would be required to obtain any such report from the date of leave being granted. He invited her Honour to “just dispose of this issue today and make an order that they are precluded, and your Honour can, of course make that direction today. It’s not something that can be remedied by costs at this stage. It’s more an issue of time.”[5]
  4. [28]
    The respondent’s submissions on appeal can be distilled into two essential propositions; first, that her Honour was entitled to make the order she did as a proper exercise of her case management function and, second, that in any event an appellate Court should be loath to interfere in an interlocutory order made with respect to case management issues.
  5. [29]
    A fair reading of the transcript of the hearing below reveals that the Magistrate was not impressed with the application for leave, whether taken to be pending or then made.
  6. [30]
    Her Honour seems to have initially been under the misapprehension that the application was being made that day. She was very critical of the fact that there had been no written application filed, nor any affidavits filed by the appellant, although she later observed that an oral application could properly be made. Ultimately, her Honour made orders of the nature sought by the respondent without any affidavits filed by it either.
  7. [31]
    After appreciating that a hearing date was being sought, her Honour was told by her clerk that the next available date was 19 June 2024; that is, after the allocated trial date. It appears from the transcript that, in her Honour’s view, this precluded any possibility of considering the application at all. She clearly considered that such an application would result in the listed trial being vacated. That, of course, was only a possibility if the application was granted, which was, in itself, only one of a number of relevant considerations on an application.
  8. [32]
    The eventual listing of the application on 29 May 2024 suggests that either the clerk’s indication was wrong or that the state of the applications list later changed, which they notoriously do at short notice. With the benefit of hindsight, it would have been desirable for her Honour to have added the application to an apparently full list in the expectation that other matters would fall away. Regardless, this was only one of a number of features that had to be balanced in the proper exercise of discretion.
  9. [33]
    There was at that stage no application for leave to adduce the expert evidence before the Court, although the respondent’s suggestion reproduced at [27] herein could amount to an oral application to preclude any application for leave being brought, contrary to the terms of the consent orders previously made.[6]
  10. [34]
    There was power to make the orders, but that required her Honour to give paramount consideration to the interests of justice, whether acting in response to an oral application or under the broad power at r 367.[7] The terms of the respondent’s suggestion necessarily directed attention to the principles from Aon Risk Services Australia Ltd v Australian National University.[8]
  11. [35]
    Her Honour gave no reasons. Accordingly, I have looked at the course of submissions to ascertain what the reasons were, as the respondent accepts is necessary. I am unable to see where her Honour gave proper consideration to the competing considerations.
  12. [36]
    Ironically, after being critical of the appellant for not putting on affidavit evidence when her Honour thought the appellant was then seeking leave, she made the subject orders without any affidavit evidence from any party or any material that went to the issues to be balanced, other than broad statements from the Bar table that were not sufficiently helpful for the exercise she was undertaking. The appellant’s solicitor cannot be blamed for coming unarmed with affidavit material; he found himself answering an orally made application of which he had no notice, or the Magistrate acting of her own volition in the name of case management. Principles of natural justice dictated that the application, whatever its source, needed to be adjourned to a later date for hearing.
  13. [37]
    It is understandable that her Honour was interested to protect the trial listing, but that was only one relevant consideration. Aon Risk does not mandate that late applications be refused if the trial will be adjourned, but it does require the Court to give consideration to case management issues in conducting the balancing exercise. Had her Honour done so, she might have come to the realisation that the respondent had been aware of the report for months. The respondent presumably made a forensic decision to not even ascertain the availability of an expert to reply, knowing the risk that the trial might be adjourned if leave were sought and granted. Her Honour was in error in assuming that it would be unable to reply if the appellant was given leave, especially as the trial was still two months away, and that this was determinative of the refusal of the purported application for leave.  The prejudice to the respondent had to be weighed in light of this forensic decision, and it was not.
  14. [38]
    Accordingly, the fourth ground of appeal is made out, namely that the Magistrate erred by failing to properly assess the likely prejudice to the parties depending upon the outcome of the application for leave to adduce the expert report at trial.
  15. [39]
    If necessary, I am also satisfied that the third ground of appeal is made out, namely that which alleges an error in failing to give adequate reasons.
  16. [40]
    A failure to provide adequate reasons for the decision made can amount to an error of law,[9] although the failure will not achieve that characterisation unless the inadequacy relates to a real issue in the proceeding. An inadequate explanation of a matter not related to the central issues may not amount to an error of law.
  17. [41]
    The concept of “adequacy” is rather elastic and adapts to the circumstances in the case at hand. There have been many attempts over the years to attempt to define what will amount to adequate reasons, but it is that elasticity which prevents a comprehensive and universally applicable definition. Nonetheless, the observations in Drew v Makita (Australia) Pty Ltd[10] by Muir JA (Holmes JA and Daubney J agreeing) provide assistance.
  18. [42]
    More recently, the High Court unanimously said:[11]

“…it is not necessary in every case to refer to every factor which has weight in a discretionary decision. What is sufficient in each case does not depend upon any rigid formula and will be informed by all the circumstances of the case, including the submissions that were made.”

  1. [43]
    Further, the duty to give adequate reasons has often been linked to the availability of rights of appeal[12] and so the duty to provide adequate reasons after trials and important interlocutory applications is well established.[13]
  2. [44]
    It may also be that recognition of the busy nature of a Magistrates Court could have relevance in a particular case, but that cannot be a complete answer where the reasons are inadequate. That may help explain why the reasons were produced in that manner, but that does not excuse the fact that an error of law has occurred if the reasons are inadequate for the purpose for which they were delivered.
  3. [45]
    In this case, the decision precluded the appellant from relying on what he contended was an important part of his case. As such, it was an important interlocutory application. At least brief reasons why the application was heard without notice and why the appellant was precluded from relying on circumstantially corroborative evidence supporting his case at trial were required. Even though this was a busy Magistrates Court holding directions hearings, at least brief ex tempore reasons were required. An appellate court should not have to divine the reasoning from a transcript of submissions.
  4. [46]
    The appellant fails on grounds one, two and five of appeal. Those grounds are predicated on the assumption that the Magistrate was then entertaining an application by the appellant for leave. She was not.

Costs

  1. [47]
    The respondent submitted that there should be no order as to costs of the appeal, or that there should be some variation on an order that the parties bear their own costs. That was justified, it was said, because the genesis of the appeal was the appellant’s default with the filing of the expert report.
  2. [48]
    While it can be accepted that the order below would not have been made without the appellant’s default concerning timelines, the fact remains that the Magistrate was encouraged by the respondent’s submission to preclude the appellant from a right to later seek leave; a right that was afforded by the earlier consent order and which was extinguished in error Further, that occurred in circumstances which amounted to a denial of natural justice. The costs of the appeal should follow the event.

Footnotes

[1]  Section 45(1) of the Magistrates Courts Act 1921.

[2] Allesch v Maunz (2000) 203 CLR 172, [22].

[3]  See, for example, Mackellar Mining Equipment Pty Ltd v Thornton [2019] QCA 77.

[4]  Section 118 of the District Court of Queensland Act 1967.

[5]  Ts 1-12 l 23.

[6]  Rule 32 of the UCPR.

[7]  Rule 367 of the UCPR.

[8]  (2009) 239 CLR 175.

[9] Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, [57].

[10] Drew v Makita at [59]-[62].

[11] Hamra v The Queen (2017) 260 CLR 479, [42].

[12] Wainohu v New South Wales (2011) 243 CLR 181, [54].

[13] AK v Western Australia (2008) 232 CLR 438, [89] cited in Wainohu v New South Wales at [56].

Close

Editorial Notes

  • Published Case Name:

    Heran v Joseph Douglas Realty Pty Ltd

  • Shortened Case Name:

    Heran v Joseph Douglas Realty Pty Ltd

  • MNC:

    [2024] QDC 104

  • Court:

    QDC

  • Judge(s):

    Byrne KC DCJ

  • Date:

    24 May 2024

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
AK v Western Australia (2008) 232 CLR 438
2 citations
Jump To
Cite 1 - (2008) 232 CLR 438
Cite 2 - (2008) 232 CLR 438
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Drew v Makita (Australia) Pty Ltd[2009] 2 Qd R 219; [2009] QCA 66
2 citations
Jump To
Cite 1 - [2009] 2 Qd R 219
Cite 2 - [2009] 2 Qd R 219
Hamra v The Queen (2017) 260 CLR 479
2 citations
Jump To
Cite 1 - (2017) 260 CLR 479
Cite 2 - (2017) 260 CLR 479
Mackellar Mining Equipment Pty Ltd v Thornton [2019] QCA 77
2 citations
Jump To
Cite 1 - [2019] QCA 77
Cite 2 - [2019] QCA 77
Wainohu v New South Wales (2011) 243 CLR 181
2 citations
Jump To
Cite 1 - (2011) 243 CLR 181
Cite 2 - (2011) 243 CLR 181

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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