Roxo v Gamble[2025] QMC 3

MAGISTRATES COURTS OF QUEENSLAND

INTRODUCTION

1. [1]
   The plaintiff brings suit claiming:

1. – Return to plaintiff of:

1. Case 621b Loader
2. Hard Hose Irrigator

1. – Payment of $66,000 (plus interest and costs)

2. [2]
   The plaintiff by the claim and statement of claim seeks that relief upon the following basis – “In respect to list of items removed by the defendant from the plaintiff’s property.”

3. [3]
   The basis of the plaintiff’s claim, the plaintiff’s pleadings, the relief sought, and the plaintiff’s standing all ultimately inform the disposition of the application before the court.

THE APPLICATIONS

4. [4]
   The defendants apply for the following orders:

1. Application filed 22 July 2019:

1. – The judgement entered 18 February 2019 be set aside (pursuant to r 290 Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
2. – The statement of claim be struck out (pursuant to r 171 – UCPR).
3. – Leave to replead the statement of claim be granted.
4. – The plaintiff pay the defendants costs of the application.

2. Application filed 22 November 2023:

1. – That leave be granted to continue the proceeding from the last step taken in the proceeding (pursuant to r 389 UCPR).
2. – The cost of the application follow the event.
5. [5]
   Both applications are opposed by the plaintiff.

THE PARTIES’ MATERIAL

6. [6]
   Both counsel for the plaintiff and the solicitor for the defendants have provided written outlines of argument.
7. [7]
   Notwithstanding that the court’s file with the registry has many iterations of previous written submissions (prepared by the plaintiff whilst appearing pro se and the defendants variously represented by different lawyers) at the hearing of these applications the parties adopted and relied on their submissions:
1. – The plaintiff’s submissions – prepared by Mr Beehre (counsel appearing on a direct brief) undated but tendered 19 August 2024.
2. – The defendant’s submissions – prepared by Paddington’s Legal Group dated 12 July 2024.
8. [8]
   Those outlines identify the parties’ material as follows:

Plaintiff

Doc No	Document	Date Filed
1	Claim and Statement of Claim	10 October 2018
2	Affidavit of Debt of Ross Roxo	17 December 2018
3	Request for Default Judgement	9 February 2019
4	Affidavit of Ross Roxo	(sworn) 14 February 2019
5	Affidavit in Support of Judgement	18 February 2019
6	Affidavit of Service of Hadia Edilbi	18 February 2019
7	Affidavit of Service of Hadia Edilbi	18 February 2019
8	Default Judgement	18 February 2019
9	Affidavit of Ross Roxo	24 May 2024
10	Affidavit of Ross Roxo	12 July 2024
11	Affidavit of Ross Roxo	19 July 2024

Defendants

Doc No	Document	Date Filed
1	Application to Set Aside Default Judgement	22 July 2019
2	Affidavit of Ian Gamble	24 July 2019
3	Application to Continue Proceeding	21 November 2023
4	Affidavit of Ian Gamble	3 May 2024
5	Affidavit of Daniel Samuel	3 May 2024
6	Affidavit of Ross Roxo	24 May 2024
7	And the Plaintiff’s Documents 1, 2, 6, 7, and 8	N/A

THE HISTORY OF THE MATTER

9. [9]
   As the filing dates of the parties’ material would readily identify, the proceedings have had a lengthy and concerning history.
10. [10]
    By way of brief observation:
1. – The claim and statement of claim were filed on 10 October 2018.
2. – The second defendant was allegedly personally served on 17 October 2018.
3. – The first defendant was allegedly personally served on 18 October 2018.
4. – The plaintiff requested judgement by default pursuant to r 283 (UCPR), but only as against the first defendant (on 17 December 2018).
5. – The registrar issued a notice of refusal – and refused the default judgement upon the basis that “your request also seeks an order for the return of specified goods and permission to enter the defendant’s premises, therefore you must apply before a Magistrate to hear your matter,” on 22 January 2019.
6. – The plaintiff requested judgement by default pursuant to r 283 (UCPR) on 18 February 2019.
7. – The registrar granted judgement by default (as against the first and second defendants) on 18 February 2019.
8. – The defendants applied to set aside the default judgement on 22 July 2019.
9. – The defendants’ application to set aside the default judgement has been variously adjourned (either with the consent or not opposed by the plaintiff) as follows:
10. – 13 September 2019 (no appearance by plaintiff) adjourned to the registry.
11. – 27 October 2023 (no appearance by plaintiff) adjourned to 18 December 2023.
12. – 18 December 2023 (no appearance by plaintiff) adjourned to 12 January 2024.
13. – 12 January 2024 directions orders made and adjourned to 23 April 2024
14. – 19 April 2024 (brought on earlier at the request of the parties) – again further directions orders made and adjourned to 7 June 2024.
15. – 7 June 2024 (further, further directions orders made) adjourned to 19 August 2024.
16. – 19 August 2024 (applications heard).
11. [11]
    Establishing a chronology of these proceedings and indeed attempting to collate the filing dates of the parties’ documents has proven problematic contingent upon the registry of the court transferring to a new “paperless” system on QCase.
12. [12]
    The claim and statement of claim seek mixed relief being:
1. – Return delivery of possession of chattels.
2. – Payment of $66,000.
13. [13]
    The Magistrates Court did not have the power to grant the relief sought by the plaintiff, for the delivery of possession of chattels, both at the time that the proceedings were commenced on 10 October 2018 and at the time that default judgement was granted on 22 July 2019.^[1] The power to grant that relief only commenced with the amendment to s 4 – Magistrates Court Act 1921 (Qld) from 25 May 2020.^[2]
14. [14]
    The registrar’s advice to the plaintiff in the notice of refusal dated 22 January 2019 to “apply before a Magistrate to hear your matter” was clearly incorrect.
15. [15]
    The plaintiff ultimately persuaded the registrar to grant default judgement, by request for default judgement and supporting documents filed 18 February 2019 in the sum of $84,824.17 (being claim $66,000, interest $18,474.17, and costs $350).
16. [16]
    The only amendment to the plaintiff’s request for default judgement as between the request filed 17 December 2018 and the request filed 18 February 2019 is the deletion of the “deliver/return to the plaintiff – the chattel items identified.”
17. [17]
    In the course of arguing the application the plaintiff (when appearing pro se) on 7 June 2024 contended that he had filed an amended claim and statement of claim.^[3] The plaintiff asserted that an amended statement of claim was filed “in early 2019” but could not identify a filing date or produce a copy of that document.
18. [18]
    On the hearing on 19 August 2024 (when the plaintiff was represented by counsel) that contention as to the filing of an amended claim and statement of claim was at least to some degree continued to be advanced.^[4] The issues those submissions (and assertions) raised for the court in the context of the court file now being an electronic file within QCase, necessitated no fewer than five written email requests to the registry for confirmation of the filed documents on 19 August 2024, 10 November 2024, 9 December 2024, 12 December 2024, and 14 January 2025 with final confirmation being received from the Civil Registry on 14 January 2025. The plaintiff has not filed an amended claim and a statement of claim in the proceedings. The claim and statement of claim filed 10 October 2018 are the plaintiff’s only pleadings.

THE RELEVANT RULE

19. [19]
    The UCPR empowers the court to set aside a judgement by default granted under r 283.
20. [20]
    Rule 290 provides:

“The court may set aside or amend a judgement by default under this division, and any enforcement of it, on terms, including terms about costs and the giving of security, the court considers appropriate.”

21. [21]
    Under this rule the court has a broad discretion to set aside a judgement.
22. [22]
    Where judgment has been obtained in default of the filing of a notice of intention to defend, it may be possible to set aside that judgement on either of two grounds depending on the regularity of the entry of the judgement:
1. If the judgement has been obtained irregularly, the defendant will be entitled to have the judgement set aside without showing any merits, that is, the judgement may be set aside ex debito justitiae.
2. Where the judgement has been regularly obtained the judgment may be set aside in the discretion of the court.^[5]
23. [23]
    If the default judgement is irregularly entered the defendants will be entitled as of right to have the judgement set aside without showing any merits.
24. [24]
    If the default judgement is regularly entered, the defendants must persuade the court to exercise the discretion to set it aside, involving the consideration of a number of matters.^[6]
25. [25]
    The defendants (as applicants) contend that the default judgment was irregularly entered.
26. [26]
    The plaintiff (as respondent) contends that the judgement was regularly entered and that the court must therefore consider, in the exercise of the discretion:
1. – Whether the defendant has given a reasonable explanation for its failure to appear.
2. – Any delay in making the application.
3. – Whether the defendants have a primary prima facie defence on the merits to the claim.
27. [27]
    Determining whether the default judgement was irregularly or regularly entered therefore informs the proper consideration of the defendant’s application.

IS THE DEFAULT JUDGEMENT IRREGULARLY ENTERED OR REGULARLY ENTERED?

28. [28]
    The defendants (as applicants) contend that the default judgement was irregularly entered and advance three bases for that contention, namely:
1. – Deficient pleading
2. – No personal service
3. – The plaintiff lacking standing (whether the plaintiff held the right and title of the chattels at the time of commencement of proceedings)
29. [29]
    The plaintiff seeks to resist the finding that default judgement was irregularly entered. The plaintiff’s counsel’s outline seeks to address this threshold consideration somewhat as an afterthought.
30. [30]
    The plaintiff’s response to the defendants’ submission as to standing to bring the claim is premised on requiring the defendants to demonstrate their prospects of success in defending the claim.^[7] The plaintiff’s response to the contention that the claim was not served upon the first and second defendants is confined to an assertion that the affidavit of service was compliant with r 120 (UCPR).^[8]
31. [31]
    The defendant’s primary contention in respect of this being an irregularly entered default judgement is that the pleadings are deficient.

SUFFICIENCY OF THE PLEADING

32. [32]
    The statement of claim is contained in one continuous paragraph. It was apparently drafted by the plaintiff personally (without the assistance of legal representation).
33. [33]
    The document insofar as the identity of the defendants is concerned simply reads:

“Defendant – Ian Gamble

Ashley Gamble

Gamble Family Trust”

34. [34]
    In subsequent documents filed in the proceedings the plaintiff has purported to amend the heading on the document to show the parties as first defendant, second defendant, and third defendant respectively.
35. [35]
    The body of the plaintiff’s pleaded case against the defendants fails to identify the first defendant, second defendant, or third defendant respectively in the pleaded case. The statement of claim simply pleads “the defendant … agreed to transport and … separately removed and obstructed every attempt and benefited from the use of the equipment and failed to maintain it.”
36. [36]
    The UCPR provides particular rules in respect of pleadings contained in ch 6 pt 2.
37. [37]
    A pleading must:
1. – Contain a statement of all material facts on which the party relies, but not the evidence by which the facts are proved.
2. – State specifically any matter that if not stated specifically may take another party by surprise.
3. – May plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.^[9]
38. [38]
    Additionally, there are a number of matters which are required to be specifically pleaded including:
1. – Breach of contract or trust
2. – Every type of damage claimed
3. – Illegality
4. – Negligence or contributory negligence
5. – Performance and part performance^[10]
39. [39]
    If damages are claimed in a pleading, the pleading must state the nature and amount of the damages claimed.^[11]
40. [40]
    The defendants submit that the statement of claim is deficient and noncompliant with ch 6 pt 2 upon the basis that:
1. – It failed to particularise the appropriate calculation for the amount claimed of $66,000.
2. – It fails to adequately outline the duty owed by the defendants.
3. – It does not comply with r 150 and fails to properly plead a cause of action.
4. – It is ambiguous, vague, and overly general resulting in embarrassment to the defendants leaving them uncertain about the allegations against them.
5. – It claims $66,000 but fails to specify whether the amount represents liquidated damages, a debt, or unliquidated damages.
6. – It fails to contain particulars of the payment or liability in respect of damages.^[12]
41. [41]
    The plaintiff’s counsel’s outline responds without specifically addressing the pleading requirements of the UCPR ch 6 pt 2 or indeed without addressing with any specificity the defendants’ complaints. The plaintiff’s submissions (commendable for their brevity) simply contend:
1. – “The plaintiff’s allegation is clearly that the defendants took items of farm machinery belonging to the plaintiff and failed to return those items or allow them to be collected.”^[13]
2. – The pleading informs the defendants of the claim made against them and the facts upon which it is based and which in law entitle the plaintiff to the relief sought.^[14]
3. – Any omission in the statement of claim do not make the pleading defective so that the judgement regularly entered.^[15]
42. [42]
    Those submissions were supplemented by the plaintiff’s counsel in oral argument in these terms:
1. – “If I could make a submission in respect of this statement of claim. It would be my submission that the facts are really apparent even from a defective statement of claim like this.”^[16]And further,
2. – “Your Honour is obviously aware of the defects in the statement of claim. My position before the court though Your Honour is that the defendants even if they don’t put now where we are today, even if they don’t plead, even if they say there was deficiencies here, the case authorities declare that the defendants need to demonstrate a prima facie defence on the merits.”^[17]
43. [43]
    In dealing with the challenge to the sufficiency of the pleading, the plaintiff’s counsel also sought to raise the issue of the pleading being drafted by the plaintiff whilst he acted pro se.^[18]
44. [44]
    That proposition has been rejected by the Court of Appeal who found that there was “an obligation on a party who seeks to embroil her fellow citizens in litigation to formulate her claims in a comprehensible fashion” and “that the rules as to pleadings ensure the basic requirement of procedural fairness in civil litigation”^[19] and “the courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other party” and further, that not having the benefit of competent legal advice “does not licence her to proceed unconstrained by the rules according to which adversarial litigation is conducted.”^[20]
45. [45]
    The defendants rely on a District Court decision which directly considered the sufficiency of pleadings in the context of an application to set aside a default judgement upon the basis that it was irregular. His Honour Judge Dearden DCJ in Ezy Homes Investments Pty Ltd v Bugg^[21] found:

“The entering of a judgement by default is, of course, a significant power on the part of the court and where that judgement has been irregularly entered because of difficulties such as, in this case, with a statement of claim that doesn’t disclose a cause of action that it is entirely appropriate to set aside that irregular judgement.”

46. [46]
    At pages 3 and 4 of the judgement, His Honour identified particular pleading issues which made the statement of claim deficient. A consideration of His Honour’s reasons informs a consideration of the statement of claim in these proceedings.
47. [47]
    The following deficiencies have been identified correctly in my view namely:
1. Each of the parties named as “defendant” in Ian Gamble, Ashley Gamble and Gamble Family Trust are not identified in the pleading by pleaded material fact identifying their involvement.
2. The plaintiff does not plead he was the owner of the farm equipment (UCPR r 149(1)).
3. The statement of claim fails to contain a statement of all material facts relied on including for example, when and how the agreement was entered into (UCPR r 150(1)(a)).
4. The statement of claim does not plead a cause of action, either breach of contract or trust, bailment, a claim for conversion and detinue or in negligence (UCPR r 150(1)).
5. The statement of claim does not plead, in the event a claim for damages can be implied in the pleading, the nature and amount of damages claimed (UCPR r 155(1)).
6. The statement of claim does not plead in respect of any implied claim for damages the money the party has paid or is liable to pay (UCPR r 158).
7. The statement of claim fails to provide particulars to define the issues at trial (UCPR r 157(a)).
8. The statement of claim is so vague that it could not be pleaded to in response (UCPR r 157(d)).
9. The statement of claim fails to plead particulars of a debt or liquidated demand (UCPR r 153(a)).
10. The statement of claim is vague, ambiguous, or embarrassing.
48. [48]
    The statement of claim is so deficient as to be noncompliant with the pleading provisions of the UCPR in ch 6 pt 2 such that it would be susceptible to being struck out pursuant to r 171 (UCPR).
49. [49]
    The grounds of the defendants’ application here are identical to the grounds considered by His Honour Judge Dearden in Ezy Homes Investments Pty Ltd v Bugg and I adopt His Honour’s reasons at page 2 of that judgement.

“The grounds of the application are that judgement was not regularly entered because the claim and statement of claim did not disclose a cause of action and are otherwise vague and embarrassing. I accept the submission made on behalf of the applicant defendant Mr Bugg that if the judgement is irregular the defendant is entitled to set aside the judgement as of right regardless of a defence on the merits (see Hughes v Justin [1894] 1 QV 667, Alliance Acceptance Company Limited v Makas [1976] 26 FLR 451, Daly v Silley [1960] VR 353).”

50. [50]
    The Court of Appeal in Cusack v De Angelis^[22] found:

“It has been long accepted that a defendant is entitled to have an irregularly entered judgement set aside as of right subject to the exercise to the power of amendment and the futility of interfering with the judgement. Such judgements are the product of the exercise of administrative acts performed without legal authority. Irregularity as that term is used in relation to default judgements usually results from a failure to comply with the rules of court relating to the entering of default judgements.”^[23]

51. [51]
    The plaintiff’s statement of claim is deficient and as a consequence the default judgement entered was obtained irregularly and the defendants are entitled to have the judgement set aside as of right.

IRREGULARITY OF JUDGEMENT – CLAIM LIQUEDATED OR UNLIQUEDATED

52. [52]
    The default judgement obtained by the plaintiff was granted by the registrar pursuant to r 283 (UCPR).
53. [53]
    This rule applies if the plaintiff’s claim against the defendants is for a debt or liquidated demand.
54. [54]
    The plaintiff’s claim as pleaded in the claim and statement of claim, as has been found in paragraphs 44 – 50 above, does not plead a cause of action known at law.
55. [55]
    In the event that the statement of claim were capable of withstanding scrutiny and any claim articulated by it was for breach of contract, negligence, in bailment, or for detinue and conversion, then the claim would be for unliquidated damages.
56. [56]
    A liquidated demand is one that is ascertained or is capable of being ascertained by calculation or formula.^[24]
57. [57]
    The registrar in considering the request for default judgement pursuant to r 283 did not properly identify this as a claim for unliquidated damages and wrongly dealt with the application as if it were a claim for debt or liquidated demand.
58. [58]
    The registrar ought to have been on notice as to the nature of the claim by the very affidavit of debt sworn by the plaintiff on 14 February 2019 and filed on 18 February 2019. The very basis of the loss the plaintiff purports to depose to clearly indicates that this was a claim for unliquidated damages.
59. [59]
    A judgement by default for unliquidated damages is made pursuant to r 284 (UCPR).
60. [60]
    The plaintiff may file a request for judgement conditional on the assessment of damages by the court^[25] and if the court constituted by a registrar gives judgement the registrar must nominate the court that is to do the assessment.^[26]
61. [61]
    In respect of a default judgement obtained in the Magistrates Court the registrar may proceed to assess damages or refer the assessment of damages to a court constituted by a Magistrate.^[27]
62. [62]
    There was no assessment of damages by the registrar or a referral by the registrar to the court for an assessment.
63. [63]
    The default judgement was not a default judgement pursuant to r 284 (UCPR) conditional on an assessment of damages.
64. [64]
    The default judgement is therefore, irregular, upon the basis that the claim if one can be ascertained from the pleadings, was a claim for unliquidated damages.

PARTIES ADDITIONAL SUBMISSIONS

65. [65]
    For reasons contained in paragraphs 44–50 and 51–62 above, I conclude that the default judgement obtained by the plaintiff was irregular and the defendants are entitled as of right to have it set aside.
66. [66]
    The other issues canvassed by both parties’ submissions are therefore irrelevant and are not required to be considered.
67. [67]
    As noted, those include:
1. – The plaintiff’s standing to commence the proceedings
2. – Personal service of the claim and statement of claim
3. – The defendants requiring leave to proceed pursuant to r 389.

DISPOSITION

68. [68]
    The default judgement obtained by the plaintiff on 18 February 2019 was irregularly entered. I order that the default judgement entered on 18 February 2019 be set aside.

FURTHER SUBMISSIONS

69. [69]
    In the event that costs cannot be agreed between the parties or further consequential orders are required in respect of amendment of the pleadings, I direct that the parties file and serve written submissions on those matters to be no more than 5 A4 typed pages as follows:
1. The defendants within 10 days
2. The plaintiff within 21 days

Magistrate J.N.L Pinder

Dated 12/02/2025