Australia and New Zealand Banking Group Limited v Peyrac [2024] QDC 10 (2024) 4 QDCR 14

DISTRICT COURT OF QUEENSLAND CITATION: Australia and New Zealand Banking Group Limited v Peyrac [2024] QDC 10 PARTIES: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (Plaintiff) v PEYRAC (Defendant) FILE NO/S: BD 2946/23 DIVISION: Civil DELIVERED ON: 22 February 2024 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Barlow KC, DCJ ORDERS: The Court declares that: 1. The defendant’s request that the registrar refer the defendant’s request for default judgment on the counterclaim to a judge, for review of the registrar’s decision to refuse to give default judgment, is invalid; and 2. The defendant is not entitled to default judgment on the counterclaim. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – OTHER CASES- default judgement – application for default judgement refused by registrar – applicant requested registrar to refer decision to District Court judge pursuant to r 982 UCPR after registrar’s decision refusing judgement – whether referral to a judge is a method for review of a registrar’s decision Imperial Acts Application Act 1984 (Qld), s 5, sch 1 Statute of Monopolies 1623, 21 James 1 ch 3, ss 1, 4 Uniform Civil Procedure Rules 1999, rr 164, 181, 281, 284, 982 Kelly v Fiander [2023] WASC 187 R v Gibb [2017] QCA 280 REPRESENTATION: D Peyrac, self represented No appearance by the defendant -- 1 of 6 -- 1 [1] In this proceeding, the plaintiff (ANZ) sues the defendant (Ms Peyrac, who represents herself) for a debt alleged to arise from a loan made by ANZ to Ms Peyrac and for recovery of possession of real property over which ANZ alleges it has a registered mortgage to secure the debt. [2] The proceeding was commenced by claim and statement of claim filed on 12 October 2023. An amended statement of claim was filed on 16 October 2023. The claim and statement of claim, together with the amended statement of claim, were served on Ms Peyrac on 23 October 2023.1 [3] Ms Peyrac filed a notice of intention to defend, with an attached defence and counterclaim, on 17 November 2023. She served those documents on ANZ’s solicitors the same day.2 [4] On 22 January 2024, Ms Peyrac filed a request for default judgment on her counterclaim, on the basis that ANZ had not filed or served an answer to counterclaim within the 14 days provided for in rule 164(1)(a) and the counterclaim (she asserted) was for a debt or liquidated demand (in the sum of $220,770,000). [5] On 25 January 2024, the Registrar (Applications) refused the application for default judgement on the counterclaim. The reason given was that: Rule 281 of the Uniform Civil Procedure Rules 1999 provides that the rules for Default Judgment only apply where a defendant has failed to file a Notice of Intention to Defend. A Notice of Intention to Defend and Defence were filed by the defendant on 17 November 2023. [6] By a letter dated 5 February 2024, apparently received by the court on 8 February 2024, Ms Peyrac asked the registrar, under rule 982(2), to refer “this matter” to “Janelle Brassington, Deputy Chief Magistrate and judge of the District Court”, from whom Ms Peyrac sought a default judgment. Of course, Judge Brassington is (and was then) the Chief Magistrate and, although she is a judge of the District Court, while she is Chief Magistrate she does not sit on this court. [7] Ms Peyrac’s letter enclosed an affidavit by her in which she said she was requesting a review of the registrar’s decision. [8] The registrar referred “this matter” to me, as the judge sitting in the applications list of the court on the date of the referral. Notice of the referral (and indeed, of either request to the registrar) has not, so far as I am aware, been given to ANZ. I shall, however, ensure that a copy of these reasons is provided to its solicitors. [9] Rule 982 provides: (1) If a question arises in a matter before a registrar that the registrar considers appropriate for the decision of a judge or a magistrate, the registrar may refer the matter to a judge or magistrate. (2) If a party asks a registrar to refer a matter before the registrar to a judge or a magistrate, the registrar must refer the matter to a judge or a magistrate. 1 Affidavit of service of Michael Todd filed on 5 December 2023. 2 Affidavit of Ms Peyrac filed on 19 January 2024. -- 2 of 6 -- 2 (3) The judge or magistrate may then dispose of the matter or refer it back to the registrar with the directions the judge or magistrate considers appropriate. [10] I do not consider that the request for default judgment can now be referred to a judge under that rule, as the request has already been determined by the registrar. Therefore that “matter” of the request for default judgment is no longer before the registrar. A request under rule 982 is not a method of reviewing a decision already made by the registrar as, once a decision on the request is made, the registrar is functus officio and there is no longer a “matter” before the registrar. [11] That being the case, under what rule or principle can the registrar now refer to a judge Ms Peyrac’s request for referral? The word “matter” is used in the Rules in different ways, including meaning certain applications,3 but mostly in context it appears to mean “subject matter” or “allegation” or something similar.4 In rule 982, it is clearly different from a “question”, as the rule applies where a question arises in a matter before a registrar. In my view, a “matter” before a registrar in which a “question” may arise is any application or other process (such as a request for default judgment or a request to issue a subpoena) in respect of which the registrar has power (or may have power, as to which there may be a “question”) to make a decision. But I do not consider that a “matter” is likely to include a “proceeding” as a whole, as the two terms are, on occasion, juxtaposed in the rules.5 [12] Therefore, the registrar properly referred to a judge, under rule 982(1)6 the “matter” of Ms Peyrac’s request to refer the request for default judgment to a judge for review of the registrar’s earlier decision, in order for the court to determine the question of how that request can and should be dealt with. [13] I find support in this conclusion from the following comment of the former President of the Court of Appeal about the rule:7 Rule 982 of the UCPR confers a right upon the Registrar to refer any matter to a judge if the Registrar considers that the decision is one appropriate to be referred. That rule must be regarded as merely declaratory for it is undoubtedly open to the Registrar, having regard to the Registrar’s status and function, to seek the direction of the Court whenever he or she thinks it appropriate to do so in both civil and in criminal jurisdiction. [14] In this case, the registrar has referred to a judge of the court the issue or question of how to deal with the matter of Ms Peyrac’s request to refer the registrar’s prior decision to a specific judge. The registrar was entitled to do so. [15] Neither rule 982 nor the registrar’s general entitlement to seek the direction of the court, to which Sofronoff P referred, permits a party to request that a matter before the registrar be referred to a specific judge of the court, at least without good reason.8 Such an entitlement would be inimical to the impartial disposition of proceedings and 3 For example, r 453, but, juxtaposing “matter” with “application”, r 457. 4 For example, “procedural matters” – see the headings to ch 9, part 2, division 4 and ch 10, part 3, division 2; rule 150: “matters to be specifically pleaded”. 5 For example, in r 54: “a proceeding that raises for decision a special federal matter”. 6 Not rule 982(2). 7 R v Gibb [2017] QCA 280, [17]. 8 A good reason might be, for example, that the judge has previously partially dealt with the very matter or issue in that proceeding and it may be appropriate for that judge to reconsider the matter. -- 3 of 6 -- 3 applications before the court, in that it might enable a party to ask that the matter be referred to a judge whom the party perceived to be sympathetic to the party’s matter (a practice often referred to a “judge shopping”). Rather, under the court’s usual processes, the registrar will, at least ordinarily, refer a matter to the judge who, when the matter is referred, is sitting in the applications list of the court, as occurred here. [16] I do record that the reason given by the registrar for the decision to refuse default judgment was, with respect, wrong. The default judgment was sought in the counterclaim, not in the principal claim. Rule 181 provides that the rules apply to the conduct of a counterclaim with necessary changes as if the plaintiff on the counterclaim and the defendant to the counterclaim were plaintiff on and defendant to an original proceeding. Therefore, rule 281 applies part 1, division 2 of chapter 9 of the Rules (the division concerning default judgment) if a defendant to a counterclaim has not filed an answer to the counterclaim and the time allowed under rule 164 to file the answer has ended. In this case, that time had expired and, if the counterclaim were in fact for a debt or liquidated demand, then it would have been open to the registrar to give default judgment for that debt or liquidated demand. [17] However, the counterclaim here does not claim a debt or liquidated demand (nor, indeed, does it appear to reveal a cause of action, although that is not usually a consideration on a request for default judgment). To demonstrate this, it is appropriate to set out the counterclaim and to summarise those paragraphs of the defence on which the counterclaim purports to rely. [18] The defence, rather curiously, pleads to the claim, but not to the statement of claim. Ms Peyrac is therefore taken to have admitted every allegation in the statement of claim.9 Paragraph 1 of the defence perhaps gives some flavour to the balance. It reads: The Defendant, i.e., dagmar peyrac,10 is a British subject, and a living Australian woman endowed with all her natural rights, and not the all-capitals ‘Foreign Estate Trust’ owned by the government of the State of Queensland, as displayed on the Claim and Statement of Claim.11 [19] The defence goes on to claim that the mortgage on which ANZ relies is void and counterfeit for several reasons that are not necessary to set out here. Then the counterclaim follows: This Counterclaim is made in reliance upon the following facts: 2. That mortgage numbered 711427882 was null and void at the time of registration due to the reasons addressed in paragraphs 5, 6, 7, 8, 9 and 10. 3. Therefore, the Plaintiff … has no standing to claim indefeasibility of Title over [the defendant’s land]. 9 Rule 166. 10 I note the absence of a colon after Ms Peyrac’s first name, which appears to be inconsistent with how she writes her name on the notice of intention to defend and on other documents that she has filed, in which she writes her name (always in lower case) as “dagmar: peyrac”. This method of referring to herself, together with the content of paragraph 1 of the defence and paragraphs 4 and 5 of the counterclaim, indicate to me that Ms Peyrac is an adherent of what has become known as “pseudo law”, as to which see, for example, R v Sweet [2021] QDC 216. 11 Kelly v Fiander [2023] WASC 187 @ points 11, 17 and 14 thereof. [This footnote is a footnote to paragraph 1 of the defence. Interestingly, paragraph [11] of that court’s reasons can only be described as “debunking” at least one aspect of “pseudo law”, so it is puzzling that Ms Peyrac relies on it.] -- 4 of 6 -- 4 The Defendant, dagmar peyrac, claims the following relief: 4. That within the meaning of s. 4 of the Statute of Monopolies (Imp) 1623, the Defendant, dagmar peyrac, shall recover three (3) times so much as the damages which she sustained by means or occasion of being so hindered and aggrieved because of a tort, deceit, and forgery, has experienced mental anguish, and despair. 5. Therefore the Defendant, dagmar peyrac, is claiming AUD $220,770,000.00. 6. As the Registered Mortgage numbered: 711427882 is a counterfeit document, therefore, the Defendant, dagmar peyrac, is entitled to a discharge of the charge associated with the said mortgage, insofar as it affects her interest in the [defendant’s] land … [20] No facts or particulars are pleaded that justify or show the calculation of the amount claimed, as required by rule 155. That amount, though, appears to be claimed under s 4 of the Statute of Monopolies 1623.12 Sections 1 and 6, but not s 4, of that Act apply in Queensland by reason of the Imperial Acts Application Act 1984, s 5 and schedule 1. Section 4, relied on by Ms Peyrac, had been repealed by the English Statute Law (Repeals) Act 1969. Even if it continued to apply in Queensland until the commencement of the 1984 Act, it has not applied since then.13 [21] But even if s 4 did still apply in Queensland, it would not assist Ms Peyrac. The section relevantly provided that: if any person … shall be hindered, grieved, disturbed, or disquieted … by occasion or pretext of any monopoly, or of any such commission, grant, license, power, liberty, faculty, letters patents, proclamation, inhibition, restraint, warrant of assistance, or other matter or thing tending as aforesaid, and will sue to be relieved in or for any of the premises, that then and in every such case the same person and persons shall and may have his and their remedy for the same at the common law by any action or actions to be grounded upon this statute; … and every such person … shall recover three times so much as the damages which he or they sustained by means or occasion of being so hindered, grieved, disturbed, or disquieted, …14 [22] The first thing to be said is that instruments to which s 4 applied were those “tending as aforesaid”. The relevant “tendency” was described in s 1 as: all monopolies and all commissions, grants, licenses, charters, and letters patents heretofore made or granted, … of or for the sole buying, selling, making, working, or using of anything within this realm or the dominion of Wales, or of any other monopolies, or of power, liberty, or faculty, to dispense with any others, or to give licence or toleration to do, use, or exercise anything against the tenor or purport of any law or statute; or to give or make any warrant for any such dispensation, licence, or toleration to be had or made; or to agree or compound with any others for any penalty or forfeitures limited by any statute; or of any grant or promise of the benefit, profit, or commodity of any forfeiture, penalty, or sum of money that is or shall be due by any statute before judgment thereupon had; and all proclamations, inhibitions, restraints, warrants of assistance, and all other matters and things 12 21 James 1 ch 3. 13 Although not directly relevant, see P McDermott, Imperial Statutes in Australia and New Zealand (1990) Bond LR 162. 14 Emphasis added in this and the next passage from the Act. -- 5 of 6 -- 5 whatsoever, any way tending to the instituting, erecting, strengthening, furthering, or countenancing of the same, or any of them) … [23] The mortgage alleged by ANZ does not appear to fall within any part of this description, nor does Ms Peyrac plead that it does. [24] Ms Peyrac does not plead what her actual damages are. Nor does she plead any facts that amount to causation of those damages by ANZ. [25] Furthermore, a claim for damages (or for three times her damages) is not a debt or liquidated demand. Also, paragraph 6 of the counterclaim is not a claim for damages at all, but for other relief. Rule 283 therefore has no application to the counterclaim. [26] Additionally, the draft judgment provided by Ms Peyrac, in addition to judgment in the amount sought by her, set out this proposed order, presumably intended to give effect to the relief sought in paragraph 6 of the counterclaim: THAT THE COURT instruct the Registrar of Titles to release Mortgage numbered: 711427882, over Title Reference: 18379162, being lot 35 on GTP 3104, County – Ward, Parish – Gilston, in the State of Queensland. As the registered Deed is a counterfeit document and affects the Plaintiff’s interest in the said land described in Title Reference 18379162. [27] Ms Peyrac has not pleaded nor demonstrated that the value of her property is within the monetary jurisdiction of the District Court. Even if she had, this court may not have the jurisdiction or power to make such an order. But even if the court did, the registrar would not have power to give such a judgment, as it is not a judgment of the types described in rules 283 to 286. Rather, as a result of paragraph 6 of the counterclaim, it falls within rule 288, under which an application15 for default judgment may only be made to the court (that is, the court as constituted by a judge). On such an application, the court may give a judgment that it considers is justified on the pleadings. As, in this case, no cause of action is shown on the pleadings, if Ms Peyrac had made an application to the court, I expect that the court would not have granted any judgment. [28] The request for default judgment ought therefore to have been refused (as it was), but on different grounds to that stated by the registrar. [29] Finally, it is important to note that, on 6 February 2024, ANZ filed a reply and answer. If the court were now to receive an application for default judgment, that is a clear basis for refusing the application. [30] For all these reasons, under rule 982, I propose to dispose of the matter by declaring that: (a) the defendant’s request that the registrar refer the defendant’s request for default judgment on the counterclaim to a judge, for review of the registrar’s decision to refuse to give default judgment, is invalid; and (b) the defendant is not entitled to default judgment on the counterclaim. 15 That is, an application filed in accordance with rule 31, not a request under rule 283. -- 6 of 6 --