Aguilar v Egnalig [2017] QCA 175

SUPREME COURT OF QUEENSLAND CITATION: Aguilar & Anor v Egnalig [2017] QCA 175 PARTIES: MARTIN AGUILAR (first applicant) MARIA LUISA (MALOU) AGUILAR (second applicant) v ANACELIA EGNALIG (respondent) FILE NO/S: Appeal No 13391 of 2016 DC No 2553 of 2016 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Civil) ORIGINATING COURT: District Court at Brisbane – [2016] QDC 291 (Dick SC DCJ) DELIVERED ON: 18 August 2017 DELIVERED AT: Brisbane HEARING DATE: 14 July 2017 JUDGES: Morrison JA and Applegarth and Boddice JJ ORDER: Application refused, with costs. CATCHWORDS: APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – where the applicant seeks leave to appeal a decision of the District Court to not set aside a decision of the Magistrates Court granting summary judgment against the applicants – where the applicants contend that the appeal raises an important point of law or a question of general public importance, and that the appeal is necessary to correct a substantial injustice – whether leave to appeal should be granted District Court of Queensland Act 1967 (Qld), s 118 (3) Uniform Civil Procedure Rules 1999 (Qld), r 163, r 225, r 292, r 302 Attorney-General (Qld) v Lawrence [2011] QCA 347, applied Coles Group Limited v Costin [2015] QCA 140, applied COUNSEL: L Stephens for the applicants C Descola (sol) for the respondent SOLICITORS: Alexander Law for the applicants Winthrop Mason Lawyers for the respondent -- 1 of 7 -- 2 [1] MORRISON JA: I agree with the reasons of Boddice J and the orders proposed by his Honour. [2] APPLEGARTH J: I agree with the reasons of Boddice J, and with the orders proposed by his Honour. [3] BODDICE J: On 23 November 2016, a Judge of the District Court dismissed the applicants’ appeal from a decision of the Magistrates Court of 3 June 2016 dismissing the applicants’ application to set aside summary judgment entered on 15 January 2016. [4] The applicants seek leave to appeal the decision of the District Court of 23 November 2016. The applicants submit that leave to appeal ought to be granted as the appeal raises an important point of law or question of general public importance, namely, the test to be applied to set aside a summary judgment given against a party who did not appear on the hearing of the application, and that the appeal is necessary to correct a substantial injustice to the applicants. [5] The respondent opposes the grant of leave to appeal. The respondent submits that no important point of law or question of general public importance arises and, further, there is no evidence of a substantial injustice. Background [6] On 13 November 2014, the respondent filed a claim and statement of claim against the applicants claiming damages for breach of contract, misrepresentation, fraud and negligence. The claim arose out of an allegation that the respondent had paid money to the applicants in exchange for migration agency services which the applicants failed to provide to the respondent. [7] On 17 December 2014, the applicants filed a defence to the respondent’s claim. An amended defence was filed 16 January 2015. After a change of legal representation, a further amended defence was filed on 7 May 2015. [8] On 29 June 2015, the respondent filed an application for orders against the defendants in relation to pleadings, particulars and disclosure. It was returnable on 7 August 2015. [9] On 6 July 2015, the applicants filed a second further amended defence. In that defence, the applicants denied any breach of contract, misrepresentation, fraud and negligence. The applicants alleged that the failure to provide migration agency services was as a consequence of the respondent’s failure to comply with her obligations in relation to the pre-requisites for migration. [10] Notwithstanding that further document, the respondent proceeded with the application for orders in respect of disclosure, pleadings and particulars. At the hearing of the application, the applicants, who were now self-acting, successfully sought an adjournment to 21 August 2015. [11] On 21 August 2015, the applicants, who were now represented by different legal representatives, successfully sought a further adjournment of the hearing of the application to 18 September 2015. That hearing, rescheduled to 24 September 2015 was itself adjourned on the respondent’s application to 10 November 2015. [12] On 10 November 2015, neither the applicants nor their legal representatives attended the hearing of the respondent’s application. The Chief Magistrate made orders striking out certain paragraphs of the second further amended defence. Orders were also made in relation to the provision of further particulars and further disclosure. -- 2 of 7 -- 3 [13] On 18 November 2015, the respondent filed an application for summary judgment, returnable on 14 December 2015. It sought summary judgment pursuant to rule 292 of the Uniform Civil Procedure Rules. On 18 November 2015, the summary judgment application was adjourned to 15 January 2016 at the request of the applicants’ solicitors, who appeared by telephone. [14] On 15 January 2016, the applicants’ solicitors did not attend the summary judgment hearing. Summary judgment was entered against the defendants pursuant to rule 292 of the Uniform Civil Procedure Rules or alternatively, pursuant to rule 225(2)(b) or rule 163 due to the applicants’ failure to comply with the order for particulars and disclosure made by the Chief Magistrate on 10 November 2015. The applicants were ordered to pay damages to the plaintiff in an amount to be assessed as well as costs of the proceedings fixed in the sum of $3,133. [15] On 5 February 2016, the applicants obtained further alternate legal representation. Application to set aside summary judgment [16] On 10 March 2016, the applicants filed an application to set aside the summary judgment. That application was returnable on 18 April 2016. [17] On 18 April 2016, the applicants’ legal representatives successfully applied to adjourn the application to set aside summary judgment to 20 May 2016. The basis for the application was that the applicants required time to obtain further supporting evidence, including evidence of failures on the part of their previous legal representatives. [18] On 20 May 2016, the application to set aside summary judgment was adjourned further to 3 June 2016, again on the applicants’ application. The basis for that adjournment was also to gather further supporting evidence. [19] On 3 June 2016, the applicants’ application to set aside the summary judgment was heard by Magistrate Shearer. At that hearing, the applicants also sought to have heard an application to withdraw certain deemed admissions as a consequence of the Chief Magistrate’s earlier orders striking out parts of the previous defence. Those orders were never the subject of an appeal by the applicants. [20] Magistrate Shearer dismissed the defendants’ application to set aside the summary judgment. Magistrate Shearer found that the applicants had not complied with the orders made by the Chief Magistrate and had made deemed admissions due to the striking out of aspects of their pleading, which pleading had been filed on their instructions and with their approval. [21] In reaching that latter conclusion, the learned Magistrate found the applicants had not given proper explanations for the failures to comply with the Chief Magistrate’s orders, to attend the hearing of that summary judgment application and to file material in opposition to that application. The learned Magistrate did not accept the applicants’ assertions that those failures were because they did not know about the application or hearing date. District Court appeal [22] In dismissing the applicants’ appeal, the learned Judge after setting out a detailed history of the proceeding, observed that the learned Magistrate had noted that the -- 3 of 7 -- 4 applicants had not complied with the orders of the Chief Magistrate on 10 November 2015 and that summary judgment had been given on the basis of a failure to comply with those orders and earlier orders in relation to proper disclosure and service of a request for a trial date. Further, the pleadings contained admissions to all of the elements of the cause of action, some of which were deemed admissions consequent upon the earlier orders striking out paragraphs of the second further amended defence. [23] The learned Judge also observed that the learned Magistrate had given the applicants an opportunity to place evidence before the Court in support of their assertions that past legal representation was the explanation. When the matter returned for further hearing, the learned Magistrate had before him an affidavit from the applicants’ previous solicitors containing sworn assertions that the pleadings had been drafted in accordance with the applicants’ instructions and that the applicants had subsequently instructed those pleadings were accurate. [24] The learned Magistrate specifically accepted the evidence of the applicants’ former solicitors in its entirety and rejected the assertions the applicants did not know anything about the contents of the second further amended defence and did not approve the filing of that document. The learned Magistrate also noted there was no evidence from the applicants’ legal representatives to explain their failure to appear on the summary judgment application, in circumstances where it had been adjourned to that date at their request. The learned Magistrate found there was no proper explanation for the failure to file material in opposition to the application for that summary judgment and no proper explanation for the failure to comply with the Chief Magistrate’s orders. [25] The learned Judge found that having regard to those findings, the decision of the learned Magistrate was an exercise of the discretion properly open. Further, having regard to the findings that the applicants were aware of the application for summary judgment, had failed to explain the non-compliance with the Chief Magistrate’s orders, that there were no merits having regard to the basis for the deemed admissions and a finding that the applicants knew and gave instructions for the deemed admissions, there was no basis to conclude the learned Magistrate failed to give reasons in accordance with the duty on the part of judicial tribunals to give reasons. Applicants’ submissions [26] The applicant submits that leave to appeal ought to be granted because the learned Magistrate, in dismissing the application to set aside summary judgment, failed to consider the relevant test to be applied in making a decision under rule 302 of the Uniform Civil Procedure Rules 1999. The Magistrate also failed to consider the merits of the applicants’ defence, should the application for leave to withdraw the deemed admissions be successful. The Magistrate failed to consider and determine the application for leave to withdraw the deemed admissions and failed to give reasons in relation to the giving of summary judgment pursuant to rule 225(2)(b) or rule 163, neither of which were relied upon in the application for summary judgment. [27] The applicants submit that the learned Magistrate should have granted the application, if properly considered in the circumstances. The applicants had provided an explanation for any delay in bringing the application, namely they were not aware of the application or of the non-compliance with the orders of the Chief Magistrate. The applicants had shown a defence on the merits, namely that the agreement entered into -- 4 of 7 -- 5 between the respondent and the applicants were frustrated by the respondent’s conduct in not continuing with the application and in failing to meet the necessary requirements for migration. The respondent had, by her actions, repudiated the contract preventing the applicants from carrying out those services. [28] The applicants submit that the learned Magistrate erred in law and fact in holding that the defendants did not have realistic prospects of success at the hearing. The Magistrate considered the merits of the defence in its current form, not in its proposed amended form. The learned Magistrate gave no reasons for his failure to consider the merits of that proposed defence. Further, the learned Magistrate erred in making findings of credit in an interlocutory application as a basis for determining the likelihood of success at a full trial. Finally, the learned Magistrate erred in relying upon rules 225(2)(b) or 163 and gave no reasons for reliance upon those sections. Respondent’s submissions [29] The respondent submits leave to appeal ought not to be granted as no important question of law or of general importance arises and no error has been shown which gives rise to a substantial injustice. [30] The learned Judge’s reasons for dismissing the appeal clearly articulated that in dismissing the appeal the learned Judge had considered whether the learned Magistrate had provided reasons for his decision in dismissing the application to set aside the summary judgment. Further, the learned Judge considered and applied the correct test for granting summary judgment. In doing so, the learned Judge noted the learned Magistrate had considered and rejected the applicants’ explanation for the failure to appear at the application for summary judgment. Discussion [31] The relevant principles in relation to leave to appeal to this Court pursuant to s 118(3) of the District Court of Queensland Act 1967 are not in dispute. Leave will usually only be granted where there is an important point of law or question of general public importance or where leave is necessary to correct a substantial injustice to an applicant, there being a reasonable argument there is an error to be corrected.1 [32] As the learned Judge properly observed, the learned Magistrate’s decision whether or not to set aside the summary judgment was a discretionary one. An appellate Court will only interfere with the exercise of a discretion if it is shown that the primary Judge acted on a wrong principle, failed to take a material consideration into account or took into account an immaterial consideration.2 No such basis has been shown to exist in the present case. [33] The learned Judge considered the applicants’ contentions that the learned Magistrate had failed to apply the appropriate test, had failed to give appropriate weight to relevant factors and had failed to consider the available defences should the deemed admissions be withdrawn. The learned Judge properly rejected each of those contentions. [34] A consideration of the material placed before the learned Magistrate clearly supported a finding that no proper explanation had been given for the failure to file material in 1 Coles Group Limited v Costin [2015] QCA 140 at [67]. 2 Attorney-General (Qld) v Lawrence [2011] QCA 347 at [27]. -- 5 of 7 -- 6 opposition of the application for summary judgment or to comply with the orders of the Chief Magistrate. The applicants had been given time to file further material in support of the application to set aside summary judgment. Despite those opportunities, they filed no affidavit material from their then legal representatives to explain the failure to attend summary judgment, the date for which had been set after their successful application to adjourn the earlier hearing. No satisfactory explanation was provided for the failure to provide that information. Against that background, it was open to the learned Magistrate to reject the applicants’ contention that their conduct was explained by poor legal representation. [35] Further, it was open to the learned Magistrate to reject the applicants’ contention that the earlier pleadings had been filed without their knowledge or approval. The learned Magistrate had evidence from the applicants’ former solicitors that the pleadings filed on their behalf had been prepared on their express instructions and with their express approval. Such a finding was clearly open on all the evidence. [36] Once the learned Magistrate had determined there was no proper explanation for their failure to appear at the hearing of the application for summary judgment and for non- compliance with the orders of the Chief Magistrate, it was plainly open, in the exercise of the learned Magistrate’s discretion, to conclude that no good reason had been shown for setting aside the judgment. It was also open to conclude that the interests of justice did not require such an outcome. That being so, no basis was established to set aside the summary judgment pursuant to rule 302 of the Uniform Civil Procedure Rules. [37] Whilst it is correct that the learned Magistrate, in reaching that conclusion, did not expressly determine the applicants’ application to withdraw the deemed admissions consequent upon the striking out of aspects of their pleadings, there was no requirement to do so having regard to the finding that the original pleadings had been filed on the instructions of the applicants and with their express consent. [38] The application to withdraw the admissions sought to replead allegations to a similar effect to those that had been the subject of a successful strike-out application before the Chief Magistrate. The Chief Magistrate’s orders had not been the subject of an appeal. In those circumstances, there was no reasonable prospect the applicants could succeed in the application to withdraw the admissions once a finding had been made that the pleadings had been filed with their knowledge and consent. [39] Finally, there was no basis upon which the learned Judge could properly conclude that the learned Magistrate erred in not setting aside the summary judgment on the basis that reliance had been had upon rules not the subject of the filed application for summary judgment. Summary judgment was properly given pursuant to rule 292 of the Uniform Civil Procedure Rules. In those circumstances there was no basis to set aside that judgment. [40] Further, at the time of the hearing of the application for summary judgment, the applicants had not complied with orders made by the Chief Magistrate. That non- compliance was not the subject of any explanation. It was properly a matter for the Magistrate to consider giving summary judgment. This was particularly so as it could not be said the applicants were unaware of the hearing of the application, it having been adjourned to that date at the specific request of the applicants’ then legal representatives. -- 6 of 7 -- 7 Conclusions [41] The learned Judge did not apply the wrong test for determining whether an appellate Court should interfere with the learned Magistrate’s exercise of a discretion. The learned Judge considered the whole of the material in the context of the relevant test and properly determined that no error had been shown justifying appellate intervention. [42] The applicant has not established that a point of law arises in the present case or that it gives rise to matters of general public importance. The applicants have also not established that a substantial injustice has occurred in all the circumstances. [43] I would refuse the application, with costs. -- 7 of 7 --