Credit Corp Services Pty Ltd v Tang [2017] QDC 247

DISTRICT COURT OF QUEENSLAND CITATION: Credit Corp Services Pty Limited v Tang [2017] QDC 247 PARTIES: CREDIT CORP SERVICES PTY LIMITED (ACN 082 928 872) (appellant) v LUCKY TANG (respondent) FILE NO/S: APPEAL NO: 103/17 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: 3 October 2017 DELIVERED AT: Cairns HEARING DATE: 14 September 2017. JUDGE: Morzone QC DCJ ORDER: 1. The appellant has leave to appeal. 2. Appeal allowed. 3. The judgment and orders of the Magistrates Court made on 26 May 2017 are set aside. 4. The proceeding is remitted to the Magistrates Court at Cairns for rehearing and determination according to law before a different magistrate in due course. 5. Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment: (a) the respondent will pay the appellant’s costs of the appeal to be assessed on the standard basis; and -- 1 of 19 -- 2 (b) an indemnity certificate pursuant to ss 15(2) and 16(1)(a) of the Appeal Costs Fund Act 1973 (Qld) is granted to the respondent in respect of the costs of the appeal. CATCHWORDS: APPEAL – PROCEDURE - EVIDENCE – by assignee of debt for credit card issued after online application – whether defendant disputes ever making such an application by himself or by agent – debt disputed - where case dismissed during the course of plaintiff’s opening and before evidence started – where application sought for short adjournment - whether deed of assignment of debt business record of assignee – whether evidence admissible only through assignor under s 199 Property law Act 1974 (Qld) - mode of hearing of appeal– error of law. APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where respondent entitled to an indemnity certificate pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld) – where appeal had succeeded on question of law – whether an indemnity certificate should be granted. Legislation District Court of Queensland Act 1967 (Qld), s 113. Magistrates Courts Act 1921 (Qld) s 45(1), 45(5) Queensland Civil and Administrative Tribunal Act 2009 Uniform Civil Procedure Rules 1999 (Qld), rr 765(1), 766(1)(c) Appeal Costs Fund Act 1973 (Qld), s 16(2) Appeal Costs Fund Regulation 2010, s 5(b)(i)-(v) Cases Agnew v Commissioner of Inland Revenue [2001] 2 AC 710 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Allesch v Maunz (2000) 203 CLR 172 American Express International Inc v Hewitt [1993] 2 Qd R 352 Anning v Anning (1907) 4 CLR 1049 AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 ASIC v Rich [2005] NSWSC 417 Austino Wentworthville Pty Ltd v Metroland Australia Ltd [2013] NSWCA 59 -- 2 of 19 -- 3 BAS (QLD) Pty Ltd v Complete Taxi Management Pty Ltd [2016] QDC 54 CIC Insurances Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Coast 2 Coast Earthmoving Pty Ltd v Andersen [2011] QDC 166 Condor Asset Management Ltd v Excelsior Eastern Ltd [2005] NSWSC 1139 Cossill v Strangman [1963] NSWR 1695 Duncan Davis Pty Ltd v Hurstbridge Abbatoirs (Aust) Pty Ltd [1995] 1 VR 279 Dwyer v Calco Timbers (2008) 234 CLR 124 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98 Fox v Percy (2003) 214 CLR 118 Hanson Construction Materials P/L v Davey & Anor [2010] QCA 246 International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319 James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 Jones v National Coal Board [1957] 2 QB 55 Kioa v West (1985) 159 CLR 550 Mango Boulevard Pty Ltd v Mio Art Pty Ltd [2016] QCA 148 MBL v JP [2011] QCA 220 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 R v Nicholson (1984) 12 A Crim R 231 R v Perry (No 4) (1981) 28 SASR 119 R v PLV (2001) 51 NSWLR 736 R v Young (1999) 46 NSWLR 681 Ramzy v Body Corporate for GC3 CTS38396 [2012] QDC 397 Ravenscroft v Nominal Defendant [2008] 2 Qd R 32 Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (reg) (No 10) [2002] SASC 128 Stead v State Government Insurance Commission (1986) 161 CLR 141 Warren v Coombes (1979) 142 CLR 531 COUNSEL: DD Keane for the Appellant SOLICITORS: Piper Alderman lawyers for the Appellant Respondent appeared personally -- 3 of 19 -- 4 [1] The appellant seeks leave to appeal against a judgment of Magistrates Court on 26 May 2017 pronounced while counsel was opening his case for the plaintiff, after the learned trial magistrate disavowed the admissibility of documentary evidence yet to be tendered, and refused an adjournment to arrange a relevant witness. [2] The appellant applies for leave to appeal this decision. The application for leave to appeal was heard in conjunction with the merits of the appeal. Background [3] The appellant debt factoring company is in the business of collecting debts after assignment from financial institutions. [4] The appellant claims that the respondent failed to pay a $12,456.60 credit card debt, which was assigned from the credit provider, Citigroup Pty Ltd, to the appellant. The respondent denies even completing an online application for the credit card either by himself or through anyone else, and denies any use or liability for the debt. [5] The proceeding was set for trial on 26 May 2017 in the Magistrates Court in Cairns. On that day counsel represented the appellant, and the respondent was self-represented. [6] While opening his case, counsel for the appellant foreshadowed tendering the relevant documents through the witness Mr Carpenter, the Head of Operational Services employed by the appellant.1 The documents were in a bundle but were not provided to the court. Instead, the plaintiff’s counsel described the nature of the documents evidencing the assignment of the debt, in particular the Debt Sale Deed between Citigroup Pty Ltd as assignor and the appellant as assignee. [7] However, the appellant’s counsel was met with interjection by the learned magistrate who persistently expressed the view that the documents would be inadmissible if tendered through Mr Carpenter,2 and insisted that the evidence could only be adduced through a witness from the assignor. The magistrate apparently formed the view that there would be no utility in calling Mr Carpenter,3 and in the absence of any other evidence the claim would fail.4 [8] The appellant’s counsel gallantly resisted the strong intimations and at no stage did he concede the argument or offer no evidence at all. Instead, he tried to appease the magistrate by making inquiries about the prospect of securing an additional witness from the assignor, Citigroup. After a short adjournment, the appellant’s counsel reasserted his position and readiness to proceed, but sought an adjournment until after lunch to arrange evidence of the additional witness.5 [9] However, this was rejected by the learned magistrate who replied - “Okay. Let’s just be perfectly plain about this”, and then he immediately proceeded to give judgment for the respondent defendant. It is convenient to reproduce the oral judgment, as follow:6 1 T1-6/9-25; T1-9/18-21; T1-12/1-5. 2 T1-13/27-30; T1-14/38-45. 3 T1-13/22-23, 30-31. 4 T1-11/45; T1-13/46-47. 5 T1-15/45-T1-16/5. 6 Decision, p 2. -- 4 of 19 -- 5 “The plaintiff is a corporation who is in the business of conducting these proceedings. They have been represented by lawyers from the outset of the proceedings. Commenced by lawyers, the matter was listed for hearing six weeks ago. Unfortunately, if the solicitors and the plaintiff have not seen fit to properly prepare their matter for trial today – and there are a whole host of issues, I suspect, in relation to disclose (sic) of whatever might be forthcoming from Citicorp to the plaintiff noting the obligations under the UCPR and the consequences of rule 255, so be it. So you do not have any evidence to offer. In those circumstances, the plaintiff is not asserted (sic). The action against you sir – the claim against you is dismissed as a result the plaintiff not being in a position to lead any evidence today. Sir, if you were represented by lawyers, you might have an entitlement to costs. I note you are not legally represented. … So there are no cost issues in respect of the defendant. All right. The claim … by the plaintiff against the defendant is dismissed.” [10] The appellant appeals from that decision. Grounds of Appeal [11] The appellant relies on several grounds of appeal, which can be synthesised as follows: 1. The magistrate erred in law in finding that the evidence of assignment in accordance with s 199 of the Property Law Act 29174 (Qld) was not admissible through the appellant assignee. (Grounds 2 & 6) 2. The magistrate erred in law in finding that relevant documents were not books of account of the appellant assignee under ss 84, 92 or 95 of the Evidence Act 1977 (Qld) or ss 1305 and 1306 of the Corporations Act 2001 (Cth). (Ground 2) 3. The magistrate failed to accord the appellant natural justice by refusing to afford the opportunity to present its case. (Grounds 1, 3, 4, 5 & 6) Mode of Appeal [12] The appellant appeals pursuant to s 45 of the Magistrates Courts Act 1921 (Qld). Where, as here, the claim is not more than the minor civil dispute limit of $25,000,7 the appellant requires leave to appeal. In that event, the appellant must satisfy the court that the proceeding involves ‘some important principle of law or justice’,8 which goes ‘beyond the consequence of the decision for the immediate parties to the proceeding’.9 [13] This court has the same powers as the Court of Appeal when hearing an appeal.10 Those powers are contained in Part 3 Division 1 of the Supreme Court of Queensland Act 1991, and the relevant rules, in particular Chapter 18 Part 3. By virtue of rule 785 of the UCPR, Part 1, other than rules 746, 753, 758, 766(3), 767, 776 and 777, applies to appeals to the District 7 Magistrates Courts Act 1921, (Qld) s 45(1), 45(5) (meaning of ‘minor civil dispute limit’); Queensland Civil and Administrative Tribunal Act 2009 (Qld) Sch 3 Dictionary (definition of ‘minor civil dispute’ and ‘prescribed amount’). 8 Magistrates Courts Act 1921 (Qld), s 45(2). Ramzy v Body Corporate for GC3 CTS38396 & Anor [2012] QDC 397, [41] [42] per McGill DCJ. 9 American Express International Inc v Hewitt [1993] 2 Qd R 352. 10 District Court of Queensland Act 1967 (Qld), s 113. -- 5 of 19 -- 6 Court, with necessary changes, and subject to any practice direction of the court in which the appeal is brought. [14] The mode of the appeal is by rehearing.11 This court effectively tries the matter over again on the record before the trial magistrate. The court is empowered to allow fresh evidence on ‘special grounds’.12 The discretion will generally be invoked where the new evidence: (a) could not have been obtained with reasonable diligence for use at the hearing; (b) would probably have an important influence on the result of the case, even though not be decisive; and (c) must be apparently credible though not incontrovertible. [15] In accordance with these principles, fresh evidence was allowed in the appeal with the parties’ mutual consent. Although this evidence was the focal point of the controversy, and available at the time of the hearing, it was ruled upon without an opportunity for any evidence to be adduced, tendered, or sighted by the magistrate, during the opening of the case. The evidence seems credible, will have an important influence on the result of the case, and is relevant to the merits of the case. [16] This court’s appellate function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.13 The appellant must demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.14 [17] Pursuant to s 47 of the Magistrates Courts Act 1921 (Qld), on the hearing of the appeal this court may: (a) draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed; (b) order a new trial on such terms as it thinks just; (c) order judgment to be entered for any party; (d) make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties; (e) as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon; (f) make such order with respect to the costs of the appeal or special case as it thinks proper. 11 Uniform Civil Procedure Rules 1999 (Qld), r 765(1). This is not an appeal of quantum of damages or compensation or for a new trial: rr 765(2) or (3). 12 UCPR, r 766(1)(c). 13 Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124. 14 Allesch v Maunz (2000) 203 CLR 172, [22] – [23]. -- 6 of 19 -- 7 Leave to Appeal [18] The appellant submits that proceeding involves the following important principles of law or justice: (a) the nature of the evidence required in respect of s 199 of the Property Law Act 1974 (Qld); (b) the meaning of a book of account in s 84 of the Evidence Act 1977 (Qld); (c) whether the tender bundle should have been admitted in any event pursuant to s 1305 of the Corporations Act 2001 (Cth); (d) the application of s 92(2) of the Evidence Act 1977 (Qld); (e) the principles of natural justice with respect to proving the admissibility of documentary evidence; and (f) the principles relevant to granting adjournments. [19] Each of these grounds go to the heart of the grounds of appeal. Whilst the principles about the admissibility of evidence, natural justice and adjournments are generally unremarkable, there is little jurisprudence on those matters in relation to proof of an assignment in accordance with s 199 of the Property Law Act 1974 (Qld). [20] Therefore, it seems to me that the matter does involve important principles of law or justice as discussed below, and will have application beyond the facts of this case and go beyond the consequence of the decision for the immediate parties to the proceeding.15 [21] Leave to appeal will be granted. Grounds 2 & 6: Whether assignment can be proved by the assignee, including documents. [22] The appellant asserts that the magistrate erred in law in finding that evidence of an effective assignment of a debt under s 199 of the Property Law Act 1974 (Qld) was inadmissible through the appellant assignee. [23] At the early stages of the appellant plaintiff’s opening it became apparent that the learned magistrate formed the view that an assignee (through its witness) could not prove an effective assignment in accordance with s 199 of the Act. So much is evident from the following exchanges between the magistrate and counsel:16 COUNSEL: Part of my presentation of evidence today, your Honour, will be to establish clearly that there’s no question of an assignment of the debt. MAGISTRATE: So who is being called to prove that? COUNSEL: I have Mr Adam Carpenter, who’s the head of operational services of Credit Corp Services. He waits outside. 15 ` American Express International Inc v Hewitt [1993] 2 Qd R 352 16 T1-6/19-27, T1-9/18-28 & T1-11/19-25 (including the underlining and parts relied upon by the appellant). -- 7 of 19 -- 8 MAGISTRATE: But you need to call the assignor, don’t you? … COUNSEL: … But in the meantime, your Honour, the evidence that will be led from Mr Carpenter includes a bundle of documents, one of which is a copy of the debt sale deed being the document between Citigroup and Credit Corp Services that records the - and gives effect to the - assignment. Your Honour, the submission is that such a document falls within the definition of a book and record of Credit Corp Services and therefore is captured by section 84 of the Evidence Act. MAGISTRATE: Unless you call someone on behalf of the assignor - which, amongst other things, will be giving evidence about the validity of the assignment in accordance with section 199 of the Property Law Act - he can’t give that evidence. The assignee can’t give that evidence. … COUNSEL: Your Honour, the evidence - the primary evidence is a document called a Debt Sale Deed. Now, that document exists to establish - it is the --- MAGISTRATE: It may well be admissible, but the gentleman from the assignee - from Credit Corp Services Proprietary Limited - cannot give evidence of either the credit contract between Credit Corp and this gentleman, nor the valid assignment from the assignor to the assignee in compliance with 199.” [24] Section 199 is in these terms: 199 Statutory assignments of things in action (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice— (a) the legal right to such debt or thing in action; and (b) all legal and other remedies for the same; and (c) the power to give a good discharge for the same without the concurrence of the assignor. (2) If the debtor, trustee or other person liable in respect of such debt or thing in action has notice— (a) that the assignment is disputed by the assignor or any person claiming under the assignor; or (b) of any other opposing or conflicting claims to such debt or thing in action; -- 8 of 19 -- 9 the debtor may, if the debtor thinks fit, either call upon the persons making claim to the debt or other thing in action to interplead concerning the same, or pay the debt or other thing in action into court under and in conformity with the provisions of the Acts relating to relief of trustees. [25] In the circumstances of this case, s 199(2) is not engaged. That is, the respondent debtor, has not received any adverse notice of any dispute or other claim, and consequently has not exercised any option under s 199(2) of the Act. [26] As to the requirements of the first half of s 199(1), these matters have been discussed in a number of relevant authorities, including most recently in Mango Boulevard Pty Ltd & Anor v Mio Art Pty Ltd & Ors.17 It seems to me there are three pre-requisites for an effective statutory assignment described as an “absolute assignment” in accordance with s 199 of the Act. The statutory test requires: (a) A written assignment under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action; (b) express written notice of the assignment has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action; and (c) no equities have priority over the right of the assignee. [27] If these matters are satisfied then an assignment is effectual in law to pass and transfer, from the date of notice to the debtor: (1) the legal right to such debt or thing in action; (2) all legal and other remedies for the same; and (3) the power to give a good discharge for the same without the concurrence of the assignor. [28] Since the pleadings do not disclose any issue about any equities having priority over the right of the appellant assignee, the controversy in this appeal is confined to the first two elements. Assignment in Writing from the Assignee [29] The first element is whether the assignment was an ‘absolute assignment’ in writing ‘under the hand of the assignor, not purporting to be by way of charge only, of any debt or other legal thing in action. [30] Obviously enough, satisfaction of these requirements are a matter of construction of the relevant written document,18 and simply resolved on the face of the relevant document. The relevant written assignment was the Debt Sale Deed, which was part of the bundle of relevant documents proposed to be tendered later in the trial. They were adduced as fresh evidence in this appeal. [31] It seems to me that the written assignment, being Debt Sale Deed, was apparently under the hand of the assignor, having been executed by or on behalf of the assignor, the assignment was absolute being unconditional, and it does purport to be by way of a charge only. 17 Mango Boulevard Pty Ltd & Anor v Mio Art Pty Ltd & Ors [2016] QCA 148 18 Mango Boulevard Pty Ltd & Anor v Mio Art Pty Ltd & Ors [2016] QCA 148; Austino Wentworthville Pty Ltd v Metroland Australia Ltd [2013] NSWCA 59, [62]; Agnew v Commissioner of Inland Revenue [2001] 2 AC 710. -- 9 of 19 -- 10 [32] However, since the trial magistrate did not sight this document, it seems he was more concerned about the mode of tender rather than its content. [33] The mode of tender of the assignment foreshadowed by counsel for the appellant was as books of account through a witness from the appellant assignee pursuant to ss 84, 92 or 95 of the Evidence Act 1977 (Qld), or ss 1305 and 1306 of the Corporations Act 2001 (Qld). [34] For the reasons discussed below, the foreshadowed mode of tender was permissible. [35] Apart from calling a witness to identify and facilitate the tender of the document, in the absence of any ambiguity oral evidence about the transaction, further oral evidence was likely inadmissible.19 That is, there is no evidentiary reason why an officer or employee of the assignor, Citigroup, was necessary to prove that the Debt Sale Agreement was a written assignment under the hand of the assignor. Express written notice to the debtor. [36] The second element of s 199 is whether express notice in writing of the assignment was given to the debtor from whom the assignor would have been entitled to claim such debt. [37] Again, the learned trial judge did not have regard to the form or quality of the notice, but adhered to the view that only the assignor could prove compliance with s 199. [38] In appropriate cases, a court is entitled to read a provision by implying additional or clarifying words in order to give effect to the legislative purpose.20 This is not such a case. The starting point is the text itself,21 while bearing in mind that the “modern approach to statutory interpretation ... (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense ...”.22 [39] The text of section does not identify who must give the requisite notice, let alone the assignor. Suffice it to say, that the context of the provision is the need for timely express notice to be given to a debtor. In my view, it is sufficient that the notice is given either by the assignor or the assignee.23 On that basis alone, the learned magistrate had misapprehended the provision. [40] However, there is an even more fundamental reason why, in the circumstances of this case, it was inappropriate for the appellant to prove the statutory assignment through the assignor. The pleaded case is that the plaintiff (appellant), not the assignor, Citigroup, gave the requisite notice to the defendant debtor (respondent). Paragraphs 7 and 8 of the amended statement of claim provide that: 19 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104, 116-117 per French CJ, Gordon and Nettle JJ. 20 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 113; James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53, 82; R v Young (1999) 46 NSWLR 681, 687, 690, 740; R v PLV (2001) 51 NSWLR 736, 743-744; Ravenscroft v Nominal Defendant [2008] 2 Qd R 32, 51. 21 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98, [39]. 22 CIC Insurances Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408. 23 Cf. Anning v Anning (1907) 4 CLR 1049, per Griffith CJ. Cossill v Strangman [1963] NSWR 1695. See also Mango Boulevard Pty Ltd & Anor v Mio Art Pty Ltd & Ors [2016] QCA 148, [40] – [59] per Fraser JA. -- 10 of 19 -- 11 “7. On or about 21 October 2013 the Plaintiff sent the Defendant written notice of the assignment. 8. On or about 21 March 2016 the Plaintiff sent the Defendant further written notice of the assignment.” [41] The respondent denied the allegation in paragraph 8, and did not admit the allegation in paragraph 7. But as part of his explanation of the latter non-admission, in paragraph 3(a) the respondent admits that: “The plaintiff’s solicitor has provided to the defendant a copy of a written notice of assignment on the debt on 17 January 2017”. [42] Having regard to the pleaded cases, it becomes obvious that any witness from the assignor would have been incompetent to give that evidence about notice actually given by the assignee. Conclusion [43] It is not clear to me why the magistrate came to the view that an effective assignment under s 199 of the Property Law Act 1974 (Qld) was only admissible through the assignor, but in my respectful opinion, His Honour acted on a wrong principle and, having misled himself, he prematurely determined the proceeding. Ground 2: Whether the relevant documents were books of account. [44] The appellant also contends that the magistrate erred in law by finding that the relevant documents were not books of account of the appellant assignee subject of ss 84, 92 or 95 of the Evidence Act 1977 (Qld) or ss 1305 and 1306 of the Corporations Act 2001 (Qld). [45] This point again became apparent at the early stages of the plaintiff’s opening as follows: 24 COUNSEL: … But in the meantime, your Honour, the evidence that will be led from Mr Carpenter includes a bundle of documents, one of which is a copy of the debt sale deed being the document between Citigroup and Credit Corp Services that records the - and gives effect to the - assignment. Your Honour, the submission is that such a document falls within the definition of a book and record of Credit Corp Services and therefore is captured by section 84 of the Evidence Act. … COUNSEL: The evidence is that it is a book and record - within a book and record of --- MAGISTRATE: Yes, but it has to be the record of the assignor. It has to be the principal creditor to this gentleman. That’s how these things work. … [S]o I can indicate to you right now that I’m not satisfied that any of the provisions of the Evidence Act permit the officer from the assignee company from tendering documents which are documents of the assignor proving the assignment. And as you 24 T1-11/9-37, T1-9/18 - T1-10/12 (including the underlining and parts relied upon by the appellant). -- 11 of 19 -- 12 correctly noted, I mean, amongst other things, you need to prove the debt from the assignor, the - whichever credit card company it was. COUNSEL: Citigroup, or Citibank. Yeah. MAGISTRATE: Citi Corp. In respect of him as the debtor. COUNSEL: Yeah. Well, again, the evidence to be led there is the books and records of Credit Corp Services as they have been provided to them under the deed of debt sale from Citigroup to Credit Corp Services. MAGISTRATE: Doesn’t make it admissible. … COUNSEL: My - your Honour, my instructions are to proceed today, not to seek any adjournment. The submission that will ultimately be made after you hear the evidence is that the evidence does fall within the definition of books and records. MAGISTRATE: Well, not - well, before - you’ve raised that it is and I’ve indicated to you that, in my view, it is not admissible. So there’s no utility in calling someone to say, “I produce books and account - books of account and records of another organisation”. Not of his organisation; transmitted from Citigroup to his organisation. I thought I made it abundantly clear. I’m not going to permit that evidence to be led. COUNSEL: Your Honour, the evidence - the primary evidence is a document called a Debt Sale Deed. Now, that document exists to establish - it is the --- MAGISTRATE: It may well be admissible, but the gentleman from the assignee - from Credit Corp Services Proprietary Limited - cannot give evidence of either the credit contract between Credit Corp and this gentleman, nor the valid assignment from the assignor to the assignee in compliance with 199. And if he purports to say, “I’m producing some records that the plaintiff, Credit Corp Services Proprietary Limited, hold but were given to me by Citibank”, it’s not admissible. And I’ve - and I’m not - I will not be persuaded to the contrary. COUNSEL: Well, if I - under the debt sale deed, the documents that have been provided by Citigroup to Credit Corp Services by virtue of the provisions of that debt sale deed become the documents of Credit Corp Services. They become part of the books and records. MAGISTRATE: It - you cannot call evidence from someone to say, “I received something from someone else, and they’re my books and records.” That doesn’t make them admissible at law. [46] The appellant’s counsel foreshadowed the tender of the relevant documents pursuant to s 84 the Evidence Act 1977 (Qld). Sections 84 and 85 of the Evidence Act relevantly provide: “84 Entries in book of account to be evidence -- 12 of 19 -- 13 Subject to this division, in all proceedings— (a) an entry in a book of account shall be evidence of the matters, transactions and accounts therein recorded; and (b) a copy of an entry in a book of account shall be evidence of the entry and of the matters, transactions and accounts therein recorded.” “85 Proof that book is a book of account (1) An entry or a copy of an entry in a book of account shall not be admissible in evidence under this division unless it is first proved that the book was at the time of the making of the entry 1 of the ordinary books of account of the undertaking to which it purports to relate and that the entry was made in the usual and ordinary course of that undertaking. (2) Such proof may be given by a responsible person familiar with the books of account of the undertaking and may be given orally or by an affidavit sworn or by a declaration made before a commissioner or person authorised to take affidavits or statutory declarations.” [47] The term “books of account” has been afforded a very wide application to include, for example, tax invoices,25 delivery dockets,26 ledger reports,27 and even a business diary.28 It is defined in s 83 of the Evidence Act as follows: “book of account includes any document used in the ordinary course of any undertaking to record the financial transactions of the undertaking or to record anything acquired or otherwise dealt with by, produced in, held for or on behalf of, or taken or lost from the undertaking and any particulars relating to any such thing.” [48] The relevant documents referred to by the appellant’s counsel were adduced as fresh evidence during the appeal. I have had the advantage of considering the nature and substance of the documents, which fall into two groups: 1. Firstly, documents apparently created by Citigroup (as assignor), but acquired by the appellant pursuant to the assignment, being: the Citigroup application form, terms and conditions, and account statements; and 2. Secondly, documents created and used in the ordinary course of the appellant business being: Debt Sale Deed between Citigroup (as assignor) and the appellant (as assignee); various documents and records maintained or generated by the appellant as to the respondent’s account; copies of correspondence sent by the appellant to the respondent; and a USB containing recordings of telephone conversations between the appellant and the respondent in relation to the credit card debt. 25 Hanson Construction Materials P/L v Davey & Anor [2010] QCA 246 at [28]-[29]. 26 Coast 2 Coast Earthmoving Pty Ltd v Andersen [2011] QDC 166 at [4]. 27 BAS (QLD) Pty Ltd v Complete Taxi Management Pty Ltd [2016] QDC 54 at [23]-[24]. 28 Duncan Davis Pty Ltd v Hurstbridge Abbatoirs (Aust) Pty Ltd [1995] 1 VR 279. -- 13 of 19 -- 14 [49] The first group of documents in the bundle includes the Citigroup application form, terms and conditions, and account statements. These were apparently created by Citigroup (as assignor) but later acquired and dealt with by the appellant as part of the assignment in the ordinary course of its undertaking. The incidence and admissibility of third party recordings forming part of book of account of another undertaking is not particularly novel.29 This is also applicable here. The appellant conducts a debt factoring business, and as assignee of a credit contract has obligations extending to the books and records relating to the assigned credit contract.30 [50] The first group of documents were directly relevant to the issues in the trial enlivened by the respondent/defendant’s denial of ever completing an online application for the credit card either by himself or through anyone else, and his denial that he ever used the credit card. However, these matters were not the focus of the magistrate’s remarks. [51] Instead, His Honour’s remarks and the ensuing debate during the opening was about how the appellant’s counsel proposed to tender the second group of documents, especially the documents proving the statutory assignment. [52] Clearly enough, this second group of documents was created and used in the ordinary course of the appellant’s business (not the assignor) and was admissible as books of account proved through Mr Carpenter as foreshadowed by the appellant. This includes the written assignment in the form of the Debt Sale Deed, and copies of correspondence evidencing the form of notice of the assignment. It is not clear whether the same witness could testify about the mailing system to prove that any such notice was ‘given’. But that was a matter for the trial in due course and is not an issue necessary to dispose of this appeal. [53] The appellant also foreshadowed recourse to ss 92 and 95 of the Evidence Act 1977 in respect of some of the documents in response to the magistrate’s apparent inflexibility. Whilst there is obvious merit in these arguments, they are best considered with full knowledge of the evidence in the trial. It is unnecessary for me to deal with them here. [54] Even if some doubt about admissibility remained, a further alternative course available to the appellant was to prove the relevant documents as a ‘book’ pursuant to s 1305 of the Corporations Act 2001 (Cth). Under that Commonwealth provision the documents must be:31 (a) books – records of financial information;32 (b) kept by a body corporate;33 (c) so kept under a requirement of the Corporations Act.34 29 Cf. Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (reg) (No 10) [2002] SASC 128 (documents originating from third parties found within audit working papers); R v Nicholson (1984) 12 A Crim R 231 (message by Hong Kong bank was a business record when printed from a telex machine in Adelaide); R v Perry (No 4) (1981) 28 SASR 119 (report from an analyst to a police department was a business record of the police department when kept in files maintained by that department); Condor Asset Management Ltd v Excelsior Eastern Ltd [2005] NSWSC 1139, [42]. 30 For example, National Credit Code, s 188. 31 Considered by Austin J in ASIC v Rich [2005] NSWSC 417, [233]-[272]. 32 ASIC v Rich [2005] NSWSC 417, [237]. 33 ASIC v Rich [2005] NSWSC 417, [265]. -- 14 of 19 -- 15 [55] Each of the documents in the tender bundle, particularly, the first group of Citigroup documents satisfy the statutory requirements. They were records of financial information retained or held by the appellant pursuant to obligations under s 286 of the Corporations Act for its debt factoring business. [56] It is sufficient for the disposal of this appeal to conclude that the learned magistrate acted on a wrong principle to assert that the bundle of documents were inadmissible in the way and through the witness foreshadowed by the appellant’s counsel. Further, His Honour so acted prematurely in circumstances where the appellant’s counsel did not purport to tender the bundle of documents, and in the absence of any evidence to inform his view. [57] For these reasons, I respectfully conclude that the learned magistrate erred in law, and the resultant determination is vacuous, premature and erroneous. Ground 3, 4, 5 & 6: Failing to allow the appellant to present its case. [58] The appellant also contends that the magistrate failed to accord the appellant natural justice by refusing the short adjournment and failing to afford the opportunity to present its case. [59] After making inquiries about the availability of an additional witness to meet the magistrate’s intimations, the appellant’s counsel reasserted his position and readiness to proceed. Met with the magistrate’s resistance he submitted:35 “Your Honour, my instructions are that the efforts to source a witness from Citigroup appear positive, although we haven’t got definitive confirmation of that. At best, we could ask if we could apply to have the matter stood down until after lunch and we return with the prospect of that witnesses being available. Other than that, your Honour, we have nothing – no other application to make.” [60] The learned magistrate simply replied - “Okay. Let’s just be perfectly plain about this”, and then immediately proceeded to give oral judgment dismissing the appellant’s claim. [61] Procedural fairness ‘requires that a party to court proceedings be afforded the opportunity to present a case’.36 In Jones v National Coal Board,37 the English Court of Appeal said: “There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.” [62] In International Finance Trust Co Ltd v NSW Crime Commission,38 Heydon J described the centrality of hearings in our justice system, this way:39 34 ASIC v Rich [2005] NSWSC 417, [282] to [301]. 35 T1-15/45-T1-16/5. 36 MBL v JP [2011] QCA 220 at [22], citing Kioa v West (1985) 159 CLR 550 at 582; 615. 37 Jones v National Coal Board [1957] 2 QB 55, 67 per Denning, Romer and Parker LJJ. 38 International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319. 39 International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319, [141]-[143]. -- 15 of 19 -- 16 “... One of the primary principles on which the judicial process in this country operates is the principle that before any judicial decision is made which has substantive consequence there generally should be a "hearing". A hearing takes place before a judge at a time and place of which the moving party has given notice to the defending party. At it both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. It has several justifications, and their force is so great that exceptions to the hearing rule in judicial proceedings are very narrow. One justification is that the forensic system employed in the courts of this country in civil proceedings for remedies having substantive consequences is adversarial. Ex hypothesi, it is not possible for a court to operate an adversarial system without the court having the evidence and arguments which each adversary wants to have considered. If the hearing rule were different, the system would be internally contradictory. Another justification is that to act only on the version advanced by one adversary is to risk reaching unsound conclusions, and thus to risk both injustice and inefficiency. Experience teaches that commonly one story is good only until another is told. Where a judge hears one side but not the other before deciding, even if the side heard acts in the utmost good faith and makes full disclosure of all that that side sees as relevant, there may be considerations which that side had not entertained and facts which that side did not know which, if brought to the attention of the judge, would cause a difference in the outcome. “The person most likely to have thought of cogent considerations, and to know the relevant facts, is the person whose interests are in jeopardy, that is the party opposing the decision. Therefore we shall avoid bad decisions best if we ensure that each potential decision, before it is finally decided, is exposed to what is likely to be the strongest possible criticism of it.” Thus, hearing both sides before deciding tends to quell controversies and discontents. As Megarry J said in John v Rees: “It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious’, they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.” Of the last sentence Lord Hoffmann has observed: “Most lawyers will have heard or read of or even experienced such cases but most will also know how rare they are. Usually, if evidence appears to an experienced tribunal to be irrefutable, it is not -- 16 of 19 -- 17 refuted.” Perhaps both Megarry J and Lord Hoffmann are guilty of a little exaggeration. But even if Lord Hoffmann’s reasoning is completely correct, it does not destroy Megarry J’s point.” [63] In support of his decision to not allow the short adjournment, the magistrate seemed to rely upon the principles in Aon Risk Services Australia Limited v Australian National University. 40 Even so, the High Court in that case nevertheless affirmed that the just resolution of proceedings remains the paramount objective and that while speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution, these factors must not detract from a proper opportunity being given to the parties to put their case.41 [64] Even if the learned trial magistrate was correct in his understanding of the law, the time to apply and rule upon the admissibility of the evidence was when the appellant’s counsel sought to tender it through the identified witness. It may have also been appropriate, at that later stage of the trial, for His Honour to consider any application to adjourn to facilitate the attendance of an additional witness. But that is not what happened. Here, the learned magistrate shut down the hearing during the appellant plaintiff’s opening well before any evidence was called. The appellant’s counsel did not purport to tender the bundle of documents at that stage, and the magistrate did not see the proposed tender bundle to inform his view. [65] In Stead v State Government Insurance Commission,42 the High Court held that a new trial would not be ordered if it “would inevitably result in the making of the same order as that made by the primary judge at the first trial”. The court said:43 “Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. ... … when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to be a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.” [66] It seems to me that the circumstances in this appeal are even stronger because the magistrate’s early intervention and determination during the appellant’s opening denied any 40 AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, [98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. 41 Allianz Australia Insurance Limited v Mashaghati [2017] QCA 127, [101] citing AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, [98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. 42 Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 (references omitted). 43 Stead v State Government Insurance Commission (1986) 161 CLR 141, 145-146. -- 17 of 19 -- 18 opportunity to adduce documentary and oral evidence critical to an issue at the heart of the case. Having regard to my discussion above, it could not be said that a new trial, sought to remedy a denial of natural justice, could make no difference to the result already reached. It clearly would. Conclusion [67] Whilst it does not appear in the reasons for judgment how the trial magistrate reached the result embodied in the orders, the basis can be gleaned from the exchange with counsel, and was in the result, in my respectful opinion, unreasonable or plainly unjust. [68] For these reasons, in my respectful view, the trial magistrate erred by acting upon a wrong principle, in that the relevant documents were admissible evidence through the appellant’s witness as foreshadowed, and the assignee was competent to give the requisite notice to a debtor under s 199 of the Property Law Act 1974 (Qld). The resulting judgment was premature, made without evidence, and in breach of natural justice by precluding a proper opportunity for the parties to adduce evidence in the case. [69] I will grant leave to appeal, allow the appeal, and set aside the orders of the Magistrates Court. Costs [70] The appellant properly seeks costs of the appeal against the respondent, and invites the court to grant an indemnity certificate in respect of costs paid by the respondent pursuant to s 15(1) of the Appeal Costs Fund Act 1973 (Qld). [71] The appellant has been wholly successful in the application for leave to appeal, and the appeal, on an error of law. The nature and complexity of the proceeding is evident from this judgment and reasons. The merits of the appeal were strong and supported by sound law and able argument. The conduct of the parties to the proceeding before and during the proceeding was appropriate and unremarkable, as was the nature and extent of the fresh evidence adduced on appeal with leave. In the circumstances of this case, it would be just and reasonable to compensate the successful appellant for its costs, but it would be inequitable for either party to bear the financial burden of the proper recourse to this court. [72] Since the appeal is successful on an error of law, it is at the discretion of the court whether an indemnity certificate should issue. Here, the magistrate proceeded in error despite the efforts of the appellant to the contrary, and without any fault of the self-represented respondent who made no contribution to the debate. In this case, a certificate should be granted in respect of the costs ordered on the appeal. [73] The effect of an indemnity certificate is set out in s 16 of the Appeal Costs Fund Act. It relevantly provides that an indemnity certificate granted to a respondent under s 15 entitles the respondent to be paid from the Appeal Costs Fund an amount equal to the appellant’s costs of the appeal up to the prescribed limit of $15,000.44 The amount of costs is calculated by an assessment or agreement by the Board, the respondent and the appellant or their solicitors, and is actually paid by or on behalf of the respondent.45 If the respondent neglects, 44 Appeal Costs Fund Act 1973 (Qld), s 16(3); Appeal Costs Fund Regulation 2010, s 14(i). 45 Appeal Costs Fund Act 1973 (Qld), s 16(1)(a). -- 18 of 19 -- 19 refuses or is unable to pay due to lack of means or without undue hardship, the Board may direct payment directly to the appellant.46 [74] This is an appropriate case, in the exercise of the discretion, to order that the respondent pay the appellant’s costs, and that an indemnity certificate issue in his favour. Orders [75] Accordingly, I will order: 1. The appellant has leave to appeal. 2. Appeal allowed. 3. The judgment and orders of the Magistrates Court made on 26 May 2017 are set aside. 4. The proceeding is remitted to the Magistrates Court at Cairns for rehearing and determination according to law before a different magistrate in due course. 5. Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment: (a) the respondent will pay the appellant’s costs of the appeal to be assessed on the standard basis; and (b) an indemnity certificate pursuant to ss 15(2) and 16(1)(a) of the Appeal Costs Fund Act 1973 (Qld) is granted to the respondent in respect of the costs of the appeal. Judge Dean P Morzone QC 46 Appeal Costs Fund Act 1973 (Qld), s 16(2); Appeal Costs Fund Regulation 2010, s 5(b)(i)-(v). -- 19 of 19 --