Arthurell v Ryans Mulching Qld Pty Ltd [2016] QDC 306

DISTRICT COURT OF QUEENSLAND CITATION: Arthurell v Ryans Mulching Qld Pty Ltd [2016] QDC 306 PARTIES: COLIN HARRY ARTHURELL (appellant) v RYANS MULCHING QLD PTY LTD (respondent) FILE NO/S: D37/2016 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Beaudesert DELIVERED ON: 02/12/2016 DELIVERED AT: District Court at Brisbane HEARING DATE: 25/11/2016 JUDGE: Chowdhury DCJ ORDER: 1. Application for leave to appeal dismissed 2. Respondent’s costs of responding to the application for leave to appeal be reserved 3. Notice of appeal subject to leave be taken to be a notice of appeal 4. The respondent file any notice of contention within 14 days of the delivery of this judgment CATCHWORDS: Appeal from Magistrate – Whether leave needed – s45 Magistrates Court Act 1921 -- 1 of 6 -- 2 LEGISLATION: CASES: Magistrates Court Act 1921 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Worchild v Brooks [2005] QDC 406 Sutton v Tang [2015] QDC 191 Ramzy v Body Corporate for GC3 [2012] QDC 397. COUNSEL: SOLICITORS: Dr Craig Jensen Lawyers for the Appellant Hopgood Ganim Lawyers for the Respondent [1] By way of an appeal notice dated 31 October 2016, the appellant seeks leave to appeal to this court against the whole of the decision of the Beaudesert Magistrates Court on 17 October 2016 which ordered that the appellant’s application before that court could not succeed as the notice to admit facts served on the respondent had not been preceded by a month’s notice of intention to proceed under r 189 Uniform Civil Procedure Rules (“UCPR”). [2] The appellant seeks leave to appeal pursuant to s. 45 Magistrates Court Act 1921 (“the Act”). The preliminary issue which I have to decide is whether, pursuant to that section, the appellant actually needs leave to appeal. Curiously, the appellant submits that leave is needed, which is arguably against his interests. The respondent argues that leave is not needed, which is arguably against its interests. [3] Relevantly, s. 45(1) of the Act reads as follows: “45 Appeal (1) Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court— (a) in an action in which the amount involved is more than -- 2 of 6 -- 3 the minor civil dispute limit; … may appeal to the District Court as prescribed by the rules.” [4] Section 45(2) relevantly states as follows: “(2) Provided that – (a) where in any of the cases above referred to in subsection (1) the amount is not more than the minor civil dispute limit, an appeal shall lie by leave of the District Court or a District Court judge, who shall not grant such leave to appeal unless the court or judge is satisfied that some important principle of law or justice is involved; (b) an appeal shall not lie from the decision of the Magistrates Court if, before the decision is pronounced, both parties agree, in writing signed by themselves or their lawyers or agents, that the decision of the court shall be final.” [5] The background to the litigation can be very briefly stated. In essence, the appellant purchased a quantity of mulch from the respondent. It is alleged that that mulch contained quantities of asbestos and other contaminants, which resulted in significant inconvenience and economic loss to the appellant. The respondent denies that any asbestos or contaminants were in the mulch. [6] The appellant has brought proceedings in the Magistrates Court and by way of claim seeks damages for breach of contract in the amount of $61, 727.37, and seeks interest thereon at 10 per cent per annum from 2 October 2013. [7] Subsection (5) of s. 45 of the Act defines “minor civil dispute limit” as follows: -- 3 of 6 -- 4 “…the amount that is, for the time being, the prescribed amount under the Queensland Civil and Administrative Tribunal Act 2009.” [8] That amount is $25, 000. The competing arguments [9] In brief, the appellant submits that as the appeal is against an interlocutory decision of the magistrate, leave is required under subsection (2) of s. 45. It is submitted that as the interlocutory decision did not give a final judgment for either the appellant or the respondent, the “amount involved” in subsection (1)(a) of s. 45 is irrelevant. Reference is made to Worchild v Brooks [2005] QDC 406; Sutton v Tang [2015] QDC 191 and Ramzy v Body Corporate for GC3 [2012] QDC 397. [10] The respondent submits that as the appeal does arise from an action in which the amount sought is more than the “minor civil dispute limit,” then no leave is necessary pursuant to subsection (2) of s. 45. The respondent also refers to the relevant rules set out in Chapter 18, Part 3 UCPR. [11] The appellant submits that leave should be granted because the point involves an important principle of law, namely a proper interpretation of r 371 UCPR. [12] It does not appear from the searches done by the solicitors for the appellant and the respondent, and indeed in respect of my own research, that there has been a decided case directly on this point. The starting point is, of course, the words of the statute. In my view the words are clear and unambiguous. In an action in which the amount involved is more than the minor civil dispute limit, an appeal as of right lies to the District Court. Leave is only required pursuant to subsection (2) of s. 45 where the amount in the action is “not more than the minor civil dispute limit.” -- 4 of 6 -- 5 [13] The decision in Worchild v Brooks, supra, is a very brief decision from an interlocutory order of a magistrate at the Southport Magistrate’s Court. No consideration was given to the issue that is at hand here. One infers that there seems to have been no dispute that leave was required in that case. Significantly there is no discussion about the amount of the claim. [14] In Sutton v Tang, supra, it is clear at para [34] of the judgment of Reid DCJ that the amount involved was less than the “minor civil dispute limit,” and thus leave was required to be sought in that case. [15] The issue in Ramzy v Body Corporate for GC3, supra, was whether the amount claimed in the action included the costs sought. In the judgment of McGill DCJ at para [27] – [28], the difference between legal costs and recovery costs was discussed. Ultimately, in that case, what was left to be determined in the proceeding was less than the “minimum civil dispute amount,” and hence leave to appeal was required. This judgment is also useful for a discussion of the relevant principles concerning the grant of leave to appeal. Conclusion [16] As the amount claimed in the action is more than the “minor civil dispute limit,” the appellant has an appeal by way of right from the interlocutory decision of the magistrate pursuant to s. 45(1) of the Act. The fact that the decision appealed from is an interlocutory one does not affect that right. [17] I make the following orders: 1. The application for leave to appeal be dismissed. -- 5 of 6 -- 6 2. The respondent’s costs of responding to the application for leave to appeal be reserved. 3. The notice of appeal subject to leave be taken to be a notice of appeal. 4. The respondent file any notice of contentions within 14 days of the delivery of this judgment. -- 6 of 6 --