Christie v Sensis Pty Ltd [2013] QDC 11

DISTRICT COURT OF QUEENSLAND CITATION: Christie v Sensis Pty Ltd [2013] QDC 11 (delivered ex tempore) PARTIES: ALLAN JOHN CHRISTIE (Appellant) v SENSIS PTY LTD (Respondent) FILE NO/S: 2480/2012 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court DELIVERED ON: 23/01/2013 DELIVERED AT: Brisbane HEARING DATE: 23/01/2013 JUDGE: Samios DCJ ORDER: 1. Appeal allowed. 2. The judgment entered on 6 June 2012 in favour of Sensis Pty Ltd against Allan John Christie be set aside. 3. The orders made by the learned Magistrate on 15 May 2012 be set aside. 4. Order the defendant deliver to the plaintiff a list of documents in accordance with rule 214 (1) (a) of the UCPR by 4pm on 8 February 2013. 5. No order as to costs. CATCHWORDS: INFERIOR COURTS-Magistrates Court- Appeals- Practice- Disclosure- Self-executing order/guillotine order- whether Magistrate erred in exercising discretion in making the self- executing order/ guillotine order. Legislation: Uniform Civil Procedure Rules rr, 214 (1) (a), 225 (2) (b) Cases: -- 1 of 13 -- Allesch v Maunz (2000) 203 CLR 172 at 180 -181 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Freeman v Rabinov (1981) VR 539 at 544 House v The King (1936) 55 CLR 499 KGK Constructions Pty ltd v East Coast Earthmoving Pty Ltd (1985) 2 QR 13 at 17 Lenijamar Pty Ltd and Others v AGC Advances Ltd [1990] FCR 388 Swanston and Associates v Shrapnel Downing & Elks (2004) QDC 224 COUNSEL: SOLICITORS: The appellant was self-represented. Mr MJ May appeared on behalf of Cooper Grace Ward for the respondent. [1] This is an appeal subject to leave from the whole of the decision of the learned Magistrate at Brisbane, dated 15 May 2012. The decision of the learned Magistrate is an order made on 15 May 2012. [2] The learned Magistrate on that date ordered that Mr Christie deliver to Sensis Pty Ltd a list of documents in accordance with rule 214 subrule 1(a) of the UCPR by 4 p.m. on 5 June 2012. [3] The learned Magistrate also ordered on that date that unless by 4 p.m. on 5 June 2012 Mr Christie had complied with the order in paragraph 1, then upon the solicitors for Sensis Pty Ltd filing an affidavit deposing to the failure to comply with the order, the notice of intention to defend, defence and counterclaim filed on 13 May 2011 shall be struck out and there shall be judgment for Sensis Pty -- 2 of 13 -- Ltd against Mr Christie for the amount claimed in the claim with interest, and an order that Mr Christie pay Sensis Pty Ltd's costs of the claim. [4] There is no dispute that Mr Christie did not comply with the order in paragraph 1. The solicitors for Sensis Pty Ltd duly deposed to Mr Christie's failure in that regard, therefore judgment was entered in the Magistrates Court in favour of Sensis Pty Ltd against Mr Christie on 6 June 2012 for the sum of $62,381.66. That sum included interest and costs. [5] Mr Christie appeals, as I have said, against the decision of the learned Magistrate who made the orders on 15 May 2012. It can be taken he also appeals against the judgment, however it appears that no complaint can be made that an affidavit deposed to his default, and that the Court, through the Registrar, could proceed to enter the judgment on 6 June 2012. [6] In so far as leave is sought, Mr Christie needs leave because he filed a notice of appeal out of time. He now needs leave as he is appealing against the orders made on 15 May 2012. [7] His grounds of appeal for the most part have no basis to them. For example, he seeks to raise an allegation of fraudulent misrepresentation of a fact concerning the signature on the contract. To understand that allegation I should briefly say that the claim by Sensis Pty Ltd against Mr Christie is that he is alleged to have agreed to have advertisements placed in the Yellow Pages for 2009 and 2010. Mr Christie denies he agreed to have an advertisement placed in the Yellow Pages for 2010. -- 3 of 13 -- [8] Apparently there is a document which, it is alleged by Sensis Pty Ltd, contains his signature agreeing to the services of Sensis Pty Ltd. He claims that is not his signature. There are other allegations made in the grounds of appeal of a like kind. [9] He also claims information was withheld from the Court. I do not accept there was any deliberate withholding of information from the Court. As I will explain soon, he sees matters from his perspective. That includes his claim that his former solicitors who were acting in the matter relating to the claim by Sensis Pty Ltd had been terminated as his solicitors. [10] In any event, he does seek the judgment of 15 May 2012, which is the orders, to be set aside. He also claims he was unrepresented at Court. Again a little more must be said bout what happened leading up to the orders. [11] The solicitors for Sensis Pty Ltd sent to Mr Christie's solicitors, McCarthy Durie, an application and supporting affidavit of Ms Allatt. These were filed on 2 May 2012. This is the application that provides for the list of documents within 14 days of the date of order and for such further or other orders that the Court deemed appropriate. Of course it is to be noted that the application did not expressly claim a guillotine order, which is the name I will give to the order that was made by the learned Magistrate on 15 May 2012 which led to the judgment being entered on 6 June 2012. -- 4 of 13 -- [12] Nevertheless, the affidavit of Ms Allatt set out the history and did also set out a rule 444 letter, and that letter was dated 5 April 2012 and it did provide for the guillotine order under the heading, "Relief sought by the plaintiff". [13] What the evidence shows, though, is that Ms Allatt swore another affidavit which was filed on 15 May 2012 and in it, in paragraph 4, she stated she had received a telephone call from Ms Robson of McCarthy Durie, the solicitors for Mr Christie, during which she informed her that McCarthy Durie Lawyers had received Ms Allatt's letter of 3 May 2012 enclosing the application for disclosure and supporting affidavit of Ms Allatt; further, had not received instructions from Mr Christie for some time; further, would attempt to bring the application to his attention; further, may consider removing themselves as solicitors on the record; further, would contact Ms Allatt if McCarthy Durie Lawyers received further instructions from Mr Christie. [14] In addition there is a copy of a facsimile in evidence before me. It is dated 14 May 2012 and it is from Ms Robson to Ms Allatt. Ms Allatt is from the solicitors Cooper Grace & Ward who are the solicitors for Sensis Pty Ltd. In the email she says: [15] "We have been unable to contact our client for instructions in relation to the application for disclosure to be heard at the Brisbane Magistrates Court tomorrow. Our client has been sent a copy of the application by both email and physical mail. Several attempts to contact him by telephone have been made. I will appear it at the application tomorrow on behalf of our client to advise the Court we have no instructions." -- 5 of 13 -- [16] When the matter came on before the learned Magistrate on 15 May 2012, it may have been a Freudian slip, as it were, but Ms Robson told the Magistrate, "We were the solicitors on the record for the respondent/defendant, your Honour." The learned Magistrate replied, "You were or you are?" Ms Robson replied, "We are, but we haven't had any instructions from the defendant/respondent for some considerable time." Little more took place except that the learned Magistrate said, "So you will have to take those steps under the rules to contact him." Then, as I said, little more took place and the learned Magistrate allowed another seven days because of the circumstances of Ms Robson being without instructions, and the orders were made in accordance with the draft order except for the amendment of the amount of time given to Mr Christie to comply with the order. [17] Mr Christie has given evidence. He has also sworn an affidavit used in the hearing of the appeal. Ms Robson also came to the Court, initially under subpoena from Mr Christie. He declined to call her and then the respondent, Sensis Pty Ltd, called her. [18] The long and the short of it is that I am satisfied Mr Christie is honest. I accept that he believed matters were at an end with McCarthy Durie Lawyers when he paid the accounts. I also accept that when he was receiving any further emails or correspondence he was disregarding the contents because he thought they related to McCarthy Durie's claim to be paid fees that he did not accept were owing. -- 6 of 13 -- [19] I accept he had taken his matters - and there were two, one was a non-Sensis matter and one was a Sensis matter - to Mr Taylor who used to be at McCarthy Durie. I accept that Mr Taylor was working on the non-Sensis file, and that Mr Christie thought that he need not examine emails or mail that may have come from McCarthy Durie. [20] I also, in assessing him today, accept that in certain respects he was not being careful in some of his answers. However, I consider that is explicable in that he did not have the advantage of being able to carefully consider the relevant documents in the context of what were, I accept for him at the time, difficult life circumstances. [21] The fact remains, though, that Ms Robson did not get off the record, that is the firm for which she worked did not get off the record, therefore it was open to the solicitors for Sensis Pty Ltd to serve the documents in the way they did. However, to my mind the solicitors for Sensis Pty Ltd were on notice that there was something not quite right here. [22] This was a situation of the defendant apparently not giving instructions for some time to solicitors who were saying they would attempt to bring the application to his attention. [23] The email of 14 May 2012 from Ms Robson to Ms Allatt also confirmed the inability to contact Mr Christie for instructions, and although it asserted a copy of the application had been sent by both email and physical mail, it went on to -- 7 of 13 -- say that several attempts to contact him by telephone had been made, the inference being that he had not been contacted by telephone. [24] In addition, the solicitors for Sensis Pty Ltd made submissions to the learned Magistrate on 15 May 2012. There is an outline on the Court file. This asserted that there had been "repeated failure" by the defendant to provide disclosure. It was said this made it appropriate in the circumstances for the Court to make a guillotine order. [25] The factual circumstances seem to have been, though, that the solicitors for Sensis Pty Ltd had requested the defendant's list of documents on 19 March 2012, and then on 5 April 2012 sent the rule 444 letter demanding the list of documents within 14 days. Of course then 19 April 2012 came about which was the due date set by the rule 444 letter. [26] These submissions in paragraph 9 go on to say the plaintiff noted that the defendant "has had a significant amount of time and a number of opportunities to explain its failure to provide a list of documents". In my opinion, that exaggerated the position. [27] In my opinion, the fact that the learned Magistrate gave another seven days within which to comply with the order did nothing to overcome what had already been set in train before the learned Magistrate. That is, the submissions, as I have said, exaggerated the position. -- 8 of 13 -- [28] This is an appeal by way of rehearing. In Allesch v. Maunz (2000) 203 CLR 172 at page 180 to 181, the majority in the High Court said: [29] "For present purposes the critical difference between an appeal by way of rehearing and a hearing de novo is that in the former case the powers of the Appellate Court are exercisable only where the appellant can 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, whereas in the latter case those powers may be exercised regardless of error." [30] The issue that arises, in my opinion, on the hearing of this appeal is whether the learned Magistrate erred in the exercise of her discretion in making the order, that is the guillotine order. That is, while I am prepared to accept and find that Mr Christie was not aware of the application and the supporting affidavit and that the proceedings were going ahead before the learned Magistrate on the basis that a guillotine order was being sought as well as the other orders, I accept that McCarthy Durie remained on the record, that is, Cooper Grace & Ward could act on what appeared to them to be the position. However, as I said, there was doubt that the application and supporting affidavit had been brought to Mr Christie's attention and the circumstances for the making of the guillotine order were exaggerated. [31] Therefore I must consider House v. The King (1936) 55 CLR 499, the important consideration being that it is not enough that I consider, if I had been in the -- 9 of 13 -- primary judge's position, that I would have taken a different course. As the often quoted part of the judgment says: [32] "It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so." [33] It is correct, as has been said in the submissions, that under rule 225 subrule (2) paragraph (b) the learned Magistrate had the power on the consequence of non- disclosure to make an order for a judgment or other order against the party required to disclose the document. However, even if there was power to make the self-executing order, or the guillotine order as they are called, the question remains should it have been made in all the circumstances of this case. [34] In KGK Constructions Proprietary Limited v. East Coast Earthmoving Proprietary Limited (1985) 2 Queensland Reports 13, at page 17, Justice McPherson, as he then was, with whom Chief Justice Campbell and Justice Sheehan agreed, said: "That is why it is said that a self-executing order of the kind made here ordinarily ought not to be made except as a last resort". His Honour quoted Freeman v. Rabinov (1981) Victorian Reports 539 at 544. [35] While that was a case where there had been a failure to deliver a defence, the caution expressed by his Honour is, in my opinion, apposite to the present -- 10 of 13 -- matter. As the cases indicate, when self-executing orders or guillotine orders are made it can lead to disputes as to whether the conditions for entering the judgment have been complied with. [36] Later in his reasons Justice McPherson said: "It is important that Judges sitting at first instance should retain the power in cases of contumelious disregard of or even simply repeated default in complying with orders as to interlocutory steps of making self-executing orders where that course is warranted by the circumstances". Nevertheless, I do not accept that in the present matter the self-executing order or the guillotine order made by the learned Magistrate was warranted. In my opinion there has been a failure on the part of the learned Magistrate's discretion in the circumstances. [37] I should also mention in Swanston and Associates v. Shrapnel Downing & Elks (2004) Queensland District Court 224, his Honour Judge Dodds found in that case that there was no basis for the learned Magistrate making a guillotine order. It was clear there that the party against whom the order was made had every intention of complying with the order but had a belief that the obligation to do so had not arisen. [38] I have borne in mind in coming to the conclusions I have that in the decision of Lenijamar Pty Ltd and Others v. AGC Advances Limited, a decision of the Full Court of the Federal Court in 1990, 27 FCR 388, dealing with the rule in the Federal Court Rules for the dismissal of a party's claim, or if the party in default was the respondent for judgment for an order against that party, Wilcox and Gummow said there that, "the power given by such a rule is conditioned on one -- 11 of 13 -- circumstance only, that is the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding". Their Honours went on to say, "there is no requirement of intentional default of contumelious conduct, although the attitude of the applicant to the default, and the Court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule." They went on to say, "there is no requirement of inordinate or inexcusable delay on the part of the applicant or the applicant's lawyers, although any such delay is likely to be a significant matter". Further, "there is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant". They went on to say that, "it must be remembered that in almost every case delay adversely affects the quality of the trial and is an additional burden upon the parties". [39] I also do not accept that the views expressed by Justice McPherson do not contradict case management principles endorsed by the majority in Aon Risk Services Australia Limited v. Australian National University (2009) 239 CLR 175. [40] Therefore, I have come to the view that this appeal should be allowed. I allow the appeal. [41] I order the judgment entered on 6 June 2012 in favour of Sensis Proprietary Limited v. Allan John Christie be set aside. -- 12 of 13 -- [42] I also order that the orders made by the learned Magistrate on 15 May 2012 be set aside. [43] Subject to some further submissions I order the defendant deliver to the plaintiff a list of documents in accordance with rule 214 subrule (1) paragraph (a) of the UCPR. As I said, I will hear some submissions. [44] Yes, the time that I will allow in the order for Mr Christie to deliver to the plaintiff a list of documents in accordance with rule 214 subrule (1)(a) is by 4 p.m. on the 8th of February 2013. [45] If I need to, I dismiss any application under 667 subsection (1) of the UCPR. [46] On the question of costs, I consider that there ought be no order as to costs. Mr Christie has been successful on the appeal but he is self-represented. I consider he has succeeded on a point that has not been advanced in his notice of appeal and for those reasons I make no order as to costs. [47] I, at the same time, would not be prepared to make an order that he pay Sensis Proprietary Limited's costs because the matter was opposed and Mr Christie at the end of the day was successful. So there will be no order as to costs. -- 13 of 13 --