EPF Concreting P/L v Hall (Appeal) [2012] QDC 349

DISTRICT COURT OF QUEENSLAND CITATION: EPF Concreting P/L v Hall [2012] QDC 349 PARTIES: EPF CONCRETING PTY LTD (applicant/appellant) v LUKE JAY HALL (respondent/respondent) FILE NO: BD 1155/2012 JURISDICTION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Southport DELIVERED ON: 27 November 2012 DELIVERED AT: Brisbane HEARING DATES: 27 August 2012, 25 September 2012 and 27 November 2012 JUDGE: Dorney QC, DCJ ORDERS: 1. That Mr Reid be granted special leave to appear as the applicant/appellant’s representative. 2. That the orders made and filed in the Magistrates Court at Southport on 22 October 2012 take effect as of 15 February 2012. 3. That the purported Notice of Appeal filed 26 March 2012 be treated as an application for an extension of time to appeal pursuant to r 748 of the Uniform Civil Procedure Rules 1999 (Qld). 4. That the applicant/appellant have leave to extend the time to appeal to 26 March 2012. 5. That the application for extension of time be itself treated as the Notice of Appeal. 6. That the Notice of Appeal be amended to add an appeal against the decision of Acting Magistrate Morrow made 19 September 2011. 7. That the Notice of Appeal filed 26 March 2012, and the hearing of it on 27 August 2012, 25 September 2012 and 27 November 2012, are validly applicable to the judgment and orders -- 1 of 19 -- 2 made by the Magistrates Court taking effect as of 15 February 2012. 8. That, in lieu of the costs order made in the Magistrates Court on 15 February 2012, it is ordered that the plaintiff pay the defendant’s costs of the original proceeding, including any reserved costs, to be assessed by a costs assessor who is to be the Registrar of the Magistrates Court at Southport. 9. That there be added to the orders made in the Magistrates Court, to be effective on and from 15 February 2012, an order that the payment claim dated 19 May 2010 be set aside. 10. That the appellant have leave to appeal despite the orders of the Magistrates Court made on 5 November 2010 not having been filed. 11. That the appellant’s appeal against the setting aside of the judgment (entered in the appellant’s favour on 5 October 2010 in the Magistrates Court) on 5 November 2010 be dismissed. 12. That the appellant’s appeal (against the judgment given and the orders made in the Magistrates Court on 15 February 2012 that the appellant/plaintiff’s claim be dismissed) be dismissed. 13. That the applicant pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis. CATCHWORDS: Appeal –leave to extend time – orders not made and/or not filed (though some rectified) - leave to appeal – whether judgment against appellant sustainable Building and Construction Industry Payments Act 2004 (Qld) Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Qld) s 105 District Court of Queensland Act 1967 (Qld) s 52(1) Magistrates Courts Act 1921 (Qld) ss 45(2)(a), 45(5), 47, 60 Queensland Civil and Administrative Tribunal Act 2009 (Qld) Schedule 2 Uniform Civil Procedure Rules 1999 (Qld) rr 283, 660(1)(b), 660(3), 661, 661(1), 661(2), 661(4)(b), 663(1)(a), 683, 748, 766(1)(a), 766(1)(c), 785 American Express International Inc v Hewitt [1993] 2 Qd R 352 Bailey v Marinoff (1971) 125 CLR 529 Bayliss v Pankag [2010] QDC 477 Blundstone v Johnson & Anor [2010] QCA 148 -- 2 of 19 -- 3 BUSB v R (2011) 80 NSWLR 170 Chavez v Moreton Bay Regional Council [2010] 2 Qd R 299 Chidgey v Utz Wellner t/a Wellness Lawyers [2010] QCA 215 Christie v Seventh Day Adventist Schools (South Queensland) Ltd [2012] QDC 32 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Fox v Percy (2003) 214 CLR 118 Geary v REJV Services Pty Ltd & Ors [2012] QCA 238 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 Gibson v The Nominal Defendant (Queensland) [1996] QCA House v The King (1936) 55 CLR 499 Kelly v Mosman Municipal Council [2012] NSWCA 291 Lauchlan v Hartley [1978] Qd R 1 Mango Boulevard P/L v Spencer & Ors [2010] QCA 207 Mansouri & Anor v Aquamist P/L [2010] QCA 209 Morrison v Hudson [2006] 2 Qd R 465 Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2011] 2 Qd R 114 Paino v Hofbauer (1988) 13 NSWLR 193 Scagliotti v Boyd [1962] Qd R 481 Walton Construction (Qld) PL v Plumber by Trade P/L & Ors [2012] QSC 264 Wanstall v Burke [1925] St R Qd Wijayaweera v St Gobain Abrasives Pty Ltd [2012] FCAFC 128 COUNSEL: Mr Reid (with leave to represent the Appellant) R W O’Regan for the Respondent SOLICITORS: Appellant represented by Mr Reid Gillis Delaney Solicitors for the Respondent -- 3 of 19 -- 4 Introduction [1] This purported appeal [since an extension of time and leave to appeal (concerning unfiled orders) must be first considered] from the Magistrates Court, seeks to reverse the judgment entered in the defendant/respondent’s favour made at first instance. I will treat the Notice of Appeal as an application for an extension of time to appeal, though, for ease of reference I may refer generally to the applicant as the appellant and the application for an extension of time, until granted, as the appeal. [2] The plaintiff/appellant’s claim was for a “progress payment” of $20,023.25 as a liquidated statutory debt under the Building and Construction Industry Payments Act 2004 (Qld) (“BCIPA”), even though the actual words used in the Claim were for “monies owing by the defendant for goods and labour supplied pursuant to a construction contract”. The Statement of Claim, however, claimed relief for the sum “against the defendant for a statutory debt owed to the plaintiff”. [3] The history of how the trial of the proceeding was finally held, and the complications that have happened since then, are set out in the following sections. Suffice it to say that many procedural steps had not been taken, for which the appellant has applied for the granting of the court’s indulgence to excuse or extend. Such indulgence has generally been granted, and will be formalised in the orders made here. One potential major hurdle has been removed: the necessity for leave to appeal pursuant to s 45(2)(a) of the Magistrates Court Act 1921 (Qld) has not been triggered. Leave to appeal under Magistrates Courts Act [4] It became apparent that the present proceeding from which this purported appeal has been brought might engage s 45(2)(a) of the Magistrates Courts Act in its present form, because at the time of the “Notice of Appeal” being filed on 26 March 2012 this was a case in which there had been a judgment or an order of a Magistrates Court in an action in which “the amount involved” was not more than the minor civil dispute limit. [5] The term “minor civil dispute limit” is defined by s 45(5) of the Magistrates Courts Act as meaning the amount that is, for the time being, the prescribed amount under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCATA”). By recourse to the Dictionary of that Act, Schedule 3, a combination of the definitions of “minor civil dispute” and “prescribed amount” causes the conclusion that a claim for $20,023.25 satisfies the requirement that leave “shall not” be granted “unless the Court or Judge is satisfied that some important principle of law or justice is involved”. [6] At all relevant times, the QCATA had a “prescribed amount” of $25,000.00, although up until 1 September 2010 it was “prescribed” under s 17 of the Queensland Civil and Administrative Tribunal Regulations 2009 (Qld). [7] But the transitional provision governing the present s 45(2)(a) - s 60 of the Magistrates Courts Act enacted by s 105 (and not s 106) of the 2010 Amending Act1 - states that s 45 as amended by the relevant 2010 Act applies “only to actions or proceedings commenced after” its commencement (which was 1 November 1 Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Qld). -- 4 of 19 -- 5 2010). As will be seen later, this proceeding commenced on 8 June 2010. Accordingly, the then effective s 45(2)(a) applies, which sets the amount involved for engagement as “not more than” $5,000.00. Here that has been well exceeded. Legal issues [8] Besides those many procedural matters, the major issues for this Court have been:  whether the setting aside of a judgment entered in the appellant’s favour on 5 October 2010 in the Magistrates Court should have been so set aside (on 5 November 2010 in the Magistrates Court); and  whether a judgment “made” on 15 February 2012 should be the subject of a successful appeal on the basis that there was, in fact, a relevant “construction contract” subsisting between the appellant, as sub-contractor, and the respondent, as builder, within the terms of BCIPA. [9] I will proceed to consider the multitude of issues raised. Background [10] The application/appeal came on before me for hearing on 27 August 2012. I had not had the opportunity to read much of the file before the hearing. In any event, it would have been substantially hindered by the fact that, at least at the beginning of the hearing, there was no transcript before me of the two days of hearing in the Magistrates Court and very little by way of the original Magistrates Court file. That was eventually remedied, in part, by the appellant tendering, as Exhibit 1, a copy he had of the transcript of the hearing before Acting Magistrate Morrow held on 19 and 20 September 2011. [11] The hearing of the application/appeal has progressed slowly. The appellant, pursuant to s 52(1) of the District Court of Queensland Act 1967 (Qld) was granted special leave by me to appear by its representative, Mr Reid. It was also complicated by the fact that the appellant had filed an Application in the District Court on 14 August 2012, which was stated to be an application within a proceeding. An earlier Originating Application filed 31 July 2012 had been dismissed by Clare SC DCJ, in circumstances where both applications were substantially identical. I will deal with that application in a separate decision. [12] The arguments in the application/appeal were, as attempted to be expressed by Mr Reid, diffuse and disconcerting. It proved impossible for any precise (much less any concise) oral submission to be formulated on the appellant’s part. When it was realised by me that the appellant was seeking more than what appeared in its “Notice of Appeal” filed 26 March 2012, I gave leave, with no objection being proffered by the respondent, to permit him to amend that Notice to add an appeal against an interlocutory decision of Acting Magistrate Morrow made on the first day of that first instance hearing (namely, 19 September 2011). As held by the Full Court of the Federal Court in the recent decision of Wijayaweera v St Gobain Abrasives Pty Ltd2, in general, any interlocutory order which affects the final result can be challenged in an appeal against the final judgment: at [16], referencing Gerlach v Clifton Bricks Pty Ltd3 at 482-4, [4]-[8]. 2 [2012] FCAFC 128. 3 (2002) 209 CLR 478. -- 5 of 19 -- 6 [13] In the end, on 27 August 2012, after receiving an assurance from Mr Reid that his “comprehensive outline” – which contained 46 pages of submissions (including an index) and 120 pages of an attached “exhibit” – would “sort out” for me concerns that I then had about the substance of his argument, I reserved the decision both on the application/appeal and the mentioned application. A close reading of it compounded the problems of analysis because parts of it relied on “facts” not led in evidence – for which no leave was sought to use under r 766(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) - and references to “without prejudice” negotiations (which were clearly marked so) were made. [14] On a review of what was sent to this Court for the appeal by the Magistrates Court, I became further concerned that aspects of the argument advanced by Mr Reid were not covered by relevant documents from the Magistrates Court’s file. It should be mentioned at this stage that the Magistrates Court proceeding had originally been filed in the Coolangatta Registry and bore registry number M154/10. It was then transferred to the Southport Registry where it was given the registry number of M1523/11. [15] On receiving the “full file”, it became clearer to me what some of Mr Reid’s submissions were directed to and it also became clearer that certain procedural steps had not been taken. In particular, there was no judgment “made” by Acting Magistrate Morrow, as no entry on any relevant court record (be it a file or document on a file) of the judgment was made, thereby precluding any such judgment being filed. Additionally, while the reasons given by Acting Magistrate Morrow were in writing, and signed by him, and although they were stated to be issued pursuant to r 663 of the UCPR, there was no date for the judgment in the typed written reasons and no evidence that either r 663(1)(a) or r 663(1)(b) was satisfied. The reasons had annotated on them, in unknown handwriting, “15.02.12”. They did not satisfy r 660(1)(b) as there was no proceeding under Chapter 13, Part 6. No blame can be apportioned to the Acting Magistrate since his letter, on file, of 15 February 2012 requested an appropriate course be taken by the Southport Registry: see r 664(4). [16] As a result of such matters, I requested that further submissions be made by both parties to the appeal concerning three questions. [17] The first question concerned the “Notice of Appeal” having sought to appeal an order “dated” 15 March 2012 (in light of the matters that I have just mentioned), in circumstances where the document index on the court file bearing the Southport Registry number stated that it was an “order” made on 15 February 2012 (against which somebody had handwritten the words “Decision by Magistrate Morrow”). [18] The second question referred to the effect of there being no filing of the judgment, which I asked to be addressed in light of r 661 of the UCPR. [19] The third question asked was, if it was conceded that the judgment was made on 15 February 2012, what submissions the parties wished to make on the question of leave or extension being required (because any appeal, properly constituted, would have been filed out of time)? [20] The appellant’s submissions were received on 12 September 2012 (dated 10 September) and the respondent’s on 13 September 2012 (dated 11 September). With further leave, the appellant made further submissions on 17 September 2012. -- 6 of 19 -- 7 [21] As a result of reading those additional submissions, as well as reviewing the full file, it became apparent to me that there was, in fact, no judgment which was relevantly “made” pursuant to r 660 of the UCPR, much less any judgment that was “filed” pursuant to r 661 of the UCPR. [22] I, therefore, caused a further hearing to be set down for 25 September 2012 in order to address these concerns, informing the parties that a decision of McGill SC DCJ of Bayliss v Pankag4, particularly at [5]-[6], might suggest a course to be taken whereby matters might be brought on again before the magistrate concerned at first instance. On that date, Mr Reid, on behalf of the appellant – there being no appearance that day by the respondent’s legal representative (although notified) - indicated that he wished to take such a step. Hence, I caused the file to be returned, temporarily, to the Magistrates Court, Southport Registry. [23] The matter was brought back before the Magistrates Court; but it appears no party was heard on the form of the orders to be made. The relevant judgment “made” and “filed” on 22 October 2012 was not ordered to take effect, as it should have done, as of 15 February 2012, though it stated its “date” as “15.02.12”. After hearing further oral submissions on 27 November 2012 about the future course of this appeal, I have decided – if only to regularise what may have resulted from a possible error in the order filed - pursuant to the powers given to this Court pursuant to s 47(d) of the Magistrates Court Act and, through r 785, r 766(1)(a) of the UCPR, to order that the judgment and orders made and filed on 22 October 2012 take effect as of 15 February 2012 [in conformity with r 660(3)]. The fact that these “recent” orders do not entirely reflect the “orders” in the Reasons (by utilising Form 59 rather than Form 58) or comply fully with a rule such as r 683 of the UCPR does not invalidate their worth for the purposes of this appeal, because a “judgment” within r 659 is encompassed by a dismissal of the Claim (being a form of final relief), though it affects the relief granted on this appeal concerning costs, since there is no effective order as to who is to pay them. But the date of the judgment (being the “date of the decision” for the purposes of r 748 of the UCPR) of 15 February 2012 means the “appeal” is out of time. As held by Keane JA [with whom Williams JA and White J (as she then was) agreed] in Morrison v Hudson5, failure to appeal in time means any appeal purportedly brought is “incompetent” and an application for an extension of time is the only process open: at [7], [16], [17] and [32]. It is irrelevant what r 660(3) says in this context since the extension of time is the relevant order. As I intend to make here, it is an order extending the time required under r 748 to 26 March 2012. The clear reasons why the extension is granted is that both parties have conducted the appeal on the basis of the correct judgment day being within time, that there has been no fault on the applicant/appellant’s part for the error in not making and filing the judgment, that lengthy preparation has been undertaken to get the proceeding to its present position, and that it would now be unfair to the applicant/appellant to shut it out at this time (given all that has happened), and the fact that it cannot have been demonstrated that there were absolutely no prospects of success. Upon notice being given to both parties, on 27 November 2012 I also heard submissions (for the first time) on leave to appeal under the Magistrates Court Act (dealt with earlier). 4 [2010] QDC 477. 5 [2006] 2 Qd R 465. -- 7 of 19 -- 8 History of action in Magistrates Court [24] The Claim and Statement of Claim in M154/10 were filed on 8 June 2010. An affidavit of service filed on 23 July 2010 shows that the Claim and Statement of Claim were served on the defendant on 21 June 2010. [25] A Request for Default Judgment was filed on 23 July 2010, together with an affidavit in support of judgment deposed to by Mr Reid. [26] Thereupon, on 23 July 2010 judgment was entered in the Coolangatta Registry in proceeding number M154/10 before Mr L E Haylock, Registrar, being for judgment that the defendant pay to the plaintiff the amount of $20,276.25 (being a claim of $20,023.25 and costs of $253.00). [27] On 1 September 2010, the defendant, the present respondent, through his solicitors, filed an application seeking that the judgment dated 23 July 2010 be set aside, that all enforcement action be stayed and that the plaintiff/appellant pay the costs of that application. The plaintiff, the present appellant, then caused to be filed an affidavit by Mr Reid on 16 September 2010. [28] In the text of that affidavit, it was stated that the plaintiff, would “in principle not oppose the setting aside of the judgment if the Court was of a mind to make such an order if the Court made orders for the recovery of the plaintiff’s costs of registering and enforcing the judgment in default interstate that are thrown away and under Rule 290 required the defendant to lodge security in Court for the amount of the liquidated debt”: see paragraph 10. [29] On 17 September 2010, being the return date of the application, with Mr Reid appearing for the plaintiff and solicitors appearing for the defendant, it was adjourned to 24 September 2010. [30] On 24 September 2010, with Mr Reid appearing for the plaintiff and Ms Turnbull (solicitor) appearing for the defendant, the court noted on the record in written form that, having heard both parties, Magistrate Finger made orders in the following terms: “1 Application to set aside judgment is granted. 2 I direct that the defendant: (a) file and serve defence within 7 days of today; (b) do pay the sum of $20000 security to the Registrar within 7 days; (c) pay costs of plaintiff’s costs of $276 within 7 days. 3 Failing the defendant either lodging the defence or paying the security, the plaintiff is at liberty to enter judgment.” [31] Upon an affidavit of Mr Reid filed in the Coolangatta Registry on 5 October 2010 stating that the defendant had not filed a Notice of Intention to Defend or made payment into court, Mr L E Haycock, Registrar, entered judgment on 5 October 2010 in terms that “the defendant pay to the plaintiff the amount of $20,276.25 including $nil interest to this day $276.25 for costs”. The plaintiff has taken no issue that the actual claim was for a higher figure (although only slightly). [32] Later on 5 October 2010, the defendant filed an application, returnable on 22 October 2010, still in the Coolangatta Registry, seeking that the “orders made by -- 8 of 19 -- 9 Magistrate Finger on 24 September 2010 be extended” until 8 October 2010 and that, in the event that a “default judgment” had been entered, the “default judgment” be set aside and that all enforcement action be stayed. [33] It is not in dispute that by 5 October 2010 the defendant had not complied in strict terms with the orders of Magistrate Finger made on 24 September 2010. [34] On 22 October 2010 the application for extension was adjourned to 5 November 2010. [35] On 5 November 2010 Magistrate Magee, after hearing submissions by both parties, in a handwritten entry on the court record, made, among other orders, an order that the time for compliance with paragraphs 2(a) and 2(b) of the orders of Magistrate Finger made 24 September 2010 be extended to 6 October 2010 and that the judgment entered on 5 October 2010 be set aside. It should be noted that the defendant had filed a Defence on 6 October 2010 – though not a Notice of Intention to Defend - and had paid into court a total sum of $20,276.25, also on 6 October 2010. [36] Other orders that Magistrate Magee made on 5 November 2010 concerned further pleadings and the taking of other procedural steps. Although other steps were taken in the meantime, on 7 June 2011, the file was transferred to Southport and given, as noted above, the registry number M1523/11. [37] Eventually, the matter was listed for trial at Southport to be heard on 19 and 20 September 2011 (which is the hearing subsequently undertaken by Acting Magistrate Morrow). Circumstances of 5 October 2010 judgment [38] While the actual circumstances of the judgment being entered by the Registrar of the Magistrates Court at Coolangatta are not in dispute – at least not the entry with the court seal upon it (which differs from an earlier initialled “draft” containing different sums of money and is different in terms from the Affidavit in Support of Judgment sworn by Mr Reid on 5 October 2010) – the earlier orders of Magistrate Finger made on 24 September 2010 probably provide the genesis of any argument concerning that later judgment. [39] Turning, then, to the circumstances of 24 September 2010, it should first be noted, as already observed, that an affidavit of Mr Reid filed 16 September 2010 had proposed that, although the defendant had allegedly not made out his case to have the original default judgment set aside, in principle the plaintiff would “not oppose” the setting aside of the judgment if the court was of a mind to make such an order, conditional upon orders for “lodging” the Defence and paying the security: see paragraph 10 as set out in [33] above. [40] Mr Reid, in an affidavit filed on behalf of the plaintiff on 18 October 2010, asserted that the order by Magistrate Finger was made “after the plaintiff had consented” to set aside the judgment in default entered 23 July 2010: see paragraph 3. [41] The actual notations made on the court record, in original handwriting, by Mr Finger on 24 September 2010 do not contain the word “consent”. In any event, it might be considered that such an order could not be one made by consent as it -- 9 of 19 -- 10 requires the exercise of the court’s discretion. This does not mean that, in general terms at least, following upon Mr Reid’s affidavit filed 16 September 2010, the plaintiff’s position was other than one of non-opposition to such an order. [42] What, nevertheless, is clear is that the entry of judgment on 5 October 2010 was, in the circumstances of the conditions contained in the orders made by Magistrate Finger on 24 September 2010 not having been complied with, a regularly entered judgment. [43] I have referred, earlier, to the handwritten notations on the court file by Magistrate Magee when making the orders which she did on 5 November 2010. Her reasons are contained in a transcript of proceedings dated 5 November 2010. As her orders “made” have not been “filed” [see, respectively, r 661(1) by such writing and r 661(2) by non-compliance], leave is necessary for an appeal to be brought against such orders pursuant to r 661(4)(b) of the UCPR. Given the circumstances here, I will give such leave (particularly where leave had already been given in the hearing of the appeal for the “order” of 19 September 2011 to be the subject of this appeal). [44] Those reasons clearly rely upon a discretion in the court “to extend the time for compliance” with the orders made by Magistrate Finger: see, for instance, T:1-5. The basis was also, similarly, exposed in those reasons, including: an indication that there was a triable issue and, therefore, that there may well be a valid defence to the claim; the reluctance of a court to exclude a defendant where there appeared to be a defence that may have some merit; and, while having concern about the failure of the defendant to comply with the terms of the orders of Magistrate Finger in time and about the lack of a plausible explanation for compliance with that order, the reluctance of the court to “cut out” the defendant, particularly when some steps had been taken “to set in chain” compliance with those orders: see T:1-4 and T:1-5. [45] That transcript of 5 November 2010 also reveals that Mr Reid argued that the judgment of 5 October 2010 was not a judgment in default but was, in fact, a final judgment of the court entered pursuant to an order of the court: see T:1-7. Lastly, despite noting contentions by Mr Reid to the contrary, Magistrate Magee observed that she had power to extend the time for compliance, implicitly holding that it was not too late to so extend it: see, also, T:1-7. [46] The importance of this aspect of the case is that the Mr Reid, on behalf of the plaintiff, raised these issues again at the beginning of the two day trial on 19 and 20 September 2011. [47] Unfortunately, particularly for present purposes, Acting Magistrate Morrow referred to the judgment entered by the Registrar at Coolangatta on 5 October 2010 as a “default judgment”. Following from that “error”, it is unsurprising that he referred to both r 283 and r 290 of the UCPR. While it is true that by 5 October 2010 no Notice of Intention to Defend had been filed – in fact, it has never been filed – the entry of judgment on that day followed a hearing at which both parties were represented and a “guillotine” order made (perhaps inaptly expressed in terms of “liberty”). There was no further appearance required and, therefore, there was no denial of natural justice: cf. Chidgey v Utz Wellner t/a Wellness Lawyers6. 6 [2010] QCA 215. -- 10 of 19 -- 11 [48] What was the actual concern of Magistrate Magee on 5 November 2010 was not a default judgment under r 283 of the UCPR but rather the consequences flowing from the orders made by Magistrate Finger on 24 September 2010 “setting aside” a “default judgment” “on terms”. There was no engagement of any provision such as r 374 or, even, r 668. What actually occurred is simply that the defendant failed to comply with those “terms” of the guillotine order. [49] Thus, the focus of the enquiry conducted by Acting Magistrate Morrow on 19 September 2010 should have been with that failure. [50] With due respect to Mr Reid, he did agitate the argument that the judgment entered on 5 October 2010 was “not a default judgment” which Magistrate Magee “purported to set aside”. [51] In the end, the decision made by Acting Magistrate Morrow was that he did not need to make a “Case Stated” to the District Court as the matter was “obviously” a matter that could be dealt with on appeal. To that extent at least, that conclusion was prescient. His Reasons discuss the issue: at [147]. But they are brief and do repeat the reference to a “default judgment”. If it were to be necessary to “file” the order made instanter on 19 September 2011 – which I hold is unnecessary given the Reasons of the Acting Magistrate - I would have granted leave to “excuse” such filing, pursuant to r 661(4)(b) of the UCPR. Authorities re “setting aside” [52] While it is often stated that, as Barwick CJ said in Bailey v Marinoff7, however wide the inherent jurisdiction of a court may be to vary orders which have been made, that cannot extend to the making of orders in litigation that has been brought regularly to an end: at 531; and referred to by Campbell JA in Kelly v Mosman Municipal Council8: at [12]. The trouble, as often occurs, is that such a conclusion is not necessarily the end of the matter. In FAI General Insurance Co Ltd v Southern Cross Exploration NL9, the High Court considered an express rule which permitted a court to extend any time fixed by a judgment or order and which included a provision for extending such time even after the time had expired. The High Court held that such an order empowered the court to extend at the time for compliance with, for instance, a self-executing order, even though the time for compliance had passed and whether or not the proceeding was pending. In doing so, Wilson J, speaking generally for the court, distinguished Bailey as dealing only with the inherent power of a court, with no statutory rule being considered: at 285. [53] A detailed consideration of the relevant cases to 2010 was undertaken by Keane JA, with whom Holmes JA and McMeekin J concurred, in Chavez v Moreton Bay Regional Council10. The relevant express rule in Queensland is r 7 of the UCPR. It is expressed in wide terms. After accepting the conclusion reached by Clark JA in Paino v Hofbauer11 (at 200) that, since FAI, the court’s power to extend the time for compliance with its orders cannot be questioned, Keane JA went on to consider the position that applied if the order for which the extension of time is directed was 7 (1971) 125 CLR 529. 8 [2012] NSWCA 291. 9 (1988) 165 CLR 268. 10 [2010] 2 Qd R 299. 11 (1988) 13 NSWLR 193. -- 11 of 19 -- 12 originally “by consent”. With respect to that, after analysing the relevant appellate cases (in particular), he concluded that, while there are decisions of intermediate Courts of Appeal in Australia which support the proposition that a term of a consent order which contains a self-executing order for the dismissal of proceedings by reason of default in compliance by a due date may be extended by order of the court – a view seemingly not to accord with that taken in England, and perhaps inconsistent with the previous decisions of Queensland courts – the discretion should be only exercised in favour of a person in the position of Mr Chavez in cases “where there is good reason for depriving the other party of the benefit of a free and voluntary agreement”: at 306-311 [31]-[39]. [54] The position of Mr Chavez was described in the later Court of Appeal decision of Blundstone v Johnson & Anor12 as one which, if the extension was granted, would have deprived the defendant of its complete defence to the claim (the limitation period having expired) consequent upon the exercise of its rights under the consent order: at [8], per Holmes JA, with whom Chesterman JA and Atkinson J concurred. In Blundstone the Court of Appeal accepted the characterisation by the primary judge there that it was “more like an order of the court made with the consent of the parties” than an order embodying a compromise, particularly where its making required an exercise of discretion: at [10]-[12]. Their conclusion, on the facts in question there, was that there was no agreement to be implied into, much less expressed on the face of, the order – and if there were, it was irrelevant at the point at which the learned judge came to consider the exercise of discretion: at [13]. Furthermore, the court made a distinction between a consent order embodying the terms of a contract between the parties and a consent order based on the parties’ willingness to submit to an order on certain terms: at [14]. [55] In Mango Boulevard P/L v Spencer & Ors13, the Court of Appeal again had reason to consider the principles relevant to this issue. Fraser JA acknowledged that the term “order”, as defined in the UCPR, in terms unambiguously comprehends a judgment: at [97]. Relevantly, he noted that Bailey was distinguished in FAI: at [104]. The main concern in that particular case was that, if the order applied for, and granted, was pursuant to r 374 of the UCPR, then r 374(8) precluded an order setting aside such a judgment otherwise than on appeal: at [157]. That is not an issue here. Neither is it an issue that inherent jurisdiction, or power, is in play (or, for this Court, any “implied power”: see BUSB v R14 at 175-176 [24]-[29]). The sole concern here is with r 7 of the UCPR. [56] Although it deals, relevantly, only with setting aside, r 667(1)(b) provides no express power in these circumstances, since the application to set aside, while it was filed within the 7 days (on 5 October 2010), it was not filed before the order was filed: see the File Index (order of documents) in proceeding M1523/11 and the “filed” order of 5 October 2010, accepting that, for present purposes, parts of a day are relevant to determining timing. Outcome on “setting aside” [57] What the above analysis of relevant Queensland authorities shows is that, although the judgment of 5 October 2010 was entered regularly, the time for compliance with 12 [2010] QCA 148. 13 [2010] QCA 207. 14 (2011) 80 NSWLR 170. -- 12 of 19 -- 13 the terms set down by Magistrate Finger on 24 September 2010 was open to an extension of time, provided a proper discretionary approach was undertaken, even after the time the “guillotine (or self-executing) order” was effected. [58] On the face of the record in this case, there was no “consent order”. Accordingly, it is unnecessary to consider the specific issue raised in cases like Chavez and Blundstone. In such circumstances, the analysis undertaken by Magistrate Magee on 5 November 2010 was, although brief, appropriate and relevant. There is nothing in that analysis which shows that the principles applicable to discretionary judgments (set out in House v The King15) have been contravened. [59] If I should be wrong about the absence of the order being by “consent”, then, adopting the principles outlined in Chavez and Blundstone, I would reach the conclusion that the order in question which did set aside the default judgment of 23 July 2010 on 24 September 2010 was not an order from which an agreement could be implied that would bring into account the principles outlined in Chavez. But even if it did, unlike Chavez it would have been proper, after an appropriate consideration of the relevant authorities that I have considered, for a decision to be made that, notwithstanding any “consent” characterisation that might be applicable, a proper exercise of the discretion in the circumstances would have led to exactly the same orders that were made by Magistrate Magee on 5 November 2010. [60] Accordingly, there is no legal merit in the arguments presented by Mr Reid on behalf of the appellant/plaintiff concerning the absolute finality of the judgment entered on 5 October 2010. [61] Hence, the first part of the appeal which deals with the order of Acting Magistrate Morrow made 19 September 2011 is unsuccessful. Witnesses’ credibility [62] In the recent Court of Appeal decision of Geary v REJV Services Pty Ltd & Ors16, White JA, although in dissent otherwise, uncontroversially discussed the issue of the credibility of the witnesses in the trial at first instance. In particular, she concentrated upon the necessity to be mindful of the functions of, and limitations on, an appellate court: at [51]. As she noted, the nature of a statutory appeal such as this (being a rehearing) is that it is “on the record”, referring to a discussion by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy17 at 125 [22]: also at [51]. The limitations on appeal were stated to include the disadvantage that the appellate court has compared to the trial judge in evaluating witnesses’ credibility and the “feeling” of a case which in an appellate court, although reading the transcript, cannot always fully share: also at [51]. Important in that determination is the obligation of the appellate court to conduct a real review of the trial and of the trial court’s reasons, being not excused from the task of weighing up of the evidence and drawing its own inferences and conclusions, after making due allowance for the advantage of the primary court seeing and hearing the witnesses: also at [51]. [63] In Geary White JA noted the requirement for an appellate court, upon concluding that error has been shown after making proper allowance for the advantage of the 15 (1936) 55 CLR 499 at 504-505. 16 [2012] QCA 238. 17 (2003) 214 CLR 118. -- 13 of 19 -- 14 trial court, to discharge relevant appellate duties in accordance with statute: at [52]. Finally, for present purposes, after noting that incontrovertible facts or uncontested testimony may demonstrate that the trial court’s conclusions are erroneous - even where they appear to be, or are stated to be, based on credibility findings - and referring to the encouragement of trial courts to limit their reliance on the appearance of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts, and the apparent logic of events, it was held that there was a need to take proper account of McHugh J’s observations in Fox v Percy that there must be something in the trial judge’s findings which points “decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses”: at [52]-[54]. [64] In the present case, Acting Magistrate Morrow, after a significant consideration of the conflicting testimony given on behalf of both the plaintiff and the defendant, concluded that the defendant “was honest and frank in his evidence” and that his evidence was “logical and fits in with his version of not engaging” the plaintiff. Likewise, it was found that Darren Carroll, a director of the plaintiff company and its licensed nominee for relevant purposes, who also gave evidence, was “an honest witness”. Mr Carroll’s evidence was very brief and conceded that there was no contract in writing between the plaintiff and the defendant. Finally, with respect to Mr Reid (who acted both as representative and witness), Acting Magistrate Morrow concluded that he was “less convincing as his evidence in my opinion was simply to put the best case forward for the plaintiff as he saw the difficulties of the plaintiff’s case after hearing the evidence of Darren Carroll”. It might be remarked that the dual role of advocate and witness sits uneasily in a case such as this, especially where he, earlier, had indicated to the court that he would not be giving evidence himself. [65] After a review of all of the evidence given by all witnesses in the case at first instance, I can see no reason to fail to accept the conclusions on credibility just canvassed. A concentration on the exhibited documentary evidence in the case simply illustrates inconsistencies in the evidence of both major witnesses, namely, Mr Carroll and Mr Hall. Both sides caused documents to be sent and correspondence issued which might be argued to be contrary to the position that they otherwise took at trial. [66] In particular, Mr Carroll conceded in evidence that one of the owners of the relevant property, John Flack (who was causing the house to be built for his ex-wife, although a joint contractor with her under a Residential Building Contract dated 12 April 2009), had called him and that was how he found that he “got the job”. Additionally, the first quote for some of the work was sent to Mr Flack by Mr Carroll (which was for two driveways, two side paths and steps, even though Mr Carroll indicated that he was told not to bother with the steps and footings). The learned Acting Magistrate also referred to this aspect as Mr Carroll admitting that the first quotation of 16 February 2010 was sent to the “owners” of the property and that the owners “accepted that quotation”. With respect to invoices dated 25 March 2010, Mr Carroll stated that he did not send those invoices. There was evidence that one was sent to Mr Flack and the other to Mr Hall (care of his business name, “L J Hall Builders”). The learned Acting Magistrate noted that, in re-examination, Mr Carroll gave evidence that while the quote dated 16 February 2010 was sent to Mr Flack, a later, second quote dated 21 February 2010 was sent by email to Mr Hall, -- 14 of 19 -- 15 with Mr Carroll indicating that the reason for the second being sent to Mr Hall was that Mr Flack had stated that the quote was not to come to him, bur rather go to the builder. (Mr Hall, for his part, stated that he “didn’t respond to it”, because he “wasn’t the contracting party”). [67] Concerning the evidence of Mr Reid, he gave evidence that the first invoice was forwarded to Mr Flack and, as Mr Flack was not able to read it, he was sent a duplicate copy. Mr Reid stated that he “did not get involved” with the second quotation. With respect to why he, too, sent documents to Mr Hall, he stated that it was because Mr Flack had stated to him that he would have to send the invoice to the builder: see Exhibit 4. [68] The learned Acting Magistrate then canvassed other post-contractual documentation which was equivocal. For instance, even after 25 March 2010, Mr Reid sent a fax to the defendant on 6 April 2010 which stated that, “it now appears that Mr Flack wishes the works to be included as part of your contract” (emphasis added). It was after such considerations that he came to the conclusions canvassed above. [69] Hence, insofar as a proper consideration of credit is concerned, there was no culpable misuse of the advantage that the learned Acting Magistrate had in reaching the conclusions that he did. It was necessary for him to reach conclusions on credibility because it was in strong contest as to who were the contracting parties for the concreting work performed by the plaintiff. Furthermore, when discussing the terms of some specific documentation sent which might be considered inconsistent with the defendant’s assertions as to the non-existence of a relevant contract, the learned Acting Magistrate accepted Mr Hall’s explanation that his reference to “employ(ment)” was wrong and made “in the heat of the moment”. There was no contemporary document, or logic of the circumstances, to show that that credibility finding, and any conclusion from it, was an improper finding. [70] As the apparent logic of events, there are several instances where the learned Acting Magistrate acted on “understandings” that he formed about “usual” building practice. While there are some instances where he has referred to inapplicable legislative provisions and the effect on usual building practices, the overall effect of his reasoning has not been undermined because the actual applicable provisions do not establish the contrary. Examples are:  while Part 4A of the Queensland Building Services Authority Act 1991 (Qld) (“QBSAA”) is inapplicable to a “domestic building contract”, the applicable Domestic Building Contracts Act 2000 (Qld) (“DBCA”) provides for a similar “regulated” contract in writing;  while variations are required to be in writing pursuant to Part 7 of the DBCA, the only consequence is the loss of the right to sue for added variations, thereby having no effect on validity (especially where, as here, the defendant relied on part of the “work” to be done for the owners by the plaintiff being excised and therefore having no additional effect on any larger contractual amount owing);  the omission of the defendant to plead to paragraph 13 of the Statement of Claim (where the original Defence “did not admit” both paragraphs 9 and 13) may have had more import if paragraph 9 had also been admitted [(whether expressly or by deemed admission)] where the concreting works were distinguished from the residential construction work;  Part 8 of the DCBA does not, expressly, or impliedly, contemplate the exclusion of owner-employed tradespersons; -- 15 of 19 -- 16  it was not incumbent on the defendant to prove that there was a regulated contract governed by Part 5 of the DCBA between the plaintiff and the owners, as that would reverse the onus of proof (even though in evidentiary terms it would assist the defendant’s case); and  where the “defence” is that no “construction contract” exists, the failure to serve a payment schedule in response does not, analogously, give rise to a defence in bar in Queensland, because, first, there was no such schedule in Mansouri & Anor v Aquamist P/L18 (at [6] and [11]), and, secondly, because the notion was expressly rejected in Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd19: at 123-127 [35]-[49], per Muir JA. Effect of statutory claim by plaintiff [71] It was not in contest at trial that the provisions of the BCIPA applied. As referred to in the reasons of the learned Acting Magistrate, the Court of Appeal decision of Mansouri was relevant to the issue of its applicability. [72] Important aspects of the analysis in Mansouri are:  the identification of a “construction contract”;  the conferring of an entitlement to progress payments (being a statutory entitlement) upon a person who has undertaken, relevantly, “to carry out construction work” under such a construction contract;  the service of a payment claim by a person who is or claims to be entitled to a progress payment; and  in circumstances where there was no payment schedule served in response, the effect of the contention, on the facts accepted, that there was no liability (because, in this instance, there was no construction contract). [73] With respect to the last matter, Fraser JA, with whom de Jersey CJ and White JA agreed, held that a basic and essential requirement is the existence of a construction contract between the claimant and the respondent: at [12], citing relevant authority. Thus, a right to a payment is not established by proof only that a payment claim was served on a person who “may” be a party, relevantly, for whom the claimant undertook to perform construction work; but, rather, a payment claim may validly be served only on a person who is a party, relevantly, for whom the claimant undertook to perform construction work: at [13]. Potentially important for this case, it was held that the expression “liable to make the payment” relates to the statutory entitlement to a progress payment, which is an entitlement that exists whether or not the respondent has any direct contractual liability to the claimant: at [15]. That conclusion applies in the context that judgment may be given if, and only if, the court is satisfied that there was a relevant “construction contract” (that is, a contract, agreement or other arrangement under which the claimant undertook, relevantly, to carry out construction work for the person sued as “the respondent”) (emphasis added): also at [15]. That is, could the plaintiff here “claim” under “an arrangement” (e.g. pursuant to the owners’ contract with the builder or something less than a contract with the builder but still within the definition of “construction contract”) if the Court were to decide that no contract was directly entered into between the plaintiff and the defendant? 18 [2010] QCA 209. 19 [2011] 2 Qd R 114. -- 16 of 19 -- 17 Application of BCIPA [74] One of the abiding problems that this case presents is that a considerable amount of hearsay evidence was not objected to during the two day hearing. Accordingly, it became admissible evidence. The weight to be attached to it must depend upon the extent to which it is internally consistent, at least with respect to hearsay statements - which are different in substance - allegedly made to both Mr Carroll and Mr Hall by Mr Flack, although at different times. When there is added to that such matters as non-trial evidence and privileged communications proferred by the appellant here, manifest problems abound. [75] Although it is almost indiscernible from a reading of the rambling Notice of Appeal filed 26 March 2012, and although the ocean of words used by the appellant in his many written submissions tends to disguise the issue, it does appear as if one point that the appellant makes about the application of the BCIPA is that the respondent/defendant “was engaged in unlicensed building work”. This, in turn, appears to be based upon the respondent continuing to carry out building work after his licence was suspended on 16 April 2010 and that, while it was so suspended, he “attempted to engage the appellant”. Surprisingly, the pleadings do not state how the asserted contentions achieve the result sought. It may well be that, as appears in another part of the appellant’s submissions, it goes to credit of Mr Hall. But that does not appear to have been the subject of any examination at trial or any submission to Acting Magistrate Morrow. In the confusing approach to matters, it may well be that this issue is now attempted to be used to contradict certain findings of the learned Acting Magistrate about, for instance, how Mr Hall “understood” the relevant building laws. [76] Approached from whatever angle, it does not appear to avail a contractor in a case such as this that the person against whom the claim is made was not licensed. [77] On the other hand, there are many decisions which concern claimants who were not relevantly licensed. For instance, in Walton Construction (Qld) PL v Plumber by Trade P/L & Ors20, Wilson J considered the contention that there was no enforceable “construction contract” because the claimant was not relevantly licensed pursuant to the Queensland Building Services Authority Act 1991 (Qld) (“QBSAA”). It was held there that if the claimant was not relevantly licensed the payment provisions in the contract in question were not enforceable by such a claimant: at [26]. [78] Another such case is Christie v Seventh Day Adventist Schools (South Queensland) Ltd21 where McGill SC DCJ stated that it seemed to him fairly clear that, in circumstances where a contractor is unlicensed or a person is claiming remuneration for building work while unlicensed, the fact that an entitlement may exist under s 42(4) of the QBSAA will not be a basis capable of supporting a valid payment claim: at [18]. [79] But if it should be concluded – as I have - that the learned Acting Magistrate made correct findings of fact about the non-existence of an agreement between the plaintiff and the defendant and since there is no cogent evidence that the terms of “an arrangement” between the plaintiff and the defendant, as builder, were engaged 20 [2012] QSC 264. 21 [2012] QDC 32. -- 17 of 19 -- 18 – even though it is conceded that the learned Acting Magistrate did not canvass the issue (undoubtedly because it was not directly raised by the plaintiff) - then the BCIPA had no application. If it had no application, there was no other basis upon which the plaintiff could have brought the relevant Claim, because rejection of the “statutory claim” rested on the non-existence of any relevant contract or arrangement. If so, then the decision of the learned Acting Magistrate was correct; and any assertion of an unlicensed party is irrelevant. Conclusions on judgment [80] From my acceptance of the Acting Magistrate’s consideration of the issue of credit and the issue of there being no relevant “contract” in terms of the BCIPA between the appellant and the respondent, and from my conclusion that there was no failure to consider the relevant litigated issues at first instance, I have determined that the appeal should be dismissed. [81] The jurisdiction of this court on appeal is the subject of s 47 of the Magistrates Courts Act 1921 (Qld). By s 47(d), the District Court can make any order [other than those in (a), (b) and (c)], on such terms as it thinks proper, to ensure the determination on the merits of the real questions of controversy between the parties. In following that, I have made relevant orders dealing with the irregularities, and other omissions (including procedural ones), that have occurred in the process of this proceeding from its commencement to this appeal. I have included, at Mr Reid’s insistence, an order, effective on and from 15 February 2010, that the payment claim dated 19 May 2010 be set aside. [82] Accordingly, the orders that I will make, which will also sweep up the orders that I made during the hearing of the appeal itself, are as follows: (a) that Mr Reid be granted special leave to appear as the applicant/appellant’s representative; (b) that the orders made and filed by the Magistrates Court on 22 October 2012 take effect as of 15 February 2012; (c) that the purported Notice of Appeal filed 26 March 2012 be treated as an application for an extension of time to appeal, pursuant to r 748 of the UCPR; (d) that the applicant/appellant have leave to extend the time to appeal to 26 March 2012; (e) that the application for an extension of time to appeal be treated as the Notice of Appeal; (f) that the Notice of Appeal be amended to add an appeal against the decision of Acting Magistrate Morrow made 19 September 2011; (g) that the Notice of Appeal filed 26 March 2012, and that the hearing of it on 27 August 2012, 25 September 2012 and 27 November 2012 be validly applicable to the judgment and orders made by the Magistrates Court taking effect as of 15 February 2012; (h) that, in lieu of the costs order made in the Magistrates Court on 15 February 2010, it is ordered that the plaintiff pay the defendant’s costs of the original proceeding, including any reserved costs, to be assessed by a costs assessor who is to be the Registrar of the Magistrates Court at Southport; (i) that there be added to the orders made in the Magistrates Court, to be effective on and from 15 February 2010, an order that the payment claim dated 19 May 2010 be set aside; (j) that the appellant have leave to appeal despite the orders of the Magistrates -- 18 of 19 -- 19 Court made on 5 November 2010 not having been filed; (k) that the appellant’s appeal against the setting aside of the judgment (entered in the appellant’s favour on 5 October 2012 in the Magistrates Court) on 5 November 2010, be dismissed; (l) that the appellant’s appeal (against the judgment given and the orders made in the Magistrates Court on 15 February 2012 that the appellant/plaintiff’s claim be dismissed) be dismissed; and (m) that the appellant pay the respondent’s costs of an incidental to the appeal to be assessed on the standard basis. -- 19 of 19 --