Chidgey v Commonwealth of Australia [2010] QDC 179

1-1 [2010] QDC 179 DISTRICT COURT APPELLATE JURISDICTION JUDGE MARTIN SC No 3427 of 2009 DAVID STANLEY CHIDGEY Appellant and COMMONWEALTH OF AUSTRALIA Respondent BRISBANE ..DATE 14/04/2010 ORDER -- 1 of 4 -- 1-2 ORDER HIS HONOUR: This appeal is against a decision of the learned Stipendiary Magistrate at Cleveland granting summary judgment in an action pursuant to Rule 292 of the Uniform Civil Practice Rules. In granting judgment in this way the Magistrate must be satisfied, inter alia, that the appellant has no real prospect of successfully defending all or part of the plaintiff's claim. The decision of the Magistrate reveals that the application was listed for 8.30 a.m. on the 30th of October 2009. It is common ground that the appellant was aware of the listing. At 8.35 a.m. that day the matter was mentioned and whilst the plaintiff's legal representative appeared the appellant did not and his name was called three times. It seems that the learned Stipendiary Magistrate was then informed at 8.40 a.m. by Registry staff that the appellant had telephoned to say that he was running late and that he would be at Court in about 10 minutes. The Court then adjourned. The Court resumed at 8.52 a.m. and the appellant's name was again called three times. The appellant did not appear. The Magistrate then proceeded to hear the application in the appellant's absence. He granted the application at about 9 a.m. The Magistrate was then informed that the appellant did arrive at Court and that he had been advised that the matter had been determined in his absence. -- 2 of 4 -- 1-3 ORDER 1 10 20 30 40 50 60 It may well be the case that the appellant has no real prospect of successfully defending the claim and that there is no need for a trial. Certainly, the contents of the defence and counterclaim ought not fill the appellant with optimism. However, the effect of what occurred on the morning of the 30th of October 2009 was to deny the appellant the opportunity of being heard in opposition to the application for summary judgment. Such an application imposes a substantial burden on the plaintiff and such applications are not lightly granted. The principle that a person against whom a claim is made should be given a reasonable opportunity of appearing and being heard in opposition to the claim is a fundamental principle of natural justice applicable in all Courts. No doubt the Cleveland Magistrates Court is a busy Court. So much is obvious from the fact that this matter was listed at 8.30 a.m. that day. However, from the information received, the Magistrate must have had the expectation that the appellant was keen to oppose the application, was on his way to Court and ought to be there within a relatively short time. Indeed, the appellant did arrive at Court within a relatively short period of time and it seems to have been at about 9 a.m. when the appellant was known by the Magistrate to be at Court. I do not expect that Courts should wait unreasonably for the arrival of litigants. However, in the circumstances that existed that day, I am of the view that the appellant was not -- 3 of 4 -- 1-4 ORDER 1 10 20 30 40 50 60 given a reasonable opportunity to be heard and that there has been a denial of natural justice. That being so, it is my view that the appellant ought now be placed in the position that he ought to have enjoyed on the 30th of October 2009 and be given the opportunity of arguing opposition to the application in the Court of first instance. The appeal is allowed. The judgment entered for the plaintiff against the defendant on the 30th of October 2009 is set aside. The matter is remitted to the Magistrates Court Cleveland to hear and determine the summary judgment application. In the circumstances, it seems appropriate that a different Magistrate now hear the application. ... HIS HONOUR: There will be no order as to costs. ----- -- 4 of 4 --