Far North Plumbing Pty Ltd v Brickell & Anor [2010] QMC 31

MAGISTRATES COURTS OF QUEENSLAND CITATION: Far North Plumbing Pty Ltd v Brickell & Anor [2010] QMC 31 PARTIES: FAR NORTH PLUMBING PTY LTD (plaintiff) v MARK BRICKELL (defendant) TINA SAMMONS (defendant) FILE NO/S: Tully Claim 27/09 DIVISION: Magistrates Courts PROCEEDING: Minor Debt Claim – Application to re-open proceedings ORIGINATING COURT: Magistrates Court at Tully DELIVERED ON: 2 December 2010 DELIVERED AT: Tully HEARING DATE: 2 December 2010 MAGISTRATE: Brassington JM ORDER: Application to re-open declined. CATCHWORDS: CIVIL LAW – PRACTICE AND PROCEDURE – re- opening of minor debt claim – transitional provisions for QCAT for minor debt claims Magistrates Court Act 1921 Uniform Civil Procedure Rules 1999, part 9, r 667, r 668 Queensland Civil and Administrative Tribunal Act 2009, s 244, s 268 Nelson & Anor v Brian Smith (Magistrate) & Altabay Pty Ltd [2010] QSC 184 COUNSEL: Dineen for plaintiff Defendants on own behalf SOLICITORS: Plaintiff on own behalf Defendants on own behalf INTRODUCTION -- 1 of 4 -- 2 [1] The claim 27/09 was originally bought in the (former) Minor Debt jurisdiction of the Magistrates Court. The matter was contested and a final decision in the matter was made by me on 25 June 2009. The order required the respondents to pay the plaintiffs $4099.78 with 28 days. The reasons for my decision are transcribed and on the Court file. [2] The original respondents, Mr Bricknell and Ms Sammons, now apply for the claim to be re-opened. The gist of their application is they have now evidence that the original plaintiff’s, Far North Plumbing Pty Ltd represented by Mr Dineen, work was non- compliant with the law. They also assert that there is substantial amount of other evidence showing they should have the matter re-heard. [3] Before turning to the merits of the application it is necessary to consider whether I have jurisdiction to re-open the matter. JURISDICTION [4] The jurisdiction for the Magistrates Court to deal with minor debts was found in the Magistrates Court Act 1921 and the Uniform Civil Procedure Rules 1999 (“the Rules”). A “minor debt claim” meant a minor claim in which the Plaintiff— (a) claims to recover against a Defendant a debt or liquidated demand in money, with or without interest; and (b) elects in the claim to have it heard and decided in a Magistrates Court under the simplified procedures in the rules. [5] A “minor claim” meant a claim for an amount, including interest, of not more than $7 500, whether as a balance or after an admitted set off, reduction by any amount paid by or credited to the Defendant, abandonment of any excess, or otherwise. [6] The simplified procedures in the UCPR were to be found in Part 9 of the Rules. [7] On 1 December 2009 a new Tribunal (QCAT) commenced. QCAT was established under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). Section 11 of the QCAT Act provides the original jurisdiction of the Tribunal to hear and decide minor civil disputes. This jurisdiction reflects the existing minor debts and small claim jurisdiction of the Magistrates Court. The provisions in Part 9 of the Rules were substantially amended to reflect the changes in the QCAT Act. [8] Transitional provisions in the QCAT Act set out how the Court is to deal with matters instituted before the commencement of the QCAT Act. Relevantly, s 268 of the QCAT Act applies if, before the commencement, a person has, under an enabling Act or another Act as in force before the commencement (the former Act), started a proceeding before a continuing entity for a QCAT matter. A continuing entity is defined to include a Court (s 244 of QCAT Act) and a QCAT matter is a matter where QCAT is given jurisdiction upon commencement (again see s 244 of the QCAT Act). That is, s 268 will apply to this matter as the matter was before the Magistrates Court and involves a QCAT matter (given QCAT now has jurisdiction for minor civil disputes). Claim 27/09 is not a pending proceeding in accordance with the definition in the Act. The matter is completed. Hence s 268(4) of the QCAT Act does not apply and the Court has no jurisdiction to transfer the proceedings to the QCAT. Rather the -- 2 of 4 -- 3 relevant provisions that govern how the application for re-opening will be decided are s 268(1) and (2) of the QCAT Act. Those provisions require the Court to decide an application to re-open the proceeding under the former Act and other relevant laws as if the QCAT Act had not been enacted: (1) This section applies if, before the commencement, a person has, under an enabling Act or another Act as in force before the commencement (the former Act), started a proceeding before a continuing entity for a QCAT matter. (2) The continuing entity must hear, or continue to hear, and decide the matter under the former Act, and the former Act and other relevant laws apply as if the QCAT Amendment Act had not been enacted. (3) The continuing entity’s decision in the proceeding has effect, or must be given effect, in the way the continuing entity’s decision would have had effect, or been given effect, under the former Act if the QCAT Amendment Act had not been enacted. [9] Hence the power to re-open the proceeding is determined under the former provisions in the Uniform Civil Procedure Rules. Part 9 of the Rules was amended upon commencement of the QCAT Act that gave jurisdiction to QCAT for minor debt claims. However, that part, in force prior to 1 December 2009, still governs the resolution of this matter pursuant to the QCAT Act transition amendments previously discussed. Rule 522 in Part 9 (now repealed) provides for a limited power to re-open proceedings: (5) If the court is satisfied, on application made to it within a reasonable time after a judgment given in the absence of a party came to the notice of the absent party, there was enough reason for the party’s absence, the court may set aside the judgment and its enforcement. (6) The court must rehear a proceeding set aside under subrule (5) then or at a later time set by the court. (7) At any time during the hearing the court may give the directions for the conduct of the proceeding it considers appropriate and necessary to enable justice to be done between the parties [10] Rule 522(5) has no application to the resolution of the issue as both parties were present during the conduct of the proceeding. [11] The question really raised by the applicants (although no statutory provision is cited) is whether they can rely on r 667 or r 668 of the Rules that permit the Court to set aside an order obtained by fraud (r 667) or make another order as facts have been discovered after the order was made that, if discovered in time, would have entitled them to an order or decision in the person’s favour or to a different order (r 668). [12] I find that the applicants cannot rely on those rules to apply for a re-opening. I make that decision relying on the judgment of His Honour Justice Cullinane in Nelson & Anor v Brian Smith (Magistrate) & Altabay Pty Ltd [2010] QSC 184. In that case the Magistrate refused a re-hearing as the matter had not proceeded ex parte. The applicants applied under Part 5 of the Judicial Review Act 1991 for an order that the matter be -- 3 of 4 -- 4 remitted to the Magistrates Court in its minor debt jurisdiction for hearing. His Honour found the matter had not proceeded ex parte hence r 552 had no application. [13] He also considered whether s 441 of the Magistrates Court Act 1921 and r 667(2)(a) (granting the setting aside of a judgment made in the absence of a party) had any bearing on the issue. He decided they did not and held, dismissing the appeal: “Division 2 of Part 9 provides for an informal process intended to provide a cheap and effective means of resolving disputes involving relatively small amounts. It seeks to avoid delays arising from the taking of the usual steps associated with civil litigation. Given the special and discrete way in which these claims are dealt with I think R.522 should be construed as providing for the only means by which a judgment subject to these provisions can be set aside. See Barraclough v Brown (1897) AC 615.” [14] I am bound by His Honour’s decision and indeed I accept His Honour’s reasons as entirely correct. If r 667 (which provides for the setting aside of a judgment granted in the absence of a party in r 667(2)) had application to Minor Debt proceedings then there would be no purpose in having a specific rule to the same effect in r 552. No specific provision is made in the simplified procedures for re-opening or setting aside a judgment on any other ground. Given the reasoning of His Honour in Nelson I am satisfied that by implication r 667 or 668 cannot be relied upon to set aside or allow a reconsideration of a final judgment of the Magistrates Court in the Minor Debt jurisdiction. [15] It follows that as the judgment was given following a hearing on the merits where the plaintiff and defendant had the opportunity to be heard I have no jurisdiction to re- open the proceedings. Accordingly, I decline the application to re-open. [16] I direct that a copy of my order and reasons be provided to both the applicant respondent and the original plaintiff. 1 Section 44 New trial (1) Subject to this Act, any party dissatisfied with any decision of a Magistrates Court may, at any time within 7 clear days from such decision, apply to the court for a new trial. (2) The court may grant the same upon such terms as to costs or otherwise as it thinks fit, or, in its discretion, may refuse the same with or without reasonable costs. -- 4 of 4 --