City & Country Insurance Brokers Pty Ltd v Webster, Stipendiary Magistrate & Ors [1999] QSC 240

( ... /- JJ i --....: /,,,", IN THE SUPREME COURT OF QUEENSLAND No. 6187 of 1999 Brisbane BETWEEN: CITY & COUNTRY INSURANCE BROKERS PTY LTD ACN 055 774 251 Applicant AND: COLIN WEBSTER, STIPENDIARY MAGISTRATE First Respondent AND: BRIAN WILLIAMS, STIPENDIARY MAGISTRATE Second Respondent AND: MARK EDWARD TOOVEY Third Respondent REASONS FOR JUDGMENT - HELMAN J. Judgment delivered 11 October 1999 CATCHWORDS: PREROGATIVE WRITS AND ORDERS - prerogative order quashing of judgment given in Small Debts Court - denial of natural justice. Counsel: A. M. Hoare for applicant D. P. 0' Gonnan for third respondent Solicitors: MacGillivrays for applicant Duells for the third respondent Hearing Date: 31 August 1999 ~:... -- 1 of 6 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane BETWEEN: AND: AND: AND: No. 6187 of 1999 CITY & COUNTRY INSURANCE BROKERS PTY LTD ACN 055 774 251 Applicant COLIN WEBSTER, STIPENDIARY MAGISTRATE First Respondent BRIAN WILLIAMS, STIPENDIARY MAGISTRATE Second Respondent MARK EDWARD TOOVEY Third Respondent REASONS FOR JUDGMENT - HELMAN J.I Judgment delivered 11 October 1999 I This is an application for review, filed on 30 June 1999, seeking a prerogative order under Part 5 of the Judicial Review Act 1991. The applicant relies on s. 41 (2) of that Act and claims the reliefthat could hitherto have been granted by way of writ of certiorari. Although in the application relief was sought against both the first and second respondents, both of whom are stipendiary magistrates, at the hearing the applicant abandoned its claim to relief against the second respondent. 2 Rule 155A(2B) oftheMagistrates Courts Rules 1960, which rules expired on 30 June 1999, provided that where no entry of appearance and defence was filed in an action for a small debt the provisions ofr. 157 mutatis mutandis should apply. The latter rule provided for judgment by default if a defendant had not filed an entry of appearance and defence. On 30 April 1999 the first respondent, sitting in the Small Debts Court at Brisbane, gave -- 2 of 6 -- , . ( ( '" 2 judgment by default in filing an entry of appearance and defence under r. 157 for $5,092.00 for the third respondent, the plaintiff in an action in that court, against the applicant, the defendant in the action. The $5,092.00 was made up of $5,000.00 for the claim and $92.00 for costs. The applicant seeks an order removing that judgment into this court for the purpose of quashing it. 3 The third respondent began his action on 17 February 1999 claiming $5,000.00 for a debt allegedly owing by the applicant to him. On 25 March 1999 the applicant's solicitors filed a document headed 'ENTRY OF APPEARANCE AND DEFENCE' in which the applicant's name was shown correctly in the heading, but in the body of the document it appeared as CITY & COUNCIL INSURANCE BROKERS PTY LTD: TAKE NOTICE that the Defendant, CITY & COl INCn, INSl JRANCE BROKERS PTY LTD, hereby enters an appearance to this Plaint and intendsI to defend this proceeding on the following grounds:- 1. The Defendant is not indebted as alleged or at all. As regards the allegations of fact made in the Plaintiffs Particulars ofClaim:- The Defendant admits the following facts:- 2. Nil and does not admit or denies the following facts (or denies generally the following allegations):- 3. Save, as aforesaid, the Defendant denies each and every allegation contained in the Plaintiffs Statement of Particulars of Claim whether express or implied. 4. The Defendant repeats and relies on paragraph 1-3 herein. 5. Any agreement entered into was between the Defendant and Robert V Licastro acting in a personal capacity and not for or on behalf of the Defendant. 6. The Defendant is not proper party to these proceedings and has conditionally appeared. -- 3 of 6 -- ( 3 7. The Defendant denies the sum claimed is due or owing as alleged or at all. There was then an error in the document, which clearly could have been amended. 4 A notice of trial of action for a small debt dated 9 April 1999 showed 30 April 1999 as the day for the hearing and determination of the action. On 30 April 1999 the third respondent appeared in person and Mr Robert Licastro appeared for the applicant. What happened at the hearing was recorded by the first respondent: Mr Licastro seeks leave to appear and produces letter dated 30.4.99 from Barry Marsden, Director of Defendant company. Rule 374 of Magistrates Court Rules not complied with by Defendant. Notwithstanding that fact, I discuss the Entry of Appearance and Defence signed by MacGillivrays solicitors which was filed in this Registry on 25.3.99 with Mr Licastro. From that document it is clear that no Entry of Appearance and Defence has been filed by or on behalf of the -Defendant to the action as initiated by the Plaintiff. I inform Mr Licastro that it appears, therefore, to me that judgment by default could be entered against the Defendant in the action. However before proceeding further, I invite the parties to talk about the matter in an endeavour to settle the action. Mr Licastro informs me that he does not wish to discuss the issue and judgment can be entered in the action. Accordingly I give judgment, by Default, for the Plaintiff against the Defendant as follows:- Claim Costs TOTAL $5,000.00 $92.00 $5,092.00 Mr Licastro in paragraphs 5-11 of an affidavit filed on behalf of the applicant gave this account of what happened: 5. On 30 April 1999 I appeared in the Small Debts Court presided over by Mr Webster, SM. -- 4 of 6 -- ( 4 6. The Plaintiff and myself were called up by the Clerk to see whether any compromise could be reached prior to the matter being heard by Mr Webster SM. Both parties said there was no compromise. 7. The Clerk indicated that I was unable to appear on behalf of City and Country as I was not a Director. The Clerk indicated I required a letter from the Company which gave me authority to appear on their behalf. I promptly arranged for a letter of authority to be faxed to the Court. On presenting the letter to the Clerk I was able to appear ... 8. The matter was called on for hearing and Mr Webster SM spoke about the Defence that had been filed on behalf of the Defendant. I did not fully understand what he was referring to. 9. Mr Webster SM told me to read the Defence which I commenced to do and I could not see anything that stood out, I looked up and Mr Webster SM told me to keep reading and on further reading I noticed there was a typographical error with regard to the spelling of City & Country, that is City & Council had been typed in error in the body of the Defence. 10. Mr Webster SM then spoke about the action not being able to be defended which meant Mr-Webster SM said, that he was going to give judgment by default and that I would have some form of action against the solicitors who filed the Defence on the Defendant's behalf. I found that statement strange and not having been involved in the Court procedures I was confused and reluctant to open my mouth having already been made to look like a complete imbecile. 11. Mr Webster SM then gave judgment by default for the Plaintiff in the sum of $5,000 for claim and $92 for costs. On 9 June 1999 the second respondent refused an application on behalf of the applicant to have the judgment set aside. 5 On 30 June 1999, when this application was filed, no appeal lay from ajudgment of the Magistrates Court upon an action for a small debt, but relief by way of prerogative writ in certain cases was still provided for. Section 48 of the Magistrates Courts Act 1921 provided: 48.(1) The judgment ofthe Magistrates Court upon an action for a small debt shall be final and binding on all parties to the action and no appeal shall lie in respect thereof. -- 5 of 6 -- ( i \ 6 5 (2) No prerogative writ, whether certiorari, prohibition or otherwise shall issue and no declaratory judgment shall be given in respect of an action for a small debt or in respect of an order or judgment therein unless the court before which such writ or judgment is sought is satisfied that the Magistrates Court had no jurisdiction in respect of the action or that there has occurred a denial of natural justice to a party to the action. The effect of s. 41 of the Judicial Review Act 1991 was to preserve the power to grant the relief provided for in s. 48(2) of the Magistrates Courts Act but under the new name of prerogative order. Since 1 July 1999 s. 48 has been omitted from the Magistrates Courts Act by operation of s. 27 of the Civil Justice Reform Act 1998, but by operation of s.20(2) of the Acts Interpretation Act 1954 that amendment has not affected this proceeding. The applicant asserts that the first respondent did not have jurisdiction to give the judgment in question, but clearly enough he did have jurisdiction in respect of the action in my VIew. 7 A second ground relied on by the aPplicant is that it suffered a denial of natural justice. I think it did. The applicant was denied natural justice by the first respondent's ruling that what was plainly the applicant's entry of appearance and defence was no such thing - and this in proceedings intended to be untrammelled by legal technicality. That ruling and what followed denied the applicant the opportunity to present its case. The applicant's agent, understandably confused by the announcement that from the document filed 'it is clear that no Entry of Appearance and Defence has been filed by or on behalf of the Defendant to the action as initiated by the Plaintiff, gave up the fight it is true. But he adopted that course, one must conclude, because that result was presented to him, wrongly, as following from a flaw in the document. He had assumed to then that the document was what it gave, and still gives, every appearance of being: an entry of appearance and defence filed on behalf of the applicant. His surrender in those circumstances does not render what happened any less a denial of natural justice. 8 I shall grant the relief sought, and I shall invite submissions on costs. -- 6 of 6 --