Abu-Dubat v Lucas [2019] QDC 251 (9 December 2019)

Last Updated: 9 December 2019

DISTRICT COURT OF QUEENSLAND

[2] By a statement of claim filed on 7 December 2016, the plaintiff claimed, pursuant to an agreement allegedly made in 2013, repayment of certain money lent by the plaintiff to the defendants in 2008, and in 2014 and 2015. The action was defended, and evidently progressed fairly slowly, but was set down for trial in the Magistrates Court at Brisbane on 27 August 2019. On that date it came on for trial before Magistrate Coates, but the trial did not proceed. Magistrate Coates struck out a number of paragraphs in the statement of claim, gave directions for an amended statement of claim to be filed by the plaintiff, and adjourned the matter for mention before herself on 18 September 2019. On that day she awarded costs which she assessed at a figure of over $15,000 to the defendants, gave directions for amended pleadings by the defendant and for filing of affidavit evidence, and listed the matter for trial for one day on 2 December 2019. She also disqualified herself from hearing the matter.

[3] This matter first came before me on 22 November 2019 on the hearing of an application for a stay of those orders pending the determination of this appeal. On that day counsel appeared for the respondents, and advised inter alia that the respondents did not oppose the appeal. I made that order, and listed the appeal for hearing before me on 28 November. On that day the first respondent appeared, and did not oppose the appeal.[1] That was understandable, in the light of what had transpired when the matter was before the magistrate.[2] There is a right of appeal under the Magistrates Courts Act 1921 s 45(1), since the amount involved is more than the minor civil dispute limit.

The first hearing

[4] On 27 August 2019, both parties were represented by counsel, and appeared with witnesses available including witnesses on subpoena.[3] The magistrate indicated initially that she had not read the material, but it appeared that she looked at the claim and statement of claim after the parties came to the courtroom. After finding out little about the case the magistrate suggested that the parties negotiate before the matter proceeded to trial, but there was then some further discussion between the magistrate and counsel about the case. At p 14, counsel for the defendants foreshadowed an application for leave to amend the defence, to which the magistrate’s immediate response was: “You won’t be getting leave to amend the defence at this time of the day or night”. The magistrate said that she would not entertain the application, and as a result counsel for the defendant had never had the opportunity to explain just what amendments he was seeking to make, nor for that matter was the plaintiff’s attitude to any proposed amendments even sought.[4] The defendants had changed solicitors not long before the trial, and their counsel had only recently come into the matter, and in such a situation it is commonplace for amendments to be made.

[5] In my experience it is very common for applications to be made to amend the pleadings on the morning of trial in civil matters. Frequently these are uncontroversial, because the amendments are formal or technical matters which do not in practice take the other side by surprise, and are generally allowed either by consent, or after minimal argument. To reject an application for amendment of the pleading, even on the day of trial, without either ascertaining the nature of the proposed amendment or receiving submissions from either party, is plainly in breach of the rules of natural justice. In some cases it may be appropriate to refuse a late application for an amendment to pleadings,[5] but it is necessary for the court first to ascertain whether circumstances exist which justify what is on its face a serious step.

[6] Counsel for the defendants also foreshadowed an application for disclosure by the plaintiff. The magistrate did not hear details about it, though at p 16, line 28 she indicated it would be unsuccessful. She then stood the matter down for an hour.

[7] When the matter resumed, before hearing anything from either party, the magistrate said she had issues that she needed to raise with counsel. She then said to counsel for the plaintiff that the debt due and owing from 2008 was statute barred at law: p 17. As she put the matter on p 18, line 10: “You cannot sue on what you say is a debt due and owing in 2008 if you do not commence proceedings within a six year period. This is basic law.”

[8] That proposition was quite wrong as a matter of law. It is true that there is a limitation period of six years from the time when a debt is repayable, or if there is no agreed time for repayment, from when the money was lent, under the Limitation of Actions Act 1974,[6] but it is fundamental to the operation of such legislation that the Act does not bar the right, but bars the remedy.[7] It is a matter for a defendant to plead a defence under the Act, and unless the issue is raised in the pleading by the defendant, it simply does not arise.[8] In the present case, there was then no limitation defence pleaded by the defendants. Further, there are certain circumstances which postpone the bar, such as an acknowledgment of indebtedness or a part payment.[9]

[9] Apart from that, on the pleadings as they then stood, the plaintiff alleged that an agreement made in 2013 provided for the payment, out of the proceeds of sale of the defendants’ property, of both the money which had been advanced in 2008 and that which was to be advanced in relation to a proposed development application. There is obviously a dispute between the parties as to whether or not that agreement was made and was in those terms, but on the face of the plaintiff’s then pleading, there was no obvious limitation defence open. On that agreement, the period of limitation did not begin to run until the defendants sold their land, in 2016. The magistrate’s statements were therefore quite wrong in law.

[10] At p 20, line 27 counsel for the defendants did provide some indication of the amendments he had sought to make, to raise a limitation defence in relation to the claim in 2008, which elicited the response from the magistrate:

“I don’t need you to amend it. It’s introduction to law 101. If you have a claim in 2008 you become statute barred in 2014 and your original statement of claim is dated 7 December 2016. You’re goodbye Irene on 2008.”

Apart from the infelicitous language, this statement repeated the magistrate’s earlier errors about the operation of the Limitation of Actions Act.

[11] The magistrate then stated at p 18, line 32: “This court has no capacity for equitable relief.” This was also an error of law. In case it might be thought that this related only to equitable relief in the form of injunctions etc., she added at line 40:

“Equitable compensation is not available in the Magistrates Court... there is absolutely no power for a magistrate to make any order for equitable relief.”

[12] That was also wrong. The Magistrates Courts Act 1921 in s 4 sets out the civil jurisdiction of Magistrates Courts and relevantly provides:

“Subject to this Act – (c) every action in which a person has an equitable claim or demand against another person in respect of which the only relief sought is the recovery of a sum of money or of damages, whether liquidated or unliquidated, and the amount claimed is not more than the prescribed limit... may be commenced in a Magistrates Court...”

[13] The Magistrates Courts have jurisdiction under this provision to grant equitable relief so long as the only relief sought is a money order, which was the only relief ever sought by the plaintiff in this proceeding. Accordingly, the magistrate’s assertion that there was some aspect of the plaintiff’s claim which was in this way outside the jurisdiction of the Magistrates Court was wrong.

[14] The magistrate then on p 19 raised the issue of the consideration to support the contract alleged by the plaintiff and, when counsel for the plaintiff referred to the consideration in terms of a promise made by the plaintiff, the magistrate stated at p 19, line 12: “A promise is not consideration.”

[15] This as a legal proposition is clearly wrong; it is well recognised that a promise to do something can be a form of consideration.[10] Indeed the vast majority of contracts involve each party promising to do something in the future, with the consideration provided by the exchange of these promises. A contract for the sale of land is a promise to convey the land in return for the purchase price, and a promise to pay the purchase price in return for the conveyance of the land. The proposition that a promise to do or refrain from doing something can amount to good consideration to support an enforceable contract is a fundamental principle of contract law. Indeed, I wondered whether this might have been an error in the transcript, but it is clear, for example by the remark at the top of p 20, that the magistrate really thought that there was no consideration to support a contract in that case.

[16] Then on p 21 the magistrate, after repeating her rejection of the jurisdiction to deal with an equitable claim, and expressing a concern about the fact that the amount claimed was “so close to the border of our claim of 150”, continued at line 31:

“Where in hell does anybody imagine that this court has got the capacity to make exemplary damages? I mean, that’s some fantasy land, surely.”

This was a further error of law, if it is based on the proposition that the Magistrates Court has no power to award exemplary damages.[11] Subject to the overall damages not exceeding the monetary limit, in principle in an action for tort exemplary damages can be awarded in the Magistrates Court, if the circumstances are such as to justify their award. There is no jurisdictional prohibition which is peculiar to the Magistrates Court.[12] That the magistrate was referring to the question of jurisdiction was shown by her statements at p 21, line 36:

“How does your solicitor – never read the Magistrates Court Act? That’s complete fantasy. There can be no exemplary damages in this jurisdiction.”

[17] I have read the Magistrates Courts Act 1921 and can find in it no applicable legislative limitation which would exclude generally an award of exemplary damages in the Magistrates Court. The magistrate then adjourned to give the parties a further opportunity to resolve the matter, and at 12.00 noon when the court resumed she was informed that the parties had reached an agreement, subject to putting it in writing. There was a further adjournment until 2.30pm, but by that time the parties were no longer in agreement, no settlement agreement had been signed, and the counsel and solicitors for the plaintiff sought leave to withdraw. In response, without hearing any submissions from anyone, the magistrate said that paragraphs 5-10, 10A and 11-16 of the statement of claim would be struck out. The magistrate gave counsel for the plaintiff three minutes to explain to her client that these paragraphs of the statement of claim were to be struck out, and when the court resumed counsel was finally given leave to withdraw.

[18] The plaintiff was then addressed in person and told that paragraphs 5-16 of what was described as “your amended application filed at this court on 23 June 2017” were struck out, and was then asked whether he intended to proceed with “this application”: p 28, line 17. When he indicated he was, the magistrate informed him somewhat cryptically:

“You’re to file and serve by close of business two weeks your affidavit of service, which will mean September 13th. In the event that you fail to file and serve your application is dismissed.”

[19] The plaintiff, when asked, said that he understood that, but the magistrate did not ask what he understood by it. I find it obscure, but it may be that there is an omission in the transcript. The order endorsed by the magistrate on the court order sheet was however equally cryptic: “Plaintiff to file and serve by COB 13.09.19 in the [unintelligible] to fail to file and serve your claim dismissed.” In addition the endorsement provided that paragraphs 5-16 of the statement of claim were struck out, said to be pursuant to “S 171 of the UCPR”. As well it said: “Amended claim 23.06.17 struck out.” There was no possible justification for that order, and I cannot find where it was made during the hearing.

[20] Counsel for the defendant then applied for costs, though he does not appear to have identified whether he was applying for costs of the adjournment, or costs in relation to that part of the claim which had been struck out (or both). This did not deter him from making at p 29, line 3 a request for costs fixed at the sum of $20,000. This surprised the magistrate, who then referred him to the “Justices Act s 158”. That is the section of the Justices Act 1886 which deals with costs on dismissal of a complaint, in a proceeding involving the summary determination of a criminal charge in the Magistrates Court. It had nothing to do with the costs in a civil proceeding in the Magistrates Court. Counsel for the defendants then foreshadowed an affidavit from his instructing solicitor setting out the detail of the costs, and the magistrate said that that would be heard on 18 September.

[21] The plaintiff then asked whether he could claim for costs as well, and when asked on what basis, said that he did not have cold feet, “it’s the other party that had the cold feet”: p 30, line 5. This was a reference to a comment made by the magistrate earlier, after she had been told that the anticipated settlement had fallen over, when she asked at p 25, line 16: “Which of the clients has got the cold feet?” That of course was not an appropriate thing for her to have asked, and (properly) neither counsel attempted to enlighten her, but a litigant in person can hardly be blamed for having in effect answered the magistrate’s question as he did.

[22] The magistrate, after announcing that she did not want to hear about what happened on the settlement, said in relation to his application at p 30, line 16:

“I’m going to be the person who’s going to hear this matter. So no, your application for – you want to put one in? You’re silly enough to do that? Good luck to you.”

The magistrate added at line 23:

“So if you think you’re up for costs, you would be dreaming, but have a go, because you obviously believe this is the have-a-go jurisdiction and I can inform you that it most certainly isn’t”.

At that point the matter was adjourned to 18 September.

[23] I cannot conclude my discussion about the hearing on that day without commenting on the persistent failure of the magistrate to conduct herself in a manner appropriate for a judicial officer. I have already referred to a number of comments by the magistrate which illustrate this point, demonstrating her general attitude of petulant bullying. Another was a comment made early, before the first adjournment to give the parties the opportunity to negotiate a settlement, where at p 8, line 43 she said:

“I can tell the parties that nobody ever, who’s foolish enough to come to court and expect that they’re going to win, never get what you want. Right. I can say that any judicial decision that’s a good decision will leave both parties with a lot of pain. That’s generally what the outcome generally is.”

[24] It is one thing for a judicial officer to point out to parties such advantages as may arise from the compromise of a matter, though by the time the trial date is reached, ordinarily the costs have been incurred and there will be little opportunity for saving in that way. Parties may perhaps be reminded of the ordinary vicissitudes of litigation, but to say that parties never get what they want from civil litigation seems to me to imply a prejudgment that neither party will have complete success in the trial.[13] That could have given rise to the appearance of prejudgment on the part of the magistrate. Such a thing should not be said.[14]

[25] As another example of something which should not be said, the magistrate, when asserting that the court had no jurisdiction to entertain equitable claims, said at p 20, line 13:

“What was your solicitor thinking? There are no equitable claims in the Magistrates Court. He might have to consider his position against his solicitor if that was brought by a solicitor, that claim.”

[26] After the magistrate had been told that the settlement had fallen over, and counsel for the plaintiff had applied for leave to withdraw, the magistrate at p 26, line 17 said: “Well I’ll just give you leave to withdraw now”. Yet on the same page at line 43 she said, in relation to the leave to withdraw: “I haven’t done that yet. I still have you on the hook”. It appears to me from the transcript that the magistrate had by then already given counsel leave to withdraw.

[27] Finally, before the second adjournment to give the parties the opportunity to settle the matter, and after raising various supposed deficiencies in the plaintiff’s claim, the magistrate said at p 21 line 42:

“Well, everybody needs to go off and have a cold shower about the whole thing because literally it’s ridiculous. You want a claim that can’t exist in my court for things I could never give you in a month of Sundays. So I don’t even need to go to proceed to hear equitable damages because I have got no power. That’s simply it, isn’t it.”

[28] Even as a means of encouraging a settlement, this is a strange thing to say, because it suggests that the defendants can afford to drive a hard bargain, since so much of the plaintiff’s claim is hopeless. This is not appropriate conduct for a judicial officer.

18 September 2019

[29] An amended claim and statement and claim were filed on behalf of the plaintiff on 13 September 2009. All the allegations relating to the 2008 loan were deleted. On 18 September when the matter was called on the plaintiff was represented by counsel, the defendants by their solicitor. Counsel advised that the amended claim and statement of claim had been filed. Magistrate Coates seemed to think that the plaintiff was to file an affidavit of his evidence at the trial. She said at p 3, lines 15-23:

“I was very direct with your client, Mr Fronis, on the last occasion, and I ordered that he file his affidavit of material that he intended to rely upon... And I ordered that he file and serve by close of business the 13th of September in the application, and failing to serve, his claim would be dismissed.”

She also said at line 37:

“I asked him to file the affidavit on which he intended to rely at the hearing, and I was specific about it. The matter has been in the list since 2014.”

[30] That was not right; the original claim was filed in 2016. Also the magistrate was far from specific or clear about the plaintiff’s being required to file an affidavit of his evidence in chief by 13 September 2019. I have quoted above the relevant passage from the transcript, and the unintelligible endorsement on the court order sheet, and neither provided any hint to me that what the magistrate had intended to require the plaintiff to do was to file an affidavit of his evidence for the trial. The magistrate was accusing the plaintiff of having failed to comply with an order or direction she had not made.

[31] Counsel informed the magistrate that his client’s previous legal representation had withdrawn. The magistrate asserted that the plaintiff had sacked them (p 4), though there was nothing said by them in the earlier transcript to convey that. When counsel for the plaintiff said that the plaintiff had not sacked them, they had withdrawn, the magistrate said that she did not need to go into that: p 4, line 18. She then asserted again at line 32 that the plaintiff had sacked her solicitors, and later the sacking of the solicitors was one of the matters relied on as justifying an order for indemnity costs: p 24. The magistrate said (line 43): “They said to me quite clearly that their instructions had been withdrawn.” In fact the transcript shows that the then counsel for the plaintiff said specifically at p 25, line 12: “I am now in a position where I will need to seek to withdraw from the matter...”. At no point did she state that her instructions had been withdrawn by the client. When counsel for the plaintiff tried to explain the situation to the magistrate, she reacted by saying at p 5, line 5: “I don’t want to hear this”. The magistrate, having asserted (without any basis) a factual proposition which the plaintiff wished to contest, refused to let him do so, then used that proposition as a basis for an order against him. This is as clear a breach of natural justice as one could find.

[32] It appears that counsel for the plaintiff then thought that the proceeding had already been dismissed under a guillotine order, but the magistrate said that only those parts of the statement of claim “where are clearly out of time under the Act” had been struck out: p 6, line 37.[15] The magistrate went on a bit about the inappropriateness of pursuing a claim that was out of time, saying at p 7, line 14: “If the six years have passed, not even the tooth fairy can waive it for you”.[16] Counsel for the plaintiff submitted that the proceeding ought to go to trial, and the magistrate turned to the question of costs, announcing at p 8, line 2, before any submission have been received from either party: “There was nothing on [the defendants’] side that was done which would not warrant a costs order.” Counsel for the plaintiff offered to hand up written submissions on costs, which the magistrate refused initially, although it appears she looked at them later. She invited oral submissions, and he began by referring to a decision of the High Court, which the magistrate refused to hear (at p 8, line 22):

“Don’t just talk to the law about me. (sic) Tell me why your client shouldn’t pay the other side’s costs in the circumstances of how the matter proceeded in simple terms”.

[33] Counsel for the plaintiff pointed out that the defendants had not pleaded the statutory bar, a proposition which was a good answer to the proposition that there was anything wrong with the claim on this basis, but the magistrate’s response at p 8, line 35 was:

“Rubbish. It is extinguished at law. That argument does not fly with me. It’s introduction to law 101. You’re either in time or out of time”.

The magistrate refused to listen to the attempts by counsel for the plaintiff to put her right on the law, and from the foot of p 9 said:

“I want to know your position in respect to costs of a two day trial aborted in this court as a consequence of your client sacking their professional.”

So the magistrate having refused to hear submissions about whether the plaintiff had in fact sacked their lawyers, was proposing to base an order for costs on that proposition.

[34] Counsel for the plaintiff read an affidavit by the plaintiff and his submissions, by leave, but the magistrate after reading it said (p 11, line 4): “I will have to disqualify myself from hearing the matter” but then refused to hear submissions about that from counsel for the plaintiff. Evidently this was on the basis that the affidavit had disclosed something about the negotiations between the parties on the earlier day. Despite that disqualification, she proceeded to hear the application for costs on behalf of the defendants, although it is not obvious why her exposure to without prejudice material did not disqualify her for hearing that application also.

[35] The defendants had filed material including something prepared by a costs assessor to cover the costs thrown away by the adjournment and the costs in relation to pleadings and preparation of that part of the claim which had been struck out. At least now the scope of the costs sought had been defined, although at no point did the magistrate define the costs being dealt with in those terms. At p 13, line 3 the magistrate repeated her belief that:

“An action for an equitable relief is not available in this court. An action for unconscionable conduct is a matter which requires it to go a different jurisdiction.”

[36] When counsel for the plaintiff drew attention to s 4 of the Act, the magistrate responded at line 23: “I don’t want to argue it with you now”. It appears the magistrate did read the submissions by counsel for the plaintiff, but evidently rejected them on the basis that they differed from the views that she had previously formed. Her reluctance to hear argument from counsel was shown at p 15 line 42:

“Look, I wish you wouldn’t tell me how to suck my eggs, with the greatest of respect, Mr Fronis. Given the conduct of your client in this matter, I’m really most irritated by the whole thing. Right? Please don’t tell me how to suck my eggs in the civil jurisdiction.”

At p 16, line 10, after counsel for the plaintiff had indicated that he did not understand the expression the magistrate had used,[17] she said: “Stop flaffing and foofing, and tell me about your client’s position as to the costs.”

[37] Counsel for the plaintiff began to do so by drawing attention to the rate for a solicitor’s time per quarter hour in the Magistrates Court scale, but the magistrate refused to look at a copy of the scale at line 21: “No it won’t, because you want to go on and on, and I’m in the criminal list... So get down and dirty with it”. The magistrate then apparently went through what seems a surprisingly small number of items, apparently as set out in the costs assessment undertaken by a costs assessor supposedly exhibited to an affidavit filed by the defendants’ solicitor; but that exhibit was not on the Magistrates Court file which was provided by the Magistrates Court registry to the District Court registry in connection with the appeal. As it happens, the detail of the costs assessment does not really matter.

[38] The magistrate asked whether she had power to make an order under the rules that the plaintiff to pay the money before the matter was listed for trial. Counsel for the plaintiff pointed out that there was authority that the court could not fix a time for payment of costs, but was not able to recall the name of the case. The magistrate then asked how long he would need to make the payment, and counsel asked for 90 days.

[39] The magistrate at p 24, line 27 gave reasons in relation to her costs order:

“I have considered the matter carefully. In fact, I have been thinking about it considerably since the matter went pear-shaped on the last court day, where what appeared to be a settlement was not a settlement and the solicitors were dismissed by their client, together with their counsel. I will waive the requirement for the plaintiff to comply with my order on that date. I will then – in consideration of the costs and pursuant to order 171, it would be fair and reasonable in the circumstances in terms of the costs to make an award of costs on an indemnity basis, given the circumstances of how the matters occurred in court on the day.”

The magistrate then proceeded to assess the costs, apparently based on the document which is not on the file and such submissions as counsel for the plaintiff had been able to make, at $15,154.90, adding “payable within 60 days”.

[40] The order for costs was fatally flawed, because it was based on a factual proposition which the plaintiff disputed and which the magistrate refused to receive submissions and evidence about, that the plaintiff had sacked his previous lawyers, and because it was related to the order for striking out parts of the pleadings, apparently under UCPR r 171, which should not have been made. As well, the magistrate refused to hear submissions in relation to whether the plaintiff should be paying costs on the basis sought by the defendants, so any order for costs was necessarily invalid as having been made in breach of the rules of natural justice. The order for costs cannot stand. In those circumstances it is probably unnecessary to add that the order that the costs be paid within a particular period of time was an order the magistrate could not make under the rules, and was itself also a nullity.[18]

[41] The magistrate moved on to the question of affidavits, and confirmed that the plaintiff was required to give his evidence in chief by way of affidavit, saying at p 20, line 16:

“This isn’t the free-for-all jurisdiction when you get two days to hammer it out on viva voce evidence in a civil matter. Whoever heard of that in the modern age?”[19]

[42] I can say that up to and including this year the vast majority of civil trials that I have conducted have not been trials on affidavit. In my opinion a trial on affidavit is particular inappropriate in circumstances where there are substantial credit issues, and it is desirable to hear the parties actually give their versions of what happened, as a means of assisting in determining who is telling the truth.[20] In my experience the only situation where a trial on affidavit produces advantages is where there is no substantial factual dispute between the parties, and no substantial issues of credibility, and it is essentially a matter of getting formal evidence, particularly to prove relevant documents, before the court, because the case actually turns on the interpretation of them, or on the appropriate inferences to draw.

[43] Having a trial on affidavits means that the witness’s evidence is not in the words of the witness; it is the evidence of the witness put into words chosen by the lawyers advising the party, and can often be more of an exercise in what the lawyers would like to think the witness would say, rather than what the witness will actually say if left to his or her own devices. Because of this, requiring evidence to be put on affidavit generally adds significantly to the costs of a proceeding, another reason why that course is inappropriate when dealing with a matter where there is a relatively small amount of money involved, such as a matter in the Magistrates Court (and for that matter, in most matters in the District Court, in my view). These however are matters going to the discretionary issue of whether or not a direction should be made in a particular case, and would not ordinarily be grounds for setting aside such an order. In the present case however, it is appropriate to set aside this order as well, on the ground that the magistrate never allowed either party the opportunity to make any submissions as to whether or not such an order should be made.

[44] The magistrate at one point asked whether there had been complete discovery already, and the defendants’ solicitor advised that there had been: p 21, line 26.[21] The magistrate then said that she would forgive the plaintiff on this occasion for not complying with her order, presumably the order, which she never made, for the plaintiff to file his affidavit of evidence in the trial by 13 September, and then set out a timetable for the amended defence, the affidavits by each party, and a trial for one day. At p 23, line 36 the magistrate made a further comment, apparently with a view to encouraging the parties to attempt to resolve the matter even at this stage:

“I suppose revenge is best a dish eaten cold, isn’t it, really? And if you think that that’s going to be as the process of this court, I can tell you disappointment is going to be the main outcome for everybody.”

[45] The magistrate also made an order disqualifying herself from the trial, on the ground that the affidavit of the plaintiff she had read disclosed some information about the settlement negotiations which made it inappropriate for the magistrate to conduct the trial. That at least was a correct conclusion. It stands as the only thing the magistrate decided on either of the two days which did not involve an error of law. Indeed, so far as I have noticed, every proposition of law stated by the magistrate during the two days was wrong. Magistrates cannot be expected to have the same degree of legal expertise as High Court judges, or even as District Court judges, but it is reasonable to expect that they will know some law.

Outcome of the appeal

[46] It then becomes a question of how all of this can be unwound. The amended pleading, with large parts of the plaintiff’s statement of claim deleted in accordance with the magistrate’s order which ought not to have been made, should itself go, to give the plaintiff the opportunity to re-plead. It will then be necessary for the defendants to plead to that amended pleading. At the hearing on 18 September counsel for the defendants foreshadowed amending the defence to raise the existence of a binding compromise between the parties, but in the event the amended defence filed 26 September 2019 did not raise that issue.

[47] Apart from the order the magistrate made disqualifying herself, all of the orders made by the magistrate on either of those days must be set aside, including the trial listing, which indeed has already passed. For a reason other than that given by the magistrate, it is not appropriate that the new statement of claim include a claim for exemplary damages, but counsel for the plaintiff said that that claim would not be pursued. I am concerned that this will mean some further delay in a proceeding which has been on foot already for quite a long time. I also want to try to ensure that when the matter next comes on for trial it is dealt with in an appropriate fashion. I was able to offer a trial in the District Court early next year, on 24 and 25 February 2020, and on the hearing of the appeal offered to transfer the matter to this court under the Civil Proceedings Act 2011 s 26(1). Neither party opposed that course, and accordingly I make that order. The matter has already been given those trial dates by me. In those circumstances, the order for disqualification by the magistrate has become otiose, and need not be retained.

[48] With regard to costs, the appeal was not opposed by the respondents, and it cannot be said that the respondents were responsible in any way for the numerous errors of law which the magistrate made quite spontaneously. The respondent were no more given the opportunity to disavow the erroneous positions adopted by the magistrate than was the plaintiff given the opportunity to argue against them. On costs, the only way to do true justice to the parties would be to order that the costs of the appeal, and all of the costs of the proceedings in the Magistrates Court on 27 August and 18 September 2019, be paid by Magistrate Coates personally, but I cannot in law make such an order.

[49] The appeal has been successful so that prima facie the appellant is entitled to his costs, but the appeal has succeeded on a question of law, indeed a whole string of questions of law, so it is open to me to grant the respondents an indemnity certificate under the Appeal Costs Fund Act 1973 s 15. That will cover the respondents for the costs ordered to be paid to the appellant, and their own costs of the appeal.

[50] Counsel for the appellant submitted that the certificate would also cover the costs of a new trial had in consequence of the order that I have made, but the difficulty with that argument is that there never was a trial in the Magistrates Court; the trial was adjourned on two occasions, but at no point did the magistrate actually embark upon the trial which had been listed before her. In those circumstances, this is not a case where I am ordering that there be a new trial, so the costs of the trial that will have to take place will not be covered by the indemnity certificate. Nor is there any provision in the Act for the certificate to cover the costs of the two days wasted in the Magistrates Court. All I can do in the circumstances is order that those costs abide the event in the proceeding, that is, they will be additional costs to be recovered by whichever party is ultimately successful at the trial. I acknowledge that that is less than satisfactory, but I believe it is the best I can do in the circumstances.

[51] The orders on the appeal are therefore:

1. Appeal allowed.

2. All orders of the Magistrates Court at Brisbane made on 27 August and 18 September 2019 in this matter be set aside.

3. The amended claim and statement of claim filed by the plaintiff on 13 September 2019 be struck out.

4. Leave to the plaintiff to file and serve an amended claim and statement of claim within 14 days.

5. Leave to the defendants to file and serve an amended defence by 31 January 2020.

6. Leave to the plaintiff to file and serve an amended reply by 14 February 2020.

7. Any application for further disclosure or other interlocutory relief to be filed by 10 February 2020.

8. Proceeding transferred to the District Court at Brisbane under the Civil Proceedings Act 2011 s 26(1).

9. Order that the respondents pay the appellant’s costs of the appeal.

10. Grant the respondents an indemnity certificate under the Appeal Costs Fund Act 1973 s 15.

11. Order that the costs of each party of the proceeding in the Magistrates Court on 29 August and 18 September 2019 be that party’s costs in the proceeding.

[1] She did complain about a failure of the plaintiff to pay prior orders for costs against him, not something I could do anything about on the appeal.

[2] On 22 November I had a transcript of the proceeding on 27 August 2019, but not of the proceeding on 18 September 2019, which arrived before 28 November.

[3] It appears from the transcript that the matter was called on in a court other than that which had been advised on the daily list for the court; it may be that the matter had been allocated to Magistrate Coates that morning.

[4] At p 14, l 33, the magistrate made a comment suggesting she assumed the plaintiff opposed the proposed amendment, but it would have been better to find out if that was the situation.

[5] Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175; Hartnett v Hynes [2009] QSC 225; Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267 at [73].

[6] Limitation of Actions Act 1974 s 10. See Haller v Ayre [2005] QCA 224; [2005] 2 Qd R 410.

[7] See for example The Commonwealth v Verwayen (1990) 170 CLR 394 at 425 per Brennan J; McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1 at 44. See generally Cheshire & Fifoot’s Law of Contract, 9th Australian Edition 2008, p 1173.

[8] Amaca Pty Ltd v Ridgeway [2005] NSWCA 417.

[9] Limitation of Actions Act 1974 s 35(3).

[10] See for example Dunlop v Selfridge [1915] UKHL 1; [1915] AC 847 at 855, quoted in Cheshire & Fifoot’s Law of Contract (9th Australian edition, 2008) p 171, para 4.5.

[11] It is true that exemplary damages are not awarded for breach of contract: Cheshire & Fifoot, op cit, p 1077, para 23.2. But that was not the magistrate’s point.

[12] There are examples of legislative prohibitions on the award of exemplary damages for certain types of claims, such as in the Civil Liability Act 2000 s 52(1), in respect of most claims for personal injury damages, and the Defamation Act 2005 s 37.

[13] In my experience it is not uncommon for one party or the other to have complete success, or at least to have what will count as a win, although even winners can end up with costs to bear themselves.

[14] It risks giving the impression that the objective of the magistrate is to force the parties to settle, so as to be relieved of the trouble of hearing and determining the proceeding.

[15] She seems to have overlooked the endorsed order that the claim be struck out.

[16] The question of whether a defence under a limitation statute can be waived divided the High Court in The Commonwealth v Verwayen (1990) 170 CLR 394.

[17] I expect the magistrate had in mind the saying “Don’t teach your granny how to suck eggs.” It implied that a person old enough to be a grandmother should be presumed competent at egg sucking, hence: “You do not need to tell me how to do that.” It did not apply to this magistrate.

[18] Jawhite Pty Ltd v Trabme [2019] QCA 7 at [31].

[19] It is in fact the prima facie position provided for civil trials in UCPR r 390(a).

[20] This is not to say that this is the most important, much less the only, method for making this assessment; the importance of contemporaneous documentation is not overlooked. But it is certainly a legitimate factor to take into account.

[21] This was a change from the position stated by then counsel for the defendants on 27 August: p 16.