Holman v Campbell [2024] QCA 176

SUPREME COURT OF QUEENSLAND

CITATION: Holman v Campbell [2024] QCA 176

PARTIES: LISA MARIE HOLMAN / (applicant) / v / NICHOLAS ADRIAN CAMPBELL AS TRUSTEE FOR THE CAMPBELL CHILD CARE TRUST TRADING AS FREE RANGE KIDS / ABN 73 752 292 745 / (respondent)

FILE NO/S: Appeal No 4923 of 2024 / DC No 3262 of 2023

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Brisbane – Unreported, 22 March 2024 (Kent KC DCJ)

DELIVERED ON: 24 September 2024

DELIVERED AT: Brisbane

HEARING DATE: 12 September 2024

JUDGES: Mullins P and Boddice JA and Henry J

ORDERS: Leave to appeal refused.Any additional evidence relevant to costs may be filed: by the respondent by 4 pm on 1 October 2024;by the applicant by 4 pm on 9 October 2024.Any further submissions as to costs may be made in writing, not exceeding four pages, filed: by the respondent by 4 pm on 16 October 2024;by the applicant by 4 pm on 23 October 2024.

CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant filed particular documents which seemingly attempted to amend her employment claim in the Magistrates Court – where the Magistrate made an interlocutory decision that documents did not form part of employment claim but explained that applicant could seek leave to amend claim – where the applicant appealed the decision to the District Court – where the District Court refused leave to appeal and dismissed the appeal – where the applicant applied for leave to appeal that decision to this Court – whether leave to appeal should be granted / District Court of Queensland Act 1967 (Qld), s 118(3) / Fair Work Act 2009 (Cth), s 45, s 539 / Magistrates Courts Act 1921 (Qld), s 42A(1), s 42B, s 42B(2), s 42B(3), s 42F, s 42ZA, s 42ZC, s 45, s 45(2), s 45(2)(a), s 45(5) / Queensland Civil and Administrative Tribunal Act 2009 (Qld) / Uniform Civil Procedure Rules 1999 (Qld), r 22(1), r 377, r 377(1), r 379, r 522B, r 522C(1), r 522C(2), r 522J, r 522N / Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39, cited / Goldsmith v AMP Life Ltd (2021) 7 QR 113; [2021] QCA 20, cited / In re the Will of F.B. Gilbert (dec) (1946) 46 SR(NSW) 318; [1946] NSWStRp 24, cited / Pearson v Thuringowa City Council [2006] 1 Qd R 416; [2005] QCA 310, cited / Pickering v McArthur [2005] QCA 294, cited

COUNSEL: A P Abaza (sol) for the applicant / B J Heath (sol) for the respondent

SOLICITORS: Andrew P Abaza for the applicant / Carter Newell Lawyers for the respondent

1. THE COURT: Ms Holman is pursuing an employment claim in the Magistrates Court against Mr Campbell as trustee of a trust operating a childcare business. She filed some particulars documents which seemingly attempted to amend her claim without the leave of the court. A Magistrate made an interlocutory decision that the documents did not form part of the employment claim but explained it remained open to Ms Holman to seek leave to amend her claim.

2. Rather than just seeking leave to amend her claim, Ms Holman instead embarked upon an attempt to appeal the interlocutory decision of the Magistrate in the District Court. The District Court predictably refused her leave to do so, again explaining it remains open to Ms Holman to seek leave to amend her claim in the Magistrates Court. Ms Holman now seeks the leave of this court to appeal the District Court’s refusal of leave.

3. The interlocutory decision at first instance, and the District Court’s refusal of leave to appeal it, occasioned no injustice to Ms Holman. She remains free to pursue her claim in the Magistrates Court, including seeking that court’s leave to amend it, as long as she complies with the rules regulating such claims. Leave should be refused.

The rules regulating employment claims do not dispense with the need for leave to amend originating process

4. The Uniform Civil Procedure Rules deal with employment claims in rr 522A-522N. In defining an employment claim, r 522B adopts the meaning given in s 42B Magistrates Courts Act 1921 (Qld). Section 42B is found within pt 5A, “Processes for employment claims”.

5. In summary, s 42B has the effect of providing that an employment claim is a claim made in a proceeding started under pt 5A by an employee earning less than the Fair Work Act high income threshold, “arising out of a breach of contract of employment” between the employee and employer, subject to exclusions identified in s 42B (2) and (3).

6. Section 42A(1) Magistrates Courts Act provides pt 5A’s object “is to reduce the cost of proceedings brought in a Magistrates Court by low income employees against employers for breaches of contracts of employment”. Consistently with that object, Part 5A’s Div 2 provides for the conciliation of disputes and Div 3 eases usual litigation burdens, by permitting a relevant organisation to appear for a party without leave per s 42ZA and limiting the power to award costs, per s 42ZC.

7. In a similar vein the UCPR also contains rules calculated at easing the burden of the rules in employment claims. For example, at r 522J it speeds up listing the claim for hearing and, at r 522N, it removes the application of the rules of pleading in ch 6 and the application of the disclosure rules in ch 7, pt 2, div 2.

8. Notably the UCPRs do not remove the application to employment claims of ch 10 “Court supervision”, which includes the requirement in r 377 that an originating process may not be amended without the leave of the court. Nor do they remove the application of ch 2, “Starting Proceedings”, which includes pt 3 of ch 2 and its requirement at r 22(1) that a claim must be in the approved form. Indeed, r 522C, which provides at sub-s (1) for the employment claim to be in a prescribed form also specifically declares at sub-s (2), that Ch 2 Pt 3 applies to an employment claim.

9. The originating process for an employment claim must therefore be in the prescribed form.

An employment claim is to a quantified monetary amount

10. The prescribed form for an employment claim is Form 2A. It provides:

“EMPLOYMENT CLAIM

STATEMENT OF PARTICULARS OF CLAIM (Set out as briefly as the nature of the case permits all material facts relied on to bring this claim. Attach additional sheets of A4 size paper if insufficient space)

……………………………………………………………………………………………………………………………………………………….

……………………………………………………………………………………………………………………………………………………….

……………………………………………………………………………………………………………………………………………………….

……………………………………………………………………………………………………………………………………………………….

……………………………………………………………………………………………………………………………………………………….

……………………………………………………………………………………………………………………………………………………….

……………………………………………………………………………………………………………………………………………………….

The Plaintiff claims the amount set out below and elects to have this claim heard and decided in the Magistrates Court under the simplified procedures as an Employment Claim:––

Claim$

Filing fee$

Bailiff’s service fee$____________

Total**$** ”

11. It is therefore necessary that the originating process for an employment claim states both:

a quantified monetary claim; and

the material facts relied on to bring that claim (stated as briefly as the nature of the case permits).

Ms Holman’s quantified monetary claim was for $16,473.17

12. Ms Holman’s solicitor filed a document styled “Employment Claim” against MrNicholas Campbell as trustee for the Campbell Childcare Trust on 29 September 2022. The amount claimed by Ms Holman’s employment claim consisted of the following described amounts:

“Claim$16,473.17

s. 45$20,000.00

Filing fee$ 67.30

Bailiff’s service fee$ 54.75

Total**$36,595.22**”

13. The amount of the claim, being $16,473.17, was the total of two amounts explained in the statement of particulars, as:

an amount totalling $6,922.07, claimed in paragraph 2, as first-aid allowances, wages for time spent in attaining some first-aid qualifications, early start allowance, expenses for attaining first-aid certificates and blue card, payment on attaining certificate III in Early Childhood Education, payment of wages for minimum split shift and work done 12 February 2021 and payment for after-hours texts and calls at award rates;

an amount totalling $9,551.10, claimed in paragraph 4, as an entitlement to 13 weeks’ redundancy.

14. The inclusion in the employment claim of an item described “s. 45 $20,000”, is inconsistent with form 2A. Its presence is explained by paragraph 3 of the statement of particulars which asserts that each of the entitlements Mr Campbell was allegedly obliged to pay, pursuant to para 2 of the employment claim, “is a contravention of s 45 of the Fair Work Act 2009 for which the plaintiff claims $20,000”. Section 45 Fair Work Act is a civil remedy provision, a contravention of which grounds an entitlement per s 539 Fair Work Act. Section 42B(3) Magistrates Courts Act provides a claim under s 539 Fair Work Act 2009 (Cth) is not an employment claim. The $20,000 amount is therefore not recoverable in an employment claim.

15. Ms Holman’s solicitor conceded as much at first instance, submitting the claim to that amount was withdrawn. The concession was correctly made. That is a point of importance to the right of appeal to the District Court, discussed later.

Ms Holman purported by further particulars documents to claim over $130,000

16. On 19 December 2022 Ms Holman’s solicitor filed, in the employment claim proceeding, an eight page document titled “Statement of Further Particulars of Claim”. Paragraph 1 of that document purported to claim first aid allowances of either $4,766.74 or $5,858.13 “as para 2h”, apparently intended as an addition to the amounts in subparagraphs a to g of paragraph 2 of the filed employment claim. Paragraph 2 purported to claim but not identify an amount of “such sum as may be due for unpaid or underpaid wages”. Paragraph 4 purported to introduce a “further claim” for underpaid clothing allowance, including a table totalling $686.26, which is possibly the amount intended to be claimed. Paragraph 5 purported to claim, but not identify an amount of, general damages for breach of contract, listing various alleged acts.

17. Those purported further particulars thus appeared to include additional quantified and unquantified monetary claims. They paled in significance to the inclusions in a 52 page document, titled “Consolidated and Amended Statement of Particulars of Claim”, filed on 11 September 2023 by Ms Holman’s solicitor.

18. That latter document included alleged breaches of contract which were not apparent in the filed employment claim’s statement of particulars of claim. It also purported to claim damages for breach of contract in amounts including a “balance sum” of $20,224.44; general damages “in the range $53,779.66 - $80,669.49” for lost income, superannuation and entitlements; general and nominal damages “in the range $50,000 - $60,000 in accordance with Schedule 12 (to be delivered before Trial)”; and exemplary damages in an unspecified amount. To remove doubt, neither this nor the earlier further particulars document were set out as an amended version of the employment claim, indeed they bore no resemblance to a form 2A employment claim.

19. Presented with a document which purported in its particulars to claim over $130,000 in a proceeding in which the originating process was only a claim to $16,473.17, it is scarcely surprising that Mr Campbell perceived Ms Holman was attempting to amend her employment claim. On 20 September 2023 he filed an application seeking an order per rr 377 and 379 “to disallow the amendments made to the Plaintiff’s employment claim filed on 11 September 2023”.

The Magistrate ruled the further particulars documents did not form part of the claim

20. The difficulty facing Ms Holman at the hearing of the application before the learned Magistrate was the disconnect between the content of her recent purported particulars and the content of her originating process. A similar difficulty, though not of the same scale, was also exposed at the hearing in respect of the earlier filed further particulars document. The difficulty is adequately explained by reference to the more recently filed particulars document which had attracted the application.

21. The purported particulars went well beyond being particulars of the claim Ms Holman had made. That is because Ms Holman’s originating process, which it will be recalled had to state a quantified monetary claim, was a claim for $16,473.17. The recent purported particulars in support of an amount of over $130,000 must necessarily have been more than amended particulars of a claim for $16,473.17. They could not all sensibly relate to such a claim, unless of course the claim was amended to be a claim to a far higher quantified amount.

22. The appropriate means of attempting to remedy this difficulty was to seek leave to amend the claim per r 377(1). It is true that r 377(2) provides r 377(1) “does not apply to a pleading or particular included in an originating process”. But the “Consolidated and Amended Statement of Particulars of Claim” document did not purport to amend the content of the originating process. Further, even if it had, it could only arguably have avoided the need for leave to the extent it amended the “Statement of Particulars of Claim” part of the filed form 2A employment claim. That would be for nothing unless the quantified monetary claim, which was the claim to which the “Statement of Particulars of Claim” referred, was also amended. It is difficult to see how an amendment of that claim component of the originating process could escape the pre-requisite need for leave pursuant to s 377(1).

23. Ms Holman purported to avoid that difficulty at the hearing by submitting the filed documents were only particulars of the claim. The submission did not confront the disconnect between the particulars documents and the filed claim and what the learned Magistrate described as the “confusion created by the two documents”. As her Honour observed, the particulars went “significantly outside what is contained in the employment claim filed on the 29th of September 2022”. Her Honour accordingly concluded she should order that the two particulars documents did not form part of the filed claim.

24. Her Honour made it clear it remained open to Ms Holman to seek leave to amend her employment claim. She also queried during argument whether, despite the matter not having previously resolved via the conciliation process, it was desirable that the matter be returned to conciliation — a suggestion which did not meet with any material opposition from Ms Holman’s solicitor.

25. The learned Magistrate ordered that:

the two filed documents “do not form part of the “Employment Claim” filed on 29 September”;

pursuant to s 42F Magistrates Courts Act the employment claim be referred for conciliation before a conciliator appointed by the registrar;

the conciliation be conducted by no later than 30 November 2023;

the costs of Mr Campbell’s application be the parties’ costs in the cause.

Leave was required to appeal to the District Court

26. Ms Holman sought to appeal the decision in the District Court and was met with the requirement that she seek leave to do so. The quantum of a claim influences whether or not leave is required to appeal to the District Court. Section 45 Magistrates Courts Act confers a right of appeal to the District Court upon any party who is dissatisfied with the judgment or order of a Magistrates Court. Section 45(2)(a) provides, however, that leave to appeal is required if the amount, damage or value involved in the action is not more than the minor civil dispute limit.

27. Pursuant to s 45(5) the minor civil dispute limit means the amount that is the prescribed amount under the Queensland Civil and Administrative Tribunal Act 2009; which amount is $25,000. It will be recalled Mr Holman’s solicitor correctly conceded at first instance that the purported entitlement to $20,000 as a civil penalty was wrongly included. The amount actually involved in the employment claim was the claim to $16,473.17, an amount less than the minor dispute limit. It follows that in her attempt to appeal to the District Court, Ms Holman was properly required to seek leave to appeal.

28. That equation was not altered by the unpersuasive submission of Ms Holman’s solicitor in the District Court hearing of the leave application that the concession was wrongly made. As already explained, the $20,000 amount was wrongly included because it was not recoverable in the employment claim.

The District Court leave application did not meet the requirement that “some important principle of law or justice is involved”

29. Section 45(2) Magistrates Courts Act specifically provides that the District Court’s leave to appeal shall not be granted “unless the court or judge is satisfied that some important principle of law or justice is involved”. That was an insurmountable challenge in a case like the present.

30. An outcome in a claim at first instance might only be concerned with managing the litigation of the claim, or it might determine some aspect of the claim. When it is the former rather than the latter it is logically more difficult to contend for the involvement of a principle of law or justice of sufficient importance to justify appellate intervention. It was the former here.

31. Order 1, in respect of the filed particulars documents did not determine any of Ms Holman’s claim. Contrary to Ms Holman’s submission, it did not involve a final determination and bar to continued pursuit of any of the particulars within the two further particulars documents. Order 1 merely disallowed the mechanism by which Ms Holman had purported to materially alter the substance of her originating process. Her claim remained live in the Magistrates Court. If Ms Holman wanted to amend that claim, to embrace the additional quantum which her ill-fated particulars documents had obviously been calculated at pursuing, then it remained open to her to seek leave to amend her claim.

32. The making of orders 2 and 3, regarding conciliation, were quintessential discretionary exercises in managing litigation and determined no component of the claim at all. Order 2 admittedly involved a direction adapting the statutorily described process first triggered by s 42F Magistrates Courts Act when a claim is filed, but, if the parties required further direction as to how that directed process should operate, it remained open to seek such direction from the learned Magistrate.

33. Order 4, that costs were costs in the cause, merely meant that a party’s costs of the application will form part of that party’s potentially awardable costs in the Magistrates Court claim. It did not determine whether that party would be awarded costs. Indeed, the prospect of a party eventually securing an order for costs in an employment claim in the Magistrates Court is substantially limited by s 42ZC Magistrates Courts Act. Section 42ZC provides a court may only order a party to pay another’s costs if the employment claim is frivolous, vexatious, an abuse of process or the costs were incurred because of an unreasonable act or omission by the other party.

34. The learned District Court Judge was astute to the relevance of the procedural character of the orders below, referring to the High Court’s approval in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc,¹ of this oft-cited statement of Sir Frederick Jordan in :

“ … I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”

35. That statement is especially apt to a case like the present, where the first instance processes involve procedures calculated at easing the cost and delay of litigation.

36. It was well open to the learned District Court Judge to conclude the decision below had no impact on substantive rights and refuse leave to appeal.

37. In doing so his Honour ordered Ms Holman pay Mr Campbell’s costs on the indemnity basis. Such a decision also appears to have been well open to his Honour, who took into account both the application’s lack of merit and Ms Holman’s rejection of Mr Campbell’s timely offer to settle the appellate proceeding on the basis it be discontinued, and each party bear their own costs.

There is no substantial injustice for this court to correct

38. The approach taken to the leave application to this court was broadly similar to the approach taken to the leave application below. That approach was to raise a discursive array of issues, which might arguably have been important if there had been any determination of substantive rights at first instance. The absence of any such determination makes a grant of leave an even more unrealistic prospect in this court than it was in the District Court.

39. This court’s leave is required per s 118(3) District Court of Queensland Act 1967 (Qld). The evident rationale of this court’s leave being required is to ensure the court’s finite resources are not unjustifiably consumed by matters which have already consumed hearing time in both the Magistrates and District Courts.³ Consistently with that rationale, it is well settled that this court will usually only grant leave to appeal pursuant to s 118(3) where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.⁴

40. There is no substantial injustice to correct here. There was no determination of substantive rights at first instance. The application for leave to appeal in the District Court involved no important principle of law or justice. The District Court’s refusal of leave below occasioned no potential injustice.

41. The matter involves no special feature warranting a departure from this court’s usual approach of refusing leave where there is no need to correct a substantial injustice. Leave should be refused.

Costs

42. Costs should follow the event.

43. In the event of a refusal of leave, Mr Campbell’s solicitor requested permission to file further evidence of relevance to costs because it could not properly be filed earlier. The orders will accommodate that request, but to minimise further cost, will require that any further submissions as to costs be in writing.

Orders

44. The court’s orders are:

Leave to appeal refused.

Any additional evidence relevant to costs may be filed: by the respondent by 4 pm on 1 October 2024;by the applicant by 4 pm on 9 October 2024.

Any further submissions as to costs may be made in writing, not exceeding four pages, filed:

by the respondent by 4 pm on 16 October 2024;

by the applicant by 4 pm on 23 October 2024.

Footnotes

1. (1981) 148 CLR 170, 177. ↩

2. (1946) 46 SR(NSW) 318, 323. ↩

3. Pearson v Thuringowa City Council [2006] 1 Qd R 416, [14]. ↩

4. A principle articulated by Keane JA, with whom McMurdo P and Dutney J agreed, in Pickering v McArthur [2005] QCA 294, [3], and described in Goldsmith v AMP Life Ltd (2021) 7 QR 113, [12] as consistently followed. ↩