Levien v Hodgens

[2] The second respondent contends that the applicant's application should be struck out for a number of reasons particularly -

(b) That adequate provisions for review were available within the appeal procedures; and

(c) The proceeding should be treated as frivolous or vexatious or an abuse of power of the Court.

[3] The applicant's application is entitled as though seeking a Statutory Order of Review pursuant to Part 3 of JRA. However, by its terms the relief it seeks is in the nature of prerogative orders pursuant to Part 5. The decision about which the applicant feels aggrieved was that of a Magistrate refusing a request for an adjournment and entering a default judgment when the applicant did not appear to contest the claim made against him by the second respondent. That decision is properly characterised as a judicial decision and not one of an administrative character which would give this Court jurisdiction for its review under the provisions of Part 3 of JRA.[1] Even if the decision was reviewable under this Part, I would, for the reasons which follow be constrained by s 13 of JRA to dismiss the application. I shall however treat the application as falling within the Court's jurisdiction under Part 5 of JRA which is more appropriate to the terms of the relief sought.

[4] The second respondent commenced proceedings in the Magistrates court to recover from the applicant a commercial debt of $16,964.90 being the second respondent's fees for advertising the plaintiff's business in its publications. The applicant filed a conditional notice of defence on the basis that the claim had been dealt with in another jurisdiction. He later filed a Defence claiming that though he had contractual negotiations with the second respondent, no contract was ever completed. He relies upon the fact that the form of the advertising proof was not signed by him though it seems clear that other details were completed by him and submitted by him. There is also exhibited a copy signed contract[2] and significantly no suggestion that the contract was not fulfilled by the second respondent.

The claim in the Magistrates Court was set down for hearing on 11 July 2006 but was adjourned at the applicant's request on the grounds of his illness until 13 July 2006. On that day the applicant appeared by his solicitor to seek a further adjournment on the grounds of the applicant's work commitments. This request was refused and the hearing proceeded without the applicant adducing evidence or making submissions. A default judgment was entered by the first respondent.

The applicant made no application to set aside the judgment, nor did he lodge an appeal against the decision. The latter relief was available pursuant to s 45 of the Magistrates Court Act and rule 783 of Uniform Civil Procedure Rules 1999, if lodged within 28 days or such further time as the District Court may allow. No application has ever been made for an extension of time within which to appeal.

Instead the applicant made his application to this Court on 6 December 2006, some five months after the date of the decision which he seeks to impeach. Sections 46 of the JRA provides that an application for this purpose "must be made -

(a) as soon as possible and, in any event, within three months after the day on which the grounds for the application arose; or

(b) if the Court extends the period of three months - before the end of the extended period."

The applicant has made no application for any extension of time and his application is clearly out of time.

[8] The applicant filed four affidavits in support of his application. In none of them does he identify by evidence any reasonable explanation for his failure to appear before the Magistrates Court on the date of the hearing nor any answer to the second respondent's claim upon which the judgment is founded.

[9] The second respondent in support of this application points to the provisions of s 46 of JRA which clearly demonstrates that the applicant's proceeding was out of time when it was instituted. The second respondent points to the appeal provisions referred to above which were available to the applicant. These show that the applicant had a right of appeal against the decision. These facts bring into consideration s 13(b) of JRA insofar as the application may be a statutory order of review. To the extent that the application is for prerogative orders, a consideration of s 48 is then appropriate. Section 48(1) states -

"48 Power of the court to stay or dismiss applications in certain circumstances

(1) The court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such application, if the court considers that -

(i) for proceedings in relation to the application or claim to be continued; or

(b) no reasonable basis for the application or claim is disclosed; or

(c) the application or claim is frivolous or vexatious; or

(d) the application or claim is an abuse of the process of the court."

[10] Had the applicant availed himself of the right of appeal there are no grounds for confidence that he would necessarily have succeeded, nonetheless it is clear that this Court provided the appropriate procedure for him to test the issue rather than commencing these proceedings in this Court. The remark of Thomas J in Stubberfield v Webster[3] are apposite. He said:-

"As a general rule judicial review should not bee seen as a substitute for the appellate process in the civil courts. Of course particular circumstances may yield different results, as for example in a case of obvious jurisdictional abuse when the liberty of a citizen is at stake (R v The Judge of the District Court at Brisbane and Davies; ex parte Allen; Weinel v Judge Parsons [1994] SASC 5155; (1994) 62 SASR 501, 505), and other situations which I do not purport to limit. Applications like the present one are unlikely to produce a satisfactory result for the disgruntled civil litigant but are still likely to take up considerable time of the courts. It is therefore important that it be clearly understood that this remedy is not to be regarded as a substitute of the appellate system within the ordinary judicial process."

[11] I am in complete agreement with what Thomas J had to say on this issue. But further to that the applicant has shown no reasonable basis for his application. In the whole of the circumstances, the applicant's resort to these proceedings is an abuse of the process of the Court.

[12] For these various reasons the second respondent is entitled to succeed in its application and the application for judicial review will be struck out.

[13] 1. I allow the second respondent's application.

2. The application for judicial review is struck out.

3. I adjourn the question of costs allowing each of the parties to make submissions on this issue in writing within 21 days.

1. [1] Evans v Friemann (1981) ALR 428 per Fox ACJ at 434, Stubberfield v Webster SM [1995] QSC 182; [1996] 2 QdR 211 per Thomas J at 213.
2. [2] Ex B to affidavit of applicant sworn 10 April 2007

[3] [1996] 2 QdR 211/217