Treherne v Hopkins [2010] QDC 366 (30 September 2010)

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CITATION:	Treherne v Hopkins [2010] QDC 366
PARTIES:	MARK TREHERNE & ASSOCIATES Applicant v MURRAY DAVID HOPKINS Respondent
FILE NO/S:	469/09
DIVISION:	Civil
PROCEEDING:	Appeal r. 792(1) of the Uniform Civil Procedure Rules 1999.
ORIGINATING COURT:	Southport Magistrates Court
DELIVERED ON:	30 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	19 October 2009
JUDGE:	Tutt DCJ
ORDER:	(i) Leave to appeal granted; (ii) Appeal is allowed; (iii) The decision of Davern JR dated 10 August 2008 set aside; (iv) The “Originating Application” filed 28 November 2008 be remitted to the Magistrates Court to be heard and determined by a magistrate according to law.
CATCHWORDS:	LEAVE TO APPEAL – RULE 792(1) UCPR - DECISION OF JUDICIAL REGISTRAR – Magistrates Act 1991 – whether judicial registrar has jurisdiction “to hear and decide.... a contested application that may result in judgment or other final relief” ( r 451 UCPR) – where Chief Magistrate issued Practice Direction under s53J of Magistrates Act 1991 prescribing applications “that may be heard and decided by a judicial registrar” – whether Practice Direction inconsistent with UCPR r 451. District Court of Queensland Act 1967 Magistrates Act 1991 ss 53I, 53J Magistrates Courts Act 1921 Supreme Court of Queensland Act 1991 Queensland Law Society Act 1952 (repealed) ss 6ZE, 6ZF Uniform Civil Procedure Rules 1999 r 451, 452, 792(1) Davidson v Gamble [1998] QCA 154 – applied Décor Corp Pty Ltd v Dart Industries Inc (1991) 104 ALJR 621 – cited Greenwood Property Pty Ltd v Delmos Pty Ltd (1986) 2 Qd R 388 – cited
SOLICITORS:	Mr M Treherne of Mark Treherne & Associates, applicant. Respondent appeared on own behalf.

[1] This is an application for leave to appeal the decision of Judicial Registrar Davern (“Davern J.R.”) made on 10 August 2009 at Southport wherein he decided that as a judicial registrar he has authority to adjudicate on an “Originating Application” filed by Mark Treherne & Associates (a firm) (“the applicant”) on 28 November 2008 following the filing of a “Minor Debt Claim” by Murray David Hopkins (“the respondent”) against the applicant in the Magistrates Court at Southport on 10 November 2008.

[2] In his decision of 10 August 2009 Davern JR determined that he had jurisdiction to determine the “Originating Application” before him and issued a number of directions to progress the claim namely:[1]

12. In relation to Originating Application numbered M4778/2008 Mark Treherne and Associates are to deliver their file of records, documents and diary notes relating to the subject costs assessment to the Southport Magistrates Court registry in a sealed package marked “Strictly confidential for the attention of Judicial Registrar Davern on or Before Friday 11 September 2009.

[4] The applicant provided professional services for the respondent from November 2003 to November 2006 for which it rendered accounts to the respondent in the aggregate sum of approximately $22,000.00[2] which the respondent duly paid.

[5] The respondent subsequently applied for a review of the assessment of costs rendered to him, through the then Solicitors’ Complaints Tribunal which appointed Mr Ian Boniface, costs assessor, to review the assessment. Mr Boniface did this and issued his Costs Certificate on 17 October 2008.[3]

[6] Mr Boniface assessed the costs payable by the respondent to the applicant in the sum of $13,649.46 that is somewhat less than the costs actually paid by him.

[7] The respondent then filed a “Minor Debt Claim” in the Magistrates Court, Southport on 10 November 2008 claiming the sum of $7,500.00 from the applicant for the overpayment of costs he had made to the applicant.[4]

[8] On 28 November 2008 the applicant filed an “Originating Application”[5] in the Magistrates Court, Southport seeking certain relief, namely orders:

“1. That pursuant to section 6ZF of the Queensland Law Society Act 1952 (repealed) the Court decide the reasonableness of the fees and costs charged in the accounts assessed by Boniface Legal Costs ABN 71 294 097 476 and served on the applicant on 29 October, 2008;

2. Despite section 62E(1) of the Queensland Law Society Act 1952 (repealed), the costs assessment by the assessor referred to in paragraph 1 of this application is not binding;

(2) A binding costs assessment may be enforced as a debt for the assessed amount and the parties may not subsequently challenge the amount payable.

[10] On 9 December 2008 the applicant filed a Notice of Intention to Defend and Defence to the respondent’s “Minor Debt Claim” essentially denying the respondent’s right to file the claim and “disputing the reasonableness of the fees and costs charged in the accounts assessed by Boniface Legal” being the subject of the applicant’s “Originating Application” of 28 November 2008.

[11] Davern JR subsequently heard the application which included legal argument that as a judicial registrar Davern JR has limited power and has no jurisdiction to determine any application for “final relief”. After receiving written submissions Davern JR delivered his decision of 10 August 2009.

[12] Davern JR rejected the applicant’s argument and indicated that he would proceed with the hearing of the application and claim “to provide a final determination” in the matter.[6] It is from that decision this current application has been filed.

[13] Firstly the applicant seeks leave to appeal the judicial registrar’s decision pursuant to r. 792(1) of the Uniform Civil Procedure Rules (“UCPR”).[7]

[14] Subject to leave to appeal being granted the applicant effectively submits that Davern JR exceeded his power as a judicial registrar by deciding that he was entitled to hear and decide the “originating application” filed by the applicant and should have remitted the matter to a magistrate “for determination according to law”.[8]

[15] The applicant seeks orders that the appeal be allowed; the decision of the judicial registrar be set aside and that “the matter be remitted back (to) the Magistrates Court to be determined according to law”.[9]

[16] The basis of the applicant’s submission that leave to appeal be granted is that the appeal raises a “matter of public importance” in respect of the powers of judicial registrars to adjudicate on such matters where “final relief” is granted bearing in mind the general powers of a judicial registrar as contained in r. 452 of the UCPR.

[17] It is established law that where there is the requirement for leave to appeal from an interlocutory order appellate courts traditionally exercise particular caution before granting leave.[10] That caution is reinforced in judicial warnings that an applicant for leave must be able to demonstrate not only a prima facie error in the judgment below but also that the question in issue is one of general importance, something which the public interest requires should be the subject of further argument and the decision of an appeal court.[11]

[18] On the basis of the submissions made on point I am satisfied that it is appropriate to grant the applicant leave to appeal the judicial registrar’s decision of 10 August 2009 for the reason that where a judicial officer’s jurisdiction to make a decision is challenged as in this application the issue does involve a question of general public importance beyond the immediate consequence of its effect per se in the matter under consideration. Leave to appeal therefore is granted to the applicant.

[19] The applicant submits that the powers of a judicial registrar contained in ss 53I and 53J of the Magistrates Act 1991 must be read in conjunction with r. 451 of the UCPR which relevantly provides that:

“(1) A judicial registrar may constitute the court to hear and decide an application of a type prescribed by practice direction, other than the following—

(2) The jurisdiction conferred on a judicial registrar by this chapter is in addition to any other jurisdiction conferred on a judicial registrar by these rules or another law, and includes any inherent or implied jurisdiction of the court.

(3) This rule is subject to rule 3 and any practice direction of the court excluding a matter from the judicial registrar’s jurisdiction.”

[20] On this basis the applicant contends that as the application before Davern JR was “contested” and “may result in judgment or other final relief” (that is deciding “the reasonableness of the fees and costs charged in the account”) he is not empowered “to hear and decide” the application but that the matter should only be heard by a magistrate.

[21] For these reasons there has been an error in law in the judicial registrar’s decision and therefore this court should allow the appeal and grant the orders sought.

[22] The respondent who appeared personally at the hearing understandably had very little to add to the debate and effectively abides the decision of the court.

(1) A judicial registrar may hear and decide an application prescribed under a practice direction given under section 53J(1).

(a) if the application is to a magistrate—is taken to be, and has all the jurisdiction and powers of, a magistrate; or

(b) if the application is to a Magistrates Court—constitutes, and may exercise all the jurisdiction and powers of, a Magistrates Court.

(3) A judicial registrar may also constitute, and exercise all the jurisdiction and powers of, a Magistrates Court for a matter prescribed under a practice direction given under section 53J(2).

(4) However, a judicial registrar may not exercise any power of a Magistrates Court to punish for contempt.

“(1) The Chief Magistrate may give a practice direction prescribing any of the following types of applications as an application that may be heard and decided by a judicial registrar—

[26] In “Practice Direction No. 1 of 2008 (amended)” issued on 27 March 2008 the then Chief Magistrate gave various directions which included the following:

2. Pursuant to section 53J(1) of the Act the following types of applications are prescribed as an application that may be heard and decided by a judicial registrar:

2.1 an application that may be made under the Uniform Civil Procedure Rule 1999 to a magistrate;

2.4 an application under the Domestic and Family Violence Protection act 1989 for –

[27] The question then arises as to whether any part of this Practice Direction, particularly for example subparagraph 2.1, though prima facie validly given under s 53J of the Magistrates Act 1991 is inconsistent with UCPR 451(1)(a) and if so what are the consequences thereof?[14]

[28] During the course of argument the court was not referred to any case law on point but I have since become aware of a matter of Davidson v Gamble [1998] QCA 154 where the Court of Appeal upheld an appeal from a judge at first instance who purported to strike out an appeal under s 222 of the Justices Act 1886 for non-compliance with a Practice Direction issued by the then Chief Judge part of which provided that the court could strike out an appeal in circumstances where the procedures to be followed as prescribed in the Practice Direction were different from those prescribed in ss 225 and/or 229(1) of the Justices Act itself.

[29] Essentially the Court of Appeal held that while it was within the power of the Chief Judge under s 28A(2) of the District Court of Queensland Act 1967 to issue Practice Directions “for the administration of the District Court”, that did not give the Chief Judge the power to issue directions which were inconsistent “with the Rules of Court or statutory constraints”.[15]

(a) UCPR r 451 clearly sets out the jurisdiction of “a judicial registrar” in respect of applications and in particular what a judicial registrar may not “hear and decide”; (emphasis added)

(b) Paragraph 2 of Practice Direction No 1 of 2008 (amended) of 27 March 2008 given by then Chief Magistrate includes a direction, at least in respect of paragraph 2.1 which appears to be inconsistent with UCPR r 451, as such a direction on face value without appropriate limitations may include “a contested application(s) that may result in judgment or other final relief”;

(c) The practice direction to that extent at least is therefore in my view inconsistent with UCPR r 451 and as such I find is beyond the power of the Chief Magistrate to make.

[31] It follows therefore that there has been an error of law in the judicial registrar continuing “to hear and decide” the “contested” application and the appeal must be allowed.

(iv) The “Originating Application” filed 28 November 2008 be remitted to the Magistrates Court to be heard and determined by a magistrate according to law.

[2] See paragraph 5 of affidavit of Mark Thomas Treherne filed in Magistrates Court, Southport on 28 November 2008.

[3] See also Mr Boniface’s comprehensive reasons dated 1 October 2007 wherein he determined that the respondent to this application before the court had standing to pursue the assessment which had been challenged by the applicant.

[7] Rule 792(1) states “(1) A party may appeal to a court under r. 791 only with the leave of the court as constituted by a judge or magistrate. (2) This rule and r. 791 do not prevent a party appealing against a decision on an appeal under this part.”

[11] Greenwood Property Pty Ltd v Delmos Pty Ltd (1986) 2 Qd R 388 per Carter J at 398.

[12] There would not appear to have been any appointments to the position of judicial registrar in the Supreme or District Courts but there have been such appointments in the Magistrates Court since the amendments to the Act in 2007.

[13] It is worthy of note that none of the categories of applications referred to in sub-paragraphs (b), (c), (d) or (e) include “contested” matters which may “result judgment or other final relief.”

[14] C/f section 118D(1) of Supreme Court Act 1991, “...a practice direction is not subordinate legislation.”

Queensland District Court Decisions

Treherne v Hopkins [2010] QDC 366 (30 September 2010)