Manzo v Scholz

DISTRICT COURT OF QUEENSLAND

CITATION:	Manzo v Scholz [2022] QDC 151
PARTIES:	MANZO, Peter (Appellant/Respondent) v SCHOLZ, John Michael (Respondent/Applicant)
FILE NO/S:	3319 of 2021
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane Magistrates Court
DELIVERED ON:	4 March 2022 (delivered ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2022
JUDGE:	Dearden DCJ
ORDER:	1.   The application of Mr Scholz filed 20 January 2022 is granted. 2. Pursuant to UCPR r 748 the appeal, numbered 3319/21, is dismissed
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where judgment was delivered in the Magistrates Court – where a costs order was made – where the appellant filed an appeal one year and two days out of time – whether there was a satisfactory explanation for delay – whether there are reasonable prospects pf success of the appeal – whether the appeal be dismissed for being out of time
LEGISLATION	Uniform Civil Procedure Rules 1999 (Qld) r 744-777, 782-792 District Court of Queensland Act 1967 (Qld) s 113 Magistrates Court Act 1921 (Qld) ss 2, 45 Queensland Civil and Administrative Tribunal Act 2009 (Qld) sch 3
CASES	Fox v Percy (2003) 214 CLR 118 Wilde v R (1988) 164 CLR 365 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 Hughes v National Trustees, Executives and Agency Co of Australasia [1978] VR 257
COUNSEL:	P Manzo for the appellant/respondent J Ford for the respondent/applicant
SOLICITORS:	The appellant/respondent appeared self-represented Michael Dwyer Solicitors for the respondent/applicant

Introduction

1. This is an application by the respondent/applicant, John Michael Scholz seeking the following orders in respect of the appeal filed by the appellant/respondent Peter Manzo in this court on 17 December 2021, in respect of the judgment delivered in the Magistrates Court at Brisbane on 4 November 2020:

(1)        Pursuant to Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) r 748, District Court of Queensland Act 1967 (Qld) s 113 and/or Magistrates Court Act 1921 (Qld) s 45, orders that:

(a)   The appeal be dismissed for being filed out of time; and

(b)   The appellant pay the respondent’s costs.

Background

2. After a trial in the Brisbane Magistrates Court from 4-6 February 2020,[1] incorrectly referred to in the written judgment as 4 February 2019, Magistrate Hay delivered a judgment on 4 November 2020, relevantly ordering:

   [1]Affidavit of Michael Dwyer sworn 2 February 2022 [12].

“[47] I find in favour of the plaintiff on his claim in the sum of $36,893.50 together with interest thereon calculated from 18 January 2018.

[48] I dismiss the defendant’s counterclaim.

[49] I give judgment for the plaintiff against the defendant in the sum of $36,893.50, together with interest thereon pursuant to s 58 of the Civil Liability Act 2003 (Qld), to be calculated from 18 January 2018.

[50] The defendant’s counterclaim is dismissed.”[2]

3. On 17 December 2020, Magistrate Hay ordered that Mr Manzo pay Mr Scholz’s costs of the trial.[3]

   [3]Affidavit of Michael Dwyer sworn 20 January 2022 [5].

4. In brief compass, the proceedings arose out of an agreement between Mr Manzo and Mr Scholz, to agist Mr Manzo’s horses on Mr Scholz’s property, pursuant to an Agistment Agreement and a subsequent Feed Agreement.  The only oral evidence given at the trial was from each of Mr Manzo and Mr Scholz.[4]  A range of documents were tendered during the course of the trial, including the Agistment and Feed Agreements, invoices, and correspondence. The trial plaintiff, Mr Scholz, was represented by counsel instructed by solicitors; the trial defendant Mr Manzo was self-represented.

   [4]Judgment of Hay M, 4 November 2020 [1] & [5].

The Law

5. It is uncontroversial that appeals are “a creature of statute”,[5] and so it is necessary to identify with particularity the statutory construct that brings this appeal, and in turn this application to dismiss the appeal for being filed out of time, before this court.

   [5]Fox v Percy (2003) 214 CLR 118 [20].

6. Magistrates Court Act 1921 (Qld) s 45(1)(a), relevantly provides:

“45    Appeal

(1)        Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court –

(a)        In an action in which the amount, value or damage involved is more than the minor civil dispute limit;

……

may appeal to the District Court as prescribed by the rules.”

7. The current “minor civil dispute limit”, “prescribed amount” is $25,000.[6]

   [6]Queensland Civil and Administrative Tribunal Act 2009 (Qld) sch 3.

8. The “rules” means the UCPR.[7]

   [7]Magistrates Court Act 1921 (Qld) s 2.

9. Magistrates Court Act 1921 (Qld) s 45(3) provides:

“45    Appeal

“(3)        Within the time and in the way prescribed by the Rules, the appellant must give to the other party or the other party’s lawyer notice of the appeal, briefly stating the grounds of appeal.”

10. UCPR chapter 18 covers appellate proceedings, with Part 1 dealing with appeals to the Court of Appeal.[8]  Part 3 deals with appeals to courts other than the Court of Appeal,[9] including, of course, the District Court.[10]

    [8]UCPR rr 744-777.

    [9]UCPR rr 782-792.

    [10]UCPR rr 782-783

11. Under Part 1, a notice of appeal must, unless the Court of Appeal orders otherwise, be filed within 28 days after the date of the decision appealed from.[11] Part 1 of the UCPR applies to appeals under Part 3 (i.e. to the District Court), with some specified exceptions, which do not however include UCPR r 748.[12]

    [11]UCPR r 748(a).

    [12]UCPR r 785(1).

12. It follows then that the time limit for an appeal from the Magistrates Court to the District Court, in this matter, is “28 days after the date of the decision appealed from”,[13] and relevantly, on appeal to the District Court from the Magistrates Court, this court has the same powers as the Court of Appeal.[14]

    [13]UCPR r 748(a).

    [14]District Court of Queensland Act 1967 (Qld) s 113.

13. When considering an application for an extension of time to appeal, or, as in this matter, an application to dismiss an appeal filed out of time, this court must consider three specific factors, namely:

(a) Whether there is any satisfactory or acceptable explanation for the delay,[15] and the length of that delay;[16]

[15]Wilde v R (1988) 164 CLR 365, 374-375 (Brennan, Dawson and Toohey JJ); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 [5].

[16]SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 [5].

(b)        The prospects of success or merits of the appeal;[17] and

(c)        The degree of prejudice to the respondent.[18]

14. The discretion of this court to extend time is to avoid an injustice.[19]

    [19]Ibid 262.

Chronology

15. Judgment in the Magistrates Court was delivered on 4 November 2020,[20] and a costs order was made in favour of Mr Scholz on 17 December 2020.[21]

    [20]Affidavit of Michael Dwyer sworn 20 January 2022 [3].

    [21]Ibid [4].

16. The appeal by Mr Manzo was filed in this court on 17 December 2021,[22] which is one year and two days out of time.[23]

    [22]Court file document no. 7.

    [23]UCPR r 748(a).

17. The filing of the appeal has occurred subsequent to a bankruptcy notice being served on Mr Manzo by email on 19 November 2021.[24]

Discussion

A) Satisfactory explanation for delay

18. The only substantive explanation by Mr Manzo for the delay in filing the appeal, is contained in his affidavit sworn 9 February 2022, at paragraphs 5 and 6, where he relevantly states:

“5.       Only from about mid-November 2021, did I realise there was something seriously amiss with the decision handed down on 4 November 2020.  That arose due to the respondent’s solicitor’s continual refusal and/or failure to respond to my emails requesting whether my offer of settlement issued prior to the trial hearing was ever forwarded to their client.”

19. And further:

“6.       I considered that if the respondent’s solicitor didn’t pass on the offer, and took that risk, there must have been substantial basis for anticipating certainty of being successful at trial – such as a “rigged” hearing or expectation or bias.”[25]

20. As best I can understand Mr Manzo’s submission on delay, it appears to be that upon receiving the transcript of the interlocutory hearing before Magistrate Hay from 15 November 2019, at which he was legally represented, she made comments which he asserts, in oral submissions, were incorrect; those asserted inaccuracies, together with the asserted failure of Mr Scholz’s solicitors to put a pre-trial settlement offer to the client, indicated in his submission that Magistrate Hay was biased against him.

21. There has been no appeal by Mr Manzo at any stage in respect of any aspect of the interlocutory procedural decision by Magistrate Hay on 15 November 2019.

22. A belief by Mr Manzo that the trial magistrate was biased, and/or that the hearing was “rigged” is just that – a belief.  With respect, Mr Manzo’s beliefs are not evidence, and a delay of one year in filing an appeal, based on the crystallisation of a belief in mid-November 2021, is not, in my view, a satisfactory explanation for the delay.

B) Prospects of success on appeal

23. The grounds of appeal in Mr Manzo’s “Notice Of Appeal Subject To Leave” are verbose and diffuse, but in my view, are accurately summarised in the respondent’s amended submissions on application filed 20 January 2022, as follows: –

“19.         Perusal of the grounds for appeal reveal a hodgepodge of allegations attacking Magistrate Hay:

(a)        Upon her exercise of discretion when weighing matters of competing oral evidence;

(b)        For alleged bias; 

(c)        For an apparent refusal [to] accept written evidence from the appellant in a trial by viva voce evidence;

(d)        For allegedly pre-determining the matter.

20.     The appellant also alleges:

(a)        An interlocutory procedural decision on 15 November 2019 was wrongly made, though it was not itself appealed at the time;

(b)        Perjury by the respondent – a most serious allegation unsupported by the appellant’s affidavit evidence.”[26]

24. In Fox v Percy (2003) 214 CLR 118 [28] – [29], the High Court held it is necessary to demonstrate that a trial judge’s conclusions based upon credibility findings can only be set aside where:

“Incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, or in rare cases, the decision is “glaringly improbable” or “contrary to compelling inferences”.  With respect, there is no material in either of Mr Manzo’s affidavits filed on this appeal which even vaguely satisfies any of those considerations.”[27]

25. As Magistrate Hay sets out in her judgment, delay made it difficult for the parties to accurately recall detail of events, and so she gave:

“Greater weight to the oral evidence given at trial where it has been capable of being corroborated by contemporaneous documents…”[28]

26. Magistrate Hay noted the evidence of Mr Manzo explaining his lack of documents as a result of his residence being flooded.[29]

    [29]Ibid.

27. Magistrate Hay appropriately weighed the competing oral evidence of Mr Scholz and Mr Manzo, who were the only witnesses at the trial, in the context of admissible documentary evidence.  That was an appropriate, orthodox and, with respect, unimpeachable approach to deciding matters of fact in a civil trial.  No error has been demonstrated.

28. Further, as Mr Scholz’s counsel submits, and I accept, Mr Manzo had one trial date adjourned at his request;[30]  Mr Manzo was granted an opportunity to provide expert evidence, but did not,[31] although I note Mr Manzo, in submissions, provided unsworn detail of his difficulties in obtaining expert evidence; was refused a second request to adjourn the trial but did not appeal that decision;[32]  and  accordingly, at trial, was unable to produce sufficient evidence to prove his counterclaim.[33]

    [30]Affidavit of Michael Dwyer sworn 7 February 2022 [8].

    [31]Ibid [10].

    [32]Ibid [11].

    [33]Judgment of Hay M, 4 November 2020 [34].

29. There is no evidence before this court in respect of the assertion of alleged perjury by Mr Scholz. 

30. The decisions Mr Manzo made in respect of the preparation for and conduct of the trial do not, of themselves or in their consequences, provide any assistance in respect of this court’s assessment of his prospects of success on appeal.

31. Mr Scholz has of course still not received the fruits of the judgment, although no stay has been ordered.

32. Further, in an overarching sense, there is no injustice demonstrated which would justify this court interfering in the judgment of the trial magistrate.

33. It follows, inexorably in my view, that there are no prospects of success for Mr Manzo in his substantive appeal.

34. Accordingly, I conclude that the application to dismiss the appeal for being filed out of time must succeed.

Order.

35. I order as follows: –

(1)        The application of Mr Scholz filed 20 January 2022 is granted.

(2) Pursuant to UCPR r 748 the appeal, numbered 3319/21, is dismissed