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  • Unreported Judgment

Labaj v Bevan


[2004] QSC 253




No BS5902 of 2004








DATE 03/08/2004


HIS HONOUR: This is an application to strike out the claim and statement of claim filed in these proceedings by Mr Labaj against Peter Curtiss Bevan and, in the alternative, that the proceedings be transferred to the District Court in Townsville for hearing with proceeding number D442 of 2002.

The proceeding issued by Mr Labaj in this Court claims that the defendant negligently breached the duty of care that he owed to Mr Labaj in refusing to return to him some documents he needed for an appearance in Court. He goes on to allege that “by his negligent action” the defendant jeopardised the plaintiff's proceedings in the Court and caused the plaintiff damage.

Mr Labaj has been acting for himself and the statement of claim does not provide any particulars of the amount of the claim that he alleges against Mr Bevan. When I asked him in which jurisdiction it might be brought, he was unable to provide me with any calculation of damages, initially thinking it would be outside the District Court's jurisdiction, but that was based on his belief that the District Court's jurisdiction was limited to $50,000, rather than $250,000. He has been unable to satisfy me that the amount of his claim against Mr Bevan would be outside the jurisdiction of that Court.

I raise that issue because he has proceedings currently on foot in the District Court at Townsville, that commenced as an originating application by him in the Magistrates Court seeking the return of a bundle of legal and personal documents of which Mr Bevan was said to be in possession. They appear to be the same documents and, of course, Mr Bevan is the same defendant.

Initially, when he sought that relief in the Magistrates Court, the Magistrate ruled that he did not have jurisdiction but, on appeal, Judge Boulton, while agreeing that the Magistrate did not have jurisdiction, ruled that he could have remitted it to the District Court and his Honour allowed the appeal to the extent that the proceedings in the Magistrates Court be transferred to the District Court.

Subsequently there was an order by Judge Skoien, whose terms are not evidenced precisely before me, but there were later proceedings involving a decision by Judge Pack which show that there was some dispute about whether Mr Labaj had filed a statement of claim in the District Court and whether he needed the consent of his bankruptcy trustee to do so.

Judge Pack proceeded to order that if the statement of claim was not filed by 6 August 2004, “with the consent of his bankruptcy trustee, if necessary”, he ordered Mr Labaj to pay the reserved costs to be agreed or assessed of the Magistrates Court proceedings and that the claim by Mr Labaj be struck out.

Mr Labaj submitted, and I think it is correct, that his claim in the Magistrates Court seeks merely the return of the documents to him forthwith. Although it does seek a further order that the defendant pay the plaintiff “for any damages caused by the delay in returning of those documents”. It seems to me that, formally, that is a different cause of action from the one pleaded in negligence against Mr Bevan in the proceedings in this Court. The two proceedings are, however, closely linked by the facts that the defendant and the plaintiff are the same persons and the documents referred to in each matter appear to be the same documents.

Mr Labaj submitted that he was reluctant to seek to have both claims litigated in the one action on the basis that they were separate, and that he preferred the jurisdiction of this Court to that of the District Court in Townsville. He was unable, however, as I have said, to satisfy me that this was a matter that required the jurisdiction of this Court monetarily to permit him to recover the relief he seeks.

In the circumstances where the claims are formally different, it seems to me to be inappropriate to grant the relief sought that the claim be struck out. It does seem to me to be appropriate, however, that the proceedings be transferred to the District Court in Townsville. Mr Labaj tells me that he actually has filed a statement of claim in that Court, but he was not able to produce a sealed copy of it.

Mr Horvath submitted that I should impose a condition similar to that imposed by Judge Pack in respect of the consent of the bankruptcy trustee, but I am unwilling to impose that open-ended condition on an order of this nature, especially in circumstances where I have not been persuaded that the consent of any bankruptcy trustee is needed.

The pleading, as it currently stands, is defective in a number of respects. It lacks the normal particularity that one would expect to permit the pleading to conform to the Uniform Civil Procedure Rules. That, no doubt, is a matter for the defendant to pursue in the proceedings in Townsville, but it seems to me that, with the proceedings already on foot in Townsville covering substantially the same area of factual dispute as this claim, it would be appropriate for me to order that this proceeding be remitted to the District Court in Townsville for hearing with proceeding number D442 of 2002, between the same parties.

Accordingly, I order that these proceedings be transferred to the District Court in Townsville, for hearing with proceedings number D442 of 2002, in that Registry of that Court.

HIS HONOUR: I order that the plaintiff pay the defendant's costs of and incidental to the application.


Editorial Notes

  • Published Case Name:

    John Labaj v Peter Curtiss Bevan

  • Shortened Case Name:

    Labaj v Bevan

  • MNC:

    [2004] QSC 253

  • Court:


  • Judge(s):

    Douglas J

  • Date:

    03 Aug 2004

Litigation History

No Litigation History

Appeal Status

No Status