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Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc

 

[2020] QSC 234

SUPREME COURT OF QUEENSLAND

CITATION:

Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2020] QSC 234

PARTIES:

JAMES BOYD THOMPSON

(plaintiff)

v

CAVALIER KING CHARLES SPANIEL RESCUE (QLD) INC

(first defendant)

LAURENCE JOHN PITTS

(second defendant)

KATHERINE LEPELAAR

(third defendant)

BEVERLEY ANN HUSH

(fourth defendant)

FILE NO:

BS No 9148 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

13 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2020

JUDGE:

Davis J

ORDERS:

  1. Paragraphs 114, 115, 116, 118, 119 and 120 of the fifth amended statement of claim be struck out.
  2. Paragraphs 2 to 9 of the amended claim be struck out.
  3. The plaintiff has leave to file a further amended claim within 14 clear days of the making of these orders.
  4. The parties will be heard on the question of costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where the first defendant seeks orders that certain paragraphs of the statement of claim be struck out on the basis that they do not disclose an identifiable cause of action – where those paragraphs have previously been the subject of strike out applications – where the particulars were ordered to be struck out – where no further particulars have been delivered – whether the paragraphs plead a compensable loss in contract – whether the paragraphs should be struck out

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where the first defendant seeks orders that certain paragraphs of the statement of claim be struck out on the basis that they do not disclose an identifiable cause of action – where the plaintiff pleads damages for “personal disgrace”, “loss of status” and “wounded feelings” – whether the paragraphs plead a compensable loss in contract – whether the paragraphs should be struck out

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the first defendant seeks orders that a paragraph of the statement of claim be struck out – where it is unclear whether the paragraph is a separate and independent allegation of loss and damage or an allegation of loss and damage flowing from the allegations in earlier paragraphs – whether the paragraph pleads a separate  compensable loss in contract – whether the paragraph should be struck out

Associations Incorporation Act 1981, s 71
Australian Charities and Not-for-profits Commission Regulation 2013 (Cth)
Uniform Civil Procedure Rules 1999, r 150, r 155, r 171

Baltic Shipping Co v Dillon (1993) 176 CLR 344, followed
Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007, cited
Cachia v Hanes (1994) 179 CLR 403, cited
Fink v Fink (1946) 74 CLR 127, followed
Moore v Scenic Tours Pty Ltd (2020) 94 ALJR 481, cited
Russell v The Trustees of Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559, followed
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc & Ors [2016] QSC 237, considered

COUNSEL:

C Templeton for the first defendant/applicant

Mr Thompson appeared for himself

SOLICITORS:

ACLG Lawyers for the first defendant/applicant

Mr Thompson appeared for himself

  1. [1]
    The first defendant, Cavalier King Charles Spaniel Rescue (Qld) (CKCSR) is an association incorporated under the Associations Incorporation Act 1981 (the AIA).  The other defendants are members of CKCSR, as was the plaintiff, Mr James Boyd Thompson.
  2. [2]
    A dispute arose and Mr Thompson sued the defendants on the contract which exists between the members in terms of the rules of the CKCSR.[1]  He also alleges breaches of the rules of natural justice[2] and bias against him.[3]  There were originally seven defendants.  The second defendant, Mr Pitts, has died.  Each of the fifth, sixth and seventh defendants are no longer parties to the proceeding.
  3. [3]
    CKCSR filed an application on 26 February 2020[4] seeking:
    1. (a)
      the striking out of paragraphs 2 to 9 of Mr Thompson’s amended claim filed on 24 June 2016;[5]
    2. (b)
      the striking out of paragraphs 114 to 120 of Mr Thompson’s current statement of claim which is the fifth amended statement of claim;[6]
    3. (c)
      the striking out of the words “defamatory” as it appears in certain paragraphs; and
    4. (d)
      the delivery of certain particulars in relation to paragraphs 1, 26, 41, 63 and 85 of the fifth amended statement of claim.
  4. [4]
    By the application, CKCSR also seeks its costs.
  5. [5]
    Outlines of submission were exchanged and short oral argument was heard on 3 April 2020.  It became apparent that there had been earlier applications to strike out similar paragraphs in earlier versions of Mr Thompson’s statement of claim.  CKCSR filed further written submissions.  The attack upon paragraph 117 of the fifth amended statement of claim has been abandoned.  It is accepted that paragraphs 114, 115, 116 and 120 had survived earlier strike-out applications but the particulars supporting the allegations have been struck out.  CKCSR’s submission in relation to those paragraphs is:
    1. (a)
      as no further particulars have been delivered, they should be struck out; alternatively
    2. (b)
      proper particulars ought to be provided.
  6. [6]
    Paragraphs 118 and 119 have not previously been the subject of a strike-out application and CKCSR seeks to have them struck out. 
  7. [7]
    In neither written nor oral submissions did CKCSR press its application to strike out the words “defamatory” as it appears in the fifth amended statement of claim nor did it press its submission for further particulars of paragraph 1, 26, 41, 63 and 85.

The fifth amended statement of claim

  1. [8]
    Mr Thompson alleges joining CKCSR as a member in 2008.  He became involved in holiday boarding of dogs and foster caring.  He alleges that on 11 January 2010 CKCSR resolved at its general meeting that foster carers would not be required to pay membership fees for the 2010-2011 year.  CKCSR is, Mr Thomspon alleges, a registered charity and he pleads that it is therefore bound by the Australian Charities and Not-for-profits Commission Regulation 2013 (Cth).
  2. [9]
    In 2011, the various defendants purported to act as the CKCSR Management Committee.  Ultimately, Mr Thompson’s membership of CKCSR was terminated.  He alleges that there was non-compliance with the rules to which the defendants were contractually bound to follow.  He alleges that CKCSR was managed inconsistently with its obligations as a charity.  He alleges that he was also denied procedural fairness, and that the members purporting to act as the Management Committee were biased against him. 
  3. [10]
    As a result of his expulsion from the CKCSR, Mr Thompson alleges that he has suffered:
    1. (a)
      loss of opportunity to contribute to the activities of the CKCSR;[7]
    2. (b)
      loss of “the sense of personal fulfilment”;[8]
    3. (c)
      “inconvenience, vexation and distress”;[9]
    4. (d)
      “personal disgrace”;[10]
    5. (e)
      loss of income;[11]
    6. (f)
      loss of status;[12]
    7. (g)
      wounded feelings;[13] and
    8. (h)
      general unspecified “damage and loss”.[14]

The history of the proceedings

  1. [11]
    As earlier observed, Mr Thompson’s statements of claim have previously been the subject of attack.  It is necessary to identify some of the steps taken in the action.
  2. [12]
    The claim and the original statement of claim were filed on 27 September 2013.
  3. [13]
    An amended statement of claim was filed on 11 January 2016.[15]
  4. [14]
    On 27 January 2016, the first and sixth defendants (CKCSR and Ms MacMillan)[16] filed an application seeking the striking out of the claim and the amended statement of claim[17] (“the first strike-out application”).  On 2 February 2016, the second, third, fourth, fifth and seventh defendants sought the striking out of the statement of claim and the amended statement of claim[18] (“the second strike-out application”).
  5. [15]
    Both the first strike-out application and the second strike-out application came before Mullins J (as her Honour then was) on 4 February 2016 and 12 February 2016 respectively and orders were made.[19]
  6. [16]
    The second amended statement of claim[20] was filed on 4 March 2016.  On 11 March 2016, the first and sixth defendants brought an application to strike out parts of the second amended statement of claim[21] (“the third strike-out application”).  The third strike-out application came before Dalton J on 24 March 2016 and her Honour made orders.[22]
  7. [17]
    On 8 April 2016, Mr Thompson delivered particulars of the second amended statement of claim[23] (“the first particulars”) and on 6 May 2016 he delivered further particulars of the second amended statement of claim[24] (“the second particulars”).
  8. [18]
    On 24 June 2016, the plaintiff filed an amended claim.[25]
  9. [19]
    On 4 October 2016, the second, third and fourth defendants filed an application to strike out the second amended statement of claim[26] (“the fourth strike-out application”).  The fourth strike-out application was heard by Mullins J on 21 October 2016.
  10. [20]
    The third amended statement of claim was filed on 9 January 2017,[27] the fourth amended statement of claim was filed on 17 February 2017[28] and the fifth amended statement of claim was filed on 7 April 2017.[29]  The current application is the fifth application which has been brought to challenge Mr Thompson’s pleadings.
  11. [21]
    The current application is brought pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (UCPR) which is in these terms:

171 Striking out pleadings

  1. (1)
    This rule applies if a pleading or part of a pleading—
  1. (a)
    discloses no reasonable cause of action or defence; or
  1. (b)
    has a tendency to prejudice or delay the fair trial of the proceeding; or
  1. (c)
    is unnecessary or scandalous; or
  1. (d)
    is frivolous or vexatious; or
  1. (e)
    is otherwise an abuse of the process of the court.
  1. (2)
    The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
  1. (3)
    On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.”

The challenged paragraphs of the fifth amended statement of claim

Paragraph 114

  1. [22]
    Paragraph 114 of the fifth amended statement of claim is:

“114. As a consequence of the breaches of contract by the First Defendant, Second Defendant John Pitts,[30] Third Defendant and Fourth Defendant, the plaintiff has suffered damage in that the plaintiff:

  1. (a)
    is no longer afforded the opportunity to continue to make significant contributions to the Association’s activities and to further its Objects.
  1. (b)
    no longer frequently experiences the sense of personal fulfilment through having made such contributions many times each week.”
  1. [23]
    That paragraph is practically identical to paragraph 138 of the second amended statement of claim.  The second particulars were delivered after the first, second and third strike-out applications were determined.  Paragraphs 6 to 14 of the second particulars provide:
  1. “6.
    Point 1 of the Association’s Objects is ‘To rescue and rehome Cavalier King Charles Spaniels Queensland.’ Over the 3 years of his active membership in support of this Object, the plaintiff fostered a total of 13 dogs having collected or ‘rescued’ 11 of them and having subsequently connected 8 of those dogs to new owners (i.e. re-homing them).
  1. In addition to voluntarily expending his own time and effort on behalf of the Association and its Objects, while doing so the plaintiff made numerous out-of-pocket expenditures on its behalf for which he sought no reimbursement.
  1. Prior to his expulsion the plaintiff was interacting face-to-face with large numbers of members of the public for several hours on three days every week. During that time he was informing people of the existence of the Association and making them aware of the Association’s activities in accordance with item 4 of the Association’s Objects.
  1. During these discussions with the public, the plaintiff was providing information to assist and encourage these interested persons to research and consider carefully any decision by them to acquire any dog in accordance with item 2 of the Association’s Objects.
  1. In the final year before his expulsion, the plaintiff created in excess of 95% of the Association’s website content which, through various entries and articles, furthered items 2, 3 and 4 of the Association’s Objects. In the final six months that involved some updating activity on the website by the plaintiff on most days each week.
  1. The tasks undertaken by the plaintiff on behalf of the Association which have been set out in the preceding handful of paragraphs constituted a significant component of the plaintiff’s day-to-day activities.
  1. For around five (5) years, perhaps more, the plaintiff was wrongfully deprived of his opportunity to contribute to furthering the Association’s objects.
  1. In more than four years following the plaintiff’s termination of website administrator access, the Association’s website was seldom updated or amended.
  1. As well as having the effect of working against or defeating the Association’s Objects and the consequent damage to the Association itself, the sudden and improper expulsion of the plaintiff from membership and curtailment of those activities caused substantial damage to the plaintiff which the plaintiff estimates to merit payment of $8,000 damages in compensation to him.”
  1. [24]
    On 21 October 2016, on the hearing of the fourth strike-out application, Mullins J struck out the second particulars,[31] including paragraphs 6 to 14.  As to those paragraphs, her Honour said:

[20] Paragraphs 2 to 5 in the particulars filed on 6 May 2016 are in the nature of a general commentary and therefore must be struck out pursuant to r 162(1)(b). Paragraphs 6 to 13 which purport to be particulars of paragraph 138 of the second amended statement of claim are a summary of the evidence that Mr Thompson will no doubt seek to adduce at the trial. They are not particulars of the allegations in paragraph 138 of the second amended statement of claim which in basic terms assert that, as a result of the breaches of contract, the plaintiff has suffered damage, because he is no longer a member of the Association who can contribute to the Association’s activities and experience a sense of personal fulfilment from doing so. Those particulars must be struck out pursuant to r 162(1)(a) and (b).

[21] Paragraph 14 of these particulars provide:

‘As well as having the effect of working against or defeating the Association’s Objects and the consequent damage to the Association itself, the sudden and improper expulsion of the plaintiff from membership and curtailment of those activities caused substantial damage to the plaintiff which the plaintiff estimates to merit payment of $8,000 damages in compensation to him.’

[22] Mr Thompson appears to have plucked a figure out of the air of $8,000 as damages to compensate him for the alleged breaches of contract by the Association and the second, third and fourth defendants in respect of the termination of his membership. Any damages that are claimed must be damages of a nature that are recoverable for a breach of contract that relate to the breaches and the actual loss that flows from the breaches. Apart from attempting to quantify an amount for damages, paragraph 14 is inconsistent with the description of the damages found in paragraph 138 of the second amended statement of claim and on that basis should be struck out as having a tendency to prejudice or delay the fair trial of the proceeding (r 162(l)(a)).”[32]

  1. [25]
    Her Honour did not order the delivery of further particulars to replace those which were struck out.  No further particulars have been delivered.
  2. [26]
    Paragraph 138[33] of the second amended statement of claim was one of the paragraphs that the first and sixth defendants unsuccessfully sought to have struck out on the third strike-out application.  Mr Thompson submits that as he successfully defended the paragraph, its most recent version (paragraph 114 in the fifth amended statement of claim) should not be struck out.  On the occasion of refusing to strike out paragraph 138, Dalton J gave these ex tempore reasons:

“I considered whether or not paragraphs 138, 139[34] and 140[35] ought to be struck out nonetheless, because it seems to me that they do not disclose any basis for the award of damages known to the law. That remains my view, despite submissions by Mr Thompson. I think, however, looking at the matter pragmatically, I will not strike those paragraphs out. I think it is better to leave them in there and have the matter tried so that the trial judge can determine the legal points involved as well as any factual points which might arise at trial. I cannot see any great prejudice to the defendants in this for the pleadings just assert, essentially, that Mr Thompson’s feeling have been hurt. I cannot see that evidence as to this will prolong the trial or involve any great matter of defence.”[36]

  1. [27]
    The loss pleaded in paragraph 114 (previously 138) is “a loss of opportunity to continue to make significant contributions” to CKCSR’s activities[37] and a loss of “personal fulfilment”.[38]  Her Honour’s view that paragraph 138, 139 and 140 (now 114, 115 and 116) do not plead a compensable loss in contract is, in my respectful view, correct. 
  2. [28]
    Fink v Fink[39] was a case involving a contract reached between a husband and wife.  There had been difficulties in the marriage and an agreement was reached that the wife could remain in the matrimonial home and that he would not commence divorce proceedings within 12 months of the agreement.  She alleged that her husband breached the agreement in various ways, including by commencing divorce proceedings within the time prohibited by the agreement.  She claimed damages because she had been deprived of the opportunity:
    1. (a)
      of being reconciled to her husband;
    2. (b)
      of a normal married life with her husband; and
    3. (c)
      of living with and being supported and maintained by her husband in a comfortable environment during the rest of her life.
  3. [29]
    Dixon J (as his Honour then was) and McTiernan J explained:

“The question, whether a breach of the agreement contained in clause 2 not to take proceedings for divorce within the twelve months entitles the plaintiff to general damages which are substantial, is akin to the first question but is not exactly the same. On the footing that the institution of divorce proceedings about five months before the end of the stipulated year amounted to a breach of agreement, what the plaintiff lost was five months’ immunity from divorce proceedings, with presumably such chance as an additional five months might give her of her husband changing his mind and refraining from petitioning. What has been already said is enough to show that this chance cannot be made the subject of an award of substantial damages. But, is there any loss, that it is possible to appreciate, estimate, specify or state, implied by the deprivation of five months’ immunity from divorce proceedings? The petition has not yet been heard and as yet it is not known whether it will result in a decree nisi for dissolution or will be dismissed. If the former result be assumed, the plaintiff would have ceased to be a wife about five months earlier than if the time contracted for had been observed. The status of a wife does or may carry with it material advantages. In the event assumed she would, no doubt, be entitled as damages to such compensatory sum as can be fairly estimated to represent the temporal loss which the deprival of her status as a wife for five months may be supposed to constitute. If, however, the petition is dismissed, it is difficult to see what elements of loss are recoverable in an action ex contractu. Resentment, disappointment and the loss of esteem of friends are not proper elements. The contract is not that he will never bring divorce proceedings, but that he will not do so for twelve months. If for this breach of contract substantial damages are to be recovered it must be, not as compensation for the bare premature filing of the petition, but for such consequential loss as can be pointed to.”[40]

  1. [30]
    Baltic Shipping Co v Dillon[41] concerned an action brought by a passenger on a cruise liner which sank part way into a 14 day cruise.  She sued for a refund of the fare and, relevantly here, for compensation for disappointment and distress.  It was held that damages for disappointment and distress should be awarded.  Mason CJ, with whom Toohey J agreed,[42] and Gaudron J agreed on this point,[43] explained the principle in this way:

“On the other hand, as a matter of ordinary experience, it is evident that, while the innocent party to a contract will generally be disappointed if the defendant does not perform the contract, the innocent party’s disappointment and distress are seldom so significant as to attract an award of damages on that score. For that reason, if for no other, it is preferable to adopt the rule that damages for disappointment and distress are not recoverable unless they proceed from physical inconvenience caused by the breach or unless the contract is one the object of which is to provide enjoyment, relaxation or freedom from molestation. In cases falling within the last-mentioned category, the damages flow directly from the breach of contract, the promise being to provide enjoyment, relaxation or freedom from molestation. In these situations the court is not driven to invoke notions such as ‘reasonably foreseeable’ or ‘within the reasonable contemplation of the parties’ because the breach results in a failure to provide the promised benefits. In my view, this approach to the problem is to be preferred to the artificial expedient of saying that damages of the kind under consideration will be awarded for breaches of non-commercial contracts but not for breaches of commercial contracts. That expedient requires a distinction to be drawn between means easy to draw and, in any event, it is not a distinction which should necessarily be decisive in determining whether such damages are available or not.

In the present case, the contract, which was for what in essence was a ‘pleasure cruise’, must be characterized as a contract the object of which was to provide for enjoyment and relaxation. It follows that the respondent was entitled to an award of damages for disappointment and distress and physical inconvenience flowing from that breach of contract. Indeed, an award for disappointment and distress consequential upon physical inconvenience was justified on that account alone.”[44]

  1. [31]
    Baltic Shipping was recently considered and approved in Moore v Scenic Tours Pty Ltd.[45]
  2. [32]
    Mr Thompson does not plead any of the exceptions to the general rule that losses of the nature pleaded in paragraph 114 of the fifth amended statement of claim do not attract an award of damages.  Further, there is nothing in the material to suggest that Mr Thompson could prove such an exception.
  3. [33]
    The damages claimed cannot, as a matter of law, be recovered.  That engages the discretion in r 171 UCPR.  As already observed, Dalton J, in exercise of discretion, did not strike out paragraphs 138 to 140 of the second amended statement of claim.  However, since her Honour’s judgment, particulars of those paragraphs have been delivered.  Those particulars have been struck out and further versions of the statement of claim have been filed.  It is now over four years since the orders of Dalton J.  In my view, paragraph 114 should be struck out.

Paragraph 115

  1. [34]
    Paragraph 115 of the fifth amended statement of claim is in these terms:

“115. As a consequence of the breaches of contract by the First Defendant, Second Defendant John Pitts, Third Defendant and Fourth Defendant, the plaintiff has been required to endure a great deal of inconvenience, vexation and distress.”

  1. [35]
    Paragraph 115 is practically identical to paragraph 139 of the second amended statement of claim.  Paragraphs 15-25 of the second particulars concern paragraph 139 (now paragraph 115) of the fifth amended statement of claim.  Those particulars are:

“15. Caring for the foster dogs and the dogs boarded with him as well as the continual updating of the website comprised the majority of the plaintiff’s recreational activities during his time as member of the Association.

  1. The sudden absence of those activities caused the plaintiff inconvenience, vexation and distress.
  1. That their role within the organisation is and/or was a dominant feature of their leisure time is also true for some other members actively involved in furthering the Association’s objects.
  1. The plaintiff has suffered the anxiety and vexation of scores of sleepless nights occasioned by the improper and unlawful termination of his membership in the Association by the First Defendant, Second Defendant, Third Defendant and Fourth Defendant
  1. Following from and as a direct consequence of his unlawful expulsion from the Association, the plaintiff commenced suffering, for the first time in his life, periodic migraine auras - significant inconvenience, vexation and distress for him.
  1. The plaintiff faced the futility and physical inconvenience of travelling to the Gold Coast, on Saturday, 2 June 2012 to avail himself of John Pitt’s offer to view the Association’s meeting minutes at the secretary’s location and such access to the minutes then having been denied.
  1. Another inconvenience to the plaintiff was being wrongfully deprived of his right to be notified of all general meetings of the Association for around five (5) years, perhaps more.
  1. For around five (5) years, perhaps more, the plaintiff was thus wrongfully deprived of his rightful opportunity to participate in the Association’s decision-making process at general meetings which he found to cause him significant inconvenience, vexation and distress.
  1. As a consequence of his unlawful expulsion, the plaintiff faced the inconvenience and vexation of being deprived of pleasurably sharing social interactions with fellow members at such events as Association picnics.
  1. As a result of his being improperly expelled from membership in the Association the plaintiff faced the inconvenience and vexation of being deprived of participation in celebratory events with Association members such as the celebration on 16 December 2011.
  1. Improper and unlawful expulsion of the plaintiff from membership in the Association has caused considerable damage to the plaintiff which the plaintiff estimates to merit payment of $12,000 damages in compensation to him.”
  1. [36]
    Those particulars were struck out by Mullins J on the hearing of the fourth strike-out application, her Honour saying:

[23] Paragraphs 15 to 25 purport to be particulars of paragraph 139 of the second amended statement of claim. Paragraphs 15, 17 and 20 to 24 contain either irrelevant matters or matters of evidence and are not proper particulars. Paragraph 16 adds nothing to what is already set out in paragraph 139 of the second amended statement of claim. Paragraphs 18 and 19 are objectionable on the basis that they describe suffering in the nature of personal injury which Mr Thompson alleges he experienced as a result of the termination of his membership. In February 2016 I had struck out all paragraphs in the amended statement of claim that comprised allegations in the nature of a claim to recover damages for personal injury on the basis of Mr Thompson’s non-compliance with the Personal Injuries Proceedings Act 2002 (Qld). It is an abuse of process for Mr Thompson by way of particulars to attempt to re-introduce a claim to recover damages for personal injury. Paragraphs 18 and 19 therefore must be struck out pursuant to r 162(1)(d).

[24] Paragraph 25 of the particulars purports to quantify the damages claimed under paragraph 139 of the second amended statement of claim. It expresses Mr Thompson’s claim in terms, however, that do not correspond to that which is the subject of paragraph 139. In addition, as it is placed after the paragraphs that identified personal injury which Mr Thompson claims to have suffered, I infer that personal injury is incorporated in the ‘considerable damage’ which is described in paragraph 25. Paragraph 25 should therefore be struck out pursuant to r 162(1)(a) and (d).”[46]

  1. [37]
    No further particulars have been delivered.  Paragraph 115 claims damages for “inconvenience, vexation and distress” which, for the reasons I have explained when dealing with paragraph 114, are not compensable losses on a claim for breach of contract in these circumstances.  Paragraph 115 should suffer the same fate as paragraph 114 for the same reasons.

Paragraph 116

  1. [38]
    Paragraph 116 of the fifth amended statement of claim is practically identical to paragraph 140 of the second amended statement of claim.  Paragraph 116 is in these terms:

“116. As a consequence of these breaches of contract by the First Defendant, Second Defendant John Pitts, Third Defendant and Fourth Defendant, the plaintiff has been required to endure a degree of personal disgrace.

  1. (a)
    That disgrace was inflicted on the plaintiff as a direct result of the actions of the above-named Defendants.
  1. (b)
    The plaintiff’s own actions did not warrant such personal disgrace to him.
  1. (c)
    The plaintiff’s disgrace has been witnessed by persons who have subsequently become directly involved with the Association as well as other members of the community connected in various ways to persons involved in the Association.”
  1. [39]
    The second particulars provided particulars of paragraph 140 in these terms:

“26. Roget’s Thesaurus lists ‘disrepute’, ‘disreputableness’, ‘bad reputation’, ‘bad name’, ‘bad character’, ‘shame’, ‘dishonour’, ‘discredit’, ‘scandal’, ‘ignominy’ and ‘humiliation’ among the synonyms for ‘disgrace’.

  1. The First Defendant, Second Defendant, Third Defendant and Fourth Defendant took certain actions in their process to expel the plaintiff which resulted in them making a decision which negatively affected the character and position in society of the plaintiff but which did not satisfy the requirements of law nor the Association’s own Rules.
  1. For around five (5) years, perhaps more, the plaintiff was wrongfully understood to be of bad character by those persons connected in various ways with the Association or to be of poorer reputation than had been merited by the plaintiff’s own conduct.
  1. The plaintiff merits an award of compensatory damages in his favour to vindicate the plaintiff’s reputation, consolation for the distress and hurt caused and reparation for the injury done to the plaintiff by both the failure to conform to the terms of the contract constituted by the Rules and the wrongful expulsion of the plaintiff from the Association by the First Defendant, Second Defendant, Third Defendant and Fourth Defendant.
  1. Improper and unlawful expulsion of the plaintiff from membership in the Association caused significant damage to the plaintiff’s reputation which the plaintiff estimates to warrant payment of $9,000 damages in compensation to him.”
  1. [40]
    Mullins J also struck out these particulars.  Her Honour held:

[25] Paragraphs 26 to 30 of the particulars filed on 6 May 2016 purport to be particulars of paragraph 140 of the second amended statement of claim. Paragraph 140 alleges that as a consequence of the breaches of contract by the defendants, ‘the plaintiff has been made to endure a degree of personal disgrace’ which it is alleged has been witnessed by persons who have subsequently become involved with the Association and other members of the community connected with the Association. Paragraph 26 of the particulars is in the nature of a submission, paragraph 27 is completely irrelevant and paragraph 28 is a matter of evidence. Paragraph 29 is objectionable as it claims an award of compensatory damages ‘to vindicate the plaintiff’s reputation, consolation for the distress and hurt caused and reparation for the injury done to the plaintiff by both the failure to conform to the terms of the contract constituted by the Rules and the wrongful expulsion of the plaintiff’ which does not reflect the allegations in paragraph 140. Paragraph 29 must therefore be struck out pursuant to r 162(1)(a) and (b). Paragraph 30 is a claim for damages to the plaintiff’s reputation which again is not a particular of paragraph 140 and on the same basis as paragraph 29 must also be struck out.”[47]

  1. [41]
    In Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Another,[48] the New South Wales Court of Appeal considered a claim for damages for injury to reputation by an employee whose employment had been terminated without notice.  Basten JA[49] explained:

[54] What is meant by the concept of injury to reputation is not entirely clear in these circumstances. This was not a case in which the appellant sued for defamation based upon a statement published by the respondents. Rather, it seems to have fallen into one of two separate categories identifiable from the case-law relating to damages for breach of contract. Thus, on one view it could constitute part of the distress suffered by the appellant as the result of loss of esteem of friends, colleagues and acquaintances. However, damages on that account have been treated as generally unrecoverab1e for breach of contract: see Fink v Fink (1946) 74 CLR 127 at 144, where Dixon J and McTieman J stated: ‘Resentment, disappointment and the loss of esteem of friends are not proper elements [of loss, recoverable in an action on contract].’

[55] Alternatively, loss of reputation may be invoked in a commercial sense to include difficulty in obtaining alternative employment, a head of damage which has been accepted as relevant in relation to artists and public performers: see, for example, Herbert Clayton and Jack Waller Ltd v Oliver (1930] AC 209 at 220, per Lord Buckmaster. As his Lordship explained, it was not so much a matter of ‘loss of reputation’, but ‘the equivalent of loss of publicity’. However, subject to exceptions, this head of damage is excluded by the principle stated by Lord Loreburn LC in Addis (at 491), that damages are not recoverable ‘for the injured feelings of the servant, or for the loss he may sustain from the fact that his having been dismissed of itself makes it more difficult for him to obtain fresh employment’. Nevertheless, damages of these kinds are recoverable, the appellant contended, on the basis of the exceptions accepted in Baltic Shipping and by Ashley J in Aldersea v Public Transport Corporation (2001) 3 VR 499 at 509 [56]-[64].

[56] Baltic Shipping undoubtedly recognised exceptions to the general rule, in particular where a breach of contract gives rise to physical injury, psychiatric illness or even physical inconvenience, or where the subject matter of the contract is the provision of pleasure or enjoyment, the expectation of which is disappointed by the breach: see Mason CJ (at 362), Deane J and Dawson J (at 381) and McHugh J (at 394).

[57] The appellant did not seek to establish personal injury of the kind which might give rise to a claim for damages; nor can it be said that the contract was one which provided for pleasure or entertainment. Accordingly, as senior counsel for the appellant conceded, no such claim for damages was tenable, arising purely from the breach constituted by the termination without reasonable notice.”[50]

  1. [42]
    No further particulars have been filed.  There is nothing to suggest that there is any basis which Mr Thompson can plead to recover damages for “personal disgrace” and paragraph 116 should be struck out for the same reasons that paragraphs 114 and 115 should fail.

Paragraph 118

  1. [43]
    Paragraph 118 of the fifth amended statement of claim is in these terms:

“118. The Plaintiff suffered damage in the loss of status as a consequence of removal of his access as website administrator at the hand of the Fourth Defendant in concert with John Pitts in contravention of the procedures specified in the Association’s rules.  (see paragraph 146 below)”

  1. [44]
    This paragraph has no equivalent in earlier versions of the statement of claim.  Paragraph 118 refers to paragraph 146 which is in these terms:

“146. The timing and manner of their handling of the plaintiff’s administrator access to the website suggest that the Third Defendant and the Second Defendant John Pitts were already biased in the plaintiff’s disfavour;

the day prior to the management committee purportedly meeting to decide whether to demand that the plaintiff ‘show cause’ why his membership should not be terminated;

10 days prior to having received his representations in his defence and

12 days prior to the committee meeting to consider those representations.

Particulars

  1. (a)
    On Saturday 9 July 2011 the Fourth Defendant and the Second Defendant John Pitts decided to terminate the plaintiff’s administrator access to the Association’s website.
  1. (b)
    That decision was given effect on that same date.
  1. (c)
    That decision to cancel his website access was taken by them on the day before the management committee had even pretended to meet to consider whether to require the plaintiff to show cause as to why his membership should not be terminated.
  1. (d)
    Per section 17(1) of the rules, as the decision to grant such website access had been a resolution made by the membership at a general meeting (i.e. the annual general meeting held on 20 September 2010), it was beyond the powers of the management committee or members thereof to terminate such access.
  1. (e)
    The action to terminate the plaintiff’s administrator access was taken in a clandestine manner and not advised to the plaintiff by these management committee members nor by the committee itself.
  1. (f)
    The fact that plaintiff was not afforded the courtesy of being informed by the members of the management committee of their decision to curtail the plaintiff’s administrator access to the website suggests that these management committee members or the committee itself understood that such action would be unlikely to withstand any scrutiny as to its validity or timing.”
  1. [45]
    It is not pleaded that the removal of Mr Thompson “as website administrator” caused any financial loss.  What is pleaded is “loss of status”.  There are no facts pleaded which would bring Mr Thompson within the exceptions to the general rule identified in Baltic Shipping.  There is nothing in the material to suggest that he could plead and prove such an exception.  Paragraph 118 should be struck out.

Paragraph 119

  1. [46]
    Paragraph 119 is in these terms:

“119. The Plaintiff has also suffered wounded feelings as a consequence of John Pitts, the Third defendant, Fourth Defendant and Carolyn Shepherd having acted in contravention of the Association’s rules and contrary to the law.”

  1. [47]
    Paragraph 119 does not have an equivalent in earlier versions of the statement of claim. 
  2. [48]
    Paragraph 119 claims damages for “wounded feelings”.  Wounded feelings are not compensable by an award of damages in contract.  None of the exceptions identified in Baltic Shipping are pleaded and there is nothing in the material to suggest that any exception could be pleaded and proved.
  3. [49]
    Paragraph 119 ought to be struck out.

Paragraph 120

  1. [50]
    Paragraph 120 of the fifth amended statement of claim is in these terms:

“120. The plaintiff has suffered damage and loss.”

  1. [51]
    The second particulars[51] begins with the following:

“1. The particulars in this document relate to the damages pleaded in paragraphs 138, 139, 140, 142 and 225 of the second amended statement of claim.”

  1. [52]
    The body of the second particulars does not contain any particulars relevant to paragraph 142 of the second amended statement of claim which is the equivalent of paragraph 120.
  2. [53]
    Apart from the paragraphs to be struck out, there is paragraph 117 which appears as paragraph 141 in the second amended statement of claim.  Paragraph 117 is in these terms:

“117. As a consequence of the breaches of contract by the First Defendant, Second Defendant John Pitts, Third Defendant and Fourth Defendant, the plaintiff’s income has been reduced as a result of the loss of regular and frequent contact with dog owners who may have chosen to employ him to board their dogs as frequently had been the situation prior to his expulsion from membership.

Particulars

  1. (a)
    In the first year from August 2008 through July 2009 I cared for nine (9) foster dogs but Rosie was my only holiday boarder. For her stay the amount paid totalled $470.00.
  1. (b)
    In the second year from August 2009 through July 2010, as my involvement became broadly know, I provided holiday boarding to two pairs of dogs (each on multiple occasions) and the board fees paid that year totalled $1325.00.
  1. (c)
    The third year from August 2010 through July 2011 I boarded 4 dogs. One pair boarded on 3 occasion. Boarding fees paid in that year totalled $1355.00.”
  1. [54]
    Consequently, Mr Thompson has on foot a properly pleaded claim for damages (paragraph 117).  He has particularised that loss. 
  2. [55]
    It is unclear to me whether paragraph 120 is a separate and independent allegation of loss and damage or whether it is an allegation of loss and damage flowing from the allegations in paragraphs 114, 115, 116, 117, 118 and 119.
  3. [56]
    Mr Thompson has had various opportunities to plead his case.  Paragraph 120 does not comply with rr 150(1)(b) and 155 of the UCPR and should be struck out. 

The challenged paragraphs of the amended claim

  1. [57]
    Paragraphs 2 to 9 of the amended claim are in these terms:

“2. That a letter be drafted addressed to the plaintiff of sincere, genuine apology for having acted illegally in their dealings with the plaintiff. This letter to be endorsed with the full name, office and/or past office held and signature of every defendant.

  1. That this letter be given to the plaintiff and an exact copy of that letter be published as the first article on the front page of the association’s website, , and also to be published on the two Cavalier Rescue Facebook sites.
  1. That those publications remain in place on these three online sites for a period not less than the period from July 19, 2011 until the ultimate conclusion of this proceeding.
  1. That a general meeting of CAVALIER KING CHARLES SPANIEL RESCUE (QLD) INC promptly be convened with the purpose of providing the plaintiff with the opportunity to fully and comprehensively inform the membership of the events that lead to the termination of his membership in breach of the rules of Natural Justice and also in breach of the association’s Model Rules and ultimately to the restoration of the plaintiff’s membership.
  1. That the defendants reimburse the plaintiff for all his costs and the nominated interest associated with enquiring, researching, preparing, initiating the finally concluding this proceeding as specified in the attached Statement of Claim.
  1. That the defendants also promptly pay the plaintiff $29,000.00 in reparation for and acknowledgment of the damages listed in the attached Statement of Claim.
  1. The above relief claimed by the defendant is the consequence of:

denial of natural justice,

multiple breaches of contract,

multiple breaches of legislation,

multiples breaches by office bearers of their duties,

failures to act with due care, skill and diligence,

failures to act with honesty and in good faith and

actions taken with malice and ill will by the defendants.

  1. In compensation for the financial loss (to 1 August 2016) which is articulated in paragraph 141 of the Second Amended Statement of Claim and details provided in the “PARTICULARS” document filed on 8 April 2016, the plaintiff claims $6,650.00.”
  1. [58]
    Paragraphs 2 to 5 seek orders of a nature of mandatory injunctions.  Nothing is claimed which would justify any such orders.  There are, of course, other problems with the relief claimed.
  2. [59]
    Paragraph 6 is a claim for costs.  As a self-represented litigant, Mr Thompson is only entitled to receiving out of pocket expenses.[52]
  3. [60]
    Paragraph 7 of the amended claim claims $29,000 but that sum is not supported by the fifth amended statement of claim.  The same applies to paragraph 9.
  4. [61]
    Paragraph 8 relates to relief in paragraphs 2 to 7 which I intend to strike out.
  5. [62]
    Paragraphs 2 to 9 of the amended claim ought to be struck out and Mr Thompson have leave to file a second amended claim which will identify relief supported by the fifth amended statement of claim as it appears with paragraphs 114, 115, 116, 118, 119 and 120 struck out.

Orders

  1. [63]
    I make the following orders:
  1. Paragraphs 114, 115, 116, 118, 119 and 120 of the fifth amended statement of claim be struck out.
  2. Paragraphs 2 to 9 of the amended claim be struck out.
  3. The plaintiff has leave to file a further amended claim within 14 clear days of the making of these orders.
  4. The parties will be heard on the question of costs.

 

Footnotes

[1]Associations Incorporation Act 1981, s 71(3).

[2]Fifth amended statement of claim (CFI 161), paragraphs 121-143.

[3]Fifth amended statement of claim (CFI 161), paragraphs 144-155.

[4]CFI 215.

[5]CFI 124.

[6]CFI 161.

[7]Fifth amended statement of claim, paragraph 114(a).

[8]Fifth amended statement of claim, paragraph 114(b).

[9]Fifth amended statement of claim, paragraph 115.

[10]Fifth amended statement of claim, paragraph 116.

[11]Fifth amended statement of claim, paragraph 117.

[12]Fifth amended statement of claim, paragraph 118.

[13]Fifth amended statement of claim, paragraph 119.

[14]Fifth amended statement of claim, paragraph 120.

[15]CFI 83.

[16]No longer a party to the proceeding.

[17]CFI 85.

[18]CFI 90.

[19]Some of which are analysed later.

[20]CFI 102.

[21]CFI 103.

[22]Some of which are analysed later.

[23]CFI 111.

[24]CFI 113.

[25]CFI 124.

[26]CFI 129.

[27]CFI 142

[28]CFI 148.

[29]CFI 161.

[30]Who is deceased and is no longer a defendant.

[31]Order, CFI 141.

[32]Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc & Ors [2016] QSC 237, [20]-[22].

[33]Now paragraph 114 of the fifth amended statement of claim.

[34]Now paragraph 115 of the fifth amended statement of claim.

[35]Now paragraph 116 of the fifth amended statement of claim.

[36]Dalton J, unreported, 24 March 2016, pages 2-3.

[37]Paragraph 114(a).

[38]Paragraph 114(b).

[39](1946) 74 CLR 127.

[40]Fink v Fink (1946) 74 CLR 127, 144.

[41](1993) 176 CLR 344.

[42]At 383.

[43]At 387.

[44]At 365-366; similarly per Brennan J (as his Honour then was) at 371, Deane and Dawson JJ at 380-381 and McHugh J at 397-404.

[45](2020) 94 ALJR 481 at 489-490, [43]-[46].

[46]Thompson v Cavalier King Charles Spaniel Rescue Inc & Ors [2016] QSC 237, [23]-[24].

[47]Thompson v Cavalier King Charles Spaniel Rescue Inc & Ors [2016] QSC 237, [25].

[48](2008) 72 NSWLR 559.

[49]Giles JA and Campbell JA agreeing.

[50]Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559, 572-573, [54]-[57].

[51]CFI 113.

[52]Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007; Cachia v Hanes (1994) 179 CLR 403.

Close

Editorial Notes

  • Published Case Name:

    Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc

  • Shortened Case Name:

    Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc

  • MNC:

    [2020] QSC 234

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    13 Aug 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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