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  • Unreported Judgment

Kankanamalage v TPG Internet Pty Ltd

 

[2020] QSC 282

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Kankanamalage v TPG Internet Pty Ltd [2020] QSC 282

PARTIES:

Nihal Kankanamalage

(Plaintiff)

v

TPG Internet Pty Ltd (ACN 068 383 737)

(Defendant)

FILE NO:

BS 12052 of 2018

DIVISION:

Trial Division

PROCEEDING:

Directions Hearing (Case Flow Review)

DELIVERED ON:

11 September 2020, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2020

JUDGE:

Bowskill J

ORDERS:

The proceeding is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – where the proceeding was placed on the case flow management list – where the plaintiff failed to appear at two case flow review hearings, on the basis that he objected to doing so because the court should give judgment on his claim on the basis of the filed documents – whether the proceeding should be dismissed under r 370 of the Uniform Civil Procedure Rules 1999

Uniform Civil Procedure Rules 1999 (Qld), r 370

COUNSEL:

No appearance for the plaintiff

SOLICITORS:

No appearance for the plaintiff

T Moffatt for the defendant

  1. [1]
    On 7 November 2018 the plaintiff, Mr Kankanamalage, filed a claim against the defendant, TPG Internet Pty Ltd, in which he asserted that:

“By stopping the internet service to me the damage done to me is massive but I request a total compensation of Ten million AUS to remedy the loss incurred by me by the respondent’s irresponsible action.”

  1. [2]
    The statement of claim is a narrative document, which does not comply in any sense with the Uniform Civil Procedure Rules 1999.   It appears the plaintiff’s complaint is that on about 19 October 2018 his internet service with TPG was stopped.  He alleges he had various telephone conversations with a TPG customer service staff member about this, and after four days decided to go ahead with legal action against TPG because they had taken a direct debit from him.  A document attached to the statement of claim shows this to be in the amount of $59.99.  The plaintiff pleads that the internet is very important to him, because:  firstly, he conducts his “inventions selling business” using the internet, which he asserts is worth over two billion US dollars; secondly, his daughter is studying year 11, uses the internet for her school work and experienced severe discomfort and damage to her school studies; and thirdly, his wife spends her leisure time after work watching Sri Lankan tele dramas using the internet and experiences severe discomfort without it.
  2. [3]
    On 12 December 2018 the plaintiff filed a request for default judgment.  That was refused, in part because there was no evidence of service and otherwise because there was no apparent basis for the claim for $10 million.
  3. [4]
    The plaintiff presumably did then serve the defendant, because a notice of intention to defend was filed on 22 July 2019. 
  4. [5]
    A reply was filed on 21 October 2019, contending that the defence was filed out of time and demanding the court deliver default judgment, as well as asserting that the defence has no meaning, and reiterating the plaintiff’s complaint about his internet service being unavailable for a period of time.
  5. [6]
    A further reply was filed on 7 November 2019, in the same form as the previous one, with the addition of an extra sentence which states the internet service was not available from 23 October 2018 to 19 November 2018.
  6. [7]
    No other steps were taken in this matter, and on 9 July 2020 a case flow intervention notice was sent – a process which is instigated when a matter has not been resolved, 180 days after the defence has been filed.
  7. [8]
    Correspondence on the file reveals the following has occurred since then.
  8. [9]
    On 29 July 2020 the plaintiff sent an email to the case flow manager, in response to the intervention notice.   The plaintiff referred to the documents which had already been filed and said he requested the Supreme Court “to deliver a genuine judgment depending on the above submissions on this claim file”.
  9. [10]
    As that did not address the steps required to be taken in response to a case flow intervention notice,[1] the matter was listed for case flow review on 21 August 2020.  A notice sent to the parties to that effect informed that the parties or their legal representatives were expected to appear.  A covering email, sent on 11 August 2020, also stated that appearances were required.
  10. [11]
    On 13 August 2020 the plaintiff sent an email to the case flow manager attaching the statement of claim, reply, further reply, a document apparently sent to the case flow manager on 2 August 2020 and what may be called a submission dated 12 August 2020.  The plaintiff states in the submission document that his case “is a type of case that the judgement should be delivered pending on the in writing submitted documents of both the parties”.  He states that if he appears at the court hearing on 21 August 2020 he will simply verbally reproduce the contents of the documents he has already submitted, and if asked any questions, will refer to the documents already submitted.
  11. [12]
    At the case flow review hearing on 21 August 2020 the legal representative for the defendant appeared, by telephone, but the plaintiff did not. 
  12. [13]
    At my direction, the case flow list manager emailed the parties on 24 August 2020, advising that the review had been adjourned to 11 September 2020, and that appearances on that occasion were required.
  13. [14]
    By email on 25 August 2020, the plaintiff responded to the case flow list manager (without copying the solicitor for the defendant), saying:

“I have already submitted to the supreme court my verbal statement in writing as I am much more confident in giving my verbal statement in writing rather than giving it verbally.  Therefore please accept my verbal statement submitted in writing.”

  1. [15]
    Again at my direction, the case flow list manager responded, by email on 26 August 2020, as follows:

First, may I reiterate that any communications you send to the court must be copied to the other party.  Please ensure you do this in future.

Second, you are required to appear at the case flow review hearing which has been adjourned to 9.15am 11 September 2020.    You may appear in person or, if that is difficult, you may appear by telephone.  But you must appear.   You may be permitted to refer to a written document when you appear, but the court will not proceed only on the basis of documents you send by email. 

If you require the assistance of an interpreter, that is permissible, but you must arrange and pay for the interpreter.

  Please be aware that, under rule 370 of the Uniform Civil Procedure Rules, if you do not attend the case flow review hearing on 11 September 2020, the court has the power to, amongst other things, dismiss the proceeding.

  1. [16]
    The plaintiff responded, by email on 27 August 2020, saying:

“I would like to point out to the fact that, the above case is a type of case, the judgement should be delivered depending on the submitted facts in writing.  I also have submitted my complete verbal statement to the court and to the defendant via email.  if the court believes documents submitted via email are not acceptable, I would like to draw the attention of the court to the total case file in which contains all my documents and were submitted to the supreme court personally.”

  1. [17]
    At the beginning of this week, on 7 September 2020, the case flow manager emailed the parties with instructions for how to appear by telephone should they wish to do so and specifically requested the plaintiff to acknowledge receipt of the email.
  2. [18]
    The plaintiff did that, by email on the same day, in which he said:

“I strongly oppose this procedings as this is a type of case that the judgement should be delivered depending on the in writing submissions of both the parties.  Further I have submitted my verbal statement in writing to the caseflow manager and to the defendant.  and I strongly request from the caseflow manager to strict to the correct procedure and deliver a genuine judgement on this claim file.”

  1. [19]
    The case flow review hearing proceeded this morning, commencing shortly after 9.15am.  Mr Moffatt appeared on behalf of the defendant, by telephone.  There was no appearance by the plaintiff, by phone or in person.
  2. [20]
    I am satisfied the plaintiff is aware of the case flow review scheduled for today, and received notification about appearing by telephone.  Further, I am satisfied the plaintiff is aware that appearances were required today, and is aware of the court’s power under r 370 of the UCPR to dismiss the proceeding should he fail to appear.
  3. [21]
    Rule 370(2) empowers the court to dismiss the proceeding, if a party, after receiving notice of a hearing for directions, does not attend the hearing for directions.  Under r 370(3), in deciding whether to dismiss the proceeding, the court must have regard to the principle that the interests of justice are paramount.
  4. [22]
    The plaintiff has now failed to appear at a directions hearing twice.  He essentially says he wants the matter dealt with on the papers – that is, on the documents which have been filed. 
  5. [23]
    I am satisfied it is in the interests of justice to dismiss this proceeding.  The claim by the plaintiff lacks any rational basis, is misconceived as a matter of law, and has no prospects of succeeding.  It is not in the interests of justice to allow the proceeding to remain on foot, which in turn will involve the defendant incurring further costs.  The plaintiff has consistently demonstrated that he does not intend to appear at the court.  His understanding that the claim could be dealt with on the basis of the documents he has filed, by giving judgment in his favour, is also entirely misconceived.
  6. [24]
    The order of the court is that the proceeding is dismissed.
  7. [25]
    The defendant does not seek any order for its costs of the proceeding.

Footnotes

[1]  As to which, see Practice Direction 4 of 2020.

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Editorial Notes

  • Published Case Name:

    Kankanamalage v TPG Internet Pty Ltd

  • Shortened Case Name:

    Kankanamalage v TPG Internet Pty Ltd

  • MNC:

    [2020] QSC 282

  • Court:

    QSC

  • Judge(s):

    Bowskill J

  • Date:

    11 Sep 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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