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Labaj v Lollo Plumbing Pty Ltd (in Liq)

 

[2005] QCA 86

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

General Civil Appeal

Application for Extension of Time

ORIGINATING COURTS:

DELIVERED ON:

1 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2005

JUDGES:

Williams and Keane JJA and Holmes J

Judgment of the Court

ORDER:

1.In each appeal:

(a)appeal dismissed

(b)appellant/applicant to pay the costs of the respondents to be assessed on the indemnity basis

2.In Appeal No 11245 of 2004, application for an extension of time within which to appeal is dismissed

3.The Registrar is to require the appellant to show cause before a judge of the trial division by written submission to the court why the court should not order that the appellant be barred from making any further application in proceedings being TS968 of 2003 and BD1968 of 2004 without the prior leave of a judge of the court in which the proceeding is pending

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY - appellant unsuccessfully sought judgment in default of appearance - appellant had served claim on defendants by post - not personal service as required by rules - leave to appeal not sought or obtained pursuant to District Court of Queensland Act 1967 - whether appeal properly instituted - whether decision below correct

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY - appellant unsuccessfully made application that the Court admit to proof two claims in the liquidation of a company - where dispute as to whether claim made subject of request for admission to proof under r 5.6.53 Corporations Regulations 2001 (Cth) - where seeks to pre-empt matters before Supreme Court - whether judge below was in error

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - TIME FOR APPEAL - EXTENSION OF TIME - WHEN REFUSED - where substantial delay - where seek to join further party on appeal

Corporations Regulations 2001 (Cth), r 5.6.53(1)(a)

District Court of Queensland Act 1967 (Qld), s 118

Uniform Civil Procedure Rules 1999 (Qld), r 106

COUNSEL:

Appellant/applicant acted on his own behalf

M H Hindman for the respondents

SOLICITORS:

Appellant/applicant acted on his own behalf

Wilson/Ryan/Grose (Townsville) for the respondents

[1]  THE COURT:  These three matters were heard together.  They may be summarized as follows:

(a) Appeal No 8179 of 2004 is an appeal by the plaintiff in proceedings pending in the District Court in Brisbane from a decision of Brabazon DCJ given on 2 September 2004 whereby his Honour refused an application by the plaintiff for judgment in default of appearance by the defendants in that action;

(b) Appeal No 11245 of 2004 is an application for an extension of time within which to appeal against a decision of Cullinane J given on 3 September 2004 whereby his Honour ordered that a separate action by the plaintiff then pending in Townsville be dismissed as against the first defendant Lollo Plumbing Pty Ltd (in liquidation) ("Lollo Plumbing") and that the claim be struck out against the other defendants, with leave being given to the plaintiff to replead his claim against them.  The appellant has joined the liquidator of the first defendant as a respondent to the appeal;

(c) Appeal No 11000 of 2004 is, inter alia, an appeal against a decision of Douglas J given on 15 December 2004, whereby his Honour dismissed the appellant's application that the Court admit to proof in the liquidation of Lollo Plumbing two claims, each dated 26 September 2004, one for $315,700 and one for $23,334.25.

Appeal No 8179 of 2004

[2] The decision by Brabazon DCJ was based on the appellant's failure to prove that the claim which he had instituted had been properly served on the defendants in that proceeding.  Personal service was required by r 106 of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR").  It appears that service was effected by post;  service by post is not personal service within the meaning of the UCPR:  they are expressly referred to as different modes of service (cf r 112(1)(d)).  His Honour's decision to refuse to allow the plaintiff's application for default judgment to proceed in the absence of proof of personal service was correct.

[3] It seems to us to be doubtful that the present appeal is competent because the order of Brabazon DCJ was not a final judgment within the meaning of that term as used in s 118(2) of the District Court of Queensland Act 1967 (Qld), and leave to appeal has been neither sought nor obtained pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).  Be that as it may, the decision sought to be challenged has not been shown to be affected by error.  The appeal should be dismissed.

Appeal No 11245 of 2004

[4] As to the application for an extension of time to appeal from the decision of Cullinane J:

(a) the basis for his Honour's dismissal of the suit against Lollo Plumbing was that it is a company in liquidation and leave to proceed against it has not been sought or obtained by the appellant contrary to the requirements of s 500(2) of the Corporations Act 2001 (Cth);

(b) the basis for his Honour striking out the claim against the other defendants is that, although the appellant asserts in his claim that he was injured in the course of his performance of a contract of employment, he has not complied with the requirements of the WorkCover Queensland Act 1996 (Qld) in relation to the commencement of proceedings for damages for personal injuries.

[5] In our view his Honour's decision has not been shown to be erroneous on either of these points.

[6] In any event, the statement of claim on which the appellant sought to rely was liable to be struck out on the ground that it did not disclose a reasonable cause of action and was embarrassing in its failure to plead material facts rather than conclusions.

[7] This appeal might be dismissed on these grounds;  but it appears that the appeal is not competent.  The notice of appeal is dated 16 December 2004 but the first intimation of any intention to appeal was given on 23 December 2004 when the notice of appeal and an application for an extension of time were filed.  No explanation has been given for this quite substantial delay, even in the appellant's written submissions in response to the respondents' outline of argument.  No good reason is shown for the Court to exercise its discretion in favour of granting an extension of time.

[8] Finally, in relation to this matter, the fifth respondent, the liquidator of Lollo Plumbing, was not a party to the proceedings before Cullinane J.  There is no basis for the appellant's attempt now to join the liquidator.

[9] For these reasons the application for an extension of time and the notice of appeal in this matter should be struck out.

Appeal No 11000 of 2004

[10]  As to the appeal from the decision of Douglas J, there was a factual dispute as to whether the smaller claim had been made the subject of a request for admission to proof under r 5.6.53(1)(a) of the Corporations Regulations 2001 (Cth).  That being so, Douglas J declined to allow the application to proceed.  That course was open to him as a matter of the practise of the Court in relation to disputed questions of fact.

[11]  As to the claim in respect of the larger amount, the respondent responded to the appellant's claim, albeit late.  The learned primary judge declined to make an order under r 5.6.53(2).  His Honour was entitled to take this course in that his Honour was not obliged in the circumstances to make an order under r 5.6.53(2).

[12]  In any event, the appellant's proof of debt seeks to pre-empt the issues in the proceedings which were dismissed by Cullinane J on 3 September 2004.  This circumstance afforded his Honour sufficient ground to refuse the application.

[13]  The appellant also complains that his Honour declined to grant the appellant "consent" to proceed in the proceedings which had been the subject of the orders by Cullinane J referred to above.  His Honour declined this application on the basis that these proceedings were the subject of the orders made by Cullinane J which had not then been appealed.  Douglas J was plainly correct to decline the invitation to circumvent the orders of Cullinane J in this illegitimate way.

[14]  The appellant also seeks other forms of relief in relation to matters of complaint not raised before Douglas J.  This Court should not entertain these claims raised for the first time on appeal.

Summary

[15]  In arriving at the above conclusion the Court has carefully considered the points raised in the outline of argument and outline of argument in reply submitted by the applicant/appellant but has concluded that there is no substance in the matters raised therein.  The respondents claim that the appeals are vexatious in that there is no arguable basis for them.  That seems to us to be correct.  Whether or not the appellant has a genuine grievance against the respondents or any of them, the manner in which he seeks to pursue his claims is aptly characterized as an abuse of the court's process.  The Court will not allow its processes or the processes of other Queensland Courts to be deployed as an engine of oppression.  Accordingly, the appellant should be ordered to pay the respondents' costs including reserved costs on the indemnity basis.

[16]  We order in each appeal:

(a) that the appeal be dismissed;

(b) that the appellant pay the costs of the respondents to be assessed on the indemnity basis.

[17]  In addition, in relation to Appeal No 11245 of 2004, the application for an extension of time within which to appeal should be dismissed.

[18]  In the circumstances we also order in each appeal that the Registrar require the appellant to show cause before a judge of the trial division by written submission to the court why the court should not order that the appellant be barred from making any further application in proceedings being TS968 of 2003 and BD1968 of 2004 without the prior leave of a judge of the court in which the proceeding is pending.

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Editorial Notes

  • Published Case Name:

    Labaj v Lollo Plumbing P/L (in Liq) & Ors

  • Shortened Case Name:

    Labaj v Lollo Plumbing Pty Ltd (in Liq)

  • MNC:

    [2005] QCA 86

  • Court:

    QCA

  • Judge(s):

    Williams JA, Keane JA, Holmes J

  • Date:

    01 Apr 2005

Litigation History

No Litigation History

Appeal Status

No Status