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Maguire v Racing Queensland Limited

 

[2012] QSC 219

 

SUPREME COURT OF QUEENSLAND 

 

CITATION:

Maguire v Racing Queensland Limited [2012] QSC 219

PARTIES:

JOHN PATRICK MAGUIRE

(plaintiff)

AND

RACING QUEENSLAND LIMITED ACN 142 786 874

(defendant)

FILE NO/S:

8110 of 2007

DIVISION:

Trial division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 August 2012

DELIVERED AT:

Brisbane 

HEARING DATE:

23 July 2012

JUDGE:

Atkinson J

ORDER:

  1. Judgment be entered for the defendant against the plaintiff.
  1. Application of the plaintiff filed 6 June 2012 be dismissed.

CATCHWORDS:

PROCEDURE — SUPREME COURT PROCEDURE — QUEENSLAND — PRACTICE UNDER RULES OF COURT — ENDING PROCEEDINGS EARLY — SUMMARY JUDGMENT — where defendant brought application for summary judgment against the plaintiff — where statement of claim amended eight times and struck out three times — where claim not supported by evidence — where claim not disclosing valid cause of action — where part of claim barred by limitation period — where damage claimed occurred before negligence alleged — where no causation between alleged negligence and damage — whether the plaintiff has a real prospect of succeeding — whether there is a need for a trial of the claim

Federal Court of Australia Act 1976 (Cth), s 31A

Limitation of Actions Act 1974 (Qld), ss 10, 10AA

Uniform Civil Procedure Rules 1999 (Qld), r 293

Agar v Hyde (2000) 201 CLR 552, considered

Batistatos v Newcastle City Council (2006) 226 CLR 256, considered

Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469, followed

Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202, considered

Chidgey v Wellner [2007] QDC 343, considered

Coldham-Fussell and Ors v Commissioner of Taxation [2011] QCA 45, followed

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, followed

Elderslie Property Investment (No 2) Pty Ltd v Dunn [2007] QSC 192, considered

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, considered

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, considered

Gray v Morris [2004] 2 Qd R 118, considered

Jessup v Lawyers Private Mortgages Ltd [2006] QSC 3, doubted

Jiona Investments Pty Ltd and Ors v Medihelp General Practice Pty Ltd [2010] QCA 99, considered

LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105, considered

McPhee v Zarb & Others [2002] QSC 4, considered

National Australia Bank v Hart [2002] QSC 51, considered

Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119, considered

Nevill v. Fine Arts Co [1897] 1 AC 68, considered

Nichols v Auctioneers and Agents Committee [2006] QDC 86, considered

Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259, considered

Rich v CGU Insurance Ltd (2005) 79 ALJR 856, considered

Ripar Australasia Pty Ltd v Johnson [2006] QDC 76, considered

Silbermann v CGU Insurance Limited (2005) 79 ALJR 856, considered

Spencer v Commonwealth (2010) 241 CLR 118, considered

Swain v Hillman [2001] 1 All ER 91, considered

Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1, considered

Westpac Banking Corp v Hughes [2012] 1 Qd R 581, doubted

Wilkinson v Stevensam P/L and Ors [2006] QCA 88, considered

Paramasivam v University of New South Wales [2007] FCAFC 176, considered

COUNSEL:

The plaintiff appeared for himself

AC Harding for the defendant

SOLICITORS:

The plaintiff appeared for himself

Cockburn Legal on behalf of the defendant

 

  1. The defendant, Racing Queensland Limited (“Queensland Racing”), brought an application for summary judgment against the plaintiff, John Maguire, in respect of the plaintiff’s claim pursuant to rule 293 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).  Alternatively, it sought an order that the plaintiff’s Further Amended Statement of Claim dated 3 February 2012 be struck out pursuant to rule 171 of the UCPR.
  1. The plaintiff, by his application dated 6 June 2012, seeks an order for directions, namely “that mediation be ordered or trial by jury”, and costs.

The Claim

  1. The plaintiff, a greyhound owner, claims damages for losses allegedly incurred as a result of the negligence of the defendant in respect of its management of its licensee trainers and handlers. In particular, he asserts that the defendant was negligent in that it failed to take disciplinary action against certain trainers and handlers to which he entrusted his greyhounds, and ensure the plaintiff’s dogs were broken in, trained and treated in a humane manner.
  1. The plaintiff has owned several greyhounds since 1997 for the purpose of racing. In the most recent Further Amended Statement of Claim, his allegations against the trainers and handlers are as follows:
  1. In 1998 at Ipswich, Dale Mortimer undertook to train a greyhound named “Butch” aka “Band of Blue”, which the plaintiff, together with his wife Allison Maguire, his cousin’s son, Darrin Maguire, and his own son, Anthony Maguire, had acquired based on that representation, but in fact failed to do so.  The Statement of Claim also makes reference to “bogus statements” made by Mr Mortimer in 1998, which the plaintiff brought to the attention of the defendant in 1999, but does not detail what those statements were.
  1. In 1999 at Fernvale, Barry Dull failed to train a greyhound named “Bossy” aka “Blazing Quinn”.  It is not expressly alleged that he undertook to do so.  The Statement of Claim also alleges that another greyhound, named “Ace” aka “Highfall” was taken to Mr Dull for training, but no mention is made of whether he did in fact do so.
  1. In 1999 at Fernvale, Kay Harradene made defamatory statements to the effect of “you’ve got a name in the industry” to the plaintiff, in front of his wife Allison Maguire and a Patrick Boyle.
  1. In 1999 at Park Ridge, Wendy Green failed to properly train the greyhounds and took “money under false pretences”.
  1. In 1999 and 2000 at Booval, Queensland, Col Sander failed to properly train the greyhounds and treated “Ace” in an inhumane manner.
  1. In 2004 at Coominya, Queensland, Ricky Fall failed to properly train four greyhounds, namely “Jasper” aka “Blazing Blade”, “Bruiser” aka “Blazing Bronze”, “Molly” aka “Blazing Mulberry” and “Milly” aka Blazing Ring”, and treated them in an inhumane manner.
  1. The plaintiff alleges that each of those six trainers was licensed by the defendant, and that the defendant was negligent in that it failed to take disciplinary action against them for their actions.
  1. The plaintiff further alleges that in 2005, one of his greyhounds, “Molly”, had dust mites and had an impairment of her left rear leg, and in 2007, another greyhound, “Jasper”, sustained trauma to its leg. Although the Statement of Claim provides no particulars as to how these incidents of poor health came about, it alleges that they were caused by the negligence of the defendant.
  1. As a result of that alleged negligence, the plaintiff claims $400,000 in damages, comprising a number of amounts. In addition to the $57,000 which he says he borrowed for the purpose of funding the training of the greyhounds, this total encompasses various general expenses in relation to the dogs, including flea treatment, vaccinations, registration, veterinary bills and everyday expenses, as well as $236,961 for damage to reputation, taking of money under false pretences, and “irreparable damage to the plaintiff’s dogs” as a result of improper training and inhumane treatment. It is not clear how this latter sum is arrived at, except that it brings the total damages up to a round figure.
  1. The defendant does not admit the claims relating to the various trainers, those matters being outside its knowledge. However, it denies liability because it says it did not breach any duty of care it may have owed to the plaintiff, and moreover, because the negligence alleged could not have caused the plaintiff any damage.

Procedural History

  1. The history of this litigation is long and repetitious and the plaintiff’s statements of claim have been struck out several times. It is illustrative to briefly consider the procedural history of the matter.
  1. The Claim and Statement of Claim was first filed on 14 September 2007. On 9 November 2007, the defendant filed an application to strike out the Statement of Claim, which was adjourned. On 18 December 2008, the plaintiff applied for default judgment, but that application was refused by the Registrar. No documents were filed in the matter then for over two years.
  1. On 8 March 2011, without seeking leave of the court to take a step in the proceedings as required by r 389(2) of the UCPR, the plaintiff applied for directions that the parties attend mediation. That application was dismissed by Boddice J on 9 May 2011, who required the plaintiff to provide further and better particulars of the Statement of Claim. An Amended Statement of Claim and Further Amended Statement of Claim were filed on 23 May 2011 and 24 June 2011, before the defendant filed its defence on 27 June 2011. On the same day, A Lyons J made orders striking out the plaintiff’s Further Amended Statement of Claim.
  1. Another Further Amended Statement of Claim was filed on 25 July 2011, and struck out on 7 November 2011.
  1. Three Further Amended Statements of Claim were filed on 11 November 2011, 5 December 2011 and 3 February 2012. The matter proceeded to mediation but, as the Mediator’s Certificate filed 20 December 2011 shows, it was not resolved.
  1. The applications of the plaintiff (for a mediation or trial date) and the defendant (for summary judgment and alternatively to strike out the pleadings) were filed on 16 March 2012 and 8 May 2012 respectively.
  1. The defendant’s application seeks, in the alternative, that the plaintiff’s Further Amended Statement of Claim dated 3 February 2012 be struck out. Since that application was filed on 8 May 2012, the plaintiff filed another Further Amended Statement of Claim on 13 July 2012. The amendments made are not substantial, and the alternative application should be taken as one to strike out both of those statements of claim.

Summary Judgment

  1. Rule 293(2) of the UCPR allows the Court, on application by the defendant, to give judgment for the defendant against the plaintiff for all or part of the claim if it is satisfied that the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's claim, and there is no need for a trial of the claim or the part of the claim.
  1. As recently noted by White JA, “there is now a considerable jurisprudence on this question in this State”.[1]

No real prospect of success: r 293(2)(a)

  1. Prior to the introduction of the UCPR, the approach to summary judgment was a strict one. The test required that summary judgment be awarded in only the clearest of cases, where one party had no prospects of success. It was framed in various terms by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW):

"so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".[2]

  1. Since the introduction of the UCPR there has been some disagreement as to whether the introduction of the UCPR has caused any change to this approach.
  1. In my view it has.[3]  The plain and unambiguous words of rules 292 and 293 provide that summary judgment can be ordered if there is “no real prospect of succeeding” and there is no need for a trial.  There is no reason to depart from the clear wording of these rules and imply a higher standard with reference to previous tests.  It is consistent with the English interpretation of rule 24.4 of the Civil Procedure Rules (UK), which is in similar terms to rules 292 and 293, to allow judgment to be entered summarily where the prospect of success is ‘fanciful’ as opposed to ‘real’, rather than to confine the operation of those rules to cases where even the most creative and speculative of arguments could not come to the respondent’s aid.[4]  
  1. The underlying philosophy of the UCPR in rule 5, “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”, indicates a departure from previous practices and is consistent with more readily giving summary judgment to bring an end to unmeritorious proceedings.[5] Such an approach is to the benefit of both parties and the administration of justice by avoiding the unnecessary expenditure of time and money on taking a matter to trial when one party has no real prospect of success.  The advantage of determining matters summarily in such cases is considerable.[6]
  1. In Bernstrom v National Australia Bank Ltd, Jones J, with whom the President and Cullinane J agreed, found that the introduction of the UCPR

reflects a change in the philosophy from that embodied in the former rules … Wilson J considered this new rule in Foodco Management Pty Ltd v. Go My Travel Pty Ltd and found guidance in the approach taken by the Court of Appeal in the United Kingdom in Swain ... This statement by Lord Woolf is clearly consonant with the philosophy of the UCPR ... which underpins the change in approach reflected in the new rules.[7]

  1. These statements consolidated the approach adopted in the trial division of this court.[8]  Similarly, in Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq), Holmes J (as her Honour was then), with whom Davies JA and Mullins J agreed, said that under the rules, the “level of satisfaction may not require the meeting of as high a test as that posited by Barwick C.J. in General Steel”, and the “appropriate inquiry is in terms of the Rule itself: that is, whether there exists a real, as opposed to a fanciful, prospect of success”.[9] 

The Narrow View

  1. On the other hand, a narrower approach to summary judgment which has found some support on the Court of Appeal can be traced back to the minority decision of Chesterman J (as his Honour then was) in Gray v Morris.[10]  His Honour cited the relevant passage from the judgement of Jones J in Bernstrom and continued:

I would respectfully disagree. In my opinion summary judgment is not to be given, either to defendant or plaintiff, except where it is just to do so and it will not be just to deprive a party of a trial unless it can be seen that their case is hopeless, or bound to fail. Unless that can be said of it, the conclusion cannot be reached that a claim or defence has no “real” prospect of success.[11]

  1. As his Honour would later recognise, his “judgment went further than that of the other members of the court”.[12]  His Honour reiterated that view in Jessup v Lawyers Private Mortgages Ltd, a first instance decision.[13]
  1. Chesterman JA expressed the same view in his Honour’s lead judgment in Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd.[14]  However, his Honour was again in the minority in this respect.  Daubney J said:

Whilst I agree with Chesterman JA that this appeal should be dismissed, I respectfully do not agree with his Honour's interpretation of the “no real prospect of success” test postulated under rr 292 and 293 of the Uniform Civil Procedure Rules in respect of summary judgment applications by plaintiffs and defendants respectively.[15]

  1. Holmes JA expressed disagreement in similar terms:

I do not agree, with respect, with his Honour's reasons insofar as he equates a claim (or defence) which has “no real prospect of succeeding” with one which is “bound to fail”. … I do not think it can be safely paraphrased in the way Chesterman JA proposes.[16]

  1. In Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd, Chesterman JA reiterated the same view in setting aside a summary judgment.  He said:

The primary judge approached the application for summary judgment by reference to what had been said in Deputy Commissioner of Taxation v Salcedo

It is worth observing that had the primary judge applied the test I expressed in Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202, and earlier in Gray v Morris [2004] 2 Qd R 118, the application for summary judgment would have been dismissed. The saving in time, inconvenience and money would have been considerable. 

The case was unsuitable for any summary assessment of whether there were real, as opposed to fanciful, prospects of a successful defence. I maintain the opinion that “the only safe principle to apply when dealing with applications … for summary judgment is that … a claim which has ‘no real prospects of succeeding’ is one which is ‘hopeless’ or one which is ‘bound to fail’.”[17]

  1. Muir JA, with whom Holmes JA agreed, considered that it was not a suitable case to enter judgment summarily because it

necessitated, amongst other things, the forming of an impression of the reasonable expectations of Traspunt in the light of its contractual dealings with Neumann: something which could be undertaken only imperfectly without the judge seeing and assessing the witnesses and forming a true appreciation of the relevant protracted dealings between the parties.[18]

  1. This reasoning suggests that the circumstances of that case were such that they required a trial of the issues, and the requirement set out in rule 292(2)(b) was not satisfied. Such statements do not lend any support to a narrower construction of rule 292(2)(a) than that which its ordinary meaning would suggest.
  1. Most recently, in Westpac Banking Corp v Hughes, Chesterman JA, with whom Fraser JA and Martin J agreed, stated that “summary judgment should be given only in the clearest of cases where there is a high degree of certainty about the ultimate outcome”.[19]

Salcedo

  1. In Salcedo, Williams JA, with whom the President and I agreed, had declined to adopt this view and again emphasised that the difference between “no prospect” and “no real prospect” of success was not devoid of meaning:

On the hearing of the appeal counsel for the appellant referred to Gray v. Morris [2004] 2 Qd R 118 and in particular observations by Chesterman J. at 126 and 127 that the onus was on the applicant for summary judgment to establish that the defence was "bound to fail", "one which cannot possibly succeed", one which had "no prospect of success" and/or one that was "hopeless". Those words were used in the context of reasoning by that learned judge based on the proposition that the Uniform Civil Procedure Rules 1999 (“UCPR”) had not effected any substantial change in the approach to summary judgment from that which applied under the former Rules of the Supreme Court.

With respect that approach is not correct.[20]

  1. His Honour went on to reiterate the principles to which I have referred.
  1. That decision was unanimous, and has not been overturned. This position was followed by inferior courts over the following years.[21]  In Elderslie Property Investment (No 2) Pty Ltd v Dunn, Daubney J expressed the view that since Salcedo, the position was “firmly established”.[22] In Bolton Properties, his Honour again said that that position “ought now be regarded as settled law”.[23]  A similar view has resonated in recent unanimous decisions of the Court of Appeal by which I am bound.[24]

No need for trial: r 293(2)(b)

  1. The narrower construction of the words ‘no real prospect of success’, it seems, has stemmed from

a concern that the enthusiasm expressed in Bernstrom might develop a jurisprudence of summary determinations which did not recognise the principle that it was an exceptional remedy to be granted only in clear cases where it was obvious that the applicant was entitled to judgment … that Bernstrom might have led to a rough and ready assessment of cases brought under UCPR r 292.[25]

  1. It need hardly be said that the UCPR does not, despite its emphasis on expediency, permit claims to be dispensed with despite the need for further investigation of factual matters. As much is ensured by the second step of the test, which requires that summary judgment only be given if no trial of the issues is required.
  1. It remains necessary to limit the cases in which judgment may be given summarily in the name of expediency by reference to the need to ensure that no party is deprived of the opportunity to fully plead their case. The admonition to that effect given by Barwick CJ in General Steel[26] is not inconsistent with the plain and ordinary meaning of the rules. 
  1. This has been reinforced on several occasions. In Gray v Morris, Phillip McMurdo J, with whom McPherson JA agreed, considered this interpretation, and confirmed that, while the new UCPR rules on summary judgment should be applied according to their plain meaning, that plain meaning did not alter the fact that the “power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”.  His Honour stated that “That remains a forceful and authoritative guidance and is in no way in tension with the application of these rules according to their own terms”.[27] Holmes J (as her Honour then was), with whom Davies JA and Mullins J agreed made statements to the same effect in Queensland University of Technology v Project Constructions.[28]
  1. The statements of Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde,[29] cited with approval by Gleeson CJ, McHugh and Gummow JJ in Rich v CGU Insurance Ltd,[30] were adopted by the President in Deputy Commissioner of Taxation v Salcedo:[31]

Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

  1. That statement has been repeatedly cited by the Court of Appeal and High Court and is not controversial on any view of the rules.[32]  Most recently, White JA said, referring to the High Court decision in Spencer v Commonwealth,[33] that “their Honours’ acceptance ‘that the power to dismiss an action summarily is not to be exercised lightly’ is applicable to any phrase which broadly has as its purpose the test for summary dismissal of a claim or defence”.[34]
  1. In Bolton Properties, Holmes JA explained the difference between the phrases in these terms:

While I doubt that the exploration of finer shades of meaning in this regard is really productive, because differences of opinion may reflect no more than entirely subjective perceptions of meaning, the first implies, to me at least, a conclusion reached after a hard-headed assessment, rejecting spurious arguments, while the second suggests a refusal to act unless complete conviction can be reached.[35]

  1. As pointed out by the Court of Appeal in LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd,[36] the High Court, in interpreting the equivalent (but not identical) provisions in the Federal Court[37] has warned against the dangers of engaging in semantics to clarify words which require no such assistance:

No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided.[38]

Discussion

  1. The claim by the plaintiff faces several difficulties. In Westpac Banking Corp v Hughes, the Court of Appeal noted that where the questions of fact are uncontentious and the outcome turns on a question of law, the occasion for summary judgment may arise.[39]  
  1. It could not be said of this case that the facts are agreed. However, even if all questions of fact are resolved in the most favourable manner to the plaintiff, that is, precisely in the manner alleged in the Statement of Claim, it appears that the action has no real prospects of success.
  1. The defendant argues that as a statutory authority it would ordinarily owe no duty of care given that the claim is predominantly for pure economic loss, and the plaintiff has pleaded no facts indicating a relationship between himself and the defendant that might suggest such a duty. It further asserts that the facts alleged do not support a breach of any such duty of care by the defendant, because they do not establish that the contractual disputes alleged constitute any form of misconduct on the part of the contractors, nor, in most cases, that the defendant was made aware of that alleged misconduct. These are serious problems with the plaintiff’s case that may indicate that the claim has no real prospects of success, and that no trial of the issue is required to reach that conclusion.
  1. There are also many inadequacies in the pleading, which, although less grave, nonetheless prevent it from disclosing a complete cause of action: for example, the failure in respect of the defamation action to plead an actionable imputation arising from the words “you’ve got a name in the industry”, which on its face could have one of two very different meanings. It is well established that whether particular words convey a defamatory imputation depends on the context of its publication.[40]
  1. However, there are other, more pertinent flaws which attend the plaintiff’s case that relieve me of the obligation to consider these in any more detail.
  1. The first of these is the issue of the limitation period. The damage on which the plaintiff relies in respect of Mr Mortimer, Mr Dull, Ms Harradene, Ms Green and Mr Sander arose between 1998 and 2000. Pursuant to section 10 of the Limitation of Actions Act 1974 (Qld), “an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person”, which those actions do not, “shall not be brought after the expiration of 6 years from the date on which the cause of action arose”.  In particular, under section 10AA of that Act, a limitation period of one year applies to any action in defamation.  The statement of claim was not first filed until 14 September 2007.  There is no evidence of any matters which would extend or postpone the limitation period.  The defendant has pleaded that “to the extent that any cause of action relied upon by the Plaintiff expired before 14 September 2007, the Defendant relies on its defence under the Limitation of Actions Act 1974”.  On this ground alone, judgment should be entered for the defendant against the plaintiff in respect of any damage which is said to arise from the defamatory statements alleged to have been made by Ms Harradene or the negligence of the defendant arising before 14 September 2001.  Unfortunately, due to the lack of specificity in the Statement of Claim, it is impossible to quantify with any certainty the proportion of the claim so affected, except to say that it is substantial. 
  1. The second issue is the question of causation. In brief, none of the facts pleaded suggest any connection between the alleged negligence of the defendant and the damage allegedly suffered by the plaintiff. The plaintiff claims damages for, inter alia, injuries sustained by his dogs, but has neither pleaded nor provided evidence to support any contention that those injuries are attributable to the defendant. For example, the plaintiff tendered three DVDs at the hearing for the purpose of demonstrating the cruelty with which his greyhounds were treated. Those discs show videos of, for example, the contrast between an injured dog and a healthy dog walking down a set of stairs. Of course, such material says nothing of how such injuries were caused, much less whether they can be attributed to any negligence on the part of the defendant.
  1. In addition to evidentiary deficiencies of this nature, there are two insurmountable obstacles to establishing such a causative link.
  1. First, the damage in each case is alleged to have occurred before the alleged negligence, and, a fortiori, cannot have been caused by it.  The complaint of the plaintiff, which he repeats in substantially identical terms several times throughout each of the eight versions of his Statements of Claim, is that

Racing Queensland Limited … breached their duty of care and were negligent when they failed to call [the trainer] before them to show cause why his [or her] licence should not be revoked for his [or her] misconduct.

  1. Clearly, any damage arising from the misconduct of a trainer in managing the plaintiff’s greyhounds cannot be said to have been in any way caused by the failure of the licensing body subsequently to take disciplinary action against that trainer. Except for the bare allegation that the failure to impose sanctions against previous trainers “sent a clear message to trainer Col Sander and trainer Ricky Fall not to break-in, train and treat the plaintiff’s dogs in a humane manner”, there are no facts alleged which are capable of suggesting that the later trainers knew anything about the history involving previous trainers or would have acted differently if they had known of disciplinary action against previous trainers.
  1. To construct an argument to this effect would require not only a determination that the defendant authority knew of the conduct of its licensees and that it was a breach of any duty of care to decline to take disciplinary action against Mr Mortimer, Mr Dull, Ms Harradene and Ms Green for failing to properly fulfil any contractual obligations, but that if the defendant had so disciplined those trainers, who were, on the alleged facts, were unknown to and lived in different regions, then Mr Sander and Mr Fall would have acted differently. It further requires that by Mr Sander and Mr Fall so acting, the losses of the kind described above would have been avoided. Such intermediate conclusions are not simply unlikely; they are unavailable on the facts pleaded. Those facts have now been pleaded eight times over five years and the deficiency of the claim has not ameliorated. It remains a fanciful one.
  1. Secondly, much of the loss claimed is in respect of expenses that one would expect the plaintiff to have incurred absent any negligence on the part of the defendant or misconduct of any description on the part of its alleged licensees. It is unlikely, for instance, that the plaintiff’s dogs would not have required flea treatment and vaccinations if they had been trained properly. The same applies to the claim in respect of the Ipswich City Council registration fees. The veterinary bills are not particularised or attributed to any particular injury suffered by the dogs, and to the extent that the statement of claim details particular injuries, it does not suggest how those injuries might be linked to the negligence of the defendant. Finally, perhaps most illustratively, is the $92,160 claimed in respect of “everyday expenses” for four of the plaintiff’s dogs.
  1. In Paramasivam v University of New South Wales, the Full Court of the Federal Court noted that

summary dismissal could be ordered where there was no real evidence to support the factual elements of a claim as well as where the claim was legally untenable.[41]

  1. The case of the current plaintiff suffers both of these deficiencies.
  1. Even under the narrower construction of the rules, summary judgment may be awarded in such a case “even where the point is difficult”,[42] since “Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed”.[43] 
  1. No extensive argument is required in this case, and the points of law are not difficult ones. The plaintiff’s case has no real prospects of success, and there is no need for a trial of the claim. Judgment should be entered for the defendant.
  1. Due to the conclusion I have reached on summary judgment, it is not necessary to consider the alternative argument to strike out the Further Amended Statement of Claim. It follows also that I must dismiss the application of the plaintiff. I will hear argument as to costs.

Orders

 

  1. Judgment be entered for the defendant against the plaintiff.
  1. Application of the plaintiff filed 6 June 2012 be dismissed.

Footnotes

[1] LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105 at [26].

[2] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129.

[3] Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at [47].

[4] See Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at [10]-[11], [47] referring to Swain v Hillman [2001] 1 All ER 91 at 92; Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at 259.

[5] Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469 at [38].

[6] See further Swain v Hillman [2001] 1 All ER 91 at 94 per Woolf LJ (“It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible.”)

[7] Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469 at [36]-[38].

[8] McPhee v Zarb & Others [2002] QSC 4 at [27]; cited with approval in National Australia Bank v Hart [2002] QSC 51 at [4].

[9] [2003] 1 Qd R 259 at 264-265.

[10] [2004] 2 Qd R 118.

[11] [2004] 2 Qd R 118 at 127.

[12] Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202 at [15].

[13] [2006] QSC 3 at [14].

[14] [2009] 2 Qd R 202 at [9]-[14].

[15] [2009] 2 Qd R 202 at [66].

[16] [2009] 2 Qd R 202 at [1]-[2].

[17] [2010] QCA 119 at [85]-[88].

[18] [2010] QCA 119 at [60].

[19] [2012] 1 Qd R 581 at [74]

[20] Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 234.

[21] Nichols v Auctioneers and Agents Committee [2006] QDC 86; Ripar Australasia Pty Ltd v Johnson [2006] QDC 76; Chidgey v Wellner [2007] QDC 343.

[22] [2007] QSC 192 at [6].

[23] [2009] 2 Qd R 202 at [67].

[24] Coldham-Fussell and Ors v Commissioner of Taxation [2011] QCA 45 at [98]-[99]; LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105 at [27], [30].

[25] Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202 at [16] per Chesterman JA.

[26] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 (“great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case”); see also Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99 (“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”).

[27] Gray v Morris [2004] 2 Qd R 118 at [46].

[28] Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 at 265.

[29] (2000) 201 CLR 552 at 575-576.

[30] (2005) 79 ALJR 856 at 859.

[31] [2005] 2 Qd R 232 at [3].

[32] Silbermann v CGU Insurance Limited (2005) 79 ALJR 856 at [18]; Batistatos v Newcastle City Council (2006) 226 CLR 256 at [46]; Spencer v Commonwealth (2010) 241 CLR 118 at [24]; Wilkinson v Stevensam P/L and Ors [2006] QCA 88 at [60]; Bolton Properties P/L v J K Investments (Australia) P/L [2009] QCA 135 at [28]; Jiona Investments Pty Ltd and Ors v Medihelp General Practice Pty Ltd [2010] QCA 99 at [34]; Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119 at [81].

[33] (2010) 241 CLR 118 at [60].

[34] LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105 at [29]; see also Coldham-Fussell and Ors v Commissioner of Taxation [2011] QCA 45 per White JA at [102].

[35] [2009] 2 Qd R 202 at [1].

[36] [2011] QCA 105 at [28].

[37] Federal Court of Australia Act 1976 (Cth), s 31A.

[38] Spencer v Commonwealth (2010) 241 CLR 118 at [58].

[39] [2012] 1 Qd R 581 at [74]

[40] Nevill v. Fine Arts Co [1897] 1 AC 68 at 72.

[41] [2007] FCAFC 176 at [41].

[42] Westpac Banking Corp v Hughes [2012] 1 Qd R 581 at [74].

[43] General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 130.

Close

Editorial Notes

  • Published Case Name:

    Maguire v Racing Queensland Limited

  • Shortened Case Name:

    Maguire v Racing Queensland Limited

  • MNC:

    [2012] QSC 219

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    20 Aug 2012

Litigation History

Event Citation or File Date Notes
Primary Judgment [2012] QSC 219 20 Aug 2012 -
Appeal Determined (QCA) [2013] QCA 60 26 Mar 2013 -

Appeal Status

{solid} Appeal Determined (QCA)