Von Schulz v Morriello[1999] QCA 436

COURT OF APPEAL

DAVIES JA

PINCUS JA

DOUGLAS J

Appeal No 10932 of 1998

KARL AND THERESIA MARTHA CITRA VON SCHULZ

(Plaintiffs)Applicants

and

VALENTINO AND GERARDA MORRIELLO

(First Defendant)First Respondent

and

GRANT CURRIE AND CURE ALL PEST CONTROL PTY LTD

(Second Defendant)Second Respondent

BRISBANE

DATE 16/11/99

JUDGMENT

DAVIES JA: Until this morning the application which was before this Court was an application to set aside an order striking out an appeal to this Court by the applicants and to reinstate that appeal. The order, which was made by the President, was one that the applicants file an appeal record book by 5 November and that if they fail to do so their appeal be struck out with costs for want of prosecution.

The applicants failed to file the appeal record book by the due date and the appeal was struck out. There would be no point in setting aside this order and reinstating the appeal if it were plain that there was no substance in the appeal. It is appropriate, therefore, that I turn to that question first.

The appeal was from an order of a Supreme Court judge in Chambers on 29 October 1998 that the writ of summons in this matter be struck out on the ground that it was vexatious and an abuse of process. The proceedings instituted by the writ were, as appears from the statement of claim intended to be delivered by the applicants, identical to proceedings resolved between the applicants and the respondents by a mediation agreement pursuant to s. 107 of the Supreme Court of Queensland Act 1991.

That action resolved by mediation was commenced by writ number 5486 of 1997. The present proceedings were commenced by writ number 8411 of 1998 issued on 12 October 1998. The former action resulted in a mediation on 3 December 1997 in which the applicants were represented by counsel and solicitors. 

The mediation was conducted by Ms Wilson QC, as Her Honour then was. The mediation agreement, which recorded the terms of settlement between the parties on 3 December 1997, recorded that the respondents would pay to each appellant the sum of $20,000 of which $2,000 would go to the Health Insurance Commission and the balance to the applicants.

In consideration of that agreement the applicants agreed to execute the deeds of release discharge and indemnity. The agreement was signed by the applicants' solicitors on their behalf. On the same day however each of the applicants signed a release discharge and indemnity in favour of the respondents. The sums of $20,000 were duly paid on 17 December and those cheques were presented and paid.  It is plain that the applicants were anxious to receive that money and that they received it.

It is unnecessary to detail the course of events subsequent to that. It is sufficient to say that the applicants failed to file a notice of discontinuance of the first action and it was ordered to be dismissed; that an application to set aside that order was in turn dismissed; and that an appeal to this Court followed and the applicants have now sought special leave to appeal to the High Court from an order of this Court made in that appeal. We have been told this morning that that application will be heard next year.

As I have already mentioned, it is abundantly clear that this second action seeks to litigate the same issues compromised by the agreement already referred to.  Indeed, as I have mentioned, the statement of claim in this action is in identical or almost identical terms to the statement of claim which would have been delivered in the first action. There can be no doubt in those circumstances that these proceedings constitute an abuse of process.

The applicants also seek to make allegations that the order striking out the writ was an attempt by the learned primary judge to cover up earlier improper conspiracies by members of the judiciary, lawyers and the respondents. There is no substance in those additional allegations.  It follows, for all of these reasons, that the order striking out the writ in this action was plainly correct and that there is no arguable basis of appeal against that order. 

The applicants this morning, however, also sought to obtain the leave of this Court to permit them to present an information - a criminal information against certain persons pursuant to s. 686 of the Criminal Code. They sought to institute proceedings for maliciously administering poison with intent to harm, s. 322, or alternatively for negligently causing harm, s. 328 of the Criminal Code.

The facts on which they seek leave are those which form the basis of the civil action which they have compromised and the civil action which is now before this Court and was the subject of the order made by Justice Moynihan. No additional facts come to light apart from those which have been agitated already in respect of the civil action.

In those circumstances there is no proper basis for such a prosecution and it ought not to be allowed to proceed. For those reasons I would refuse the application which the applicants now make. Accordingly, the application to set aside the order striking this appeal out should be dismissed with costs and the application made to this Court pursuant to s. 686 of the Criminal Code should also, in my view, be dismissed with costs.

PINCUS JA: I agree.

DOUGLAS J: I agree.