Gibbs v Triscott[2000] QCA 332

COURT OF APPEAL

DAVIES JA

PINCUS JA

CHESTERMAN J

Appeal No 4810 of 2000

ALAN HARRY GIBBS Appellant (Plaintiff)

v.

PAUL ANTHONY TRISCOTT Respondent (Defendant)

BRISBANE

..DATE 15/08/2000

JUDGMENT

DAVIES JA:  This is an application by the respondent to an appeal in this Court that the notice of appeal be struck out on the ground that it discloses no reasonable cause of action, alternatively is unnecessary and scandalous, and a further alternative that it shows that the action is frivolous or vexatious, and in the further alternative that it is an abuse of process of the Court.  There are alternative orders sought which, in my view, it is unnecessary to consider.

The notice of appeal, which is sought to be struck out, is against an order made in the Supreme Court on 18 May this year that the claim and statement of claim in the action be struck out.

The grounds of appeal, as they appear in the notice of appeal, are Supreme Court rule 14A on interpretation was violated; I had no idea of what was said; I was denied an adjournment to obtain legal representation; and I was denied the right to be heard.

The statement of claim which was struck out by the learned Supreme Court Judge claimed $400,000 for, it was said, loss of business, loss of credit, loss of expenses, damages for malicious prosecution and abuse of legal process, wrongful prosecution, damages caused by perjury and fraud.

The statement of claim in support of that claim alleges breaches occurring - breaches of duty by the applicant to Mr Gibbs occurring in 1991 and 1992, and Mr Gibbs has told us today that he first suffered loss in consequence of those breaches in 1991, or one can assume, perhaps, the latest in 1992.

It appears that from the reasons of the learned Supreme Court Judge that his Honour struck out the statement of claim for three reasons.

The first is that as appears from the facts which I have just stated the cause of action arose in 1991 or 1992 at the latest and therefore the limitation period had expired long before this action was commenced.

The second was, as the learned Supreme Court Judge said, the claim made in this action was as he put it, "exactly the same claim that he had brought", that's he, Mr Gibbs had brought, "over the years between 1992 and now", and the third basis for striking out the claim and statement of claim was that it disclosed no reasonable cause of action.

Notwithstanding anything that has been said during the course of argument by Mr Gibbs today, I can see nothing - no error made by the learned Supreme Court Judge in any of those respects.

In the first place the action sought to be instituted by this claim and statement of claim was well outside the limitation period.

Secondly, it does seem, as the learned Supreme Court Judge said, that the matters sought to be litigated in this claim are exactly the same as matters which Mr Gibbs has sought to litigate in previous proceedings and having looked carefully at the statement of claim it seems to me plainly that it fails to disclose any reasonable cause of action.

For those reasons it seems to me that the learned Supreme Court Judge was plainly right in striking out the claim and statement of claim and I would, therefore, order in accordance with the application made by the applicant here, that the notice of appeal be struck out.

PINCUS JA:  I agree and I would add only two things.  First, I found the material presented on behalf of the respondent to be helpful in understanding the history of the matter.

Secondly, the respondent, Mr Gibbs, told us in answers to questions from the Bench that he had no success in getting legal representation to act against Mr Triscott.  Now, I can accept that, but what he should be doing, perhaps, is to approach some lawyer whom he knows, not to necessarily act against Mr Triscott, but to give Mr Gibbs advice as to whether there is any sound basis in law for his pursuing Mr Triscott further. 

If Mr Gibbs, who is apparently a business man, is advised that there is no sound basis in law for his pursuing Mr Triscott further, one would expect him to take that advice, as a practical matter.

An example of the difficulty which Mr Gibbs finds himself in consists in his having told us today that he only found out this morning that in Queensland there is a time limit on bringing causes of action.  Now, that seems remarkable to me, because any lawyer, however inexperienced, could have told Mr Gibbs that if he had inquired.  So one of the matters which influences me is that I cannot understand why Mr Gibbs, as a hard-headed business man, does not simply go to a lawyer and pay him a fee to look at the papers and say, is this worth pursuing further, or should I just give it up as a lost cause?

I have nothing further to add and I agree with the reasons given by Justice Davies.

CHESTERMAN J:  I agree that the appeal should be struck out and I agree with the reasons given by Justice Davies and Mr Justice Pincus.  I would add only this.

Mr Gibbs made an oral application to extend the limitation period.  He mentioned section 31 of the Act which is obviously inapplicable.  Reference is made in the respondent's submission to section 38, but that is equally inapplicable because the allegation of fraud in the statement of claim is insufficient to make out any basis for the application of section 38.

DAVIES JA:  The order is as I have indicated.