Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc
[2022] QCA 149
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- Unreported Judgment
- Appeal Determined (QCA)
- Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2022] QCA 149
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Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2022] QCA 149
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2022] QCA 149
[2022] QCA 149
COURT OF APPEAL
BOND JA
Appeal No 6511 of 2022
SC No 9148 of 2013
JAMES BOYD THOMPSONAppellant/Respondent
v
CAVALIER KING CHARLES SPANIEL
RESCUE (QLD) INCFirst Respondent/First Applicant
KATHERINE LEPELAARSecond Respondent/Second Applicant
BRISBANE
FRIDAY, 12 AUGUST 2022
JUDGMENT
BOND JA:
- [1]In Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2022] QSC 82, judgment published on 9 May 2022, the primary judge made the following orders:
“1On the application by the third defendant filed on 25 February 2022 the plaintiff’s claim against the third defendant is dismissed.
2On the application filed by the first defendant on 25 February 2022 the plaintiff’s claim against the first defendant is permanently stayed.
3The parties may make any submissions on costs in writing within 14 days.”
- [2]The plaintiff commenced an appeal before this Court by notice of appeal dated 6 June 2022. The notice of appeal seeks orders effectively reversing the outcome obtained before the primary judge.
- [3]Each of the two respondents applies to strike out the notice of appeal. Both applications rely on the Court’s undoubted jurisdiction to strike out a notice of appeal:
- (a)for non-compliance with the rules, in particular the r 747(1)(b) requirement that a notice of appeal state briefly and specifically the grounds of appeal; and
- (b)where, to use the words of Muir JA in Colston v McMullen [2011] QCA 2 at [13], the notice of appeal is “not recognisable as a notice of appeal. It is prolix, obscure, argumentative and scurrilous. It plainly constitutes an abuse of process”.
- [4]I will deal with the applications in the sequence in which they were filed.
- [5]Before doing so, it is necessary to explain briefly the issues which were before the primary judge and how his Honour resolved them.
The decision of the primary judge
- [6]The background to this dispute as recorded by the primary judge was as follows.
- [7]The first respondent is a small, not for profit association now with seven members. It was and is funded solely by donations from members of the community and operated by a group of volunteers. It is primarily concerned in the rescue and rehoming of dogs of the Cavalier King Charles Spaniel breed, predominantly in Queensland. The first respondent was and is a charity.
- [8]In June and July 2011, the first respondent was regulated by rules adopted in 2006 which followed the form of the “Model Rules Version 5” under the Associations Incorporation Act 1981 (Qld) (the Act). They included rules providing for a management committee to terminate a member’s membership if the member conducted himself or herself in a way considered to be injurious or prejudicial to the character or interest of the association, and for a terminated member to appeal the management committee’s decision to a general meeting.
- [9]On 21 July 2011, the management committee of the first respondent resolved to terminate the plaintiff’s (i.e., the appellant’s) membership of the association. At that time, the committee comprised six persons including the present second respondent.
- [10]That was the event from which the proceeding before the primary judge arose.
- [11]The proceeding below was commenced by claim on 27 September 2013. The first respondent was the first defendant. The second respondent was the third defendant. The other members of the committee were the remaining defendants of the proceeding. However, as the primary judge recorded:
- (a)the fifth, sixth and seventh defendants had judgment given in their favour at an earlier time; and
- (b)the second and fourth defendants were no longer parties because they had died.
- (a)
- [12]The primary judge recorded that he had before him two applications for summary judgment or orders stopping the proceeding under s 73 of the Act or striking out the statement of claim.
- [13]His Honour found that the second respondent’s application should succeed on a summary judgment basis and that the first respondent’s application should succeed because a proceeding of the kind with which he was dealing involved unreasonable conduct by the plaintiff and should be stopped.
- [14]In relation to the second respondent, the primary judge’s logic was as follows.
- [15]Section 71 of the Act provides:
“71Rights of members
- (1)Upon incorporation the rules of the association shall constitute the terms of a contract between the members from time to time and the incorporated association.
- (2)Where a member of an incorporated association is deprived by a decision of that association of a right conferred on the member by the rules of that association as a member thereof, the Supreme Court shall have jurisdiction to adjudicate upon the validity of that decision under the rules.
- (3)An incorporated association shall be bound by the rules of natural justice in adjudicating upon the rights of its members conferred by the rules of such association on its members.”
- [16]The claim against the second respondent was founded on the contract referred to in s 71(1): see reasons at [27] and [28].
- [17]The primary judge thought it might be doubtful whether the words of s 71(1) created a contract between the members inter se but did not find it necessary to resolve that point: see reasons at [28] to [30].
- [18]The primary judge analysed the causes of action advanced against the second respondent, concluding that the relief claimed against her depended on the existence of the alleged cause of action for breach of the contract between members inter se and the claim for damages for breach of that contract being sustainable in law: see reasons at [30] to [38].
- [19]The primary judge identified the critical point on that question in these terms:
“The critical point on which that cause of action turns is whether a management committee member purporting to exercise a power of the management committee (in this case the rule empowering the Committee to terminate a member’s membership) along with the other members of that committee is acting in discharge of a contractual obligation as an individual member to each other member of the incorporated association. Nothing in the rules of the Association or the Act expressly provides for that result. So it must be arrived at, if at all, by the proper construction of the rules as the terms of the contract under s 71 of the Act, per se.”
- [20]His Honour then analysed that question first by considering analogies with company law and ultimately by expressing his conclusion in these terms (citations omitted):
“The Member/Member Contract relied upon by the plaintiff against the third defendant, alleged to be created by s 71 of the Act, is necessarily implied or ascertained as a matter of statutory construction. The question is what is there in the context of the Act or the rules that would impliedly or by statutory construction raise a contractual promise by the third defendant to the plaintiff as a member that the management committee would not breach the rules, when no such promise would be implied in the analogous situations of an unincorporated association or company?
The principles for the implication of a term of a contract at common law by law were comprehensively reconsidered in Barker v Commonwealth of Australia. Using that approach by analogy, there is no basis that emerges from the circumstances of the Association as an incorporated association under the rules and because of the operation of s 71 of the Act that requires the implication of the necessary term to support the contractual promise required for the plaintiff’s case against the third defendant to succeed upon the alleged Member/Member Contract.
It follows that the plaintiff does not have a real prospect of success in his claim against the third defendant.”
- [21]His Honour then considered the provisions of the Uniform Civil Procedure Rules which confer the power to grant summary judgment on applications by defendants and concluded that this was an appropriate case to exercise that power because of his findings as expressed in the reasons at [57], namely:
“The plaintiff has no real prospect of succeeding on all of the claim against her. There is no need for a trial. No factual inquiry of the trial will alter that conclusion as against the third defendant.”
- [22]In relation to the first respondent, his Honour’s logic was as follows.
- [23]The claim against the first respondent, although started by claim, was actually an application within the meaning of section 72 of the Act which provides as follows:
“72Enforcement rights and obligations
- (1)The Supreme Court may, on the application of an incorporated association, or of a member thereof, make orders, including interim orders—
- (a)giving directions for the performance and observance of the rules of such incorporated association by any person who is under an obligation to perform or observe those rules; or
- (b)declaring and enforcing the rights and obligations of members of such incorporated association between themselves, and the rights and obligations between such incorporated association and any member or members thereof.
- (2)However, an incorporated association, or a member of an incorporated association, can not make an application under subsection (1) in relation to a dispute under the rules unless the association or member has made reasonable attempts to resolve the dispute under the grievance procedure in the association’s rules.
- (3)An order may be made under this section notwithstanding that no right of a proprietary nature is involved, or that the applicant has no interest in the property of the incorporated association.”
- [24]His Honour noted that the association had invited the Court to exercise the Court’s powers under s 73(2) of the Act which provides:
“73Powers of the Supreme Court
…
- (2)The Supreme Court may refuse to entertain such an application, or to make an order on such application, or may refuse an order for costs, or may make an order for costs against a party, whether successful or not, if it is of the opinion that—
- (a)the issue raised in the application is trivial; or
- (b)having regard to the importance of the issue, the nature of the incorporated association, any other available method of resolving the issue, the costs involved, lapse of time, acquiescence or any other relevant circumstance, it was unreasonable to make the application; or
- (c)the unreasonable or improper conduct of a party has been responsible for the making of an application, or has added to the cost of the proceedings.”
- [25]His Honour then examined the origin of those powers as expressed in a Queensland Law Reform Commission report and referred to cases dealing with the provision: see reasons at [61] and [62].
- [26]His Honour noted that all three subparagraphs of s 73(2) were relied on by the first respondent: see reasons at [63].
- [27]His Honour examined and assessed the facts shedding light on each of those paragraphs: see reasons at [64] to [78].
- [28]His Honour concluded at [79] to [80]:
“[Section] 73 of the Act has a clear purpose, that a proceeding constituting an application to enforce the performance and observance of the rules of an incorporated association and the rights and obligations of members between themselves and between the incorporated association and any member is in a special class where the factors identified in s 73(2) may warrant a refusal to make an order on the application.
Although with some hesitation, I conclude that the operation of those factors in the present case justifies the conclusion that the discretionary power to refuse to make an order on the application is engaged and that such an order should be made in the form of an order permanently staying the proceeding against the Association which is the only remaining defendant.”
- [29]Against that background, I turn to deal with the two applications before me.
The first respondent’s application
- [30]By application filed 25 July 2022, the first respondent sought the following two orders:
“1.The notice of appeal filed 6 June 2022 be struck out.
- The appellant pay the first respondent’s costs of the application.”
- [31]The application recorded that it relied on the affidavit of Mr Delaney. He exhibited the reasons for judgment of the primary judge; the appellant’s outline of argument filed in support of the notice of appeal and related material; and an email to the appellant copied to the second respondent’s lawyers which explained:
“We are required to draw your attention to UCPR r747, with specific reference to subrule (1) (b).
We highlight that your notice of appeal runs to 14 pages and contains over 48 paragraphs which contain argument, submissions and supposition. Accordingly, at the outset the notice of appeal fails to briefly and specifically state the grounds of appeal (as required by the aforementioned rule). An additional indicator that the notice of appeal is too prolix and discursive, is the fact that your outline of argument, which runs for 15 pages, inappropriately refers back to the notice of appeal to formulate submissions and tracks of argument (i.e - Ground 7 "See arguments which are already adequately outline in the NoA" and "As expressed in the NoA").
It is our view that the notice of appeal is liable to be struck out (see Colston v McMullen [2011] QCA 002).
In light of the above, we ask that you please advise by 1pm, Friday, 15 July 2022 that you will file a compliant notice of appeal, which significantly reduces and clarifies your grounds of appeal. Should you not agree, we expect that our client will have no option but to file an application to have the notice of appeal struck out with costs.”
- [32]The notice of appeal was set up under headings which sought to advance grounds under House v The King bases, namely:
- (a)The primary judge has not taken into account some material considerations: see grounds numbered 1 to 15.
- (b)The primary judge has mistaken numerous facts: see grounds numbered 16 to 33.
- (c)It appears that the primary judge allowed extraneous or irrelevant matters to guide or affect him: see grounds numbered 34 to 41.
- (d)Acting upon a wrong principle: see grounds number 42 to 44.
- (e)The judgment is plainly unjust: see grounds 45 to 46.
- [33]But many of the so-called “grounds” do not allege any material error at all, but merely assert some mistake or oversight not apparently material to the correctness of the opinions which the primary judge formed in relation to the circumstances referred to in ss 73(2)(a), (b) and (c) of the Act, or to the exercise of discretion which he made under s 73(2) of the Act.
- [34]Further, the notice of appeal does not state the grounds “briefly and specifically” as required by r 747(1)(b) but instead the so-called “grounds” contain substantive, often querulous, argument on matters which suffer from the defects last identified in any event.
- [35]In my view, the first respondent is right to complain that the form of the notice of appeal is such as would “obscure any substantive ground of appeal the appellant may have and therefore make the task of responding to the appeal unreasonably difficult.”
- [36]The first respondent is entitled to have a notice of appeal which does not possess these defects. In my view, the first respondent is entitled to have the notice of appeal struck out.
The second respondent’s application.
- [37]By application filed 26 July 2022, the second respondent sought the following two orders:
- “1.The Notice of Appeal filed 6 June 2022 be struck out.
- 2.The Appellant pay the Second Respondent’s costs of the Application.”
- [38]The application recorded that it relied on the affidavit of Ms McCutcheon. Relevantly, that affidavit explained:
- “4.The Notice of Appeal filed by the Appellant on 6 June 2022 fails to comply with the requirements of Rule 747(1)(b) of the UCPR.
- 5.Specifically, the Notice of Appeal which comprises 14 pages and contains 48 grounds of appeal is unnecessarily prolix and fails to briefly and specifically state the grounds of appeal (as required by Rule 747(1)(b) of the UCPR.
- 6.Further, the Notice of Appeal also comprises and contains argument, submissions, supposition and matters of pure speculation.
- 7.The above deficiencies and defects in articulating the grounds of the Notice of Appeal make it exceedingly difficult, if not almost impossible, for the grounds of appeal to be ascertained, for the Respondents to respond to the appeal, and also for the appeal to be heard and ultimately determined.”
- [39]Those points were developed in a little more detail in the outline of submissions.
- [40]Putting aside procedural complaints which were so immaterial that they might be ignored, only two substantive arguments were advanced in response by the appellant in his written submissions.
- [41]First, the appellant asserted that the several defects noticed by Sofronoff P in Young v Crime and Corruption Commission [2018] QCA 55 did not apply to his notice of appeal. Sofronoff P had observed:
“Rule 747(1)(b) of the UCPR requires that a notice of appeal must state briefly and specifically the grounds of appeal. This notice does not comply with that rule; worse, its contents are entirely irrational and incomprehensible and demonstrate that the proposed appeal, at least in its current form, would be vexatious. Litigation is burdensome and not only be reason of the time and money that must be spent. The Courts cannot permit litigants to prosecute claims or appeals which are self-evidently groundless.”
- [42]Second, the appellant suggested that, although he might not have expressed himself as succinctly or using such phrasing as an experienced lawyer might use, the grounds were plainly intelligible.
- [43]In my view, the appellant’s confidence that his notice of appeal did not have the character outlined by the second respondent was misplaced. I find the notice of appeal was properly described by paragraphs 5 and 6 of the affidavit of Ms McCutcheon quoted above. This is so obvious on a reading of the notice of appeal as not to require further or better exegesis. The deficiencies did not make the grounds unintelligible, but they did operate to obscure rather than to clarify whether there were any real issues to be advanced on appeal as against the second respondent. They operate to the disadvantage of the second respondent’s ability to respond to the appeal and would, if allowed to continue, operate to the disadvantage of the ability of the appeal court to hear and determine the appeal.
- [44]In particular, because the appellant has sought to frame his complaint as House v The King discretionary error, he has not briefly and specifically identified error in relation to the material aspects of the actual reasoning which led the primary judge to give judgment. Notably, the grounds do not identify any error in the way in which his Honour characterised or determined the critical points to the cause of action pursued by the appellant which, of course, would be essential to be done if the appellant was to overturn the finding as to there being no real prospects. Nor do the grounds identify why any factual enquiry at the trial might alter the conclusion which his Honour made in the second respondent’s favour or seek to establish any other reason why a trial would be needed despite his Honour’s findings on the critical points to the appellant’s cause of action.
- [45]If the appeal is to proceed in relation to the second respondent, she is entitled to a notice of appeal which does that and which clearly identifies the grounds which relate to the case against her. That observation applies just as much to the first respondent’s application as it does to the second respondent’s application.
- [46]In my view, the second respondent is entitled to have the notice of appeal struck out.
Costs
- [47]Each respondent has sought an order which would recognise that costs would follow the event, but I haven’t heard from Mr Thompson in relation to that and I invite him to address me as to whether there’s any reason why costs should not follow the appeal.
…
- [48]I have resolved the two applications to strike out in favour of the applicant respondents. Prima facie costs should follow the event. The appellant resists any costs order. His argument is that at least part of the jurisdiction being invoked by each applicant was the jurisdiction conferred by r 371 and it would follow that each application was covered by the requirement to give r 444 notices. His argument is that the applicant respondents should each have strictly complied with the provisions of r 444 of the UCPR.
- [49]The first respondent contends that the email to which I referred in my reasons for judgment should be regarded as an adequate compliance with r 444. That was an email sent on 12 July requiring a response by 1.00 pm on 15 July. It did not comply with the time requirement referred to in r 444.
- [50]Had this matter involved an application filed at 1.30 pm on the afternoon of 15 July, the point advanced by the appellant would be a good point, and the application would be arguably premature and the appellant would arguably have not been given enough time to respond. However the argument about timing has no merit. The application was not actually filed until 25 July.
- [51]The appellant argued that the email, even regarded as a r 444 notice and putting aside the timing question, did not sufficiently comply with the specificity required by r 444. I reject that proposition. Rule 444 requires a sensible exercise of judgment by a complaining party to communicate a problem to a responding party. Given the obvious deficiencies in the notice of appeal, my evaluation is that the description of the problem in the email was satisfactory.
- [52]In any event, what actually happened was there was no response whatsoever by Mr Thompson. If he had a real concern with the extent of detail in the complaint but accepted that there might be some merit in the generality of the complaint, he could have asked for further detail. He did not. There is no merit to his resistance to the first respondent’s application for costs. Costs should follow the event of the first respondent’s success on the application.
- [53]The second respondent is in a slightly different position in that there is nothing to which the second respondent may point which may be regarded as meeting the requirements of r 444. That said, however, the second respondent was copied into the email sent by the first respondent and the second respondent did not bring her application until the first respondent had brought its application. The notion that the compliance had anything to do with the appellant’s resistance to the application or should form a basis to deny the second respondent her costs of success in an application that really ought not to have had to be made is a hopeless one. The costs of the second respondent’s application should follow the event as well.
Orders
- [54]Accordingly, on each application, I make the following orders:
- 1.The notice of appeal is struck out.
- 2.The appellant must pay the applicant respondent’s costs of the application.
- [55]The appellant has intimated an intention to revise the notice of appeal in the event it was struck out. I propose also to make a direction that he deliver a draft notice of appeal to the respondents within a particular timeframe and to bring an application for leave to file the draft notice of appeal, in the event that there is any opposition from them to the grant of leave.
- [56]I’ll hear from the parties as to whether such a direction ought be made and, if so, what timeframes I should impose.
…
- [57]I make the following further orders and directions:
- 3.I order that the hearing of the appeal presently listed for 11 October 2022 be vacated.
- 4.I direct that the appellant deliver to the first and second respondents a revised notice of appeal within 21 days of today.
- 5.I direct that within a further seven days the first and second respondents advise the appellant whether they oppose his having leave to file that revised notice of appeal.
- 6.In the event that either respondent advises that they oppose, the appellant must file an application for leave to file the revised notice of appeal within a further seven days of that date.