McEwan v MacTaggart[2023] QCA 14

[2023] QCA 14

COURT OF APPEAL

MORRISON JA

BOND JA

BROWN J

Appeal No 10279 of 2022

SC No 971 of 2022

JULIE McEWAN  Applicant

v

JOHN DUGALD MACTAGGART First Respondent

ALAN JAMES MONAGHAN Second Respondent

FREDERICK RICHARD HOULT Third Respondent

BRISBANE

MONDAY, 13 FEBRUARY 2023

JUDGMENT

1. [1]
   THE COURT:  The applicant commenced proceeding 971 of 2022 against 14 defendants, by claim filed on 21 January 2022.  The respondents to this application for an extension of time within which to appeal were the 12th to 14th defendants.
2. [2]
   The applicant pleaded that she owned confidential information consisting of certain patents, trade secrets and other information relating to a “therapeutic” that was said to have positive effects for weight loss, cancer, diabetes, and Alzheimer’s disease (the Therapeutic).
3. [3]
   The claim against the respondents was relevantly summarised by the learned primary judge, as follows:

   1. (a)
      Brisbane Angels Nominees Proprietary Limited (BAN) was an entity involved in investing in technology companies, with a particular focus on health products in the medical treatment industry;
   2. (b)
      the applicant possessed confidential information concerning the Therapeutic;
   3. (c)
      pursuant to an arrangement between BAN and the applicant, the confidential information was provided to BAN;
   4. (d)
      BAN agreed to invest in a project which involved the commercialisation of the Therapeutic for weight-loss treatment;
   5. (e)
      the respondents knew that the confidential information had only been provided for the purposes of using it in the development and application of the Therapeutic;
   6. (f)
      it was an implied term of the agreement that, in the event the commercial relationship between the applicant and BAN came to an end, the confidential information would be destroyed or returned to the applicant; and
   7. (g)
      the commercial relationship in respect of the project came to an end, and the respondents were obliged to return the confidential information.
4. [4]
   The only relevant relief sought against the respondents was:^[1]

“An order requiring [the respondents] to return all Confidential Information for the IP companies (as defined) in their power or possession or order their control to the plaintiff which is in a form which renders the confidential information being physically capable of being returned to the plaintiff, and an undertaking the Confidential Information is not being used or shared and used by third parties.

1. if the IP and Confidential Information and Therapeutic is or has been used, an order the details of the disclosure and use be disclosed to the plaintiffs.”

5. [5]
   All the defendants applied to set aside the claim made against them.  The respondents sought to set aside the claim against them on several bases, including that, as the applicant was an undischarged bankrupt, the claim that she made had vested in her bankruptcy trustee pursuant to s 58 of the Bankruptcy Act 1966 (Cth), and she could not pursue it.
6. [6]
   By a judgment published on 11 May 2022, the learned primary judge upheld that contention.^[2]  The claim against the respondents was set aside.
7. [7]
   On 26 August 2022, more than two months after the time limit for bringing an appeal had expired, the applicant filed an application seeking to appeal.  An extension of time has been belatedly sought, and an amended notice of appeal and outlines have been delivered.
8. [8]
   For reasons which we will now discuss, there is no present necessity to consider the merit of the appeal.
9. [9]
   Prior to filing the application to bring an appeal (effectively, for an extension of time), the applicant had discontinued her claim against the respondents in proceeding 971 of 2022.  The relevant chronology of events was as follows:

1. (a)
   On 7 June 2022, the applicant had filed a notice of discontinuance in proceeding 971 of 2022 in relation to her claim against the respondents.  The notice purported to discontinue the whole of the applicant’s claim against them, and stated that the applicant (as plaintiff) had not been served with a defence from any of the respondents (as defendants);
2. (b)
   However, pursuant to Uniform Civil Procedure Rules 1999 (Qld) (UCPR) rr 304(1) and (2), and because a defence had been filed in the proceeding by other defendants, the applicant could not discontinue the proceeding against the respondents without the court’s leave or the respondents’ consent.  The respondents sought an order setting aside the notice.  Hindman J set aside the notice by order made in proceeding 971 of 2022 on 16 June 2022;
3. (c)
   By an order made on 16 June 2022 in proceeding 6627 of 2022, and amongst other orders, Hindman J gave the applicant leave to discontinue proceeding 971 of 2022 against the present respondents.  Proceeding 6627 of 2022 is a separate proceeding involving the applicant and the respondents, about which no information is contained in the appeal record;
4. (d)
   On 8 July 2022, the applicant filed a notice of discontinuance against the respondents in proceeding 971 of 2022, which provided:

“NOTICE OF DISCONTINUANCE

TAKE NOTICE that the Applicant has applied to the Court for the following order for a discontinuance of the proceedings against the 12^th – 14^th defendants as relief sought by the Plaintiff and ordered by Justice Hindman 16 June, 2022.”;

5. (e)
   It may be observed that, although the notice was not in proper form, in the context of the events which preceded it, the notice sufficiently conveyed the applicant’s unqualified intention to discontinue the claim advanced against the respondents in proceeding 971 of 2022.  In any event, the want of form is irrelevant, because, pursuant to UCPR r 309(2), discontinuance against the present respondents was effected by the order of Hindman J giving leave, and a notice of discontinuance was not required.

10. [10]
    Therefore, at the time the application was filed, there was no claim against the respondents in the proceedings in respect of which this appeal was sought to be brought.  In the event that the applicant’s contentions on the appeal succeeded, the effect would be to reinstate a claim that the applicant had already discontinued.  That being the case, the application and the proposed appeal lacks any utility.  Further, for the same reason, there is no point granting an extension of time to pursue the appeal.
11. [11]
    In our view, costs should follow the event.  The applicant’s own actions rendered the application and the proposed appeal inutile.
12. [12]
    There is one caveat we would add to that.  For reasons for which some explanation was given, the point concerning the discontinuance, and its effect on the claims in 971 of 2022, was not raised by the respondents until a supplementary outline was filed on 8 February 2023.
13. [13]
    Two previous outlines on 21 November 2022 and 27 January 2023 had not mentioned that critical feature.  That, in our view, has an impact on the extent of the costs which should be ordered.

Conclusion

14. [14]
    For the reasons expressed above, the application must be dismissed, with costs.
15. [15]
    The orders are:

1. The application for an extension of time to appeal is dismissed.
2. The applicant pay the respondents costs of and incidental to the application and the proposed appeal excluding those costs incurred in the preparation of the respondents initial outline dated 21 November 2022 and amended outline dated 27 January 2023.