Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc
[2023] QCA 21
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2023] QCA 21
- Add to List
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2023] QCA 21
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2023] QCA 21
SUPREME COURT OF QUEENSLAND
CITATION: | Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc & Anor [2023] QCA 21 |
PARTIES: | JAMES BOYD THOMPSON (applicant/appellant) v CAVALIER KING CHARLES SPANIEL RESCUE (QLD) INC ABN 28 709 153 342 (first respondent) KATHERINE LEPELAAR (second respondent) |
FILE NO/S: | Appeal No 6511 of 2022 SC No 9148 of 2013 |
DIVISION: | Court of Appeal |
PROCEEDING: | Miscellaneous Application – Civil General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2022] QSC 82 (Jackson J) |
DELIVERED ON: | 17 February 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 November 2022 |
JUDGES: | Morrison and Dalton JJA and Henry J |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – POWERS AND PROCEDURE – where the applicant’s notice of appeal did not state briefly and sufficiently the grounds of appeal – where the applicant’s notice of appeal was struck out for failure to comply with r 747(1)(b) of the Uniform Civil Procedure Rules – where the applicant was required to seek leave to file a further notice of appeal – whether the further notice of appeal is still non-compliant with r 747(1) – whether leave should be refused – whether the appeal should be summarily dismissed Uniform Civil Procedure Rules 1999 (Qld), r 371(2)(f), r 747(1) Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc & Anor [2022] QCA 149, related von Risefer & Ors v State of Queensland Department of Natural Resources and Mines; von Risifer & Ors v State of Queensland [2005] QCA 136, cited |
COUNSEL: | The applicant/appellant appeared on his own behalf C D Templeton for the first respondent E McCutcheon (sol) for the second respondent |
SOLICITORS: | The applicant/appellant appeared on his own behalf AGLG lawyers for the first respondent IP Link Lawyers for the second respondent |
- [1]THE COURT: The applicant’s previous notice of appeal was struck out because of his non-compliance with the rules regulating appeals. He was required to seek this Court’s leave to file another notice should he seek to do so. He has sought to do so. His second attempt is as non-compliant as the first.
- [2]In the case at first instance Mr Thompson was aggrieved by the termination of his membership of the incorporated association Cavalier King Charles Spaniel Rescue (Qld) Inc by that association’s management committee on 21 July 2011. His claim against the association and individual members of its committee, filed 27 September 2013, alleged the termination was invalid and sought, inter alia, a declaration and damages. The number of individual members of the committee who were defendants in the action fell away over the years as Mr Thompson failed to progress his claim to a timely resolution below. The first defendant, the incorporated association, and the third defendant, Ms Katherine Lepelaar, were the only remaining defendants by the time the case concluded below on 9 May 2022, over 12 years after the termination of his membership. On that date Jackson J gave summary judgment dismissing Mr Thompson’s claim against Ms Lepelaar and permanently staying his claim against the incorporated association.
- [3]Mr Thompson appealed that decision to the Court of Appeal by filing a 14-page notice of appeal, alleging 46 grounds. The first and second respondents applied to strike out the notice of appeal because it did not comply with r 747(1)(b) Uniform Civil Procedure Rules (UCPR) which requires a notice of appeal “must … state …briefly and specifically the grounds of appeal”. On 12 August 2022 Bond JA struck out the notice of appeal, having found, inter alia:
- the notice was unnecessarily prolix and did not state grounds “briefly and specifically”;[1]
- the purported grounds, rather than stating grounds, actually stated argument (often querulously so), submissions, supposition and matters of pure speculation;[2]
- the purported grounds obscured the existence of any substantive ground of appeal, making the task of responding to it unreasonably difficult;[3]
- many of the purported grounds did not allege material error, but merely asserted some mistake or oversight not apparently material to the primary judge’s conclusions on the determinative issues.[4]
- [4]Mr Thompson expressed an intention to revise his notice of appeal if it was struck out. His Honour therefore ordered:
“4. I direct that the appellant deliver to the first and second respondents a revised notice of appeal within 21 days of today.
- 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.
- 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.”
- [5]Mr Thompson delivered a revised notice of appeal, the first and second respondents advised they opposed him having leave to file it and he accordingly filed the application now before this Court for leave to file his revised notice of appeal. The respondents resist that grant of leave on the basis that the revised notice of appeal contains the same defects as its predecessor and they have cross-applied for an order that the appeal be struck out. At the hearing it became clear that the respondents’ cross-applications were calculated at finalising the appeal and in that context the Court heard submissions as to whether, if the revised notice is again non-compliant, the appeal should be dismissed.
- [6]The revised proposed notice of appeal suffers from the same defects identified by Bond JA in respect of the first notice of appeal. Mr Thompson acknowledged there was a lot of similarity.
- [7]The revised notice of appeal is actually more, not less, prolix than the one struck out by Bond JA. The revised notice runs to 27 pages. The first attempt was 14 pages. The revised notice alleges 62 grounds. The first attempt alleged 46 grounds.
- [8]Some of the increased length is due to the grounds now being listed in two columns, respectively headed “Briefly” and “Specifically”. The “Briefly” column contains generic reference to potential classes of judicial error such as inadequate reasons, failure to take a material consideration into account or taking extraneous or irrelevant matters into account. The “Specifically” column purports to then articulate the substance of the ground being advanced. This columned approach to stating the grounds is a cosmetic response to the problem that Mr Thompson’s first attempt did not, as r 747(1)(b) requires, state the grounds of appeal “briefly and specifically”. It is merely a change in form not substance.
- [9]By way of illustration, ground 1 of the revised proposed notice of appeal, in which the “Briefly” column asserts an error in law through having provided inadequate reasons, contains the following in the “Specifically” column:
“In bold type [sic] the plaintiff highlighted 17 categories of argument in his two primary submissions (documents 334 & 335). Several of the categories were also referred to in the plaintiff’s outline of argument. None of those categories of the plaintiff’s arguments were addressed by his Honour in the judgment. If his Honour had given due consideration to them and rejected them all, the failure to state the reasons for rejecting any or all of them in the judgment indicates that the reasons for judgment are inadequate.”
- [10]Such language does not briefly and specifically state the ground of appeal. In the course of submissions, the Court invited Mr Thompson to tell the Court in a few sentences what this ground of appeal related to. He could not do so, despite speaking at length.
- [11]Quite apart from the continued failure to state grounds briefly and succinctly, it remains that there has been no other material change of approach, no remedying of the core problems explained by Bond JA. Still the purported grounds articulate arguments or submissions rather substantive grounds. Still they fail to focus on material error. Still they tend to obscure rather than expose the nature of any alleged error in the determinative aspects of the learned primary judge’s reasoning below. Still they make the task of responding to the appeal unreasonably difficult. Indeed, to require the respondents to respond would be oppressive.
- [12]From time to time a self-represented litigant may struggle in pleading a case below or struggle in crafting grounds of appeal before this Court, yet the real substance of their complaint below or on appeal is sufficiently ascertainable as to work no injustice to the opponent meeting the case below or the appeal to this Court. This is not one of those cases. It is not possible to ascertain from the grounds what arguable basis may exist for the Court of Appeal to differ from the conclusions of the learned primary judge. For example, in respect of the case against Ms Lepelaar, the critical conclusion below was that the term necessary to support the contractual promise relied upon by Mr Thompson’s case could not be implied. This Court invited Mr Thompson to identify which of his grounds articulated how that conclusion was erroneous. He struggled to do so, referring to grounds which may at best be described as relating to that aspect of the decision as a subject, but which do not specify a ground which, if established, would provoke this Court’s interference.
- [13]All of these reasons compel the conclusion that the revised notice of appeal has again failed to articulate proper grounds. Leave to file it should be refused.
- [14]What then of the fate of the appeal proceeding generally? Should it be permitted to potentially linger on or should it be brought to a summary end by being dismissed?
- [15]This Court observed in von Risefer,[5] citing various authorities, that the court’s jurisdiction “to prevent abuse of the Courts’ processes by bringing a vexatious appeal to a summary end is not in doubt”. Further to the Court’s inherent jurisdiction, r 766(1)(a) UCPR provides this Court “has all the powers and duties of the court that made the decision appealed from”. Rule 371(2)(f) UCPR empowers a court, in the event of a failure to comply with the rules, to make an order “dealing with the proceeding generally as the court considers appropriate”.
- [16]This Court has in the past brought appeals to a summary end by ordering the striking out of a notice of appeal and dismissal of the appeal.[6] Merely refusing leave to file the revised notice will not bring the finality of a dismissal because there would remain the possibility of another notice of appeal being filed.
- [17]As was observed in von Risefer, the jurisdiction to summarily end an appeal must be exercised with great caution.[7] Mr Thompson has already been given two opportunities to advance proper grounds of appeal. He has not done so. It appeared to be conceded by Mr Thompson in the course of submissions that he had done the best he could in revising his notice of appeal. He nonetheless submitted that having heard the Court’s exchanges with him during argument he could now improve upon it, if given a further opportunity. That was not a credible submission. It was not supported by illustration through the oral articulation of some ground of substance about the determinative aspects of the decision below. Nor was it supported by the existence of any apparent error identifiable on the face of the reasons below.[8] Moreover, the content of exchanges between the Bench and Mr Thompson in the course of the hearing was no more of a kind that would lead to him now drafting proper grounds of appeal than was the content of what was said by Bond JA in striking out the earlier notice of appeal, and that did not result in any improvement.
- [18]Mr Thompson’s right of appeal is, like any litigant’s, subject in its exercise to compliance with rules designed to facilitate the just and expeditious resolution of the real issues.[9] A proper statement of grounds of appeal, in accordance with the rules binding all appellants, is fundamental to a just appeal process. Mr Thompson cannot succeed in an appeal which he cannot properly advance. The appeal should be dismissed.
- [19]The orders are:
- Leave to file a revised notice of appeal refused.
- Appeal dismissed with costs.
Footnotes
[1][2022] QCA 149 [34], [43].
[2][2022] QCA 149 [34], [43].
[3][2022] QCA 149 [35], [43].
[4][2022] QCA 149 [33], [44].
[5]von Risefer & Ors v State of Queensland Department of Natural Resources and Mines; von Risifer & Ors v State of Queensland [2005] QCA 136 [19].
[6]See eg, von Risefer & Ors v State of Queensland Department of Natural Resources and Mines; von Risefer & Ors v State of Queensland [2005] QCA 136; Law Partners Mortgages P/L (in Liq) v Jeremy [2008] QCA 10; Bradley v McDermott [2017] QCA 19.
[7][2005] QCA 136 [20].
[8]Cf MNSBJ Pty Ltd v Downing [2017] QCA 141 [16].
[9]Uniform Civil Procedure Rules 1999 (Qld) r 5.