Hammond v Marinerglen Pty Ltd
[2002] QDC 164
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- Unreported Judgment
- Hammond v Marinerglen Pty Ltd[2002] QDC 164
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Hammond v Marinerglen Pty Ltd[2002] QDC 164
Hammond v Marinerglen Pty Ltd[2002] QDC 164
DISTRICT COURT OF QUEENSLAND
CITATION: | Hammond v Marinerglen Pty Ltd [2002] QDC 164 |
PARTIES: | TREvor john hamMond Appellant and marinerglen pty ltd (ACN 010 930 786) Respondent |
FILE NO/S: | 453 / 2001 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Southport |
DELIVERED ON: | 5 April 2002 |
DELIVERED AT: | Southport |
HEARING DATE: | 25 March 2002 |
JUDGE: | Judge Alan Wilson SC |
ORDER: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – ERROR OF LAW – Application to strike out pleading under UCPR r 171 – Magistrate wrongly striking out entire action UCPR r 171 Magistrates Court Act (1973) s 47(b) |
COUNSEL: | Mr Dorney QC and Mr Sive for the appellant Ms Magee for the respondent |
SOLICITORS: | Appellant self-represented Messrs Short Punch & Greatorix for the respondent |
- [1]According to a Notice of Appeal filed 9 May 2001, this proceeding purports to be an appeal against the decision of Ms Previtera, Stipendiary Magistrate, made in Southport Magistrates Court on 12 April 2001. The document then goes on, however, to seek the setting aside, or variation, of “all decisions” of the learned Magistrate. The uncertainty engendered by the Notice is representative of the confusion which has beset the action both in the Magistrates Court, and here.
- [2]The appellant and another man apparently wish to sue for their alleged entitlement to a portion of real estate commission paid to real estate agents as a consequence of a sale of Gold Coast land by McQuade Dredging & Contracting Pty Ltd to Michael Doohan on 22 July 1996, each contending they were the effective cause of the sale. Each originally sued one Lang, under proceedings commenced in the Magistrates Court in July 1998. Thereafter, the matter went through a series of quite complicated steps including extensive non-party discovery and the joinder of further defendants, who eventually numbered eight. On 10 November 2000 the second defendant Marinerglen Pty Ltd and the fourth defendant Lang applied under UCPR r 171 to strike out the entire claim as against them; and a similar application was made by the fifth, sixth and eighth defendants. It was heard by the learned Magistrate on 13 November 2000, and her decision was reserved.
- [3]The decision was delivered on 23 January 2001 and there is a transcript of the proceedings. At p 2, she confirms the application “sought orders that the pleadings be struck out…”. After traversing various aspects of the pleading she said, at p 6:
“On the basis of those matters, I strike out the pleading in its entirety.”
Confusion has arisen, however, as to whether or not the learned Magistrate struck out simply the “pleading” or the “action” itself as a consequence of remarks appearing later in the transcript, and her record of orders made on that day and on two subsequent occasions: 20 February, and 12 April 2001.
- [4]Following the remark set out above, the transcript of the proceedings on 23 January 2001 shows exchanges between her and the appellant’s representative, Mr Sive – firstly, immediately following his application for leave to amend his client’s pleading. The Magistrate said:
“Well you can start all again, Mr Sive. You can commence a whole new action. I have struck out this pleading. You can start again.
…
It’s not properly pleaded. I've made my decision and now I'm going to give an argument (sic) in regard to costs.”
Later, when Mr Sive raised some matters concerning disclosure the Magistrate said (at pps 11, and 12):
“Unless you file a statement of claim that’s acceptable, then there is no point in going through the other procedures.
…
Mr Sive, I've struck out the amended statement of claim in its entirety, all right?
…
I’m not giving any directions, Mr Sive, until I see a pleading that meets with the rules…”
- [5]The Magistrates Court file records this note of the orders made on 23 January 2001:
“(1) That the plaintiff’s amended statement of claim of plaintiffs (sic) are dismissed (in its entirety).”
- [6]On 31 January 2001 the appellant apparently filed an application, and applied ex parte, for the Magistrate to reconsider all orders made on 23 January 2001 and to order a re-hearing in light of new evidence submitted in an affidavit in support of that application. Although the learned Magistrate’s note referred to “reasons on tape”, the parties cannot find the reasons themselves, or the tape. Her written note on the Court file of the orders is as follows:
“ That application of 31/1/01 of plaintiffs be dismissed. Reasons on tape. Plaintiff advised that only signed copies of plaint were ?accepted. Hammond plaint signed on 20/2/01+ failed. O'Neill plaint to be signed→ both filed 2/2/01.
Ordered that service of a sealed and signed copy be considered sufficient for service upon the defendant. Plaintiff given leave to file signed (but already filed) plaintiff O'Neill.”
- [7]There followed, as the affidavit of David McIntosh, solicitor, sworn 9 April 2001 shows, correspondence in which Mr Sive and the defendant’s solicitors, Short Punch & Greatorix argued whether only the pleadings, or the action (“proceedings”) had, in fact, been struck out or dismissed. On 30 March 2001 the appellant applied again to the Magistrates Court requesting that the second defendant file a defence and that the Court establish a timetable under UCPR 468(c). On 12 April 2001 (or thereabouts) the Magistrate endorsed her orders on the Court file in these terms:
- “(1)That the plaintiff be given leave to join the second defendant Marinerglen to a proceedings conditional upon the plaintiff issuing a claim with the statement of claim against Marinerglen attached within 14 days so as to constitute a new action.
- (3)(sic) Service of the 11/4/01 new action to be made upon the first and second defendants.
- (4)That the plaintiff file a fresh claim against McQuade Engineering together with the amended statement of claim.
- (5)That the plaintiffs pay the second defendants costs of the application in the sum of $517.00 plus GST of $51.70.”
- [8]The appellant’s original outline of argument filed 23 October 2001 – a very long and, with respect, confusing document – asserted that the original proceedings struck out by the learned Magistrate were satisfactory and ought to be reinstated; or, alternatively, that because they at least disclosed a cause of action the plaintiffs should simply have been given leave to replead, and the action itself ought not to have been dismissed.
- [9]The new pleadings filed on about 1 or 2 February 2001 delete all claims against the third to eighth defendants inclusive and, in the case of the present appellant, proceed only against the first defendant McQuade Dredging & Contracting Pty Ltd, and Marinerglen Pty Ltd. (The other action, by Mr O'Neill, proceeds only against the second defendant Marinerglen Pty Ltd and the first and third to eighth defendants are deleted). The amended pleading shows a tolerably clear claim for a share of a real estate agent’s commission, settled by Mr Sive in consultation with Mr Morris QC. It appears to remedy the confusion and incomprehensibility to which the learned Magistrate referred in her reasons of 23 January 2001. It also removed a significant number of issues at the appeal hearing which devolved to a single issue: whether or not the order to dismiss the action (if that was, in fact, the order made) should be set aside and, if so, what supplementary orders should be made under the Magistrates Court Act 1921, s 47(d).
- [10]I accept the appellant’s submission that, with respect, the orders made by the learned Magistrate in both actions on each of the three occasions show a lack of understanding of the Court’s power under the UCPR or, at least, confusion about what might or might not be ordered on an application under UCPR rule 171 – and, indeed, precisely what order she either intended to, or did, make. It is clear from the UCPR that a “pleading” is quite different from an “originating process” – usually, a “claim”: rr 8, 22, 145, 146, 171, 375, 377, and 480. It is also clear that a “proceeding” is quite different from an “originating process” (such as a claim) and, also, quite different from a “pleading”: rr 375(1), and 485.
- [11]UCPR r 171 provides:
“Striking out pleadings
171(1) This rule applies if a pleading or part of a pleading –
(a) discloses no reasonable cause of action or defence; or
…
- (2)The Court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis .”
- [12]In the most recent edition of his work “Australian Civil Procedure” (5th edition, Law Book Co, 2002) Mr Cairns says of the rule, at p 194:
“If the Court merely strikes out a pleading a proceeding continues in existence, although if the offending pleading is not rectified and re-served the innocent party might proceed in default of pleading. A party who contends that a proceeding or defence is defective as a matter of law should apply to the Court for judgment under the machinery for summary judgment.”
- [13]It appears, that when the learned Magistrate concluded on 23 January 2001 that, under r 171(2) she might at “that stage of the proceeding” “strike out” all or part of the “pleading”, she misunderstood what that meant, and what the cases applicable to it had held to be the relevant principles. The later orders of 20 February and 12 April 2001 compound the error.
- [14]As the passage from Cairns shows, if a pleading has been “struck out” there is discretion to be exercised, on an application such as the appellant then brought on 23 January 2001, in addressing the question of re-pleading. There is also an obligation to give reasons, if leave to re-plead is rejected, and that has not occurred here: Holts Hill Quarries P/L v Gold Coast CC & Ors (2000) QCA 268.
- [15]Even when a party’s pleadings do not reveal a cause of action known to law, it should ordinarily be permitted to re-plead where the error is one of the expression of the cause of action, and not the existence of the cause: South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation & Land Management (WA) (1998) 72 ALJR 837 at 839 per Kirby J. That is the practice ordinarily followed: see, e.g., Cooper v Hopgood & Ganim (1999) 2 Qd R 113 at 120.
- [16]I am satisfied that the rulings of the learned Magistrate do not constitute an express dismissal of any proceeding, at least as against the second defendant; fail to give proper consideration to the discretion to give leave to re-plead; contain no reasons for that refusal – if, in fact, that is what occurred; and, can only be described as an implied decision, exemplified by the “order” made on 12 April 2001 that each proceeding as against the second defendant has been dismissed. Because I think that is a reasonable construction of what has now, in fact, occurred, it follows the learned Magistrate quite misconstrued the application before her and her “orders” dismissing the “action” or “proceeding” were wrong.
- [17]Ms Magee, in helpful submissions, argued that the transcript of the proceedings on 23 January 2001 clearly showed the action was dismissed on that date but quite properly conceded, firstly, that the orders apparently made on 20 February 2001 are inconsistent with that conclusion; and secondly that, although the application filed by the second and fourth defendants on 10 November 2000 in the O'Neill matter showed on its face that what was sought was dismissal of the “action”, the submissions delivered to the learned Magistrate in support of it only asked that the pleadings themselves be struck out.
- [18]Some technical issues arise: first, under r 661(4) unless an order is filed, no appeal may be brought against it without the leave of the Court. R 666(1) states that if a Magistrate writes the date and terms of an order on a file then unless and until the order is filed, such writing is sufficient proof of the making of the order, and its date and terms. The appellants seek leave to amend the notices of appeal and I think it appropriate that leave be granted to allow the issues which the appeal raises to be determined at this stage of the proceeding. It is to be noted, too, that the second defendant itself failed to seek leave, under r 135(1), to bring its application to strike out notwithstanding it had not filed a defence: Reeves-Board v Queensland University of Technology (2001) QSC 314 at para [15].
- [19]The respondent also argues that the appeal is “incompetent” because it was not filed within 28 days after the date of the decision appealed from: rr 785, 748, and is out of time, under those rules, save in regard to the order made on 12 April 2001. As noted earlier the original notice of appeal is, on its face, confused as to which orders are attacked but does refer, specifically, to that of 12 April 2001. The appellant points, firstly, to s 47(d) of the Magistrates Court Act (1921) which provides:
“Jurisdiction of the District Court
47 On the hearing of an appeal or special case, the District Court may -
…
- (d)make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties.”
These proceedings have, at times, taken on an almost farcical element. Passages from the transcript of the proceedings on 23 January 2001 show, quite clearly, that the parties might have been confused as to whether or not the learned Magistrate had struck out just the pleading, or the action (“proceeding”) itself. The order of 20 February 2001 suggests the former. The orders made on 12 April 2001 are not sensible: the plaintiff’s action was not, then, out of time. He did not need leave to bring a new action, or to add defendants, or to file a “fresh claim” (or a “new action”). In those circumstances I think s 47(d) ought to be construed in aid of the appellant, to ensure the confusion which adheres to the matters is resolved, once and for all.
- [20]The delivery of the plaintiff’s amended pleading necessitates an amendment to his claim: r 22(2) and it is appropriate that leave be given under r 377.
- [21]As to costs, the appellant concedes the notice of appeal does not seek to set aside costs orders the learned Magistrate made on 23 January 2001, but in respect of another costs order made on 12 April 2001 reiterates his argument that she had no power to make the orders she purported to make on that day, and costs ought to be in the cause. On the appeal, the appellant says costs should follow the event. The respondent contends, in respect of the costs order of 12 April 2001, that the appellant applied for a defence to be delivered and costs could not reasonably be visited upon it. If the appeal is upheld, the respondent seeks a certificate under the Appeal Costs Fund Act.
- [22]Because I am of the view that the learned Magistrate was wrong in purporting to dismiss the action, and not just the appellant’s pleading, on 23 January 2001 but, also, that the true nature of her decision could not reasonably have been apparent to the appellant and his advisors until her order made on about 12 April 2001, the appellant’s application which led to the last-mentioned order, (that the second defendant file a defence, and a timetable for further steps be set) cannot be described as inherently unreasonable. For that reason, the costs order made against the appellant on that day should also be set aside, and the costs of that application should be in the cause. As to the appeal, the appellant has succeeded and should have its costs, but I think the circumstances warrant a grant, to the respondent, of a certificate under the Appeal Costs Fund Act (1973) in respect of the appellant’s, and the respondent’s costs.
- [23]I order:
- (1)That the orders of Ms Previtera SM made on 12 April 2001 insofar as they are a dismissal of the appellant’s action against the second defendant or order that the plaintiff institute a new action, be set aside.
- (2)That the plaintiff have leave under r 377 to amend his claim so as to comply with r 22(2).
- (3)That the plaintiff have leave nunc pro tunc to re-plead and to file the re-pleaded statement of claim (previously filed on 20 February 2001).
- (4)That the plaintiff serve the amended statement of claim filed 20 February 2001 and that the first and second defendants deliver their defences within 28 days of service.
- (5)That the costs of and incidental to the application before the learned Magistrate on or about 12 April 2001 be costs in the cause.
- (6)That the respondent pay the appellant’s costs of and incidental to the appeal.
- (7)That the respondent be granted an Indemnity Certificate under the Appeal Costs Fund Act (1973) s 15.