Felipe v Rand[2003] QDC 297

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for summary judgment pursuant to the provisions of r. 292 of the Uniform Civil Procedure Rules. Rule 292 is in the following terms:

“292(1)A plaintiff may at any time after a defendant files a notice of intention to defend apply to the court under this part for judgment against the defendant.

(2)If the court is satisfied that –

1. (a)
   The defendant has no real prospect of successfully defending all or part of the plaintiff’s claim;  and

2. (b)
   there is no need for a trial of the claim; 

the court may give judgment for the plaintiff against the defendant for all or part of the plaintiff’s claim and may make any other order the court considers appropriate.”

2. [2]
   This rule has been considered on a couple of occasions at least by the Queensland Court of Appeal in the last 12 months. In Queensland University of Technology v Project Constructions (Aust) P/L (In Liq) & Anor (2002) QCA 224 Holmes J in the leading judgment of the court applied the “no real prospect of succeeding” test. In another judgment a few days later Bernstrom v National Australia Bank Limited (2002) QCA 231 the leading judgment of the court was given by Jones J with whom McMurdo P and Cullinane J agreed. The court applied the reasoning of the Court of Appeal (UK) in Swain v Hillman which was expressed as follows:

“... the court now has a very salutary power, both to be exercised in the claimant’s favour of, where appropriate, in the defendant’s favour. It enables the court to dispose summarily on both claims or defences which have no real prospect of being successful. The words “no real prospect of succeeding” do not need any amplification, they speak for themselves. The word “real” distinguishes fanciful prospects of success or ... they direct the court to the need to see whether there is a “realistic” as opposed to a “fanciful” prospect of success.”

3. [3]
   The plaintiff’s claim filed on 7 June 2001 is for damages for personal injury suffered as a consequence of an assault. The Statement of Claim alleges that on or about 25 July 1998 the defendant burst into the plaintiff’s home and assaulted him by hitting him with a piece of timber. The plaintiff suffered various injuries.

4. [4]
   In the defence the defendant admits hitting the plaintiff with a piece of timber, but claims that he struck the plaintiff on the arm being used by the plaintiff to attempt to stab the defendant. He denies having struck the plaintiff’s hand, fingers, temple, face or legs. At paras. 8 and 9 of the defence it is alleged:

“8. Further, or in the alternative, if the plaintiff were injured (which is not admitted) then such injuries were caused or contributed to by the actions of the plaintiff namely:-

1. (a)
   the plaintiff provoked the defendant in that he:

(i) to the defendant’s son;  or

2. (ii)
   caused the defendant to believe that he had sold drugs to the defendant’s son; 

2. (b)
   the plaintiff attacked the defendant with the aforesaid large knife and nunchakus forcing the defendant to defend himself.”

5. [5]
   Counsel for the plaintiff firstly relies upon the fact that in the District Court on 17 December 1999 the defendant pleaded guilty to a count of assault occasioning bodily harm arising out of this incident. In the transcript of the sentencing hearing before his Honour Judge Robertson which is Exhibit A to the affidavit of Daniel Felipe filed on 7 August 2003 the Crown prosecutor at p 3 described the events in the following terms:

“... the prisoner then took a piece of timber from his vehicle and smashed the glass window  carefully and then he entered – he came through the window –-

His Honour:  Smashed the glass window? 

Mr Raniga:  Yes the glass panel which is beside the door.

His Honour:  You said he smashed the glass window.

Mr Raniga:  With the piece of wood.

His Honour:  I see.

Mr Raniga:  Then he entered through that glass window. Smashed the glass window because the door was locked.

His Honour:   I see

Mr Raniga:  He came in and then he hit the – he struck the complainant with the wood and the complainant raised his elbow in order to protect himself and it hit his elbow and then a bit on his head.

The complainant fell to the ground and then he tried to tackle him. Blows were exchanged. The stick was then dropped. The prisoner’s wife was also there, came in and handed the wood back to him – back to the prisoner and the prisoner then hit him in the chest and stomach.”

6. [6]
   The submissions of Mr Glynn who appeared on behalf of the defendant related principally to his good work history and previous good character. Reference is made to a report of a Dr Curtis but Mr Glynn then went on:

“....Your Honour when my client broke into the place the complainant – and I say this not by way of attack on the complainant – had armed himself with both a knife and nunchakus ...

My client accepts that he may have assaulted the wrong man, ...

Your Honour, my client accepts, however, that he cannot take the law into his own hands, and he is seriously remorseful for having done what he did.”

7. [7]
   It is significant though that Mr Glynn did not contradict the Crown’s version of events. He also addressed no plea in mitigation arising out of issues of provocation or self defence. Such considerations are relevant ones on sentence where an accused may, for example, have used excessive force.

8. [8]
   Mr Martin, who appears on behalf of the defendant on this present application, submits that the defendant pleaded guilty to the charge on legal advice because he was fearful of going to jail if he were unsuccessful on a trial. He concedes that plea of guilty and resulting conviction may well be hurdles for the defendant to meet on a trial of the action. However, s 79 of the Evidence Act 1977 while making a conviction admissible in evidence for the purpose of proving any relevant issue in a civil proceeding and this includes the situation where a person is convicted upon a plea of guilty, it is nonetheless open pursuant to s 79(3) for a defendant to prove the contrary for a civil court. This is true. The plea of guilty in itself is a problem for the defendant but by itself is not determinative. The nature of the submissions, however, is very damaging tot he defendant’s prospects on trial.

9. [9]
   A further difficulty arises for the defendant out of criminal compensation proceedings which were brought against him by the plaintiff on 18 October 2001. The defendant in his affidavit filed by leave deposes as follows:

“On 18 October, 2001 the criminal compensation proceedings were heard and I was ordered to pay the sum of $15,000 to the plaintiff. This amount has been paid.”

10. [10]
    I am told that I was the judge who heard the criminal compensation application but have no recollection of the facts. My reasons for decision are not before me on this occasion. However, it is incumbent upon a judge hearing an application for criminal compensation to give consideration to any behaviour on the part of the applicant that may have contributed to the offence. Section 25(7) provides:

“(7) In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.”

11. [11]
    If there had been any reduction in the amount of compensation as a result of behaviour on the part of the applicant it would have been highly relevant for the defendant to refer to it. However, in his affidavit he makes no mention of any such reference. The defendant cannot claim that fear of going to jail could in any way have motivated him on this occasion where it was a relevant issue.

12. [12]
    It is quite common in giving reasons for a decision on such applications for a judge to make an express finding that there was no conduct on the part of the applicant which contributed to the injury. However, I do not have a copy of my reasons on this occasion and cannot be satisfied that I made such an express finding. I can be satisfied that either there was no reference in submissions to such contributing behaviour on the part of the applicant or, if there was, that I rejected those submissions.

13. [13]
    The third line of argument adopted by Mr Sheaffe concerns the lack of particularization in the defendant’s affidavit. At paragraph 2 he states:

“However whilst I admit to striking the plaintiff I did so in self defence as pleaded in paragraph 2(b) of my defence and as a consequence of provocation as pleaded in paragraph 8(a) to my defence I otherwise say that the contents of my defence filed herein are true and correct.”

14. [14]
    This description falls a long way short in particularizing the facts upon which defences of either provocation or self defence might be founded. Furthermore the factual description of the events given by the prosecutor on sentence which was not challenged in any relevant fashion was inconsistent with defences of provocation and self defence.

15. [15]
    It was the defendant’s version of events that he was driving past the plaintiff’s residence when told by his daughter that the plaintiff was the person responsible for providing drugs to his son. It was conceded by the defendant’s counsel on sentence that this was incorrect. However, the definition of provocation in the Criminal Code requires a “wrongful act or insult” done or offered by the complainant to the defendant or to another person – in this instance in a filial relationship – in the defendant’s presence. No such factual situation arises in the present case.

The second aspect of the matter that plainly appears in submissions on sentence is that the defendant broke into the plaintiff’s residence armed with a piece of wood.  The factual situation outlined does not avail the defendant. It is not to the point to say that the plaintiff had armed himself with a knife and nunchukas because in such circumstances he was perfectly entitled to do so. There is no suggestion anywhere that he applied disproportionate force to the defendant.

16. [16]
    Mr Martin submits on behalf of the defendant that there will need to be a hearing in the form of an assessment of damages in any event, and that it matters little if they issue of liability be left on foot. I disagree. There is no real prospect of the defendant succeeding on the issue of liability in the above circumstances. I make orders as per paragraphs 2 and 3 of the application subject to the proviso that the costs of the action referred to in paragraph 3 relate solely to the issue of liability.