Wilson v Queensland[2010] QDC 211

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an unusual application, filed in an unusual proceeding. On 25 March 2010 the plaintiff filed an application seeking the following relief:

“1. The deed executed on 20 May 1997 agreed to settle the action, namely 3280 of 1996, be set aside pursuant to:

• Rule 667(2)(a) and (b) of the Uniform Civil Procedure Rules 1999 (“UCPR”)
• Rule 211 and 212(2) and 215 of the Uniform Civil Procedure Rules 1999 (“UCPR”)
• Rule 326(2) and 329 and 331 of the Uniform Civil Procedure Rules 1999 (“UCPR”)
• Rule 225(1)(c).

2. The plaintiff Robert Philip Wilson be reinstated to his position in Education Queensland as of 18 July 1994 with full benefits and allowances for increments due to promotion and professional development.”

2. [2]
   An order for costs was also sought. The proceeding was commenced by solicitors on behalf of the plaintiff filing a plaint on 12 September 1996 claiming $200,000 damages for unlawful termination of employment, loss of income and additionally or in the alternative damages for deceit, as well as a declaration that the termination of the plaintiff’s employment by the first defendant was unlawful and a declaration that a deed between the plaintiff and the first defendant dated 14 September 1995 was of no effect on the grounds of misrepresentation and nondisclosure. The rescission of the deed or a declaration that the plaintiff was entitled to rescind the deed was claimed further or in the alternative. An entry of appearance and defence by the defendants was filed on 17 October 1996.

3. [3]
   On 7 April 1997 another judge ordered that there be a mediation of the matter conducted at a date and venue to be agreed upon by the parties, by a mediator to be selected by the parties. Paragraph 6 was to the effect that no hearing date may be given to this matter until the mediator’s certificate is filed in the registry or until further order. The matter having been referred to an ADR process by this order, the effect of Rule 391 of the District Courts Rules then in force was that the dispute and all claims made in the dispute were stayed until the report of the ADR convenor certifying the finish of the ADR process was filed with the registrar of the referring court, or a District Court otherwise orders. With the introduction of the Uniform Civil Procedure Rules in 1999, r 321, which is to the same effect, took over and maintains the stay. Neither of these steps has yet occurred, so on the face of it the application was filed in a proceeding which has been stayed.

4. [4]
   There is the further consideration that after the order of 7 April an amended plaint was filed on 2 May 1997, by the same solicitors then acting on behalf of the plaintiff, seeking only the relief of $200,000 damages for deceit. That was apparently also a breach of the stay imposed by the rule, but significantly there has been nothing else done on the file until the filing of the application in March 2010. That makes me wonder whether the plaintiff before filing the application should have obtained leave to proceed under r 389, although in the circumstances it is unnecessary to consider that question further.

5. [5]
   The application, which was apparently filed by the plaintiff personally, seeks an order that a deed apparently executed in settlement of the proceeding be set aside pursuant to various rules in the UCPR. Rule 667(2) permits a court to set aside “an order” at any time in certain circumstances. The term “order” is defined in Schedule 4 to the rules as including “a judgment, direction, decision or determination of a court whether final or otherwise.”  It does not include a deed. There is no power under r 667 to set aside a deed. If, which may well have been the case, the deed was executed as a result of a settlement arrived at during the mediation, it simply took effect as a compromise:  District Court of Queensland Act 1967 s 102(2). It did not become an order of the court, although an order of the court may be made pursuant to a settlement agreement. In the present case, however, no such order was made.

6. [6]
   Rule 211 sets out the duty of disclosure of a party to a proceeding; r 212(2) provides that a statement or report of an expert is not privileged from disclosure; r 215 provides for the production for inspection of the original of a document. None of these rules contains any power to set aside a deed. Rule 225(1)(c) provides that in certain circumstances a party may be ordered to pay the costs or part of the costs of a proceeding, but also says nothing about setting aside a deed. Rule 326(2) permits a mediator to decide whether a party may be represented at a mediation, and if so by whom. Rule 329 provides that a mediator must ensure that an agreement is dealt with in a particular way (which was apparently not complied with in this case since there is no sealed container on the court file), but does not give any power to set aside the agreement if it is not complied with. Rule 331 provides for a mediator to file a certificate after a mediation, but again does not give any power to set aside an agreement entered into following the mediation if it was not complied with.

7. [7]
   It follows that none of the rules relied on gives any power to set aside a deed. This aspect of the application is therefore misconceived and pointless. In written submissions filed on behalf of the plaintiff on 16 April, the solicitors for the plaintiff conceded that none of these provisions give power to set aside a deed.

8. [8]
   The second order sought, for reinstatement of the plaintiff in a position in the education department, is not one which as far as I know this court can make. No provision of any statute or of the rules was relied upon in seeking that order. No such relief was sought in the plaint as filed in September 1996, although a declaration that the termination of the plaintiff’s employment was ineffective was sought, and it may be that the practical effect of making a declaration that the plaintiff’s employment had never been validly terminated would have been to effect such reinstatement. If the amended plaint filed in May 1997 is regarded as valid, it abandoned any claim to relief other than by way of a money sum.

9. [9]
   Even if the plaintiff in the proceeding is claiming such relief, no basis has been shown on which I could grant such relief in a summary way on the hearing of this application. But apart from that, there is what strikes me as the insuperable difficulty that as far as I know this court does not have power to order that a person be reinstated into a position in Education Queensland, either prospectively or retrospectively. I invited the plaintiff to draw to my attention the provision relied upon as providing a power to make such an order, but he was unable to do so.

10. [10]
    When the matter was called on the plaintiff appeared in person. I was told that there had been some negotiations between him and the solicitor for the defendants as to directions in relation to the hearing of the matter, but it seemed to me that the relief sought in the application was relief that the court could not give and there was no point in wasting time in that way. The plaintiff said that he had discussed the matter with solicitors and counsel, but they were not available that day, and I gave him 14 days to put in written submissions providing at least some fairly arguable basis upon which the relief sought in the application could be given. No such basis has been shown; the submissions received from his solicitors conceded that this court does not have jurisdiction to make this order.

11. [11]
    The written submissions advanced an argument for setting aside the order of 7 April 1997 for mediation. There is no doubt that the court has power to set aside that order under either r 667 or r 668. That relief, however, was not sought in the application. The plaintiff has on 16 April filed a further application returnable on 9 June seeking that relief. That is a matter which can be considered on the hearing of that application. It is, however, not immediately apparent that any useful purpose would be achieved by setting aside the mediation order, in circumstances where it appears that at or as a result of a mediation which was in fact held a deed of settlement was entered into between the parties, unless that deed of settlement can also be set aside. Conversely, if the deed of settlement is set aside, the mediation order is harmless. It was a direction for the parties to do something which they have in fact done. However, it is not necessary for me to decide that point, which is not before me.

12. [12]
    The submissions also advanced an argument for the proposition that this court has equitable jurisdiction to set aside a deed of settlement on the ground of fraud. If an order of the court is made pursuant to the deed of settlement and giving effect to it, the court has jurisdiction to set aside that order under r 667 or r 668, including on the ground of fraud:  r 667(2)(b). In such circumstances it would be relevant to consider, and the court would have jurisdiction to decide, whether or not the agreement which produced the order was voidable for fraud, as I considered in Azad v Ljubas [2007] QDC 18. However, there was no order made by the court to give effect to the deed of settlement in the present matter. The issue therefore, if an application is to be made in this court challenging the validity of that deed on the ground of fraud, is whether this court has jurisdiction to decide that question.

13. [13]
    That would depend I suspect on whether there is jurisdiction to decide that question under s 68. It is by no means apparent to me that the court has jurisdiction under s 69 to set aside on the ground of fraud a contract between the parties merely because the subject matter of that contract was or included what was to happen in relation to a proceeding pending in this court. The court has some equitable jurisdiction under s 68 of the Act, including for relief against fraud:  s 68(1)(b)(ii). That jurisdiction, however, is confined to circumstances “where the damage sustained or the estate or fund in respect of which relief is sought does not exceed in amount or value the monetary limit.”  It will be necessary for the plaintiff to show in a particular case that that limitation was satisfied. That matter, however, is not before me and can be decided on the hearing of the application filed 16 April.

14. [14]
    In those circumstances, since it appears to me that there is no basis upon which the court has power to grant the relief claimed in the application, the application is a waste of time and the appropriate course is to strike it out before any more of the court’s time and the parties’ costs are wasted on it. Accordingly, the plaintiff’s application of 25 March 2010 is struck out. Costs should follow the event; I order the plaintiff to pay the defendants’ costs of and incidental to the application to be assessed.