Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Pritchard v The Brisbane City Council[2020] QDC 189

Pritchard v The Brisbane City Council[2020] QDC 189

DISTRICT COURT OF QUEENSLAND

CITATION:

Pritchard v The Brisbane City Council and Anor [2020] QDC 189

PARTIES:

FRANCINE PRITCHARD

(plaintiff)

v

THE BRISBANE CITY COUNCIL

(first defendant)

and

JARDINE LLOYD THOMPSON PTY LTD

(second defendant)

FILE NO/S:

D42/19

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Ipswich

DELIVERED ON:

14 August 2020 

DELIVERED AT:

Ipswich

HEARING DATE:

11 October 2019

JUDGE:

Horneman-Wren SC DCJ

ORDER:

  1. The defendants have judgment on each of paragraphs 1–6 of the claim.
  2. To the extent it is necessary, paragraphs 7 and 8 of the claim be set aside.
  3. The plaintiff is to pay the defendants costs of the proceeding on a standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – WHERE TO COMMENCE PROCEEDINGS – where the plaintiff is self-represented and filed a defective claim – where the defendants applied to strike out the claim and statement of the claim – where the defendants, in the alternative, applied for summary judgment – where parts of claim have no reasonable prospect of success – where parts of claim raise no cause of action known to law – whether claim within monetary limit of District Court – whether proceeding commenced in correct district

COUNSEL:

The plaintiff appeared in person
Ms K Kluss for the first and second defendant

SOLICITORS:

City Legal for the first and second defendant

  1. [1]
    By claim filed on 15 May 2019, the plaintiff, Ms Pritchard commenced a proceeding in the District Court at Ipswich. By her claim, she raises different claims. Those claims are:
  1. Financial loss and property damage suffered as a result of the Plaintiff’s vehicle (hereafter known as Vehicle 2) being hit by a bus on the 8th of March 2012, on Brunswick Street New Farm.
  1. Damages in the amount of $31,729, being the sum of outlays and losses attributable to the loss of the vehicle and the actions taken by the Defendants;
  1. Interest accrued since the time of the accident $27,194;
  1. Damages for defamation in the sum of $275,000, including false annotation on “MyinsuranceFile”;
  1. Penalty clause of $740,000 (Notwithstanding judgment by the court for a different amount) due to refusal to make offer/ settle knowing that the driver Mr Metz was to be charged as a result of this offence;
  1. Damages in the amount of $450,000, notwithstanding a judgment by the court of a higher amount, for Bullying by an unrepentant local government department: And a failure of their legal representative and insurance broker to follow any semblance of the model litigant procedures;
  1. The facts will establish beyond any doubt, that the Respondent is liable for all costs and charges and that the actions of the driver on the night were an Act of Road Rage and intentional;
  1. The Plaintiff will further seek leave to lodge a new claim in the Supreme Court for damages arising from the determination of (Criminal Negligence Depraved indifference or Reckless endangerment), at the completion of the matter being heard in the District Court of Queensland.
  1. [2]
    All of Ms Pritchard’s claims are, by her statement of claim, alleged to have arisen, directly or indirectly, from a motor vehicle accident which occurred on 8 March 2012. The accident involved a collision between a Brisbane City Council bus and her vehicle.
  1. [3]
    By their defence, the defendants contend that the proceeding is beyond the monetary jurisdiction of the District Court and that it should have been commenced in the Brisbane Registry. Further, they plead the Limitations of Actions Act 1974 as a complete defence to the causes of action arising from damage to property, personal injuries,[1] and defamation. They say that the other parts of the statement of claim disclose no cause of action.
  1. [4]
    The defendants also contend that the matters which Ms Pritchard seeks to litigate are res judicata having previously been the subject of a proceeding in the Queensland Civil and Administrative Tribunal (‘QCAT’) which was dismissed on 30 May 2019.
  1. [5]
    The defendants apply to have the claim and statement of claim struck out pursuant to r 171(2) of the Uniform Civil Procedure Rules 1999 (‘UCPR’), without leave to replead. In the alternative, they seek summary judgment under r 293 of the UCPR.

Preliminary jurisdictional issues

  1. [6]
    Two preliminary jurisdictional issues arise in relation to Ms Pritchard’s claim.
  1. [7]
    First, the traffic incident, out of which all the causes of action are alleged to have directly or indirectly arisen, occurred in the suburb of New Farm in Brisbane. The proceedings were commenced in Ipswich. There is nothing contained in the statement of claim which connects, jurisdictionally, any cause of action with the district of Ipswich.
  1. [8]
    Section 8A of the District Court Act 1967 provides that the District Court has jurisdiction throughout Queensland. However, in relation to civil proceedings, rule 35 of the Uniform Civil Procedure Rules 1999 provides:

Rule 35 – General Rule

  1. (1)
     A person must start a proceeding before a court in 1 of the following districts—
  1. (a)
    the district in which the defendant or respondent lives or carries on business;
  1. (b)
    if there is more than 1 defendant or respondent—the district in which 1 or more of the defendants or respondents live or carry on business;
  1. (c)
    if the parties to a proceeding to be started in a Magistrates Court or the District Court consent in writing and file the consent with the registrar—
  1. (i)
    for a Magistrates Court—any Magistrates Courts district; or
  1. (ii)
    for the District Court—any district of the District Court;
  1. (d)
    if a defendant has agreed or undertaken in writing to pay a debt or another amount at a particular place—the district in which the place is located;
  2. (e)
    the district in which all or part of the claim or cause of action arose.
  1. (2)
     However, if the proceeding is to be started in the District Court and subrule (1) does not apply—
  1. (a)
     a person may, without notice to a proposed party, apply to the District Court for directions about the district in which the proceeding should be started; and
  1. (b)
     the person may start the proceeding in accordance with the court's directions.
  1. [9]
    Whilst the plaintiff resides in the Ipswich District Court district,[2] the claim, jurisdictionally, has no nexus with Ipswich. By r 35(1)(a), the proceeding may be started in the district in which the defendant resides or carries on business, but not the plaintiff. The claim should have been commenced in the Brisbane Registry.
  1. [10]
    The second issue is whether the claim is beyond the monetary limit of the District Court. Although the application does not directly raise the issue, paragraph 24 of the defence pleads that the amount claimed exceeds the monetary jurisdiction of the District Court and the proceeding ought to be transferred to the Supreme Court. The total amount claimed by Ms Pritchard is $1,523,923.00. Although claimed for separate causes of action, the claims are not made in the alternative and Ms Pritchard claims each amount cumulatively.
  1. [11]
    By s 68(1)(a) of the District Court Act 1967 states the District Court has jurisdiction to hear and determine all personal actions, where the amount, value or damage sought to be recovered does not exceed the monetary limit, which is $750,000.[3] The claim is, not, however, beyond the monetary limit of the District Court. The monetary limit is to be applied to each separate cause of action, not to all causes of action collectively.[4] The damages claimed for each separate cause of action is below the monetary limit.

Res judicata

  1. [12]
    The defendants’ contention that this proceeding is res judicata may be addressed briefly. First, contrary to the defendant’s submissions,[5] all of the matters sought to be litigated by Ms Pritchard could not be res judicata as a consequence of the proceedings in QCAT. Those proceedings were brought in the minor civil dispute jurisdiction of QCAT.[6] That jurisdiction is limited,[7] but includes a claim for an amount for damage to property caused by, or arising out of the use of, a vehicle.[8] That was the nature of Ms Pritchard’s claim in QCAT.[9]
  1. [13]
    The doctrine of res judicata could only apply to that part of Ms Pritchard’s claim in the proceeding in this court. The defendant’s defence,[10] but not their submissions on the application, recognise this.
  1. [14]
    Secondly, it is not apparent on the evidence currently before the court that there was any determination on the merits in QCAT. It is unclear, therefore, that the doctrine applies.[11] The defendants’ had been respondents to that proceeding. They applied to have it dismissed. That application was granted after an ‘on the papers’ hearing on 27 May 2019. Mr Pritchard had filed a notice of withdrawal of her application, but the date stamp is unclear as to when that occurred. No reasons were published by the tribunal and none were requested by the parties.
  1. [15]
    I am not satisfied on the material that any substantive consideration and determination of the issues relevant to Ms Pritchard’s claim for property damage which she now brings in this jurisdiction was undertaken. I am not satisfied that any part of her claim is res judicata.

Should the defendants have the relief they seek?

  1. [16]
    Whether the defendants should be granted the relief which they seek, either in having the statement of claim struck out under r 171 UCPR or summary judgment under r 293, is best considered by addressing each aspect of the claim. Before doing so, some general observations can be made about the statement of claim.
  1. [17]
    It does not comply with r 144(1)(b) UCPR in that it does not contain a statement of the relevant material facts on which Ms Pritchard relies and it does contain evidence by which facts are to be proved. It is a discursive document which fails to address material facts relevant to any cause of action identifiable in the claim.
  1. [18]
    If summary judgment ought not be granted in respect of all or any of the claim, the whole of the statement of claim should be struck out.

Property damage

  1. [19]
    Ms Pritchard’s claim for damages for property damage and interest is a cause of action recognised at law. The proceeding can be brought in the tort of negligence. However, in accordance with s 10(1)(a) of the Limitations of Actions Act 1974, claims for property damage founded on tort must be commenced within six years of the cause of action arising. In Ms Pritchard’s case, the cause of action arose on 8 March 2012. Ms Pritchard was required to commence proceedings by 8 March 2018. The claim was filed on 15 May 2019, outside the six year period. The effect of the limitation period having run is, generally, that the remedy is statute barred although the plaintiff’s right is not extinguished.[12]
  1. [20]
    The defendants plead the Limitations of Actions Act 1974 as a complete defence. Rule 150(1)(c) UCPR requires a defendant to specifically plead the running of the limitation period as a bar to the remedy. This was done in the defence filed 20 June 2019. The Limitation of Actions Act 1974 acts as a bar against any remedy available to Ms Pritchard for property damage, including any claim for accrued interest in relation to the property damage.
  1. [21]
    As the pleadings stand, the defendants raise a complete defence to this cause of action. If the court ordered the statement of claim be struck out but with Ms Pritchard given leave to replead, it is inevitable that the defendant would plead this defence again. It would remain a complete defence. Therefore, there is no utility in simply striking out the statement of claim and allowing Ms Pritchard the opportunity to replead in respect of this part of her claim. There is no real prospect of her succeeding on this part of her claim and there is no need for a trial in respect of it.
  1. [22]
    The defendants should have summary judgment in respect of paragraphs 1, 2 and 3 of the claim.

Personal injuries

  1. [23]
    Ms Pritchard’s claim does not directly raise a claim for damages for personal injuries. As the defence identifies, though, at paragraph 39 of the statement of claim Ms Pritchard does plead that she sustained “life altering injuries as a result of this accident and am now on the Disability Support Pension.” She pleads that she had been a Queensland Government employee at the time of the accident. She pleads that as a consequence of having sustained those life altering injuries she is restricted in the type of vehicle which she drives. These matters might be understood to be referrable to a claim for damages for personal injuries, although not raised in the claim.
  1. [24]
    In respect of any such claim, the defendants have also pleaded that the proceedings are statute barred pursuant to s 11 Limitation of Actions Act 1974. Again, that is a complete defence to any proceeding even if the claim were to be amended. It will, again, inevitably be pleaded as a complete defence to any repleading of the statement of claim should the current statement of claim be struck out with leave to replead.
  1. [25]
    There is no real prospect of her succeeding on this part of her claim and there is no need for a trial in respect of it.

Defamation

  1. [26]
    Any action for defamation must not be brought after the end of 1 year from the date of publication of the matter complained of.[13]
  1. [27]
    On 19 July 2016, Ms Pritchard obtained a copy of her insurance file from VEDA, which, she says, listed her as being liable for the accident that occurred on 8 March 2012. Ms Pritchard claims this is defamatory. Whilst an exact date of the entry on the insurance file is not pleaded in the statement of claim it can be assumed that any relevant actionable publication of which she complains occurred before 19 July 2016 when she learned of the entry. No application has been made to extend the limitation period.[14]
  1. [28]
    Regardless of the limitation period, the claim for damages for defamation has no real prospect of success. Ms Pritchard, in her statement of claim, has failed to plead circumstances where there has been any communication to at least one other person, other than herself, that harms her reputation. Nor has she pleaded any publication of any defamatory matter of or concerning herself by either defendant.
  1. [29]
    Further, at paragraph 47(a) of her statement of claim, Ms Pritchard identifies the relevant insurance file as “Exhibit L”. That must be taken to be a reference to “Exhibit L + N” to her affidavit filed on 18 September 2019. It is a computer extract from “myinsurance passport”. Under the heading “Insurance claims” are details of a claim with the date of loss at 8 March 2012. The “insurance type” is identified as “motor vehicle”. There is an entry for “type of claim”, which is “collision at fault”. That entry is the basis for Ms Pritchard’s claim for defamation. It is, on its face, in its ordinary and natural meaning, a statement about a claim, not a statement of and concerning Ms Pritchard. No defamatory imputations are pleaded. It could not, on any view of it, cause harm to her reputation.
  1. [30]
    This part of her statement of claim discloses no reasonable cause of action in defamation. On the evidence, no reasonable cause of action in defamation would be able to be pleaded.
  1. [31]
    For the same reasons outlined above in relation to property damage and personal injury, it is inevitable that the defendant would replead the limitation period as a bar to any remedy even if Ms Pritchard were given leave to properly plead a claim in defamation.
  1. [32]
    Ms Pritchard has no real prospect of succeeding on her claim for defamation. No trial is necessary.
  1. [33]
    The defendants should have summary judgment on paragraph 4 of the claim.

Bullying and penalty clause

  1. [34]
    Ms Pritchard claims damages for “bullying by an unrepentant local government department and a failure by their legal representatives and insurance broker to follow any semblance of the model litigant procedures” and pleads a ‘penalty clause’ due to the defendant’s failure to make an offer or to settle the matter The latter is said to have accrued at the rate of $2,000 per week as a consequence of the first defendant having failed to settle Ms Pritchard’s claim by January 2013.[15]
  1. [35]
    Neither are claims known to law. Neither has any real prospect of success. A trial is unnecessary.
  1. [36]
    The defendants should have judgment on paragraphs 5 and 6 of the claim.

Conclusion

  1. [37]
    The defendants should have judgment on each of paragraphs 1–6 of the claim.
  1. [38]
    Paragraphs 7 and 8 of the claim are not in the nature of a claim at all. To the extent it is necessary, they should be set aside under r 16 UCPR.
  1. [39]
    It is appropriate that Ms Pritchard pay the defendants costs of the proceeding on the standard basis.

Footnotes

[1]To the extent that any such claim is actually raised.

[2]District Court of Queensland Act 1967 (Qld) s 7; District Court of Queensland Regulation 2015 (Qld) s 3, sch 1.

[3]District Court of Queensland Act 1967 (Qld) s 68(2).

[4]Merrin & Anor v Cairns Port Authority (2006) QCA 278 at [5]–[7].

[5]Outline of argument of the Defendants, paragraphs [50]–[55].

[6]Application for minor civil dispute – consumer dispute. Exhibit A to the Affidavit of Anne-Marie Treston filed 8 October 2019.

[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 12.

[8]Ibid s 8, sch 3 (definition of ‘minor civil dispute’).

[9]Application for minor civil dispute Part C.

[10]Defence filed 20 June 2019, paragraph 1(c)(iii).

[11]Mango Boulevard Pty Ltd v Spencer & Ors (2008) QCA 274 at [52] per Muir JA citing Birkett v James [1978] AC 297 and Spencer, Turner and Handley, The Doctrine of Res Judicata, 3rd ed, paragraph 35 and footnote 91.

[12]Commonwealth v Mewett (1977) 191 CLR 471.

[13]Limitation of Actions Act 1974 s 10AA.

[14]Ibid s 32A.

[15] Statement of claim paragraph 38(d).

Close

Editorial Notes

  • Published Case Name:

    Francine Pritchard v The Brisbane City Council and Jardine Lloyd Thompson Pty Ltd

  • Shortened Case Name:

    Pritchard v The Brisbane City Council

  • MNC:

    [2020] QDC 189

  • Court:

    QDC

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    14 Aug 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.