Meikle v ABF Legal Pty Ltd T/a Beck Legal Solutions
[2021] QDC 100
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
- Meikle v ABF Legal Pty Ltd T/a Beck Legal Solutions[2021] QDC 100
- Add to List
Meikle v ABF Legal Pty Ltd T/a Beck Legal Solutions[2021] QDC 100
Meikle v ABF Legal Pty Ltd T/a Beck Legal Solutions[2021] QDC 100
DISTRICT COURT OF QUEENSLAND
CITATION: | Meikle v ABF Legal Pty Ltd T/a Beck Legal Solutions [2021] QDC 100 |
PARTIES: | CLINTON JAMES MEIKLE (Appellant) v ABF LEGAL T/A BECK LEGAL SOLUTIONS (Respondent) |
FILE NO: | D102 of 2021 |
DIVISION: | Civil |
PROCEEDING: | Application on Appeal |
ORIGINATING COURT: | Southport District Court |
DELIVERED ON: | 18 June 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 June 2021 |
JUDGE: | Judge Kent QC DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATES AND TERRITORIES – PLEADINGS – STRIKING OUT – GENERALLY – Where the appellant submits that there was an error of fact and an error of law – Where the respondent submits that there are no grounds for the error of fact and error of law submission – Where there are no viable grounds identified – Where the relief sought by the appellant is not identified – Where the application made is to strike out the appeal – Where an amendment to the grounds would be futile |
LEGISLATION: | Magistrates Courts Act 1921 (Qld), s 47 Supreme Court of Queensland Act 1991 (Qld), ss 43(b), 43(d) Uniform Civil Procedure Rules 1999 (Qld), rr 5(4), 16(e), 171, 371, 658, 747 |
CASES: | Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 Grepe v Loam (1887) 37 Ch D 168 MNSBJ Pty Ltd v Downing [2017] QCA 141 Robertson v Hollings & Ors [2009] QCA 303 Von Risefer & Ors v Permanent Trustee Co P/L & Ors [2005] QCA 109 Young v Crime and Corruption Commission [2018] QSC 12 |
COUNSEL: | G Radcliff for the Applicant The Respondent was self-represented |
SOLICITORS: | Cooper Maloy Legal for the Applicant The Respondent was self-represented |
Introduction
- [1]This is an application by the respondent to the appeal to strike out the appeal on the grounds that it fails to comply with the provisions of Uniform Civil Procedure Rules (“UCPR”) r 747(1)(b) and (1)(c) which provide for the required content of a notice of appeal. In essence, the applicant’s contention is that no grounds of appeal are identified in the notice, nor is the relief which the appellant seeks identified. Further, while these matters might normally be cured by amendment, the nature of this case is such that any such attempt would be futile and really the appropriate relief is to strike out the appeal.
Background
- [2]The appellant, Mr Meikle, is self-represented. He initiated proceedings in the Magistrates Court against the respondent (the applicant in the present application), who had been his legal representatives in contested family law proceedings in the Federal Circuit Court. The respondent had charged Mr Meikle legal fees, and he had paid it seems $43,103.00. The claim, which was commenced in the Magistrates Court on 11 February 2020, seems to have been intending to include a cause of action in negligence, although it is not easy to discern the precise details. The pleadings also refer to other things such as deceit and extortion.
- [3]The applicant accordingly applied in the Magistrates Court to strike out the pleadings, and the case seems to have involved four different attempts by the appellant to present his pleadings in a sensible form. Eventually the claim and the final version of the amended statement of claim were struck out, in orders made 5 March 2021.
- [4]The appellant appealed from that determination to this court. The subject of the present application is that the notice of appeal is deficient in that it does not specify any meaningful grounds of appeal, nor does it outline the relief sought.
- [5]The notice of appeal, which is partly hand written, says in relation to the grounds that:
“The Magistrate was in error of law. The Magistrate was in error of fact.”
- [6]Without more, this is simply said to be inadequate in outlining what the grounds of appeal are that the respondent would be able to sensibly interpret.
- [7]The applicant further acknowledges that if the grounds of appeal were readily identifiable it might well be appropriate to grant the appellant leave to amend. To this end, the applicant refers to the appellant’s outline of argument which was filed on 22 April 2021. This contains a narrative of the history of the proceedings in the Magistrates Court and refers to the Magistrate’s decision. There is then a heading “Errors” in which the various errors in the Magistrate’s decision are apparently intended to be listed. The applicant submits, and I accept, that none of the matters set out amount to viable grounds of appeal. Thus there is no purpose in allowing an amendment when no viable grounds could be added.
- [8]The applicant points out, as a relevant background fact to the decision to strike out, that there is nothing preventing the appellant from simply commencing another, properly constituted, action concerning the same issues in the Magistrates Court (assuming that an identifiable cause of action, and the material facts supporting same, can be pleaded). No relevant time limit has expired. There was no hearing on the merits in the Magistrates Court, and in the circumstances a res judicata does not arise. Thus a recommencement is, so the applicant argues, the far more cost effective and appropriate solution for the appellant to pursue whatever rights he might have against the respondent.
Principles
- [9]
“… litigation is not a learning experience. The courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties. It is no doubt unfortunate for Mrs Robertson that she does not have the benefit of competent legal advice and representation; but her misfortune in this regard does not license her to proceed unconstrained by the rules according to which adversarial litigation is conducted.”
His Honour continued at [13]:
“Litigation in the superior courts is expensive, time consuming and extremely stressful for litigants. These negative aspects of the adversarial system of civil justice are minimised and rendered tolerable by the rules which ensure that the process is conducted in accordance with irreducible minimum requirements of fairness and rationality. The amended statement of claim which the learned primary judge struck out did not meet these basic requirements.”
In that case the notice of appeal was struck out, referring to UCPR r 747 as to the required contents of the notice of appeal and r 371 as to the power to set aside a proceeding which does not comply with the rules.
- [10]There is also reference to Von Risefer & Ors v Permanent Trustee Co P/L & Ors[4] ; again referring to the judgment of Keane J.A., as to a court’s power to ensure that its own processes are not abused (referring, inter alia, to Commonwealth Trading Bank v Inglis (1974) 131 CLR 311). The notice of appeal was struck out in that case, being found to be vexatious and an abuse of process; reliance was placed on UCPR r 658 (the general power as to orders required by the nature of the case); s 43 (1)(b) and (d) of the Supreme Court of Queensland Act (a broad power to, inter alia, dismiss an appeal) and the inherent jurisdiction of the court to prevent abuse of its processes.[5] Keane J.A. seems to have preferred to rely on the inherent jurisdiction.[6]
- [11]Reliance is also placed on MNSBJ Pty Ltd v Downing.[7] There was consideration in that case of the jurisdiction to strike out an appeal which is vexatious and an abuse of the process of the court. Morrison JA said at [32]:
“Mr Downing faces challenges similar to those in von Risefer and Robertson. As noted in Robertson, this Court cannot allow an improperly constituted proceeding to continue simply because of a party’s difficulties in understanding the court’s processes and requirements. Mr Downing’s appeal features the shortcomings that triggered a dismissal in both von Risefer and Robertson. Without adequate guidance as to what the grounds of appeal actually are, it is difficult to imagine what an outline of argument would entail. In this case, failing to properly articulate grounds of appeal creates a difficult task both for the respondents to the appeal and the appeal court.”
- [12]In that case, the application to strike out the appeal was refused, but the appellant was required to file a complying notice of appeal within a certain time limit and to provide security for costs. This is the applicant’s fall-back position.
- [13]Thus the applicant submits that the appeal in its present form is an abuse of process and should be struck out. Given the futile attempts to enunciate grounds of appeal in the appellant’s outline, and the overall lack of merit, together with the appellant’s apparent ability to recommence a properly constituted proceeding in the Magistrate’s Court, the remedy should be that the appeal should be struck out rather than any attempts at amendment be permitted.
The course of the litigation and the Magistrate’s order
- [14]The Magistrate’s Court file, which is before this court on this application, reveals a number of things relevant to determination thereof. It appears from the records of orders made that
- – The matter came on on 9 April 2020 and was adjourned for an interim application to be made.
- – It again came on on 3 July 2020 where an order was made that the matter be adjourned to 24 July 2021 for consideration of any application to amend the claim and statement of claim which was to be filed and served on or before 21 July 2021.
- – On 24 July, the matter was adjourned to 21 August for the plaintiff to make an application to amend the claim.
- – On 21 August, there were orders made concerning the plaintiff’s application to amend the claim and statement of claim; summary judgment thereon; and the defendant’s cross-application for the claim and statement of claim to be struck out, alternatively summary judgment for the defendant. Although the defendant (now the applicant) was somewhat successful on that application, a procedural difficulty was that it was not entitled to summary judgment in the absence of filing a defence. Thus a defence was ordered to be filed and served with disclosure to be undertaken and a settlement conference or mediation to take place.
- – On 8 December, the matter came back before the court, not having been settled at the mediation.
- – On 11 December, the matter came back on and was adjourned to 22 January.
- – On 22 January, the plaintiff’s application filed 18 January was struck out.
- – The plaintiff was again given leave to file and serve an amended claim and statement of claim by 19 February and the defendant’s application for summary judgment and strike out was adjourned to 5 March.
- – It was on 5 March that the now contested orders were made, which were that the claim and statement of claim be struck out and the defendant’s costs be assessed.
“Striking out” the claim?
- [15]There was discussion at the hearing of this application, as to whether there is a jurisdiction to strike out a claim (as the Magistrate ordered), or at least, an explicit jurisdiction in those words. Certainly pleadings can be struck out, as per UCPR r 171. However, a claim is an originating process, not a pleading. UCPR r 5, in particular r 5(4), does seem to enliven a jurisdiction to dismiss a proceeding (i.e. one initiated by a claim) if, in breach of the implied undertaking in r 5, a plaintiff fails to proceed as required by the rules or an order of the court. That would seem to have conferred the jurisdiction on the Magistrate which was exercised on 5 March to bring the proceeding to an end. Further, r 16(e) provides for the jurisdiction to set aside an originating process. This rule was referred to in Young v Crime and Corruption Commission,[8] where the order made was to strike out the claim and statement of claim, as here. In Robertson there was reference to r 371 which provides that where there is a failure to comply with the rules, there is a jurisdiction to set aside all or part of a proceeding, and the order there was to strike out the notice of appeal.
- [16]It seems that, arguably, the form of the order in this case may have been inaccurate, or at least debatable, in that the statement of claim should have been struck out and the claim could have been dismissed or set aside (although, in saying this, the action taken by the Magistrate – adopting the applicant’s draft order – was consistent with Robertson). However, it does not seem to me that, for the purposes of the present appeal, anything in particular turns on this. The Magistrate had jurisdiction to terminate the proceeding in one way or another (quite possibly by striking out, as was done), and the issue on this application is the lack of any identified viable grounds of appeal, and the possibility of adding viable grounds by amendment, rather than distinctions of language in the orders.
Lack of identifiable, viable grounds of appeal
- [17]The essence of the appellant’s difficulties on this occasion are the problems with the lack of identifiable grounds of appeal outlined above. I have considered in the context of this argument the appellant’s attempts to plead his case in the Magistrate’s Court, including the second amended claim and the third amended statement of claim. The most that could be said is that the documents appear to be mounting a claim in negligence; the factual underpinning and the required references to the elements of the cause of action, if negligence truly is the cause of action relied upon, are absent. I only mention these aspects in order to consider whether, given further opportunities, the appellant could formulate arguable grounds of appeal in this court. In short there are no proper grounds advanced in the notice of appeal; there are none which are arguably identified in the outline of argument; and none is obvious from looking at the decision of the Magistrate considering the material which was before him at the time. The notice of appeal thus does not comply with the requirements of UCPR r 747(1)(b) and (c) and in the circumstances outlined above, there is no reason to think that this noncompliance could be cured by amendment.
Jurisdiction to strike out a notice of appeal
- [18]From the authorities referred to above, particularly Robertson, there is a jurisdiction to strike out a notice of appeal which does not comply with r 747, pursuant to r 371. Other possibilities for the source of jurisdiction were considered in von Risefer. I have also considered s 47 of the Magistrates Courts Act 1921 (Qld) as to the jurisdiction of the District Court on the hearing of an appeal. Section 47(d) confers a fairly wide jurisdiction to make orders on terms to ensure the determination on the merits of the real question in controversy between the parties. However those powers arise on the hearing of the appeal. This is an application, in the appeal, to strike it out. It may be that the jurisdiction for such relief does not arise under s 47 at this stage (because it is anterior to the hearing of the appeal proper), but is rather, as in Robertson and von Risefer, something which arises from the UCPR or the court’s inherent jurisdiction. In any case, it seems clear to me there is such a power.
- [19]The appellant did file an outline of submissions in response to this application. None of the arguments set out there in engage with the real issues on the application. I heard from Mr Meikle on the hearing of the application and he did not seem to be able to advance anything further.
- [20]My conclusion is that the application must succeed. For the reasons I have outlined above, the notice of appeal in this case does not comply with the requirements of UCPR r 747(1)(b) and (c). There is no reason to think, realistically, that the appellant could sensibly comply with those requirements if given an opportunity to amend. In the circumstances, particularly given the appellant’s ability to commence a new action if desired, in my view the appropriate course is to allow the application to strike out the notice of appeal with costs. There will be orders accordingly.