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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Brookfield v RealEstate Now Pty Ltd and Another  QDC 95
IAN WALTER BROOKFIELD
REALESTATE NOW PTY LTD (ACN 153307432)
MARK WILLIAM MERGARD
Brisbane District Court
27 May 2021 (ex tempore)
27 May 2021
Porter QC DCJ
Uniform Civil Procedure Rules 1999 (Qld), rr. 142, 146, 166, 182, 280, 281, Chapter 17
Craven v Globe Valley Pty Ltd  QDC 155
I. Brookfield appeared in person for the Plaintiff/Applicant
M. Mergard appeared in person with leave for the First Defendant/Respondent and Second Defendant/Respondent
- The parties in this matter are self-represented. Although, it is not their fault; they are plainly struggling to conduct the litigation in a manner consistent with the law and the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). This application provides an example. The plaintiff’s application is in terms which are somewhat ambiguous. Doing the best I can, it seems to seek default judgment for the plaintiff’s claim against the defendants because of failure to serve the defence and, I thought at first, default judgment on the counter-claim brought by the defendants against third parties for the same reason. Whether that was exactly what the plaintiff, Mr Brookfield, was pursuing in respect of the counterclaim, he did invoke Rule 182 UCPR in his application. That Rule provides for the exclusion of a counter-claim. Ordinarily, a counter-claim is heard as part of the proceedings in which it is brought, but the Court has power under Rule 182 to exclude it from the principal proceedings if the Court considers it appropriate. Although, again, the plaintiff appeared to seek that relief because the counter-claim had not been served on the parties who he understood were the parties to the counter-claim.
- Looking at the matter from the perspective of the defence, the difficulty the plaintiff faces is that the entitlement to default judgment on a claim and statement of claim only arises if a defence has not been filed: see Rule 281. The defence has been filed. If it is correct the defence has not been served, that is a failure to comply with the Rules: see Rule 142. Failure to comply with the Rules can, in theory, lead to dismissal for default in compliance with the Rules under Rule 280, in the specific circumstances identified in that Rule, and under broader Rules about the conduct of proceedings. However, no such order could possibly be made in this circumstance where the proceedings have just been started, and where a copy of the defence is attached to the affidavit of Mr Mergard, which he provided in electronic form today and which, with everybody’s consent, I provided to Mr Brookfield in Court.
- As to the counter-claim, if the counter-claim has not been served, then no obligations to respond to it arise. Further, the counter-claim is not a claim against Mr Brookfield, but against three other people. There is no basis to dismiss the counter-claim for failure to serve it on Mr Brookfield.
- Looking at the alternative possibility (that the counter-claim be excluded from the proceeding), there might be an argument in favour of that, depending on precisely what the terms of the counter-claim are and what the nature of the claims are. However, it is not presently possible to discern that from the counter-claim because of its defects in form. In any event, because the counter-claim has not been served and the proceedings are at a very early stage, it is premature to make an order excluding the counter-claims, although that will (as will be seen) be a pyrrhic victory for the counter-claimant, for reasons I will give.
- Notwithstanding that, the most direct obligation I have today is to decide the application by the plaintiff, and for those reasons, the application is dismissed.
- I add the following comments.
- First, this proceeding plainly arises out of a long, sad and complex history of litigation between the plaintiff and the natural person defendant and his company. That history is not properly proved in the material and, in any event, would be largely irrelevant to today’s application. Its importance lies in the fact that the upshot of the dealings between the parties is that Mr Brookfield is a defendant in a committal process seeking to commit him for one charge of stalking and one charge of harassment using a carriage service. Mr Brookfield, as one might expect given the circumstances, is on bail, but as one might also expect, his bail conditions require him not to contact Mr Mergard.
- It is that difficulty which has created procedural and practical problems in the efficient conduct of this litigation, most clearly demonstrated by the great difficulty that the two parties had in properly putting material before the Court that had been served on the other party. Those difficulties are considerable. I am not willing to assume that they can be easily resolved, despite Mr Brookfield’s assertions from the bar table to that effect, largely because of the nature of the charges. It seems to me, given that the proceedings involve already events that happened some four or five years ago, and that as those proceedings have only now been commenced (that is, in April 2021), it would be in the interests of justice to stay this proceeding until the completion of the committal process for the plaintiff.
- I make that order even though neither party sought it, and notice of it was only given today, because it seems to me that a great deal of cost and time could be incurred in trying to create an acceptable, efficient and reliable communication structure, and a great expense in Judge time and effort, with a great deal of uncertainty attached to it and considerable difficulty for the plaintiffs and defendants, all to no purpose. It is true that civil proceedings should be conducted as efficiently and quickly as possible. In these specific circumstances, bearing in mind the nature of the parties, the nature of their efforts so far to conduct this litigation, and the evidence before me as to how utterly inadequately this simple application was conducted, it seems to me I should stay this proceeding until the resolution of the committal of Mr Brookfield.
- Now, I picked that date, first of all because the committal has been underway for some time, and it is reasonable to think, given the timescale already involved in the matters involved in these proceedings, that it will be resolved, one way or the other, reasonably promptly (and by that, I mean in the next six months or so). I picked the resolution of the committal proceedings as well because at that point, with the exception of the possible presentation of an ex officio indictment, Mr Brookfield will either be discharged and his bail conditions released, such that the proceedings can be conducted in the ordinary way, or at least without fear, on either side, of breaching bail conditions or aggravating circumstances relating to the criminal proceedings and so on, or Mr Brookfield will be committed.
- If he is committed, one would expect an indictment to be presented reasonably promptly, and one will know that this relationship will be affected by bail conditions into the foreseeable future. And at that point, it may well be worth the time and effort to set up a structure which allows the civil proceedings to continue despite the criminal proceedings and bail conditions.
- Accordingly, I stay the proceedings until the resolution of Mr Brookfield’s committal proceedings. I direct that after that date, either party may apply to lift the stay on 21 days notice to the other side, such notice to be given in a manner consistent with any extant bail conditions.
- Second, while the statement of claim might not properly articulate the causes of action it advances, it does have the advantage of being in an intelligible format, that is, in numbered paragraphs, expressed in reasonably clear language, articulating one assertion or allegation per paragraph. Whether it is otherwise consistent with the UCPR, and/or discloses a proper cause of action, I do not comment on.
- However, the defence is not, in any view, in the proper form. It purports to admit, deny and not admit every allegation in the statement of claim, which involved a rote-like use of the form, without any thought being given to it. That is not adequate. The defendants must plead to each individual allegation, either admitting, not admitting or denying it. If it is not to be admitted, a specific reason why the fact is not admitted must be given. If it is denied, a specific reason must be given why the fact is not true. This is explained in Rule 166 of Chapter 6 of the UCPR. That Chapter has been provided by my Associate to both Mr Brookfield in Court and the defendants by email.
- The defence in its current form is not a proper defence under the Rules. I was minded before I heard about the difficulties of the criminal proceedings to strike it out today. I am not going to do that only because I do not want to put in place directions that need to be complied with reasonably promptly in respect of a matter that I have stayed. However, I want to make it crystal clear to the defendants that in my respectful opinion the defence is apt to be struck out. It would be struck out by any Judge of this court without a moment’s thought. And the defendants should now, because this case will go ahead eventually, turn their minds to a proper pleading by way of defence to the statement of claim in accordance with the Rules.
- Third, the counter-claim is inadequate, both as to form and to content.
- (a)As to form, it comprises a series of long paragraphs which are hard to understand, even for me, and would be impossible to plead to. I have, as I have said, provided Mr Mergard with a copy of the relevant Rules of pleading, and he must endeavour to put the counter-claim into a proper form, that is, comply with the formal requirements under Rule 146, especially 146(1)(f) that the counter-claim be divided into consecutively-numbered paragraphs and subparagraphs, each containing a separate allegation.
- (b)As to substance, I struggle to identify what cause of action (that is, what right known to the law, that gives rise to a remedy in damages or otherwise) is demonstrated by the facts contained in the current counter-claim. While I appreciate this is difficult for litigants-in-person to work out, they must make the effort. Courts of Appeal and the High Court have repeatedly articulated that ultimately another party, responding to litigation from a litigant-in-person, is entitled, as a matter of fairness, to a properly pleaded case to meet. It is not enough to have a grievance against the other party. You can only get orders from a Court if that grievance gives rise to some right to damages, in this case, according to law. I cannot presently discern any such right from the current form of the counter-claim, and if, on reflection, Mr Mergard cannot identify one either, then the counter-claim should not be persisted with and should be discontinued.
- I was minded to order that the counter-claim be struck out with leave to re-plead, but as I have said, because of the stay, I am not minded to do that at the moment. Again, if Mr Mergard is going to pursue a counter-claim, he needs to now start thinking about the form and content of that counter-claim, because once the matter is re-enlivened after the stay (which it inevitably will at some stage), the counter-claim will have to be amended to strike out its entire current form, and plead one in a proper form. Again, any Judge of this Court will make that order with barely a moment’s thought.
- Fourth, I note Mr Mergard, in his affidavit emailed today, says he wishes Mr Brookfield’s case to be stopped until he has paid other costs orders and, in effect, is seeking security for costs. Chapter 17 of the UCPR deals with that kind of application. That can be found on the Court website. Ordinarily, it is difficult to get security for costs against a natural person, though, it is not impossible. An example of where that has happened, and might be an authority which both Mr Brookfield and Mr Mergard should address, is Craven v Globe Valley Pty Ltd  QDC 155. That case is also available on the Court website. Whether it is actually applicable to the case Mr Mergard would make, I do not really know. Whether the application would succeed, I have no idea. All I seek to do is provide sufficient guidance so that whatever Judge has to hear such an application has a reasonable prospect of being able to decide it according to law on proper material. If Mr Mergard and the other defendant wish to seek an order for security for costs, they should carefully study Chapter 17 of the Rules.
- Both parties, but Mr Mergard in particular, should consider seeking advice from the LawRight Self Representation Service. They can be contacted via their email on lawright.org.au.
- Published Case Name:
Brookfield v RealEstate Now Pty Ltd and Anor
- Shortened Case Name:
Brookfield v RealEstate Now Pty Ltd
 QDC 95
Porter QC DCJ
27 May 2021