Giffin v Sensis Pty Ltd[2020] QSC 357

SUPREME COURT OF QUEENSLAND

1. [1]
   The plaintiff, Mr Giffin, had a long running dispute involving Sensis Pty Ltd (Sensis) and Telstra Corporation Limited (Telstra). According to his submissions to the Court the complaint arises out of a failure to properly divert a telephone number used in his business to his new address for his business and a failure to properly advertise the addresses and telephone numbers of his business as he changed address. Mr Giffin claims that as a result of those failures he has lost a significant amount of business and that has had flow on effects on the rest of his life.
2. [2]
   The second defendant, Telstra, seeks to strike out the Statement of Claim in its entirety pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and set aside the claim pursuant to r 16(1)(e) of the UCPR. Mr Giffin appeared for himself and has been acting for himself throughout the dispute, while Telstra was legally represented.
3. [3]
   According to Mr Giffin’s claim his action is for damages for breach of contract, negligence, and under s 267(4) of the Australian Consumer Law.

History of Proceedings

4. [4]
   In separate proceedings, Mr Giffin issued proceedings against Telstra which had been struck out in December 2017 by Bond J. He then amended the Statement of Claim and it was struck out and the claim set aside pursuant to r 16 of the UCPR by Atkinson J on 24 May 2018.^[1] An application to extend the time within which to appeal against the order of Atkinson J was refused.^[2] At the time, Sofronoff P indicated that the striking out of both documents meant that the legal proceeding was at an end, but noted that did not mean that Mr Giffin could not start fresh proceedings if he was able by some means to prepare valid pleadings.^[3]
5. [5]
   On 14 February 2020, Mr Giffin filed a fresh claim and Statement of Claim against Sensis and Telstra. They constitute the present proceedings. Telstra filed a notice of intention to defend and defence on 5 May 2020. At the time of service, Telstra wrote to Mr Giffin stating that:

“… your statement of claim breaches Uniform Civil Procedure Rules 1999 (Qld) (UCPR) rr 149(1)(b), 171(1)(b), 171(1)(e). Throughout the statement of claim, references are made to the “defendant”, whereas there are two defendants in the proceeding and so it is not clear to which defendant you are referring. Further, paragraphs 4(d), 5(d), 6(d) and 7(d) contain blank portions such that Telstra cannot reasonably be expected to respond. Accordingly, Telstra requests that you amend your statement of claim to address these concerns. If you do not, Telstra would consider applying to Court for orders that require you to correct the deficiencies, that strike out the deficiencies and/or that seek payment from you for the costs of Telstra’s application…”

6. [6]
   Despite requests on a number of occasions by solicitors acting on behalf of Telstra, on 19 May 2020 and 20 August 2020, no amended Statement of Claim was provided.

The Statement of Claim

7. [7]
   The Statement of Claim pleads that Mr Giffin sues as the owner and operator of a business called “Japanese 4x4 Spares and Repairs” which has operated since 1999. The Statement of Claim refers to “The Defendant” which is alleged to be an incorporated company and is capable of being sued, but does not identify which defendant is being referred to, Sensis or Telstra. The Statement of Claim refers to Telstra having provided telephone numbers and facsimile numbers at different times for the business in 1999, 2002, 2006, 2009 and 2012 when Mr Giffin was operating his business from different addresses at Caboolture, Burpengary and Maroochydore. The Statement of Claim refers to the plaintiff having entered into a contract with “the Defendant” by which it was agreed to provide advertising services via the Yellow Pages for the telephone and facsimile numbers and address of the business. While I suspect that he is referring to Sensis that is not evident on the face of the pleading. Paragraphs 4(d), 5(d), and 6(d) contain blanks. For example, paragraph 4(d) pleads that:

“The Plaintiff advised of ___________ the Defendant in person on of the _____________ second numbers and second address for the Business, _____________”

8. [8]
   Paragraph 7(d) pleads that:

“The Plaintiff advised Josh, an employee or agent of the Defendant, in person at the Telstra shop at Morayfield Shopping Centre on ___________ of the fifth address and the fourth numbers for the Business and also that the online advertising for the Business incorrectly showed ____________”

9. [9]
   Paragraphs 7(d) does not plead when that conversation occurred or what the online advertising incorrectly showed.
10. [10]
    Paragraph 8 pleads that “the Defendant” was aware that the plaintiff relied on it to provide the services referred to in paragraphs 3–7, that “the Defendant” was or should have been aware that if it failed to provide the services the plaintiff may suffer loss of trade and as a consequence loss of profits and that it was aware that the plaintiff could not provide the services or correct the situation himself. It is pleaded that, as a consequence, “the Defendant” owed the plaintiff a duty to exercise reasonable care in providing the services. It does not, however, identify which defendant is being referred to, Sensis or Telstra.
11. [11]
    Paragraphs 9 and 10 plead in the alternative that a term was implied that “the Defendant” would exercise reasonable care in exercising services and further that pursuant to s 60 of the Australian Consumer Law the defendant guaranteed the services referred to in in paragraphs 3, 4, 5, 6 and 7 would be rendered with due care and skill.
12. [12]
    Paragraph 11 of the pleading pleads that the second defendant, who is identified in the Court heading as Telstra, breached the contracts or contract referred to in paragraphs 3, 4, 5, 6 and/or 7 in that it did not provide advertising services for the second address, third address, fourth address, fifth address, the second numbers, the third numbers, and/or the fourth numbers. There is an alternative plea in paragraph 12 that “the Defendant” breached the duty of care pleaded in paragraph 8 by failing to provide advertising services for the second to fifth addresses and second to fourth numbers despite being advised of that as pleaded in 4(d), 5(d), 6(d) and 7(d). Paragraph 7(d) however is the only paragraph which pleads that such advice was given. There are also allegations that “the Defendant” by failing to provide advertising services, breached the guarantee which refers to the guarantee identified in s 60 of the Australian Consumer Law. The Statement of Claim does not however specifically plead that the plaintiff contracted with Telstra to provide advertising services.
13. [13]
    Paragraph 14 pleads that the plaintiff has suffered losses which include loss of profits, fees paid to “the Defendant” for the services and fees paid to Telstra. The plaintiff claims damages for breach of contract, negligence and damages pursuant to s 267(4) of the Australian Consumer Law. The losses claimed are not particularised insofar as the Statement of Claim does not set out what the loss is or how it was suffered or the amount claimed and how it is calculated.
14. [14]
    Telstra in its defence pleads that it did provide various fixed telephony services via different numbers at different times to addresses at Burpengary and Maroochydore. It pleads in part to paragraphs 3, 4, 5, 6, 7 and 9 denying that Telstra provides advertising services in the Yellow pages and does not admit allegations which are incomplete.

Contentions of the Second Defendant

15. [15]
    Telstra seeks to strike out the pleading on the basis that it is difficult to follow, objectively ambiguous or contains inconsistencies such that it can be said to have a tendency to prejudice or delay the fair trial at the proceeding.
16. [16]
    This is for several reasons namely that:

    1. (a)
       Although the claim is brought against two defendants a number of allegations in the statement claim are made against “the Defendant” without identifying which defendant is the subject of the allegation;
    2. (b)
       A number of the paragraphs in the Statement of Claim are incomplete because blank spaces have been inserted in place of material facts;
    3. (c)
       The pleaded allegations regarding the circumstance in which certain contracts are alleged to have been entered into between the plaintiff and “the Defendant” and the notification by the plaintiff of his business address and phone numbers are pleaded without any specificity or particularity;
    4. (d)
       The loss alleged to have been suffered by the plaintiff is not particularised or identified at all; and
    5. (e)
       The pleading is inconsistent in that the only breach which is alleged against Telstra, as opposed to “the Defendant” is that “Telstra did not provide advertising services”. However, no part of the pleading identifies any obligation upon Telstra to provide advertising services. The pleaded allegations are that Telstra provided certain phone numbers.

Consideration

17. [17]
    The Statement of Claim provides a skeleton for pleading the causes of action contained in his claim, but is incomplete insofar as it fails to plead material facts so as to disclose the relevant cause of action against Telstra or the allegations are pleaded in such a way that they have a tendency to prejudice or delay a fair trial.
18. [18]
    While the Statement of Claim is some improvement on that which has previously been the subject of separate proceedings and decisions in this Court it is still deficient. Telstra’s complaints about the pleading are established insofar as:

    1. (a)
       The Statement of Claim does not plead against Telstra that it has provided any advertising services via the yellow pages notwithstanding that the only alleged breach of duty specifically pleaded as a breach by Telstra in paragraph 11 of the Statement of Claim relates to the failure to provide such advertising services. It is only pleaded that Telstra provided certain phone numbers to the plaintiff not advertising services. It fails to identify any breach against Telstra in that regard although it appeared from oral submissions that the plaintiff intends to assert a case that Telstra incorrectly diverted numbers for his business to other businesses;^[4]
    2. (b)
       The Statement of Claim fails to identify which defendant is being referred to in relation to a number of allegations in paragraphs, namely paragraphs 3(c), 4(c) and (d), 5(c) and (d), 6(c) and (d), 7(c) and (d), 8, 9, 10, 12, 13 and 14, such that, given there are two defendants, it is a matter of speculation which of the defendants is being referred to;
    3. (c)
       There are a number of blanks in the Statement of Claim in paragraphs 4(d), 5(d), 6(d), 7(b) and 7(d) which appear to have been left blank to complete dates and identify some persons, although what was meant to be inserted is unclear. Paragraph 7(d) also leaves a blank where it appears it was intended to plead what the advertisement stated;
    4. (d)
       The plaintiff has asserted there was a contract but it is unclear which “Defendant” it is alleged he entered into a contract with, or more likely both. If it refers to Telstra he failed to provide particulars of the contract entered into “the Defendant” referred to in paragraphs 3, 4, 5, 6 and 7 in not identifying the time when it was entered into and how it was entered into, such as whether it was done in writing or orally over the phone or at a Telstra store. It would appear the plaintiff intended to plead two separate contracts were entered into with Telstra and Sensis but that has not been pleaded;
    5. (e)
       The plaintiff has failed to provide particulars of precisely when and by what means he notified “The Defendant” of changes to his business address and as to changes required for his business telephone number other than by referring to a year; and
    6. (f)
       The amount of loss claimed has not been identified nor has any detail been provided as to how the loss and damage was suffered by the plaintiff or how the actions of the Defendant caused that loss.
19. [19]
    By reason of each of the above matters the pleading does not comply with rr 149(1)(b), 155(2), 157 and 158(1) of the UCPR. They are not matters of mere technicality. The identification of the defendant and omitted material facts and particulars are necessary for Telstra to understand what they had been engaged by the plaintiff to do, what they had failed to do either by way of breach of contract, negligence or pursuant to s 60 of the Australian Consumer Law, why they are said to have caused loss and damage to the plaintiff and what the loss and damage that is claimed is. The Statement of Claim does not therefore fulfil its purpose of informing the opposing party of the case it has to meet and to permit, in a responsive pleading, the issues to be narrowed.
20. [20]
    As a result of the deficiencies identified above, the present Statement of Claim does not disclose a reasonable cause of action against Telstra and has a tendency to prejudice or delay the fair trial of a proceeding and accordingly should be struck out pursuant to r 171 (a) and (b) of the UCPR. The structure of the Statement of Claim is appropriate but the failure to properly plead matters such as which defendant did what, details of the contract, the precise breach and the details of loss are so pervasive that it needs to be largely repleaded. It is therefore appropriate that the whole of the Statement of Claim should be struck out rather than parts of individual paragraphs.

Should the claim be set aside?

21. [21]
    Telstra also seeks to set aside the claim. A party seeking to set aside a claim must demonstrate a “high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”.^[5] Telstra particularly relies upon the fact that the Statement of Claim discloses no reasonable cause of action and fails to plead any breach of any relevant duty or because claims are statute barred. In that regard, they contend that the Statement of Claim pleads that updated contact details were provided to the defendant in 2002 and in or about 2006, 2009 and 2012. It therefore contends that the six year time frame within which any breach of contract would have become statute barred given it arises at the time of breach. It is also asserted that an action in tort or for breach of the Australian Consumer Law accrues at the time the relevant breach causes damage, which must have occurred from on or about the same date.
22. [22]
    A limitation point is not a matter generally dealt with in an application for a strike out.^[6] Limitation periods are matters to be pleaded by way of defence and it is not part of establishing a cause of action that the action is not statute barred.^[7] It is generally more appropriate to seek judgement on the basis of a limitation defence in an application for summary judgment. A summary determination may be made only in the clearest of cases where sufficient is known of the alleged damage sustained by the plaintiff and the circumstances in which it was sustained.^[8]
23. [23]
    There appears to be a strong possibility that the relevant actions by Mr Giffin are statute barred, given over six years have passed from the last occasion when it is said Mr Giffin moved premises, and was provided with a number by Telstra. However while the matter is not one of significant complexity, without the matter being properly pleaded to identify the precise nature of the breaches alleged, such as whether they are singular or continuing, and loss incurred, it is not possible to make a determination at this stage about whether all of the actions are statute barred. Telstra will not be precluded from seeking summary judgment in the event that it is plainly evident on the repleaded case that all causes of action are statute barred.
24. [24]
    This is now the third occasion on which Mr Giffin has attempted to plead a Statement of Claim against Telstra. However, unlike the previous statements of claim that have been considered, the plaintiff has gone some way in pleading a claim based on breach of contract or negligence. Unlike the claim considered by Atkinson J the present pleading clearly defines the causes of action. As to the claim pursuant to s 60 of Schedule 2 of the Australian Consumer Law, that provision was only introduced into the Competition and Consumer Act (Cth) in 2010 with effect from 1 January 2011. Thus, if it applies at all, it would only apply to what is pleaded in relation to the events of 2012 and even then may be statute barred. It is evident that Mr Giffin was a customer of Telstra and allocated business numbers by them. If services were not provided by Telstra as were contracted for there may be a cause of action available to Mr Giffin, but it may be stature barred.^[9] I am not presently satisfied that there is no arguable basis for any of the claims made by the plaintiff and that there is such “a high degree of certainty as to the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way” such that I would set aside the claim. 
25. [25]
    The amended Statement of Claim filed 14 February 2020 should be struck out pursuant to r 171(a) and (b) of the UCPR with liberty to replead. Given Telstra gave Mr Giffin the opportunity to rectify the deficiencies in the Statement of Claim and he did not do so necessitating this application, costs should follow the event.
26. [26]
    Given this matter is being supervised by Boddice J I will not make orders as to the timing of the filing of any further amended Statement of Claim.

Orders

27. [27]
    I will order that:

1. The whole of the Statement of Claim filed on 14 February 2020 be struck out.
2. The plaintiff has leave to replead.
3. The plaintiff pay the costs of the second defendant of the application.