Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc
[2021] QSC 322
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- Unreported Judgment
- Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2021] QSC 322
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Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2021] QSC 322
Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc[2021] QSC 322
SUPREME COURT OF QUEENSLAND
CITATION: | Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2021] QSC 322 |
PARTIES: | JAMES BOYD THOMPSON (plaintiff) v CAVALIER KING CHARLES SPANIEL RESCUE (QLD) INC. (first defendant) AND KATHERINE LEPELAAR (third defendant) AND BEVERLEY ANN HUSH (fourth defendant) |
FILE NO/S: | 9148 of 2013 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court |
DELIVERED ON: | 10 December 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 December 2021 |
JUDGE: | Freeburn J |
ORDER: | The application be dismissed. |
CATCHWORDS: | PRACTICE AND PROCEDURE – PROCEEDINGS – DECEASED PARTY – APPLICATION FOR LEAVE – SUBSTITUTING PARTY – where the fourth defendant passed away – where plaintiff applied for court to exercise its discretion to substitute the deceased party for its estate – where the executor and beneficiaries of the estate have had no involvement in the maters which are subject of these proceedings – whether the court ought to exercise its discretion. Uniform Civil Procedure Rules 1999, r 72. Cameron v Hogan (1934) 51 CLR 358, cited. Kovacic v Australian Karting Association (Qld) Inc [2008] QSC 344, cited. |
COUNSEL: | No counsel present. |
SOLICITORS: | Mr Thompson was self-represented (plaintiff) Ms McCutcheon (third defendant) |
REASONS
- [1]This case has a long and tortured history. So much so that the litigation is outliving the individual defendants. The fourth defendant, Ms Hush, is the latest defendant who has died.
- [2]The death of Ms Hush has led Mr Thompson, who is self-represented, to apply to substitute the executor of Ms Hush’s estate, Mr Hobson, in place of Ms Hush.
- [3]The application is resisted by the one surviving individual defendant, Ms Lepelaar (the third defendant). Mr Thompson contended that Ms McCutcheon, the solicitor for Ms Lepelaar, had no standing to be heard on his application to substitute Mr Hobson for Ms Hush. During the course of the hearing I ruled that Ms Lepelaar’s solicitor did have standing, not least because she was entitled to submit that granting the relief might cause further delay to the proceeding.
- [4]Mr Thompson’s application is made pursuant to UCPR 72. That rule has several different subrules. Subrule 72(1) provides that:
- (1)If a party to a proceeding becomes bankrupt, becomes a person with impaired capacity or dies during the proceeding, a person may take any further step in the proceeding for or against the party only if –
- (a)the court gives the person leave to proceed, and
- (b)the person follows the court’s directions on how to proceed.
- [5]It follows that in order to proceed against the fourth defendant Mr Thompson needs the leave of the court.
- [6]Mr Thompson has not applied for leave. However, Mr Thompson’s application for leave is perhaps implied in his application under subrule 2 of UCPR 72. That subrule is in these terms:
- (2)If a party to a proceeding becomes bankrupt or dies, the court may, at any stage of the proceeding, order the trustee or personal representative of the party or, if a deceased party does not have a personal representative, someone else, to be included or substituted as a party for the original party.
- [7]In some cases the granting of leave to proceed and an order substituting the personal representative for a deceased party will be granted as a matter of course, particularly where an insurer is involved. An example is James v Hill[1] which was a solicitors’ negligence case.
- [8]It is also relevant to note that UCPR 73(2) provides that the court may order that, unless an order for substitution is made within a specified time, the proceeding be dismissed on a specified basis.
- [9]Nevertheless, it is plain that the court has a discretion to make a substitution order under UCPR 72(2).
- [10]However, the requirement for leave to proceed and the requirement for the court to exercise a discretion to substitute the executor for a deceased defendant, means that ordinarily the person seeking such an order should advance some positive reason for the exercise of the court’s discretion. No specific reason is advanced by Mr Thompson here. He does not say, for example, that there are insurers standing behind any of the defendants.
- [11]Mr Thompson merely notes that his application falls within rule 72(2) and he notes that a substitution order would assist the one surviving personal defendant because, in the absence of such an order that surviving defendant would be liable for all of his costs in the event that he succeeds. That might be a reason for that defendant to support the proposed substitution, but it is not a positive reason, or at least a strong factor in favour of the exercise of the discretion.
- [12]On the other hand, Ms McCutcheon, for the surviving third defendant, resists the substitution. She does so because, in her submission, there is no utility in such an order and such an order has the potential to even further delay the proceedings.
- [13]Ms McCutcheon draws attention to the latest claim by Mr Thompson which is the third amended claim. It is necessary to examine each component of Mr Thompson’s claims.
- [14]Firstly, at paragraph [1] of the amended claim, Mr Thompson claims:
- The immediate continuance of the plaintiff’s lifetime membership in CAVALIER KING CHARLES SPANIEL RESCUE (QLD) INC in accordance with the requirements of the rules of natural justice.
- [15]That is relief sought against the first defendant incorporated association. It is not relief sought against the individuals comprising the committee at the relevant time.
- [16]Second, paragraphs [2] to [9] of the amended claim were deleted, pursuant to an order of Davis J on 13 August 2021.[2]
- [17]Third, at paragraph [10] of the amended claim, Mr Thompson claims:
10. A declaration that the defendant committed multiple breaches of their contract with the plaintiff both during the course of the process to terminate his membership and in steps related to that process.
- [18]There is no utility in a declaration that the conduct of a now deceased defendant was in breach of the contract constituted by the constitution of an incorporated association. In so far as Mr Thompson seeks declaratory relief, the substantive relief is sought against the incorporated association itself. That association survives. A further problem is that the relief sought in this paragraph is too vague to be of any utility at all. The “multiple breaches” are not specified.
- [19]Four, at paragraph [11] of the amended claim, Mr Thompson claims:
11. A declaration that the defendants committed multiple breaches of the law (including the Associations Incorporation Act 1981) in respect to the plaintiff’s membership, the period leading to the process to terminate the plaintiff’s membership and in the various steps connected to that termination process.
- [20]Again, there is no demonstrable utility in obtaining such a declaration against a deceased person. And, the declaration that is sought is so vague as to be pointless.
- [21]Five, at paragraph [12] of the amended claim, Mr Thompson claims:
12. The Court specify the amount of monetary compensation for the plaintiff’s loss of income derived from boarding dogs owned by individuals associated with Cavalier King Charles Spaniel Rescue (Qld) Inc. …
- [22]Ms McCutcheon points out that this claim for damages is similar to claims previously struck out and, even if this claim were to succeed, the most Mr Thompson could expect would be nominal damages.
- [23]There is force in those submissions. There is also a further problem. The way in which this claim is framed is unusual. Mr Thompson does not seek damages of a specific sum. He does not seek damages caused by any specific act of the deceased fourth defendant – other than perhaps because of the way she voted. Instead, Mr Thompson appears to seek to have “the Court specify the amount of monetary compensation” due to him, based on a vague period, and on an extrapolation of a trend, and taking into account increases in charges for the boarding dogs since 2011. Suffice it to say that such relief has the appearance of Mr Thompson asking the court for an account. It has little prospect. And it suggests the absence of any significant loss.
- [24]Six, at paragraph [13] of the amended claim, Mr Thompson claims:
13. Guided by the principle ubi jus ibi remedium, [3] the Court determine the appropriate remedy for the plaintiff’s loss of status as [the association’s] website administrator through the improper and irregular actions to remove the plaintiff’s website access by Laurence John Pitts and Beverley Ann Hush. (citation added)
- [25]It is difficult to see why the association was not entitled to appoint whoever it wished to be its website administrator. And it is difficult to see why the removal of that role gives rise to any remedy, let alone a substantive remedy.
- [26]There is a further difficulty. Ever since the High Court’s decision in Cameron v Hogan[4] in 1934, the courts have been reluctant to interfere in the affairs of voluntary associations. That principle applies to voluntary associations that become incorporated under Associations Incorporation Act 1981 (Qld).[5]
- [27]That principle, carefully explained by Margaret Wilson J in Kovacic v Australian Karting Association,[6] would make it unlikely that the court would interfere in this associations decision as to who it should appoint as its website administrator.
- [28]Seven, at paragraph [14] of the amended claim, Mr Thompson claims:
14. A declaration that Laurence John Pitts, Katherine Lepelaar and Beverley Ann Hush did not demonstrate the requisite due care, skill and diligence required of individuals who held the offices they held (which were comparable to that of company directors) while navigating the process to terminate the plaintiff’s membership of [the association].
- [29]Again, there are the twin problems that there is little utility in such a declaration against a deceased defendant and the declaration sought is too vague. There is little prospect that the court will make such a vague, ill-defined declaration.
- [30]Eight, at paragraph [15] of the amended claim, Mr Thompson claims:
15. An injunction to prevent the Association and its members taking further action against the plaintiff in respect of his ongoing membership arising from the issues brought forth in this proceeding.
- [31]There is no utility in an injunction in those terms against a person who has died and is therefore incapable of “taking further action”.
- [32]Nine, at paragraph [16] of the amended claim, Mr Thompson claims:
16. The defendants reimburse the plaintiff for all of his out-of-pocket expenditures which were required in order to bring this matter to resolution before the Court.
- [33]That claim for relief looks to be a claim for costs – or at least a partial order for costs. That claim is not, in my view, a claim that has a sufficient basis to justify continuing proceeding against the deceased fourth defendant by means of that defendant’s executor.
- [34]It follows that Ms McCutcheon is correct – there is no utility, or at least no sufficient utility, in having the proceeding continue against a deceased defendant.
- [35]There are two further reasons why I decline to exercise the discretion to substitute under UCPR 72(2). The first is that the association is not-for-profit. It is likely that the committee are volunteers. Requiring a deceased committee member’s estate to deal with a long outstanding claim is likely to cause inconvenience to the estate and its beneficiaries. Those third-party beneficiaries, who may know little or nothing about the affairs of the association, would become embroiled in long-running and difficult litigation and would become embroiled in that internecine battle merely because Ms Hush had volunteered her services to a community not-for-profit association.
- [36]The second is that, as Ms McCutcheon points out, the substitution of the executors for Ms Hush’s estate is likely to lead to further delay to the proceeding. The solicitors for the executors are likely to need to peruse and understand the proceeding. And this is a proceeding where the court’s filed documents now approach 300.
- [37]As Ms McCutcheon points out, if the substitution order is made, there is a strong likelihood of delay. The executor will need to properly understand the litigation. He will need to secure funding. Neither are likely to be easy tasks.
- [38]For those reasons, I refuse the application. The costs and delay are likely to exceed any tangible benefit. Notably, Mr Thompson still has remedies against his primary target, the association itself.
Footnotes
[1][2010] QSC 70.
[2]See court document 237.
[3]Where there is a right there is a remedy.
[4](1934) 51 CLR 358.
[5]See Kovacic v Australian Karting Association (Qld) Inc [2008] QSC 344 at [24]-[28].
[6][2008] QSC 344, but cf Pine Rivers, Caboolture & Redcliffe Group Training Scheme Inc. v Group Training Association Queensland [2015] 1 Qd R 542.