Dawson v Public Trustee of Queensland [2025] QSC 115

SUPREME COURT OF QUEENSLAND CITATION: Dawson v Public Trustee of Queensland [2025] QSC 115 PARTIES: CHRISTINE MAREE DAWSON (applicant) v PUBLIC TRUSTEE OF QUEENSLAND (first defendant) AND CW HOOPER PTY LTD ACN 602 732 409 (second defendant) AND JOANNE MARGARET DAWSON (third defendant) AND NEIL ROBERT BLEE (fourth defendant) AND DEBORAH KAREN BLEE (fifth defendant) AND DAVID WILLIAMS (sixth defendant) AND ZACK MACKAY (seventh defendant) AND JASON KERNAGHAN (eighth defendant) FILE NO: SC No. 5 of 2024 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Maryborough DELIVERED ON: 23 May 2025 DELIVERED AT: Brisbane HEARING DATE: 31 March 2025 JUDGE: Davis J -- 1 of 12 -- 2 ORDERS: 1. Pursuant to r 69(1) of the Uniform Civil Procedure Rules 1999: (a) “Public Trustee of Queensland” be substituted for the first defendant; and (b) “CW Hooper Pty Ltd ACN 602 732 409” be substituted for the second defendant. 2. In respect of the application of the first defendant: (a) The Claim against the first defendant is set aside; (b) Paragraphs 3(a) to (h) of the Statement of Claim are struck out; (c) The first defendant may file and serve written submissions on its entitlement to costs, given the overruling by the High Court of the Chorley principle by 4 pm on 30 May 2025. 3. In respect of the application of the second defendant: (a) The Claim against the second defendant is set aside; (b) Paragraphs 4(a) to (e) of the Statement of Claim are struck out; (c) The second defendant may file and serve written submissions on its entitlement to costs, given the overruling by the High Court of the Chorley principle by 4 pm on 30 May 2025. 4. The plaintiff may file and serve any submissions on costs in reply by 4pm on 5 June 2025. 5. The question of costs will be determined on any written submissions received without further oral hearing. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where the plaintiff brought a claim against the first and second defendants for various relief relating to a property previously owned by a member of the plaintiff’s family – where the claim identified the first and second defendants incorrectly – whether the first and second applicant should be substituted as the first and second defendants – where the plaintiff seeks relief from the first and second defendants which is unidentifiable or unclear – where the statement of claim fails to articulate a cause of action against the first and second defendants – whether the plaintiff’s claim as against the first and second defendants should be set aside – -- 2 of 12 -- 3 whether the statement of claim as is relates to the first and second defendants should be struck out Public Trustee Act 1978 Uniform Civil Procedure Rules 1999 (Qld), rr 8, 16, 171 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29, cited Birketu Pty Ltd v Atanaskovic (2025) 99 ALJR 321; [2025] HCA 2, cited Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801, followed Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1, followed Di Carlo v Dubois [2002] QCA 225, cited Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 364, followed General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, followed Hellyer Gold Mines Pty Ltd v Johnston and Bengal Bay Capital Pte Ltd [2024] QSC 112, cited London Scottish Benefit Society v Chorley (1884) 13 QBD 872, cited Markan v Bar Association of Queensland (2013) QSC 146, followed Rosniak v Government Insurance Office (1997) 41 NSWLR 608, cited COUNSEL: No appearance for the plaintiff/respondent L Sheptooha for the first defendant/applicant W F Brown for the second defendant/applicant SOLICITORS: No appearance for the plaintiff/respondent Official Solicitor of the Public Trustee of Queensland for the first defendant/applicant C.W. Hooper & Hooper for the second defendant/applicant [1] Each of the first and second defendants bring applications seeking various relief, the effect of which is to conclude the proceedings against them. Background [2] The plaintiff, Christine Maree Dawson, brought a claim against eight defendants. [3] From what can be discerned from the Claim and Statement of Claim, the action concerns a property at 145 The Limits Road, Gayndah, Queensland, which forms part of her father’s estate, and which was ultimately sold to the fourth and fifth defendants, Neil Robert Blee and Deborah Karen Blee. -- 3 of 12 -- 4 [4] The Claim against the Public Trustee is framed in these terms: “The plaintiff claims: First Defendant: Public Trustee Brisbane 1. An order for the handover of a trust including a wage belonging to the Plaintiffs grandfather: Percy Schroder – Schroder & Sons Laidley which the Plaintiff believes she is a sole beneficiary of. 2. An order for recovery of possession of the property at 145 The Limits Road, Gayndah Qld 4625. Described as Lot 255 on CPMZ510 Title Reference 12815079 and its contents sold unlawfully by Joanne Dawson to the Blees in February 2023. 3. Damages for allowing the sale of the property causing the eviction of the Plaintiff who has every legal right to live on the property according to her fathers will. 4. Compensation from the trust dating back to 2007 when the Plaintiff worked out the riddle. 5. An order for immediate use of the trust while its being sorted out. 6. Costs. 7. Such Further orders as this Honourable Court deems fit.”1 [5] The Statement of Claim asserts that Ms Dawson is the true owner of the “The Limits Road” property and has a right to possession.2 [6] Against the Public Trustee, the Statement of Claim alleges: “3. FIRST DEFENDANTS – PUBLIC TRUSTEE BRISBANE (a) The First Defendants failed to stop Joanne Dawson from selling the property illegally to the Fourth and Fifth Defendants, the Blees. All parties knowing that the property is in a trust. (b) The First Defendants allowed the Blees to clear and burn land on which the property sits illegally. (c) The First Defendants allowed the Blees to enter my home by not stopping the sale. In doing this inherited estate and the Plaintiffs personal belongings were turfed out in the weather. (d) The First Defendants have allowed the Blees to have evicted from the property in which I’m legally allowed to be on. (e) The First Defendants have allowed the continued possession of the property by the Blees. In doing so have caused the Plaintiff continuing loss and damage by not being able to access her inherited estate and personal belongings plus animals as well as depriving her of a residence. 1 Reproduced faithfully, notwithstanding obvious errors. 2 Statement of Claim, paragraphs 2(a) and (b). -- 4 of 12 -- 5 (f) The First Defendants have failed to look after the trust which belongs to the Plaintiffs grandfather and the property at Gayndah. Under the Trust Act the Plaintiff is allowed to access the trust if she believes she is a sole beneficiary. (g) The Plaintiff wishes to access the trust immediately while this is being sorted out so she has appropriate accommodation for her and her animals. Either by evicting the Blees immediately, paying for property elsewhere or accessing Yaringa at Cairns immediately. (h) The Plaintiff also wishes to access money from the trust immediately till this is sorted out and wants the compensation package that was asked to be put away for her dating back to 2007.”3 [7] The relief sought against the first defendant is: “FIRST DEFENDANT: PUBLIC TRUSTEE BRISBANE – Compensation package 1. An order for the possession of the property from the Blees to be left in trust. 2. The issue of an enforcement warrant for the possession of the trusts contents which were sold and the Plaintiffs personal belongings. 3. Damages for the Defendants complete disregard to the way the property and its contents were sold. 4. Immediate access to the trust to access appropriate accommodation such as Yaringa or home. 5. Immediate eviction notices for the Blees. 6. Immediate full control of the trust with a wage. 7. Compensation dating back to 2007 when the answer to the riddle was worked out. The Plaintiff has already asked to have a compensation package put aside. 8. Costs. 9. Such further orders as this Honourable Court deems fit.”4 [8] The Claim against the second defendant is alleged in the Claim to be: “Second Defendant: C W Hooper Laidley 1. Damages for not stopping Joanne Margaret Dawson from putting her name on the confirmation statement giving her ownership of 3 Reproduced faithfully, notwithstanding obvious errors. 4 Reproduced faithfully, notwithstanding obvious errors. -- 5 of 12 -- 6 the property situated at 145 The Limits Road Gayndah, Qld, 4625 when Wayne Leslie Dawsons will was executed. 2. Hoopers held the trust of Percy Schroder that the Plaintiff believes she is the sole beneficiary of. 3. The Defendants were the executives of several wills connected to the Plaintiffs family. Namely Josephine Schroder – my grandmother and Brian Schroder – my uncle. Percy Schroder never had a will. 4. Hoopers were contacted by me in 2019 because Joanne Dawson tried to sell the property. As well as another property in 2007 at Lake Clarendon near Gatton. 5. Costs. 6. Such further orders as this Honourable Court deems fit.”5 [9] In the Statement of Claim, the following allegations are made against the second defendant: “4. SECOND DEFENDANTS – C W HOOPER LAIDLEY (a) The Defendants held the trust in which they were the Trustees for Percy Schroders Trust until in June 2019 I asked the Public Trustee in Brisbane to take it away from them as my family had been living off it and I have been deprived of ownership. In doing so they were trying to cut me out of it. (b) The Defendants were the Executives of Josephine Schroders will in which the trust is mentioned. Also, for Brian Schroders will. His estate is in trust because the house belongs to the company of Schroder & Sons. My grandfather Percy Schroder never had a will. (c) The Plaintiff believes she has some connection to the trust as a sole beneficiary due to a riddle her grandfather gave her when she was 10 years old. The riddle “Figure It Out” – the answer is the family gene which I don’t have. (d) The Defendants failed to stop Joanne Dawson from putting her name on the confirmation statement for the property. In not doing this it gave her what she thought was ownership. But it doesn’t because the bank took the deeds. (e) The Defendants did however stop Joanne Dawson from selling the property in January of 2019 when I contacted them and told her what she was doing.”6 5 Reproduced faithfully, notwithstanding obvious errors. 6 Reproduced faithfully, notwithstanding obvious errors. -- 6 of 12 -- 7 [10] The relief sought against the second defendant is: “SECOND DEFENDANT: CW HOOPER LAIDLEY - $10 000 1. Damages for allowing Joanne Dawson the executive of dads will to put her name on the confirmation statement giving her illegal right to the property. 2. Damages for allowing Joanne Dawson to stay at home on the property illegally because the Defendants didn’t stop the will from being executed rightfully. 3. Damages for allowing her boyfriend Jason Kernaghan to squat at home illegally and utilise inherited estate. 4. Costs. 5. Such further orders deemed fit by the Honourable Court.”7 [11] The third defendant, Joanne Dawson, is a relative of the plaintiff. It seems, although it is unclear, that it is alleged that the third defendant had some role in depriving the plaintiff of what she says is her lawful right to the property. [12] The fourth and fifth defendants, Mr and Mrs Blee, are alleged to have purchased the property from Joanne Dawson. The sixth defendant, Mr Williams, is a barrister and the seventh defendant, Mr Mackay, is a solicitor, both of whom acted in proceedings whereby the plaintiff was evicted from the property. The eighth defendant, Mr Kernaghan, is alleged to have squatted unlawfully in the property. The applications [13] The Public Trustee applies for the amendment of the proceedings in relation to its description. Presently, the first defendant appears as “Public Trustee – Brisbane”. By force of the Public Trustee Act 1978 an entity is created as the “Public Trustee of Queensland”. An order should be made amending the proceedings accordingly. [14] The second defendant also seeks an order correcting its description in the proceedings. The second defendant currently appears as “C W Hoopers – Laidley”. Practising at Laidley is a firm of solicitors “CW Hooper & Hooper”. The practice entity is CW Hooper Pty Ltd ACN 602 732 409. An order should be made amending the proceedings to show that company as the second defendant. [15] Otherwise, the relief sought by the Public Trustee is: “3. Pursuant to rule 16(e) of the Uniform Civil Procedure Rules 1999 (Qld) or in the Court’s inherent jurisdiction, paragraphs 1 to 7 of the Claim filed 30 October 2024 under the heading “First Defendant: Public Trustee Brisbane” be set aside. 4. Further or in the alternative, pursuant to rule 171 of the UCPR, the Statement of Claim filed 30 October 2024 be struck out or alternatively, paragraphs 3(a)-(h) under the heading “FIRST DEFENDANTS: PUBLIC TRUSTEE” be struck out. 7 Reproduced faithfully, notwithstanding obvious errors. -- 7 of 12 -- 8 5. The Plaintiff pay the First Defendant’s costs of and incidental to this application on the indemnity basis, or alternatively on the standard basis. 6. Such further or other orders as this Honourable Court may deem appropriate.”8 [16] The second defendant’s application is identical, except in the alternative to the striking out of the Statement of Claim, the relief sought is that paragraphs 4(a) to (e) be struck out. They are the paragraphs of the Statement of Claim which contain allegations against the second defendant. [17] Both applications are brought pursuant to r 16(e) of the Uniform Civil Procedure Rules 1999, or alternatively, the Court’s inherent jurisdiction or alternatively r 171 of the UCPR. [18] Rule 16 of the UCPR provides: “16 Setting aside originating process The court may— (a) declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or (b) declare that an originating process has not been properly served; or (c) set aside an order for service of an originating process; or (d) set aside an order extending the period for service of an originating process; or (e) set aside an originating process; or (f) set aside service of an originating process; or (g) stay a proceeding; or (h) set aside or amend an order made under rule 126(1) or 129G(1); or (i) make another order the court considers appropriate.” [19] Rule 171 provides as follows: “171 Striking out pleadings (1) This rule applies if a pleading or part of a pleading— (a) discloses no reasonable cause of action or defence; or (b) has a tendency to prejudice or delay the fair trial of the proceeding; or 8 The Claim for a declaration that the claimant’s Statement of Claim was not properly served on the Public Trustee is not pursued. -- 8 of 12 -- 9 (c) is unnecessary or scandalous; or (d) is frivolous or vexatious; or (e) is otherwise an abuse of the process of the court. (2) The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis. (3) On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.” [20] Rule 16(e) concerns the setting aside of an “originating process”. By r 8, proceedings are started by, relevantly here, a Claim. Whether it is necessary to rely on r 171 to then independently strike down the Statement of Claim is doubtful. As was seen in Hellyer Gold Mines Pty Ltd v Johnston and Bengal Bay Capital Pte Ltd,9 at least in some contexts the Statement of Claim is regarded as part of the “originating process”. [21] Rule 171 requires the identification of one of the prerequisites identified in r 171(1). The inherent jurisdiction is based primarily upon the power of the Court to prevent an abuse of its processes. [22] In the end it is not necessary to descend into a fine analysis of these issues. [23] Both the Claim and the Statement of Claim as brought against each of the first and second defendants are insensible and misconceived and the Court clearly has jurisdiction to end such a proceeding. [24] However, it has been established for decades that the power to strike out a proceeding ought only to be exercised in the clearest cases where it is evident that the Claim cannot succeed.10 This is such a case. [25] As regards the Claim against the first defendant the problems include: (a) it seeks “an order for the handover of a trust”. It is unclear what is intended by that;11 (b) part of the “trust” apparently include(s) “a wage” belonging to the plaintiff’s grandfather, but that is not identified;12 (c) an order for recovery of possession of the property is sought against the Public Trustee who does not have possession of the property;13 and (d) compensation is claimed from a point in time when “the plaintiff worked out the riddle”. That is meaningless. 9 [2024] QSC 112. 10 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; analysed by Atkinson J in Markan v Bar Association of Queensland (2013) QSC 146 at [38]-[40]. 11 Claim, paragraph 1. 12 Claim, paragraph 1. 13 Claim, paragraph 2. -- 9 of 12 -- 10 [26] As to the paragraph 3 of the Statement of Claim, which contains the allegations against the first defendant, the problems include: (a) the pleading makes a series of disparate allegations, none of which are properly supported by allegations of material facts and none of which are particularised; (b) there is no identification of the obligations which allegedly fell upon the first defendant, let alone how those obligations arose; and (c) the first defendant is criticised for not allowing the plaintiff to access the trust immediately by evicting the Blees (Mr and Mrs Blee), where it is clear that the Blees have purchased the property and the first defendant has no authority over them. [27] As against the second defendant, the problems with the Claim include: (a) it claims damages in paragraph 1, but the following paragraphs contain allegations rather than identifying relief sought; and (b) the damages claimed in paragraph 1 are for not preventing Joanne Dawson from becoming the owner of the property. There is no identification in the Statement of Claim of material facts which support the Claim establishing any obligation upon the second defendant to so act. [28] As to the Statement of Claim against the second defendant the problems include: (a) the Statement of Claim consists of a number of disparate and unparticularised allegations; (b) it is alleged that “the defendants14 held the trust in which they were the trustees for Percy Schroders Trust”. The will of Percy Bernard Schroder is in evidence and the second defendant is not the trustee; (c) it is alleged that the second defendant was the “executives” (clearly a mistaken reference to “executors”) of Josephine Schroder’s will. The will has been produced which: (1) does not appoint the second defendant as executors; and (2) does not establish a trust or refer to the property in any way; and (d) the statement that the connection to the trust was via a riddle and the answer is “the family gene” is completely insensible. [29] The prayer for relief against the first defendant is insensible. It seeks, as against the first defendant, an order for possession of property owned by a third party: Mr and Mrs Blee. It is also not clear what an “enforcement warrant for the possession of the trusts content” could possibly be. It claims compensation from the time “the riddle was worked out”. [30] The prayer for relief against the second defendant is equally confusing and is not supported by allegations of material facts. [31] The proceedings should not be allowed to vex the first and second defendants any longer. Orders should be made striking out the Claim and the Statement of Claim as against them. 14 A reference to the second defendant. -- 10 of 12 -- 11 [32] The first and second defendants seek costs on the indemnity basis. [33] There are numerous decisions where factors have been identified as justifying an award of costs on an indemnity basis. In cases such as Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd15 and Colgate Palmolive Co v Cussons Pty Ltd,16 attempts were made to categorise circumstances where an award of indemnity costs should be made. However, the circumstances justifying departure from the usual rule that costs be assessed on a party/party basis cannot be conclusively defined. In Rosniak v Government Insurance Office,17 the New South Wales Court of Appeal said this: “… the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation. This is because party and party costs remain the norm, although it is common knowledge that they provide an inadequate indemnity. Any shift to a general or common rule that indemnity costs should be the order of the day is a matter for the legislature or the rule-maker.”18 [34] That statement was approved and followed by the Court of Appeal in Di Carlo v Dubois.19 [35] Here, there is nothing on the face of the Claim or Statement of Claim which seriously suggests any misconduct or that any misconduct could have been proved against either the first or second defendants. Any grievance which the plaintiff has is founded in some family history which, on the face of the Claim and Statement of Claim, does not concern the first or second defendants. It was unreasonable to bring the Claim against them and the discretion to award costs on the indemnity basis arises. [36] However, question arises as to whether either of the first or second defendants are entitled to a costs order. The second defendant is, as already observed, a firm of solicitors and they acted for themselves in the defence of the Claim. The Public Trustee has defended the Claim by a direct brief to external counsel. At least the solicitor’s work has been done in-house. [37] An award of costs in favour of a party is designed to indemnify that party either partially or fully for the costs incurred in prosecuting or defending the proceedings, as the case may be. A party acting for themselves has no claim to costs. An exception to that rule was the “Chorley principle” founded in London Scottish Benefit Society v Chorley.20 The Chorley principle allowed a party who is a solicitor to recover his professional fees for acting for himself in litigation. [38] In Bell Lawyers Pty Ltd v Pentelow,21 the High Court held that the Chorley principle was not part of the common law of Australia. In the absence of a rule allowing the recovery of costs in those circumstances, solicitors acting on their own behalf have no right to claim costs. The question becomes more complicated when the legal work 15 (1988) 81 ALR 397. 16 (1993) 46 FCR 225. 17 (1997) 41 NSWLR 608. 18 At 616. 19 [2002] QCA 225 at [38]. 20 (1884) 13 QBD 872. 21 (2019) 269 CLR 333. -- 11 of 12 -- 12 is performed by employed, or in-house solicitors, as explained in Birketu Pty Ltd v Atanaskovic.22 [39] The parties were not heard on this issue and an opportunity to make submissions ought to be given to both. Orders [40] I make the following orders: 1. Pursuant to r 69(1) of the Uniform Civil Procedure Rules 1999: (a) “Public Trustee of Queensland” be substituted for the first defendant; and (b) “CW Hooper Pty Ltd ACN 602 732 409” be substituted for the second defendant. 2. In respect of the application of the first defendant: (a) The Claim against the first defendant is set aside; (b) Paragraphs 3(a) to (h) of the Statement of Claim are struck out; (c) The first defendant may file and serve written submissions on its entitlement to costs, given the overruling by the High Court of the Chorley principle by 4 pm on 30 May 2025. 3. In respect of the application of the second defendant: (a) The Claim against the second defendant is set aside; (b) Paragraphs 4(a) to (e) of the Statement of Claim are struck out; (c) The second defendant may file and serve written submissions on its entitlement to costs, given the overruling by the High Court of the Chorley principle by 4 pm on 30 May 2025. 4. The plaintiff may file and serve any submissions on costs in reply by 4pm on 5 June 2025. 5. The question of costs will be determined on any written submissions received without further oral hearing. 22 (2025) 99 ALJR 321. -- 12 of 12 --