Chidgey v State of Queensland [2015] QDC 19

DISTRICT COURT OF QUEENSLAND CITATION: Chidgey v State of Queensland [2015] QDC 19 PARTIES: DAVID STANLEY CHIDGEY (applicant) v THE STATE OF QUEENSLAND (respondent) FILE NO/S: 5014/14 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 18 February 2015 DELIVERED AT: Brisbane HEARING DATE: 28 January 2015 JUDGE: Reid DCJ ORDERS: 1. Pursuant to r 135 of UCPR, the respondent be given leave to file its application in the proceeding despite not having filed a notice of intention to defend. 2. In relation to the respondent’s application for summary judgment, under r 293 of UCPR, I declare pursuant to r 271 of UCPR that the respondent’s application is effectual despite the fact that no notice of intention to defend have been filed. 3. Order pursuant to r 7(2) of UCPR that the time for service of the respondent’s application filed 21 January 2014 be abridged to allow it to be heard by me on 28 January 2014. 4. The application of the applicant filed 19 December -- 1 of 7 -- 2 2014 is dismissed. 5. There be judgment for the respondent in the action pursuant to r 293 of UCPR. 6. The applicant pay the respondent’s costs of and incidental to the action, including the respondent’s costs of the application filed 19 December 2014 and its costs of the cross-application filed 22 January 2015, to be assessed. CATCHWORDS: SUBORDINATE LEGISLATION – setting aside costs assessment – untenable claim – summary judgment – leave where no notice of intention to defend has been filed Chidgey v Wellner & Anor (No 2) [2007] QDC 343 – referred to Chidgey v Wellner & Anor (2006) QDC 400 – referred to Noble v Victoria (1999) QCA 110 – applied General Steel Industries Incorporated v Commissioner for Railways (1964) 112 CLR 125 – applied LEGISLATION: Uniform Civil Procedure Rules 1999 rr 7, 171, 135, 271, 293, 371, 658 COUNSEL: The applicant appeared on his own behalf M. Hindman for the respondent SOLICITORS: The applicant appeared on his own behalf Crown Law for the respondent [1] I have before me two applications. Mr Chidgey filed a claim and statement of claim in which he is described as the applicant rather than the plaintiff on 19 December 2014. On that day he also filed an application returnable on 28 January seeking the following orders: “1. The introduction of Subordinate Legislation: SL 315 and SL 316 of 2007 by the State of Queensland be invalidated. Costs Assessments associated with this Subordinate -- 2 of 7 -- 3 Legislation used against David Stanley Chidgey be set aside; 2. All costs assessments against David Stanley Chidgey be set aside as abuse of process by State of Queensland; 3. The application elects trial by jury under r 472. #. The Respondent pay the costs of Applicant of the application (or as the case may be).” [2] The named Respondent, the State of Queensland, filed an application on 22 January 2015 seeking the following orders: 1. Leave of the Court be given pursuant to Rule 135 of the Uniform Civil Procedure Rules 1999 (UCPR) to permit the Respondent to make this Application without having first filed a notice of intention to defence (sic). 2. The Court declare pursuant to Rule 371 UCPR that the Respondent’s bringing of this summary judgment application is effectual despite the Respondent not having filed a notice of intention to defend as otherwise required by Rule 293 UCPR. 3. Pursuant to Rule 7(2) UCPR, time for service of this summary judgment application be abridged to permit the application to be heard on 28 January 2015. 4. Judgment be given for the Respondent against the Applicant for the whole of the Applicant’s claim pursuant to Rule 293(2) UCPR. 5. Further or alternatively to the summary judgment application, the Applicant’s Statement of Claim be struck out pursuant to Rule 171 UCPR. 6. Further or alternatively to the summary judgment application and the strike out application – (a) The Applicant’s proceeding be dismissed pursuant to the inherent jurisdiction of the court or pursuant to Rule 658 UCPR; and/or (b) Judgment be entered for the Respondent against the Applicant in the proceeding pursuant to Rule 658 UCPR. 7. The Applicant pay the Respondent’s costs of and incidental to this application and the proceeding. 8. Such other orders as the Court considers necessary. -- 3 of 7 -- 4 [3] That application was also set down on 28 January 2015. For convenience I will refer to the original applicant as Mr Chidgey and to the original respondent as the State of Queensland. [4] Mr Chidgey’s material does not disclose the background giving rise to the current proceedings. He asserts however in his claim that the “State of Queensland proverted (sic) the course of justice introducing retrospective subordinate legislation: SL 315 and SL 316/2007 to be effective on 1 January 2008.” In fact, only some of the subordinate legislation commenced on 1 January. Other sections commenced on 10 December 2007, but nothing turns on that. The attached statement of claim sought orders identical to those sought in the application and set out in [1] hereof. [5] The subordinate legislation referred to in the claim and statement of claim and application related to amendments to the provisions of the UCPR dealing with costs, including assessment of costs. The applicant was particularly concerned with the provisions relating to assessment of costs under Chapter 17A of UCPR. [6] He appears to assert that the subordinate legislation came about somehow as a result of a conspiracy between, inter alia, Peter Beattie, the Premier of Queensland at that time, the then Chief Justice and Judge McGill of the District Court. The genesis of that view seems to be that Judge McGill had heard an appeal from a Magistrate’s decision in a matter between Mr Chidgey and his former solicitors and reserved judgment in that matter on 16 August 2007. His Honour gave judgment in the matter on 21 December 2007 (see Chidgey v Wellner & Anor (No 2) [2007] QDC 343). His Honour allowed Mr Chidgey’s appeal and made consequential orders. The judgment indicates His Honour would hear argument in relation to the costs of the appeal. It appears Mr Chidgey asserts he was not awarded costs. Whilst the cost order made in the matter, and any arguments in relation to costs are not set out in the judgment, even if one assumes that his Honour did not award costs in Mr Chidgey’s favour, it is apparent Mr Chidgey was self-represented and so would not have been entitled to legal costs, other than perhaps court costs associated with filing of the Appeal. [7] In any case, it is alleged by Mr Chidgey that on 10 September 2007, being a date after the hearing of the Appeal on 16 August, but before the decision as given, -- 4 of 7 -- 5 Judge McGill and the then Chief Justice participated in a rules committee meeting. It is alleged that subsequently, and as a result of that meeting, the Chief Justice issued Practice Direction No 7/2007 relating to interim arrangement for costs assessments, pending the commencement of the subordinate legislation earlier referred to. The legal basis for the power to make the Practice Direction was said to be r 685(2) of UCPR. Mr Chidgey alleges Judge McGill “had a clear conflict of interest”. The basis of that assertion is that his Honour had reserved judgment in the matter involving Mr Chidgey, yet sat on the rules committee in circumstances where Mr Chidgey said he knew that amending the rules in the way the rules committee recommended might have affected Mr Chidgey’s rights. [8] It is not easy to ascertain the factual or legal basis giving rise to Mr Chidgey’s claim. [9] The submissions of the Crown thoughtfully summarise what appears to be the factual circumstances behind Mr Chidgey’s complaint, based on decisions of courts. I note that the respondent, the State of Queensland, was not a party to any of those proceedings which primarily related to proceedings between Mr Chidgey and his former solicitors, and related issues. The decision of Judge McGill in Chidgey v Wellner & Anor (No2) (supra) appears to have been favourable to the applicant. The applicant’s complaint appears to be that he was not awarded costs of that appeal. The statement of claim pleads that Mr Chidgey “won” the appeal before his Honour (a circumstance I have already referred to) and “therefore Court Costs Should have naturally been awarded to the Applicant. Instead the Respondent obtained a default judgment from the Wynnum Magistrates Court for M578/05 on 21 Jan 2008.” [10] The circumstances concerning any default judgment were, it seems to me, unrelated to his Honour’s determination in relation to costs. Mr Chidgey did not indicate during the course of oral submissions how what occurred in the Magistrates Court was related to his Honours decision in relation to costs. [11] It is important also to understand that his reference in the Statement of Claim to the “respondent” obtaining a default judgment from the Magistrates Court is not a reference to the respondent before me, namely the State of Queensland, but to the -- 5 of 7 -- 6 respondent in the proceedings before his Honour Judge McGill, being Mr Chidgey’s former solicitor. [12] The statement of claim does not clearly articulate why the facts alleged might justify an order that the subordinate legislation referred to would be invalid or why “all costs assessment against David Stanley Chidgey be set aside as an abuse of process by State of Queensland”. His oral submissions before me were of no assistance in articulating such an argument. He appeared to suggest there was a relationships between his being a member of One Nation political party for some time and the fact that Mr Beattie allegedly announced his retirement as premier on the day of the rules committee meeting, namely 10 September 2007. Accepting, without finding, that that is so, I do not see how it can possibly be relevant to the applicant’s claim. [13] More importantly, he did not articulate any argument as to how, having regard to the powers of the District Court, I could make an order invalidating the subordinate legislation. [14] It is, as counsel for the State of Queensland submitted, simply impossible from Mr Chidgey’s material to make out any actual cause of action that he has or might have against the State of Queensland arising from the matters touched upon in the statement of claim or in his affidavit. [15] The applicant did not oppose my ordering and in any case I would have ordered, pursuant to r 135 of UCPR, that the State of Queensland be given leave to file its application in the proceeding despite not having filed a notice of intention to defend. Similarly, in relation to the State of Queensland’s application for summary judgment, under r 293 of UCPR, I would declare pursuant to r 271 of UCPR that the application is effectual despite the fact that no notice of intention to defend have been filed. Finally, I order pursuant to r 7(2) of UCPR that the time for service of the application be abridged to allow it to be heard by me. That order was not opposed by Mr Chidgey, and in any case I would have so ordered. [16] The respondent’s application provides for three bases upon which the proceedings can be brought to immediate end. It was submitted I could give summary judgment for the State of Queensland against Mr Chidgey pursuant to r 293(2) of UCPR. Secondly, it was said I could, pursuant to r 171 of UCPR, strike out Mr Chidgey’s Statement of Claim as disclosing no reasonable cause of action (or under the other -- 6 of 7 -- 7 subsection of r 171). Finally, it was submitted I could give judgment pursuant to r 658 of UCPR. In my view, because of the wholly untenable nature of the allegations that the plaintiff has made, orders could be made under any of those provisions. [17] A question at least theoretically arises as to whether or not if I struck out the Statement of Claim Mr Chidgey should be given leave to re-plead. Such an approach is common where a court forms the view that there is or may be a reasonable cause of action but it is not properly enunciated in the current pleadings. However under r 171 a pleading can be struck out without liberty to re-plead if the case of the party in question is so clearly untenable then it cannot possibly succeed (see General Steel Industries Incorporated v Commissioner for Railways (1964) 112 CLR 125 at 130). In my view Mr Chidgey’s case is clearly untenable. It cannot possibly succeed. It is not merely a defect in the pleading, which might justify an order being made that the party have liberty to re-plead (see Noble v Victoria (1999) QCA 110).1 In any case, I have determined to proceed under r 293 of UCPR and to give summary judgment against Mr Chidgey. [18] In the circumstances I will order that there be judgment for the respondent in the action pursuant to r 293 of UCPR. The application of Mr Chidgey is dismissed. I further order that the applicant, Mr Chidgey, pay the respondent’s costs of the action including its costs of the application of the applicant and its costs of the cross-application filed 22 January 2015. 1 Both these cases were referred to by McGill DCJ in Chidgey v Wellner & Anor (2006) QDC 400. -- 7 of 7 --