Daniell v Redcliffe Homes PM Pty Ltd & Ors [2014] QDC 33

1 [2014] QDC 33 DISTRICT COURT OF QUEENSLAND APPELLATE JURISDICTION JUDGE R S JONES No 3736 of 2013 JANINE DANIELL Appellant and REDCLIFFE HOMES PM PTY LTD and OTHERS Respondent BRISBANE 2.34 PM, WEDNESDAY, 19 FEBRUARY 2014 EX TEMPORE JUDGMENT -- 1 of 6 -- __________________________________________________________________________________ 6 JUDGMENT HIS HONOUR: The orders of the court will be that leave is refused and the appeal will be dismissed. In respect of the question of costs, the orders will be that the appellant is to pay the second and third respondents’ costs of the appeal. I further order that the appellant is to pay the first respondents’ costs of the appeal. Such costs are however limited to only legal costs incurred by the first respondent directly 5 concerned with the conduct of this appeal. Now it’s up to you whether you want to stay for the substantive reasons. ... 10 I’ll make a further order that in the event that the quantum of costs is not agreed the question of costs is to be re-listed before me for the determination. ... 15 This proceeding was an appeal primarily concerned with a decision of the Magistrates Court dated the 26th of April 2013. I say primarily concerned because the notice of appeal raises a raft of other matters including protection orders etcetera. The orders sought in the applicant’s notice of appeal are as follows; 20 “(1) appeal be allowed, (2) decision of Magistrates Court of Queensland (Redcliffe) dated 26 April 2013 be set aside, (3) permission to restart/refile claim in Supreme Court, (4) permission to add TICA as a third party in the defamation aspects of the claims, (5) case management with a particular judge pursuant to rule 368(1) and (2) UCPR 1999, (6) protection orders 25 against first defendants – preventing them or their representatives – with the exception of their legal representatives contacting the plaintiff and/ members of her family in any way or accessing their personal information (such as phone numbers, addresses, etcetera) by any means (such as databases, other real estates, etcetera) – unless they have an order from the 30 court, (7) order for documents to be presented by defendants as per document request list, (8) appeal to be open to the general public and other interested parties, (9) restriction from further court appearances of three key witnesses, Ms Katrina Dundas, Ms Michelle Robertson and Mr Mark Taylor.” 35 TICA is, as I understand it, a company or body that maintains a tenancy database. During oral argument the appellant said that the protection orders should extend to the first respondent and anyone who in any way was associated with that company, 40 and also to the brother of the third respondent. That brother is not a party to any of the proceedings. By way of brief chronology, in early 2013, the appellant commenced proceedings in the Magistrates Court raising the following matters: first, breaches of contract and 45 other misrepresentations; second, breaches of trust; third, harassment, intimidation, threats and retaliation; fourth, breaches of privacy; fifth, fraud; sixth, vexatious litigation; seventh, perjury; eighth, theft; and finally, defamation. -- 2 of 6 -- __________________________________________________________________________________ 6 JUDGMENT The statement of claim ran for 14 pages and sought judgment in the total amount of $150,000. The first and the third respondents filed applications to strike out the statement of claim and on 26 April 2013, after hearing and receiving quite comprehensive submissions, the court below made orders in the following terms: 5 “(1) The plaintiff’s statement of claim be struck out pursuant to rule 171 of the Uniform Civil Procedure Rules 1999. (2) Judgment be entered for the first, second and third defendants against the plaintiff. (3) The plaintiff pay the first defendant’s costs on an indemnity basis to be 10 agreed or assessed. (4) The plaintiff pay the second and third defendants’ costs on an indemnity basis assessed at $3911.35.” In his ex tempore reasons, the learned Magistrate below, after dealing with the 15 relevant chronology, went on to relevantly say; “That brings us to the 22nd of January 2013, which is the date of filing of the plaintiff’s application before the court. Now, I have considered the arguments of the applicant and the submissions of Ms Daniell. I have to say that many of the 20 heads of damages, in my opinion, seek simply to re-litigate matters that have already been determined in QCAT. The proper course of action for the plaintiff would have been to appear (appeal) the QCAT decisions and she has not done that and I am afraid she is probably out of time. 25 “Other heads of damages are not based on any recognised course of action, namely, breach of privacy or perjury. In terms of the pleading itself, it is clearly non-compliant with the rules, with rules 146, 150, 155, and 157 of the Uniform Civil Procedure Rules. In my opinion, no defendant should or could be expected to plead to such a document. In my view, this document is prolix, frivolous, 30 vexatious and an abuse of process, and is not properly started. In my view, the plaintiff has no real prospects of succeeding in her claim against the first, second or third defendants and there is no need for a trial.” His Honour then went on to make the orders referred to above. In the notice of 35 appeal under the heading, “The reasons justifying the granting of leave are,” there are 38 paragraphs over four pages. The first 10 paragraphs deal with facts, as I understand it, meant to address the issue that the notice of appeal was filed more than five months out of time. Those paragraphs are primarily concerned with the appellant’s health. The substantive grounds of appeal are set out in 28 paragraphs 40 over three pages in the notice of appeal. I will refer to only some of those grounds. “(1) pursuant to rule pursuant to rule 367(2) of the UCPR “the interests of justice are paramount” and all three applications in this matter should be consolidated and heard together (“as per the QCAT adjudicator’s third and final decision”) 45 [indistinct]: the magistrate erred in his decisions (3) the magistrate was given incorrect and misleading information by the defendant’s solicitors. -- 3 of 6 -- __________________________________________________________________________________ 6 JUDGMENT (4) both the magistrate’s decisions and information presented to him by defendant’s solicitors were in contradiction to the findings of the adjudicator and the president of QCAT. (6) incorrect interpretation and presentation to the court on numerous affidavits… (15) one of the errors being made and presented as the magistrates hearing by 5 defendant’s solicitors is easy to see that the defendants were awarded $4,000 plus bond – despite applying for more than $12,000 has been presented as evidence that the plaintiff’s claims were heard and deductions given still leaving a debt owed, by the plaintiff, of $4,000. This interpretation was incorrect. The decrease of more than $8,000 was due to the defendant’s claims being false/fraudulent 10 (further evidence of them abusing the legal process by trying to obtain up to $25,000 fraudulently through QCAT) (16) the defendants were awarded this amount because: 1) the plaintiff was unable to file a counter claim against their urgent application due to QCAT rules; 15 2) by the time a claim was filed by the plaintiff the matter was no longer of QCAT jurisdiction. 3) the adjudicator of QCAT did not decrease this amount as it could have been seen he had acted on the plaintiff’s claims. Also due to there having been no appeal filed (due to illness as per second enclosed medical 20 certificate) no appeal/claims or evidence were ever presented.” I should mention here that no appeal was lodged challenging the relevant findings of QCAT nor was there any application for an adjournment, as far as I’m aware, in respect of the proceedings before the Magistrates Court on 26th April 2013. During 25 oral argument various documents were tendered by the appellant which I have perused. To a significant extent they repeat but sometimes with more detail, the various allegations set out in the notice of appeal. Also, during oral argument the appellant gave brief submissions to the effect that the reason for the delay was primarily because of ill health and that the real error made by the court below was 30 that the learned magistrate was lead into error by the respondent’s lawyers who wrongly advised his Honour that relevant proceedings were determined by QCAT. The appellant otherwise conceded that her arguments were really covered by the various allegations made in her statement of claim. 35 On behalf of the respondents it was argued to the effect that first, no satisfactory explanation for the delay was given and second that otherwise the appeal was doomed to fail and accordingly leave ought be refused and the appeal dismissed. I should state, at this stage, that this appeal came before me via reference by the Registrar of this court pursuant to rule 982 of the Uniform Civil Procedure Rules. 40 The Registrar’s position was that orders ought be made dispensing with the certificate of readiness, ordering the appellant to file her outline of argument and to set the appeal down for hearing at a later date. It became tolerably clear to me that the appellant was unlikely to meet any orders regarding the filing of an outline of argument and at my suggestion all parties agreed that the leave application and the 45 substantive matters raised in the notice of appeal ought to be argued before me today. Thereafter the registrar withdrew. In Thomas v Octobay Proprietary Limited as Trustee [2013] QCA 321 Justice McMeekin with Justices Gotterson and Morrison agreeing observed, at paragraph 9; 50 -- 4 of 6 -- __________________________________________________________________________________ 6 JUDGMENT “Similar considerations apply to both the applications for extension and stay of enforcement. The relevant considerations are: (a) whether there is a good argument or case; (b) the explanation for and extent of any delay; 5 (c) whether the applicant will be disadvantaged by the making of the order; (d) whether there is some competing disadvantage to the respondent which outlines the disadvantage suffered by the applicant.” For the purpose of this appeal I’m prepared to proceed on the basis that the last two 10 considerations are resolved in favour of the appellant. However, as to the first and second considerations I consider that the application must fail. In my view, and while there are numerous allegations and assertions relied on to provide an explanation for the delay, none of them are supported by probative and admissible evidence. I have no doubt that the appellant is ill and suffers a number of medical 15 conditions many of which are likely to be serious. However, as I’ve said, no probative material was put before me to explain the nature of the delay in issue here. Even if I were wrong about that, it is my strong view that no arguable case has been revealed. 20 Turning to the notice of appeal this court has no power, in proceedings such as this, to make the orders sought in paragraph numbers 3, 6 and 9 of the relief sought. In respect of paragraph 4, no basis was established which would justify, let alone warrant, the joinder of the body know as TICA. Proposed order 5 involved merely a 25 procedural matter and as to order 8, unless specifically required to be closed, all proceedings are open to the public. No sensible argument was advanced to justify order 7. Turning then to the decision appealed against, the learned Magistrate was clearly correct, in my view, to characterise the statement of claim as being prolix, embarrassing, not in compliance with the rules of court and otherwise an abuse of 30 process. Bearing in mind the matters relied on by the applicant it is nonetheless my firm view that on the material before the court below and put before me on appeal there were strong grounds, if not overwhelming grounds, for the making of the orders appealed 35 against. The appellant has been unable to convince me that she has a good arguable case and has been unable to reveal any potential error in the reasoning of the court below. For the reasons given the application for the extension of time is refused and the appeal ought be dismissed. 40 Applications were made for costs by all the respondents on an indemnity basis. I can see no good reason why the second and third respondents ought not be entitled to their costs in accordance with the general rule that costs should follow the event. As to the first respondent it was represented here today by a director of the company. However, I am left with little doubt that because of the conduct of the appellant the 45 first respondent has incurred not insignificant legal costs as a direct consequence of the appellants conduct of the appeal. Whilst a very close run thing I am, at the end of the day, not sufficiently satisfied that this is an appropriate case for indemnity cost orders. I repeat that it was a very close run thing, but at the end of the day the appellant allowed the appeal to be dealt with fully and without delay. 50 -- 5 of 6 -- __________________________________________________________________________________ 6 JUDGMENT The applicant is to pay the second and third respondent’s cost of the appeal. The applicant is to pay the first respondent’s cost of the appeal, such costs to be limited to only those legal costs incurred by the first respondent directly concerned with the conduct of the appeal. I further order that in respect of the second and third 5 respondents, in the event that the quantum of costs is not able to be agreed, the matter is to be relisted before me at a date to be fixed. ADJOURNED [3.00 pm] 10 -- 6 of 6 --