Chirnside v Waratah Lodge Horse Agistment P/L [2014] QMC 21

MAGISTRATES COURTS OF QUEENSLAND CITATION: Chirnside v Waratah Lodge Horse Agistment P/L [2014] QMC 21 PARTIES: SHARYN LEANNE CHIRNSIDE (plaintiff/respondent) v WARATAH LODGE HORSE AGISTMENT PTY LTD (defendant/ applicant) FILE NO/S: M70/14 DIVISION: CIVIL PROCEEDING: Claim – Application for Summary Judgement ORIGINATING COURT: Ipswich Magistrates Court DELIVERED ON: 20 June 2014 DELIVERED AT: Ipswich HEARING DATE: 26 May 2014 MAGISTRATE: Simpson AP ORDER: 1. Pursuant to r 171 UCPR the Claim and Statement of Claim is struck out; and 2. Pursuant to r 293 UCPR summary judgment is entered for the defendant/applicant against the plaintiff/respondent. CATCHWORDS: TORTS - PRACTICE AND PROCEDURE – SUMMARY JUDGMENT – whether claim is an abuse of process Uniform Civil Procedure Rules 1999, r 171, r 293 Clout & Ors v Klein & Ors [2001] QSC 401 COUNSEL: The plaintiff/respondent appeared on her own behalf Mr S Neaves for the defendant/applicant SOLICITORS: The plaintiff/respondent appeared on her own behalf FDR Legal for the defendant/applicant -- 1 of 9 -- 2 [1] The applicant/defendant conducts a business for horse spelling and agistment in Harrisville west of Ipswich. The respondent/plaintiff was at the material time a trainer and owner of racehorses. [2] In early 2010 the respondent arranged for a number of horses that she then owned to be agisted on the applicant’s property. A dispute emerged between the parties as to the fees for agistment. That dispute was the subject of litigation brought by the applicant in the Queensland Civil and Administrative Tribunal (QCAT). That matter proceeded to a hearing before Adjudicator Davern on 8 May 2012. A decision was given on the same day. [3] The respondent commenced proceedings by way of Claim and Statement of Claim in this court on 28 February 2014 seeking damages for, amongst other things, breach of contract as a consequence of the applicant’s detention of the horses, a failure to care for the horses adequately and a prevention of the respondent’s ability to train, improve and race the horses. She also claims damages for the loss of her trainer’s licence. [4] This applicant seeks, inter alia, to strike out the respondent’s action under r 171 Uniform Civil Procedure Rules (UCPR), that summary judgment be entered for it under r 293 UCPR or a declaration under r 658 UCPR that the respondent is estopped from making her claim pursuant to the doctrine of res judicata. Strike out [5] Rule 171 requires judicial discretion to be used sparingly applying the principles as set out by Barwick CJ in General Steel Industries Inc. v Commissioner for Railways (NSW) 112 CLR 125 at 129. “It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". [6] The application of r 171 allows in part for a Claim to be struck out if it amounts to an abuse of process. Holmes J in Clout & Ors v Klein & Ors [2001] QSC 401 at [54] to [56] summarised the considerations as follows: Abuse of process -- 2 of 9 -- 3 The Court’s power [54] The court’s inherent power to prevent an abuse of process may be exercised to prevent re-litigation of issues, notwithstanding that principles of estoppel do not apply. In those circumstances as in any other, “a discretion to stay proceedings as an abuse of the process of the court … while it should be exercised fearlessly where it is required, ought always to be exercised with great caution” Effem Foods v Trawl Industries (1993) 43 FCR 510 at 532. Relevant considerations [55] In Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414 Hunt CJ propounded the following criteria: “The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former … It must be an issue which was necessarily determined in the earlier case, and one of importance to the final result. It must have been properly argued – by which I mean that … the tribunal which decided it was an appropriate one to do so, that the parties were appropriate contradictors and that the issue was regarded by them as one of importance… In normal circumstances the decision disposing of the issue must have been a final one.” [56] In State Bank of New South Wales Ltd v Stenhouse [1997] Aust Torts Rep 81-423 Giles CJ said: “The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are – (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; … (f) the extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supported for abuse of process.” -- 3 of 9 -- 4 Summary judgment for a defendant [7] The test for an application by a defendant for summary judgment against a plaintiff under r 293 UCPR is similar to the approach under r 292. In essence what must be shown by the plaintiff in resisting that application is that there is “some real prospect of succeeding at trial” as Williams JA in Deputy Com of Taxation v Salcedo [2005] QCA 227 sets out at [17]: “That review of the authorities clearly establishes to my mind that there has been a significant change brought about by the implementation of r 292 and r 293 of the UCPR. The test for summary judgment is different, and the court must apply the words found in the rule. To use other language to define the test (as was contended for in this case by counsel for the appellant relying on the reasoning of Chesterman J in Gray v Morris) only diverts the decision-maker from the relevant considerations. But, and this underlies all that is contained in the UCPR, ultimately the rules are there to facilitate the fair and just resolution of the matters in dispute. Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial. [8] Williams JA at [14] also referred to Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 QdR 259 at 264-5 to observe that the Court of Appeal has said the test under r 293 is not as high as that found in General Steel Industries Inc. v Commissioner for Railways (NSW). Issue estoppel and res judicata [9] The principle of res judicata is set out in Jackson v Goldsmith (1950) 81 CLR 446 per Fullagher J at 466: “where an action has been brought and judgment has been entered in that action, no other proceeding can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy…. ” [10] Fullagher J went on to address the principle of issue estoppel with reference to Dixon J in Blair v Curran (1939) 62 CLR 464 at 531 wherein it was said that: “A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.” [11] Holmes J in Clout & Ors v Klein & Ors at [31] identified that in Jackson v Goldsmith the term “cause of action” appears to be central to determining whether an attempt is being made to re-litigate a matter and whether the principles noted above apply in the circumstances. I have considered her observations that: “That enquiry, as formulated, is deceptively simple. One must start by determining what “cause of action” means, a question which has met with a variety of answers. -- 4 of 9 -- 5 It may mean “the facts which support a right to judgment”; “a right which has been infringed” or the “substance of an action as distinct from its form”:Port of Melbourne Authority v Anshun Pty Ltd [1981] 147 CLR 589 at 610. Other descriptions have been applied: “every fact which would be necessary for a plaintiff to prove, if traversed, in order to support his right to a judgment”; “the essential ingredients in the title to the right which it is proposed to enforce”; “the act on the part of the defendant which gives the plaintiff his cause of complaint”; or “rights which can be enforced, or liabilities which can be redressed by legal proceedings” Onerati v Phillips Constructions Pty Ltd (1989) 16 NSWLR 730 at 739.” [12] I also have regard to “cause of action” as defined in the Encyclopaedic Australian Legal Dictionary (Lexis Nexis) as: “1. The whole set of facts that give rise to an enforceable claim. In a cause of action, the plaintiff must prove every fact that is challenged in order to obtain judgment: Bennett v White [1910] 2 KB 643 . 2. The facts that are relied upon for judicial redress: Read v Brown (1888) 22 QBD 128 ; 60 LT 250 . 3. The constituent elements of a claim which give rise to a legal liability, for example that a duty of care exists in a claim in negligence. Also known as ‘claim’, ‘cause’, or ‘matter’.” [13] An analysis of the respondent’s position at QCAT and in this court is required to determine what causes of action, if any, she has raised in either jurisdiction. [14] In addressing the issue of whether the respondent should be precluded from pursuing her suit against the applicant, both parties referred me to Port of Melbourne Authority v Anshun Pty Ltd [1981] 147 CLR 589 at 598: "where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." [15] The respondent says that if I applied the principle as set out above then I should give consideration to the special circumstances of this case and not apply the principle against her. She pointed to the following matters: (a) An allegation that the applicant misled QCAT in evidence; (b) That the respondent lacked legal skill; (c) That the respondent was self represented; and -- 5 of 9 -- 6 (d) That the respondent had an acquired brain injury. (with reference to notes of the Princess Alexandra Hospital dated 9 May 2007) [16] The assessment of whether any special circumstances arise needs to be made in the context of the cases pleaded and relief sought in QCAT and this court. The proceedings in QCAT [17] On 22 March 2011 the applicant commenced a Minor Civil Dispute – Minor Debt claim in the Ipswich registry of QCAT seeking: “the sum of $8,381.40 with respect to services provided, namely equine services, for the Respondent at the request of the Respondent…” [18] On 20 April 2011 the respondent filed her response in the Ipswich registry and set out the following: “I want the tribunal to make the following order/s: 1. Barry Sealy of Waratah Lodge, refused to let me remove my horses, & withheld them till now. I had to take police around, to get them eventually. 1 horse refused to get on the horsefloat and is still there. I will remove him with police again in the next few days. 2. I believe I owe Barry Sealy of Waratah Lodge the agistment owing till 10th September 2010. 3. Several dates, I tried to remove my horses. 10 Sept 2010, 29 Oct 2010, 2 Nov 2010. And anytime after 14 Feb 2011. 4. Barry Sealy knew what happened with my money. The reasons I consider the order/s sought should be made: 1. Barry Sealy knew exactly what was going on with solicitors and my money. 2. I tried to remove horses on dates listed above. 3. Barry Sealy has no right to hold my horses, as they are athletes. I have been severely upset by Barry’s behaviour, and he has cost me more money and time, which cannot be replaced. Both horses have been held ransom for 8 months.” [19] The parties filed affidavits setting out their respective cases and the hearing of the matter proceeded on 8 May 2012. At the hearing the respondent said that she had been out to Waratah Lodge to “work those horses” during the time of the agistment (QCAT transcript 1-3 line 3). She also raised issues about the health and wellbeing of the horses whilst on agistment including an allegation that the applicant “refused to feed” a horse (T 1-11 L 9) and an allegation that the applicant failed to look after a foot infection on a horse (T 1-11 L 21). -- 6 of 9 -- 7 [20] The respondent’s written submissions to this application advanced the proposition that she had not in fact pleaded a cause of action before QCAT because she was a respondent there. It was submitted that she is not re-litigating the same causes of action in the circumstances. It is my view of the facts that the issues raised by the respondent in her response and evidence at QCAT included the unlawful detention of the horses, the failure to adequately care for the horses and the prevention of the respondent from being able to train or work the horses. These are the causes of action she litigated in that forum. [21] The adjudicator asked the respondent whether she had taken legal advice about the issues she was raising and she responded that she had. (T 1-21 L15 – 18). The adjudicator appears to have considered all of these matters when dealing with the debt claim and stated “I do not have anything sufficient by way of evidence to refute the claims today.” The respondent was ordered to pay the applicant the sum of $14,547.70. [22] The respondent appealed the decision and filed a number of fresh affidavits. The new evidence was rejected by Senior Member Stilgoe on the basis that “An application for leave to appeal is not, and should not be, an attempt to shore up deficiencies of a party’s case at the initial hearing.” The application for leave to appeal was refused. The proceedings in the Magistrates Court [23] The Statement of Claim sets out the same matters as the respondent outlined in her response to the QCAT matter. Her claims related to the demands to return the horses are set out in paragraphs 12 to 19 of the Statement of Claim. Her allegations of poor treatment of the horses are set out in paragraphs 20 to 24 of the Statement of Claim. At best the allegations are simply better particularised than the response filed in QCAT. [24] The respondent has expanded upon her theme to include a claim for damages flowing from the alleged unlawful detention of the horses. The particular term “damages” was not set out in her response form at QCAT but was in my view ventilated at the hearing. The respondent said at QCAT that she had “spoken to several solicitors about it. They said that he has no right to hold my horses” (T 1-3 L 17-19). Further in an exchange between the parties the issue was clearly defined (T 1-10 L 3 – 9): “UNIDENTIFIED SPEAKER 2: That would not have been a problem though. We wouldn’t have blocked something like that. We did want the horses off out place. We were having to work and feed them and look after them every day. We did want that debt stopped. MS CHIRNSIDE: No, you created the debt yourself by not allowing me to take the horses. You didn’t even litigate your own losses let alone mine.” [25] Lastly, the respondent includes in the prayer for relief a claim for the loss of her trainer’s licence and loss of race winnings. This claim is not particularised and not based on any allegation in the body of the Statement of Claim. [26] The applicant has filed a Notice of Intention to Defend and Defence. -- 7 of 9 -- 8 Did QCAT have jurisdiction to hear and determine a cause of action as brought by the respondent? [27] QCAT has jurisdiction to hear and determine minor civil dispute matters that are: (a) a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount; or (b) a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is— (i) for payment of money of a value not more than the prescribed amount; or (ii) for relief from payment of money of a value not more than the prescribed amount; or (iii) for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or (iv) for return of goods of a value not more than the prescribed amount; or (v) for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount; or… [28] The matters complained of in this court could have been dealt with by QCAT as part of any relief from the payment of money sought by the applicants. If I am wrong about that and the adjudicator was of the opinion that he could not deal with claims, counter claims or potential set-off of the respondent then there is provision for the matter to have been transferred to a Magistrates Court for determination under s 52 Queensland Civil and Administrative Tribunal Act 2009. That did not occur and the matter was finalised in that jurisdiction. [29] As I have noted above, the respondent raises one matter now that was not before QCAT; namely a claim for damages because her trainer’s licence was suspended by Racing Queensland because she failed to satisfy the judgment of QCAT. Conclusion [30] I have concluded that the respondent is seeking to re-litigate causes of action that she raised or was able to raise in QCAT save for the issue about her trainer’s licence. Following the principle of Port of Melbourne Authority v Anshun Pty Ltd the respondent should be prohibited from continuing with her Claim and Statement of Claim in this court. She has not shown any special circumstances upon which I am satisfied that she should have relief from the principle; she told the adjudicator that she had taken legal advice about the matter before the hearing and the notes of the Princess Alexandra Hospital regarding her brain injury do not assist me in finding that she was under some relevant impairment at the time of the QCAT hearing. -- 8 of 9 -- 9 [31] In addition to my findings above, it is my view that the Claim and Statement of Claim should be struck out under r 171 UCPR as an abuse of process following the principles set out in Clout & Ors v Klein & Ors. The matters that the respondent wishes to raise in this court could have been dealt with at QCAT. Her plea that she was not prepared for the alleged dishonesty of the applicants cannot be a satisfactory reason to allow her pleadings to stand. If that was the case then the courts would be clogged with matters being re-litigated continuous until a party achieved the evidence that they were hoping for. The applicant should be entitled to finality in this litigation and not put to any further burden. [32] Lastly, her claim related to her lost trainer’s licence flowing from her failure to satisfy the QCAT judgment fails to have any particulars in the pleading and has no real prospect of succeeding at trial. The respondent could not be responsible for any punishment delivered by a third party, namely Racing Queensland, flowing from a lawfully obtained judgment. [33] Therefore I order: 1. Pursuant to r 171 UCPR the Claim and Statement of Claim is struck out; and 2. Pursuant to r 293 UCPR summary judgment is entered for the defendant/applicant against the plaintiff/respondent. I will hear the parties as to costs. -- 9 of 9 --