Abbott v Abbott & Ors [1999] QSC 425

fc l~. 4zs, /7C--y Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY CJ No S7660 0.£ 1999 JOHN MURRAY ABBOTT and ANNETTE JEAN ABBOTT and COMMONWEALTH OF AUSTRALIA and PAUL WILLIAM McGRATH and RALPH HOHL REAL ESTATE and JOHN LANG REALTY and DONALD FRASER WOODFORD and 1 ·\th Floor, The Law Courts, Geo..,.~e Sln:ct, Brishane, Q. 400() Plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant Sixth Defendant Telephone: (07) 324743(,0 Fax: (07) 3247 5532 -- 1 of 6 -- 051199 T04/MV16 M/T 6494/99 (de Jersey CJ) MARY THERESE WOODFORD and ANTHONY RICHARD WHITE and JUDITH WILSON and PAMELA JANETTE HARDING and REGISTRAR GENERAL BRISBANE .. DATE 05/11/99 JUDGMENT 2 ----------------- Seventh Defendant Eighth Defendant Ninth Defendant Tenth Defendant Eleventh Defendant 10 20 30 50 60 -- 2 of 6 -- 051199 T04/MV16 M/T 6494/99 (de Jersey CJ) HIS HONOUR: The plaintiff's claim in this Court is founded on a challenge to the Family Court Registrar's execution of a contract of sale and transfer documentation in the plaintiff's own name. The plaintiff contends that pre- conditions to the accrual of any power in the Registrar to 10 do those things were not satisfied. The claim now pursued in this Court is brought against the Registrar and a series of further parties, Commonwealth of Australia, . the Registrar General, the real estate agent who 20 effected the sale, purchasers, subsequent purchasers and so on. A similar claim, although brought only against the plaintiff's former wife and the Registrar of the Family 30 Court,was brought in the District Court and on 6 November last year struck out by Judge O'Brien as involving an abuse of process. 40 In the course of the submissions made here today, the plaintiff effectively conceded that this Supreme Court claim has the same genesis as that struck out in the District Court. His essential complaint is that he has never had the opportunity to litigate these matters. Whenever he has 50 sought to do it he has, in effect, been stopped in his tracks. I explained to him that a claim having been struck out in one Court in terms of process, the further pursuit of it 60 3 JUDGMENT -- 3 of 6 -- 051199 T04/MV16 M/T 6494/99 (de Jersey CJ) should be by way of appeal from that order, not by the commencement of other proceedings in another Court. Now, I appreciate, of course, that the claim brought here is for a larger amount and involves many more parties. But it seems to me that where the genesis of this proceeding, as I put 10 it, is the same as that struck out in the District Court and where that proceeding was struck out as being an abuse of process,it would. be quite wrong for me now to sanction the continuance of these proceedings. 20 Judge O'Brien gave comprehensive reasons for his order that the proceeding be struck out and I am content to incorporate c those reasons into this judgment. Thus seen in short, these instant proceedings, which are substantially an attempt to re-litigate the claim struck out in the District Court, 30 should.also be condemned as an abuse of process. In addition, I observe that the statement of claim is a convoluted and difficult document, to which, in that form, the respondents should not reasonably be required to respond. 40 C I Mr Hack, who appeared for the Registrar and the Commonwealth, provided me with an outline of submissions which helpfully covered the history of this matter in its 50 many emanations. Time does not permit my going through all of those matters and indeed, because of the basis upon which I am deciding the matter today, it is not necessary that I do so. But I do wish to note that I accept the submissions made by Mr Hack as conveniently summarised in his outline, 60 4 JUDGMENT -- 4 of 6 -- 051199 T04/MV16 M/T 6494/99 (de Jersey CJ) save that I prefer not to make a determination on the content of section (h), which relates to the limitations point. There is no need for me to determine that. In the result I will order that the statement of claim be 10 struck out on the ground that it constitutes an abuse of process of this Court. I order that the proceeding be stayed and that the plaintiff pay the costs of the second and third defendants to be assessed. 20 I order that the plaintiff's own cross-application filed 5 November 1999, be dismissed. There will be no order as to costs on that application. I endorse the recommendation with which Judge O'Brien concluded his own reasons given in the District Court on 6 November 1998. 30 MR ABBOTT: Your Honour, I'm a little confused about your striking out my application this morning. Does that include 40 all the defendants? HIS HONOUR: Yes. MR HACK: Your Honour, that situation was dealt with by Mr Justice Dunn in Madden v. Kirkgard (1975) Queensland Reports 363 where one of two defendants made an application to strike out the pleadings. Of course, in those days there was a writ and a statement of claim as separate documents. His Honour there decided that it----- 50 HIS HONOUR: My intention was to strike out the lot but now that you've raised it, what would you say? MR HACK: What His Honour there said was it would be inconvenient to strike out the statement of claim only so far as it related to one defendant, and struck it out in its entirety. 5 JUDGMENT 60 -- 5 of 6 -- 051199 T04/MV16 M/T 6494/99 (de Jersey CJ) HIS HONOUR: Well, I have reached the view that the whole proceeding is an abuse of the process of the Court. It would seem inconsistent with that to strike it out as against only two of the respondents. So the order is to be regarded as an order striking out the whole of the proceeding. 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 6 --