Capel v Marac Finance Australia Ltd [1995] QSC 239

. ./.tbt27 -...,l'flil State ~c qs-;231_ Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made nr sold without the written authority of the Director. State Reporting Bureau.) .-----~~=-, SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION j WILLIAMS J No 589 of 1991 ELWYN JOHN CAPEL and MARAC FINANCE AUSTRALIA LIMITEil BRISBANE .. DATE 24/08/95 ORDER REVlSEiJ COP!ES ISSUED State Reporting Bureau Date 51 I Plaintiff Applicant 1 1 4th Floor, The Law Courts, George Street, Brisbane. Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 5 -- 240895 T1/MF M/T 5298 (Williams J) HIS HONOUR: I am concerned with an application by the defendant to have an action struck out or alternatively to have the statement of claim delivered therein on 6 October 1994 struck out. The circumstances are somewhat unusual and it is a relevant circumstance for present purposes that the plaintiff is now appearing in person and has made submissions on his own behalf today. The writ was issued on 4 April 1991 and there was a considerable delay before any statement of claim was delivered. The initial statement of claim was delivered on- 10 ( 20 r 6 October 1994 and it details the basis on which the plaintiff ( then contended he was entitled to relief against the defendant. Back in 1985 the defendant in the present action commenced proceedings in this Court against the present plaintiff and another company; that was ~ction 3353 of 1985. A Judge of this Court gave the plaintiff therein summary judgment and that decision was upheld by the Full Court. Both at first instance and on appeal the present plaintiff sought to raise triable issues by referring, an~ngst other things, to certain conduct of the finance company. The Court held on that occasion that such allegations did not raise triable issues. It is now the contention of the defendant in these proceedings that the statement of claim delivered on 6 October 1994 see!kS to relitigate issues which were rejected as triable issues by the Court on the earlier occasion. It is to be the defemdant's submission, in support 2 - ----------------------------- ------ --- 30 C L40 50 60 -- 2 of 5 -- 240895 Tl/MF M/T 5298 (Williams J) of the application to strike out, that the principle of res judicata applies and that the plaintiff has no viable cause of action. On 11 July 1995, the plaintiff forwarded to the solicitors for the defendant another document extending over some 89 pages said to be an amended statement of claim. I have not read that document in detail but it is significantly differently worded to the statement of claim delivered in October 1994. Whether the substance of the document is different is a matter to be determined in the future. The plaintiff contends that that document was accepted by the solicitors for the defendant but those solicitors contend that it is not a valid amended statement of claim because the plaintiff did not get leave of this Court to deliver it. In an endeavour to. resolve those issues the plaintiff has taken out a summons which is returnable on 7 September. It seems to me that it would be a waste of time for the Court to concentrate its attention on the statement of claim delivered October 1994 when the plaintiff is contending that he wishes to rely on some other document as the statement of claim. For that reason the plaintiff asks for an adjournment today and it seems to me that it is appropriate to grant an adjournment. However, the plaintiff must take advantage of the time given by the adjournment to ensure that the statement of claim on which he intends to rely 3 ORDER 10 20 30 40 50 60 -- 3 of 5 -- 240895 T1/MF M/T 5298 (Williams J) does not infringe the principle:s of res judicata and raises a viable cause of action. I am not saying that the plaintiff must prepare a statement of claim additional to that which currently bears the date 11 July 1995. What I am saying is that he should give careful consideration to that document in the light of what has been said today about the principles of res judicata and issue estoppel. If on the adjourned date, which will be 25 September 1995,there is not before the Court a viable statement of claim then it may well be that the judge then hearing the matter wi 11 be able to strike out the action without the necessity of giving the plaintiff the opportunity of repleading. I say that for the benefit of the parties and for the assistance of the Judge who will be determining the matter on that date. If the plaintiff does intend to rely on some further amended statement of claim, then of course a copy of that document should be made available to the defendant a reasonable time before the adjourned hearing date. Mr Bain, for the defendants, has submitted that in granting the adjournment today the Court was giving the plaintiff a plain indulgence and that in consequence an order for costs should be made. There is force in that argument but in all the circumstances, as I have not made any adjudication at all upon the application,it seems to me that it would be appropriate to order that costs be reserved. The judge who deals with the 4 10 r· 20 30 ( C40 50 60 -- 4 of 5 -- ,-... ( 240895 T1 /MF M/T 5298 (Williar.1s J) application to strike out on the merits will be able to dispose of todays costs in the light of the reasons which I have just given. I have also intimated to the parties that the plaintiff's application with respect to his amended statement of claim presently returnable on 7 Septeimber should be adjourned to 25 September on the papers so as to avoid any unnecessary costs being incurred. In the circumstances, the order I will simply make at this stage is summons adjourned to 25 September 1995, costs reserved. 5 10 20 30 40 50 60 -- 5 of 5 --