ACM Group Ltd v Jenner

[2014] QMC 7

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

ACM Group Ltd v Jenner [2014] QMC 7

PARTIES:

ACM GROUP LIMITED ACN 127181097
(Plaintiff)

V

PAMELA FAY JENNER
(Defendant)

AND BY COUNTERCLAIM

PAMELA FAY JENNER

(Plaintiff by counterclaim)

and

BERT VIEIRA

(Second defendant by counter claim)

and

ACM GROUP LIMITEDACN 127181097 

(Third defendant by counter claim)

and

NICHOLSONS SOLICITORS

(Fourth defendant by counter claim)

FILE NO/S:

52582/13

DIVISION:

Magistrates Courts

PROCEEDING:

Application by defendants to strike out the claim pursuant to Rule 171(2) of the Uniform Civil Procedure Rules 1999 (“UCPR”) and for judgment on the counter claim pursuant to UCPR 293 – Cross application to strike out defence and counterclaim as frivolous or vexatious.

ORIGINATING COURT:

Brisbane

DELIVERED ON:

21 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2014

MAGISTRATE:

The Honourable Judge Carmody QC

ORDER:

1.          The application is dismissed.

2.          The defence and counterclaim are struck out.

3.          The defendant has leave to re-plead the defence within 28 days.

4. The parties to file and exchange written submissions within 14 days as to whether the defendant or Ms Wales should pay the plaintiff’s costs of and incidental to the application assessed on an indemnity basis pursuant to r 703 UCPR.

CATCHWORDS:

PRACTICE – PROCEDURE Where defendant “assisted” in conducting the litigation and at the hearing by unqualified “advocate” - whether “pleadings” of the defendant (and plaintiff by counterclaim) amounts to an abuse process, where “non legal” concepts and “higher law” principles relied on – whether indemnity costs should be awarded against non-party.

COUNSEL:

M Jones for the plaintiff

SOLICITORS:

Nicholsons Solicitors for the plaintiff

Self represented defendant assisted by Ms Wales, a friend.

The applications

1. This is an application by the defendant (and plaintiff by counterclaim) to strike out the claim under UCPR 171(2) and for judgment on the counter claim pursuant to UCPR 293.

1. The plaintiff and the other defendants by counterclaim (the ACM parties) oppose that application and seek to have both the defence and counter claim struck out.

1. The defendant is self represented and appeared today assisted her friend, Ms Wales.

1. The case highlights the tension between the fundamental principle that all parties have unobstructed access to civil justice regardless of whether or not they are legally represented (Tomasevic v Travaglini (2007) VSC 337 at [84]), on the one hand, and the need to protect members of the public from unscrupulous and unqualified people offering unsatisfactory legal services, on the other.

The claim

1. The plaintiff seeks recovery as the creditors assignee of an unpaid bank debt of $10,968.12 plus interest and costs,.

1. The defendant contends that the originating document amounts to a “commercial default and dishonour” (par 9 (m)-(u)), fails to disclose a reasonable basis for action, is an abuse of process, hopeless, frivolous and vexatious, affected by fraud and lacks good faith (par 9(v)-(x)).

1. There is no valid point of pleading here and no legal grounds for setting aside the claim.

1. The Statement of Claim clearly discloses a viable cause and alleges…