Ashton v Dorante - [2011] QSC 390

SUPREME COURT OF QUEENSLAND

CITATION:

Ashton & Anor v Dorante & Anor [2011] QSC 390

PARTIES:

GEOFFREY JOHN ASHTON and CYNTHIA ASHTON
(Plaintiffs)
v
ANTONIO FRANCIS DORANTE
(Defendant)
STATE OF QUEENSLAND
(Second defendant

FILE NO/S:

496 of 2010

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

8 December 2011

DELIVERED AT:

Cairns

HEARING DATE:

16 November 2011

JUDGE:

Henry J

ORDER:

1. The plaintiffs’ application for summary judgment is dismissed.
2. The plaintiffs’ Amended Statement of Claim filed 21 September 2011 is struck out.
3. The plaintiff will file and serve a Further Amended Statement of Claim by 4.00 pm on 27 January 2012.
4. The defendants will have liberty to apply to strike out the whole proceeding in the event that the plaintiffs fail to file a Further Amended Statement of Claim or fail to comply with the rules of pleading in such Further Amended Statement of Claim as may be filed.
5. I direct the Registrar to add the names of the female plaintiff and the second defendant to the Amended Claim filed 21 September 2011.
6. The plaintiffs will pay the first defendant’s and second defendant’s costs of and incidental to the applications to be assessed on the standard basis, unless otherwise agreed.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – Where the plaintiffs’ apply for summary judgment against the defendants – Where the plaintiffs cannot establish the defendants have ‘no real prospect’ of defending the claim – Where the defendants’ apply for the plaintiffs’ Amended Statement of Claim to be struck out as it discloses no reasonable cause of action and cannot be pleaded to – Where the Amended Statement of Claim is struck out as it discloses no reasonable cause of action and is unable to be pleaded to.

PROCEDURE – COURTS AND JUDGES – Where the plaintiffs raise a Constitutional issue and adjournment of proceeding is sought to allow notices to be served on various Attorneys-Generals pursuant to s 78B of the Judiciary Act 1903 (Cth) – Whether adjournment ought be granted – Where plaintiffs allege s 23(2) of the Supreme Court of Queensland Act 1991 (Qld) requires a Judge who has retired to continue to preside until the completion of the whole of a proceeding they presided over.

Uniform Civil Procedure Rules 1999 (Qld) – r 171 and 292.

Judiciary Act 1903 (Cth) – s 78B

Supreme Court of Queensland Act 1991 (Qld) – s 23(2)

COUNSEL:

G J Ashton in person for the plaintiffs
D P Morzone for the defendants

SOLICITORS:

Crown Law Office for the defendants

By an application filed 21 September 2011[1] the plaintiffs make application for summary judgment. By an application filed 7 November 2011[2] the defendants apply for orders striking out the Amended Statement of Claim and removing the second defendant as a party.
[1]Doc 33
[2]Doc 39

The applications of the parties and argument upon them give rise to five main issues for determination:

1.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QSC 390
Decision Date: 8 December 2011

CaseChat Overview and Summary

The plaintiffs in Ashton v Dorante applied for summary judgment against the defendants, seeking a resolution without a trial due to the perceived lack of a viable defence. The defendants counter-applied to have the plaintiffs' Amended Statement of Claim struck out on the grounds that it failed to disclose a reasonable cause of action and could not be pleaded to. This dispute was heard in the Supreme Court of Queensland, where the court had to determine the validity of the plaintiffs' claim and the merits of the defendants' counter-application.

The central legal issues before the court involved the interpretation and application of the relevant provisions of the Uniform Civil Procedure Rules 1999 (Qld), particularly Rules 171 and 292, which pertain to summary judgment and the striking out of pleadings. Additionally, the court had to consider whether the plaintiffs' amended pleadings met the necessary legal standards and whether the defendants' application to strike out the pleadings was justified. The court also had to address the plaintiffs' constitutional argument concerning the continuation of a retired judge presiding over the proceedings.

The court ruled that the plaintiffs had not established that the defendants had no real prospect of successfully defending the claim, thus denying the application for summary judgment. The Amended Statement of Claim was struck out as it did not disclose a reasonable cause of action and could not be pleaded to. The court further directed the plaintiffs to file and serve a Further Amended Statement of Claim by a specified date and allowed the defendants the liberty to apply to strike out the proceeding if the plaintiffs failed to comply with the rules of pleading. The court also ruled on the procedural aspect concerning the inclusion of additional parties in the amended claim and ordered the plaintiffs to pay the defendants' costs associated with the applications.

Orders

Orders of the court

1. The plaintiffs’ application for summary judgment is dismissed.

2. The plaintiffs’ Amended Statement of Claim filed 21 September 2011 is struck out.

3. The plaintiff will file and serve a Further Amended Statement of Claim by 4.00 pm on 27 January 2012.

4. The defendants will have liberty to apply to strike out the whole proceeding in the event that the plaintiffs fail to file a Further Amended Statement of Claim or fail to comply with the rules of pleading in such Further Amended Statement of Claim as may be filed.

5. I direct the Registrar to add the names of the female plaintiff and the second defendant to the Amended Claim filed 21 September 2011.

6. The plaintiffs will pay the first defendant’s and second defendant’s costs of and incidental to the applications to be assessed on the standard basis, unless otherwise agreed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ashton & Anor v Dorante & Anor [2011] QSC 390
PARTIES:	GEOFFREY JOHN ASHTON and CYNTHIA ASHTON (Plaintiffs) v ANTONIO FRANCIS DORANTE (Defendant) STATE OF QUEENSLAND (Second defendant
FILE NO/S:	496 of 2010
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	8 December 2011
DELIVERED AT:	Cairns
HEARING DATE:	16 November 2011
JUDGE:	Henry J
ORDER:	1. The plaintiffs’ application for summary judgment is dismissed. 2. The plaintiffs’ Amended Statement of Claim filed 21 September 2011 is struck out. 3. The plaintiff will file and serve a Further Amended Statement of Claim by 4.00 pm on 27 January 2012. 4. The defendants will have liberty to apply to strike out the whole proceeding in the event that the plaintiffs fail to file a Further Amended Statement of Claim or fail to comply with the rules of pleading in such Further Amended Statement of Claim as may be filed. 5. I direct the Registrar to add the names of the female plaintiff and the second defendant to the Amended Claim filed 21 September 2011. 6. The plaintiffs will pay the first defendant’s and second defendant’s costs of and incidental to the applications to be assessed on the standard basis, unless otherwise agreed.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – Where the plaintiffs’ apply for summary judgment against the defendants – Where the plaintiffs cannot establish the defendants have ‘no real prospect’ of defending the claim – Where the defendants’ apply for the plaintiffs’ Amended Statement of Claim to be struck out as it discloses no reasonable cause of action and cannot be pleaded to – Where the Amended Statement of Claim is struck out as it discloses no reasonable cause of action and is unable to be pleaded to. PROCEDURE – COURTS AND JUDGES – Where the plaintiffs raise a Constitutional issue and adjournment of proceeding is sought to allow notices to be served on various Attorneys-Generals pursuant to s 78B of the Judiciary Act 1903 (Cth) – Whether adjournment ought be granted – Where plaintiffs allege s 23(2) of the Supreme Court of Queensland Act 1991 (Qld) requires a Judge who has retired to continue to preside until the completion of the whole of a proceeding they presided over. Uniform Civil Procedure Rules 1999 (Qld) – r 171 and 292. Judiciary Act 1903 (Cth) – s 78B Supreme Court of Queensland Act 1991 (Qld) – s 23(2)
COUNSEL:	G J Ashton in person for the plaintiffs D P Morzone for the defendants
SOLICITORS:	Crown Law Office for the defendants