Chidgey v Wellner & Anor

Case [2006] QDC 400

DISTRICT COURT OF QUEENSLAND

CITATION:

Chidgey v Wellner & Anor [2006] QDC 400

PARTIES:

DAVID STANLEY CHIDGEY

Appellant

V

UTZ WELLNER

Respondents

FILE NO/S:

D2481 of 2006; M578 of 2005

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

Magistrates Court, Wynnum

DELIVERED ON:

30 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2006

JUDGE:

McGill DCJ

ORDER:

Order that Robyn Wellner be struck out as a respondent and that the annexure to the notice of appeal filed on 24 August 2006 be struck out; application otherwise dismissed.  Declare that the notice of appeal is effectual, give leave to the appellant to file and serve an amended notice of appeal within 14 days, direct that the respondent be identified as “Utz Wellner”.  No order as to costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – Notice of appeal – whether appeal to be struck out as frivolous, vexatious or an abuse of process – whether notice of appeal defective in form.

APPEAL AND NEW TRIAL – Security for costs of appeal – appeal from summary judgment – appellant’s prospects – appellant litigant in person – security refused.

LEGAL PRACTITIONERS – Solicitor and client – Costs – dispute as to fees – bill not assessed – client alleges negligence – issues to be litigated in action on bill.

Queensland Law Society Act 1952 ss 6ZC, 48I, 48J, 48Q.

Casey v Quabba [2006] QCA 187 – cited.
Dibb v Hopgood Ganim [2001] QDC 153 – cited.
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 – cited.
Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241 – applied.
Noble v Victoria [1999] QCA 110 – cited.
Srbecky v Bess [2001] QDC 42 – cited.

COUNSEL:

The appellant appeared in person
H. A. Scott-Mackenzie for the respondent

SOLICITORS:

The appellant was not represented
Wellners Lawyers for the respondent

  1. The respondent Utz Wellner brought an action in the magistrates court against the appellant claiming legal fees and outlays. An application by him in that action came before a magistrate on 28 July 2006. On that occasion the defence and counterclaim were struck out, and judgment was given apparently under r 292 for the plaintiff for the amount claimed, $13,892.55, together with costs which came to $2,410.32. A notice of appeal was filed in this court by the defendant on 24 August 2006, appealing against those orders and judgment. The respondent filed an application on 28 September 2006 seeking an order that the appeal be struck out as frivolous, vexatious or an abuse of process, or for non‑compliance with r 747(1) with the UCPR, or in the alternative, that the appellant give security for costs of the appeal. It was this application which came on before me.

Background

  1. The appellant’s former wife commenced a proceeding in the Federal Magistrates Court against the appellant for orders altering their interests in their property.  The appellant retained the respondent in relation to that proceeding.  Following a hearing, certain orders were made which the respondent regarded as favourable to the…

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Chidgey v Wellner & Anor [2006] QDC 400
Case
[2006] QDC 400
Decision Date

CaseChat Overview and Summary

In the matter of Chidgey v Wellner & Anor, the court was presented with an appeal by the plaintiff, Chidgey, against the decision of the trial judge. The primary dispute centred on the validity of a notice of appeal, the identification of the respondent, and the security for costs of appeal. The appeal was filed against Utz Wellner, with Robyn Wellner initially listed as a respondent, though it was later clarified that Utz Wellner was the correct party. The appellant, proceeding as a litigant in person, also sought to challenge the refusal of security for the costs of appeal.

The legal issues before the court were whether the appeal should be struck out as frivolous, vexatious or an abuse of process, and whether the notice of appeal was defective in form. Additionally, the court had to determine the appropriateness of granting security for costs of appeal given the appellant’s status as a self-represented litigant and the prospects of success in the appeal. The appellant argued that the initial refusal of security for costs was erroneous due to the appellant's pro se status and the merits of the appeal.

The court held that while the initial notice of appeal had some formal defects, these were not sufficiently serious to warrant striking out the appeal. The court ordered that Robyn Wellner be removed as a respondent and directed that the annexure to the notice of appeal be struck out. It was also determined that the notice of appeal was effectual, and the appellant was granted leave to file an amended notice of appeal within 14 days, with the correct respondent identified as Utz Wellner. The application for security for costs was dismissed, as the court found that the appellant’s prospects of success were not strong enough to warrant such an order. Consequently, no order was made regarding costs.

Orders

Orders of the court

Order that Robyn Wellner be struck out as a respondent and that the annexure to the notice of appeal filed on 24 August 2006 be struck out; application otherwise dismissed. Declare that the notice of appeal is effectual, give leave to the appellant to file and serve an amended notice of appeal within 14 days, direct that the respondent be identified as “Utz Wellner”. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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