Creevey v Baker - [2016] QCA 209

SUPREME COURT OF QUEENSLAND

CITATION:

Creevey v Baker & Ors [2016] QCA 209

PARTIES:

JANET LOUISE CREEVEY
(appellant)
v
NOEL RAYMOND BAKER
(first respondent)
AIDA BAKER
(second respondent)
WILLIAM JOHN DILLON
(third respondent)
GLENDA JOY BANAGHAN
(fourth respondent)

FILE NO:

Appeal No 3444 of 2016
SC No 227 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 8 March 2016

DELIVERED ON:

23 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2016

JUDGES:

Fraser and Gotterson and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed.

2. Appellant to pay the respondents’ costs of the appeal on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS – where the appellant filed a statement of claim which was stuck out with leave to re-plead – where the appellant filed a fresh statement of claim and applied for an order permitting the filing – where the learned primary judge refused to make such an order, striking out the application because the case was doomed to fail – where the appellant alleges the learned primary judge erred in the exercise of the direction under r 389(2) Uniform Civil Procedure Rules 1999 – where the appellant alleges bias on the part of the learned primary judge, and a denial of natural justice – whether the learned primary judge erred in the way described in House v The King

Uniform Civil Procedure Rules 1999 (Qld), r 389(2)

Artahs Pty Ltd v Gall Stanfield & Smith (A Firm) [2011] QSC 273, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Tyler v Custom Credit Corp[2000] QCA 178, cited

COUNSEL:

The appellant appeared on her own behalf
The first respondent appeared on his own behalf
No appearance for the second respondent
T Pincus for the third and fourth respondents

SOLICITORS:

The appellant appeared on her own behalf
The first respondent appeared on his own behalf
No appearance for the second respondent
Bartley Cohen for the third and fourth respondents

FRASER JA: I agree with the reasons for judgment of Gotterson JA and the orders proposed by his Honour.
GOTTERSON JA: The appellant, Janet Louise Creevey, commenced a proceeding in the Supreme Court of Queensland by way of an originating application filed on 7 January 2010. The named respondents were Noel Raymond Baker and Aida Baker. On Ms Creevey’s application, William John Dillon and Glenda Joy Banaghan were ordered to be joined as third and fourth respondents respectively to the proceeding in 2012. An order that Ms Creevey file and serve a statement of claim was made at the same time.
Ms Creevey filed a statement of claim on 19 April 2013 (“the 2013 Statement of Claim”).[1] On an application made by…

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.

Continue reading Creevey v Baker

Details

AGLC: Creevey v Baker [2016] QCA 209
Case: [2016] QCA 209
Decision Date: 23 August 2016

CaseChat Overview and Summary

Creevey v Baker was an appeal against the decision of a primary judge in the Federal Circuit and Family Court of Australia. The appellant, Creevey, had filed a statement of claim that was struck out by the primary judge, who granted leave to re-plead. Following this, Creevey filed a fresh statement of claim and applied for an order permitting the filing of the statement of claim. The primary judge refused the application, striking out the application because the case was doomed to fail. The appellant claimed that the primary judge erred in exercising the discretion under rule 389(2) of the Uniform Civil Procedure Rules 1999 (Cth) and that the primary judge was biased, thus denying natural justice.

The legal issues before the court were whether the primary judge erred in the exercise of the discretion under rule 389(2) and whether the primary judge was biased. The court considered the principles in House v The King, which emphasise that a trial judge must not allow personal views to influence their decision-making. The court found that the primary judge did not act in a way that amounted to bias or a denial of natural justice. The court noted that the primary judge had a legitimate basis for concluding that the application was bound to fail, and the refusal to grant leave to re-plead was not based on any extraneous considerations. The court held that the appeal was without merit.

The court dismissed the appeal and ordered that the appellant pay the respondents' costs of the appeal on the standard basis. The court found no error in the primary judge's exercise of discretion or any indication of bias or a denial of natural justice. The decision underscores the importance of judicial impartiality and the proper exercise of procedural discretions in civil litigation.

Orders

Orders of the court

1. Appeal dismissed.

2. Appellant to pay the respondents’ costs of the appeal on the standard basis.

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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CITATION:	Creevey v Baker & Ors [2016] QCA 209
PARTIES:	JANET LOUISE CREEVEY (appellant) v NOEL RAYMOND BAKER (first respondent) AIDA BAKER (second respondent) WILLIAM JOHN DILLON (third respondent) GLENDA JOY BANAGHAN (fourth respondent)
FILE NO:	Appeal No 3444 of 2016 SC No 227 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 8 March 2016
DELIVERED ON:	23 August 2016
DELIVERED AT:	Brisbane
HEARING DATE:	4 August 2016
JUDGES:	Fraser and Gotterson and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed. 2. Appellant to pay the respondents’ costs of the appeal on the standard basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS – where the appellant filed a statement of claim which was stuck out with leave to re-plead – where the appellant filed a fresh statement of claim and applied for an order permitting the filing – where the learned primary judge refused to make such an order, striking out the application because the case was doomed to fail – where the appellant alleges the learned primary judge erred in the exercise of the direction under r 389(2) Uniform Civil Procedure Rules 1999 – where the appellant alleges bias on the part of the learned primary judge, and a denial of natural justice – whether the learned primary judge erred in the way described in House v The King Uniform Civil Procedure Rules 1999 (Qld), r 389(2) Artahs Pty Ltd v Gall Stanfield & Smith (A Firm) [2011] QSC 273, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Tyler v Custom Credit Corp[2000] QCA 178, cited
COUNSEL:	The appellant appeared on her own behalf The first respondent appeared on his own behalf No appearance for the second respondent T Pincus for the third and fourth respondents
SOLICITORS:	The appellant appeared on her own behalf The first respondent appeared on his own behalf No appearance for the second respondent Bartley Cohen for the third and fourth respondents