Cullen v Ogden - [2020] QCATA 33

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Cullen v Ogden [2020] QCATA 33

PARTIES: STEPHEN WILLIAM CULLEN

(Applicant)

v

GAVIN OGDEN

(Respondent)

APPLICATION NO:

APL285-18

ORIGINATING APPLICATION NO:

MCD0363-18 Southport

MATTER TYPE:

Appeals

DELIVERED ON:

20 March 2020

HEARING DATE:

18 March 2020

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:
The application for leave to appeal is refused.

CATCHWORDS:
APPEAL – APPLICATION FOR LEAVE TO APPEAL – motor vehicle accident – where compensation awarded – where second and separate action for costs advanced – where costs claimed irrecoverable at law – where action improperly split – whether abuse of process – where cause of action estoppel – Anshun estoppel - whether proceedings misconceived - where application for leave to appeal refused

Queensland Civil and Administrative Tribunal 2009 (Qld) sections 32, 47, 102, 143
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 83

Blair v Curran (1939) 62 CLR 464

Mansfield v Fokas [2018] NSWSC 249

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26
Sahin v National Australia Bank Ltd [2012] VSCA 317
SZDCF v Minister for Immigration and Citizenship [2007] FMCA 1391; [2007] FCA 2001

Wall v Halford (No 2) [1960] QWN 51

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

On 1 November 2017 the Applicant (`Cullen’) commenced an action in the Tribunal claiming compensation for damage to his motor vehicle in a collision with one owned and driven by the Respondent Ogden (`the First Action’).
Actions of that kind are within the jurisdiction of this Tribunal.[1]
[1]QCAT Act s 11; Schedule 3 definition of minor civil dispute, clause (c).
The First Action was successful and a counterclaim by Ogden was dismissed. Cullen was awarded compensation of $6,485.40, including costs.[2]
[2]The award was made on 16 February 2018: Submissions of Respondent filed 5 April 2019 paragraph 7.
Action split
However, Cullen considers that he was entitled to costs well in excess of those allowed in the First Action.[3] So on 21 May 2018 he launched another claim (`the Second Claim’) for an amount of $3,840, including accident investigator’s fees of $1,900 and $1,900 for legal fees.
[3]Namely, the filing fee: QCAT Rules s 83(b).
On 7 August 2018 an Adjudicator struck out the Second Action as misconceived[4] and beyond the Tribunal’s jurisdiction. Reasons for that decision were published on 20 August 2018.
[4]QCAT Act s 47(1)(a).
Cullen now seeks leave to appeal against that decision.
His application for leave was filed on 26 October 2018. Prima facie that date is well outside the limitation period prescribed by the Act.[5] However, Cullen claims that he did not receive notice of the decision until 2 October 2018 and on 20 May 2019 the Tribunal confirmed that no extension of time was necessary.[6]
[5]QCAT Act s 143(3).

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 Cullen v Ogden

Details

AGLC: Cullen v Ogden [2020] QCATA 33
Case: [2020] QCATA 33
Decision Date: 20 March 2020

CaseChat Overview and Summary

In the case of Cullen v Ogden, the parties involved were Cullen, the appellant, and Ogden, the respondent. The dispute arose from a motor vehicle accident where compensation had been awarded. Cullen sought to advance a second and separate action for costs. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT), and subsequently, Cullen applied for leave to appeal the tribunal's decision. The primary legal issue the court had to decide was whether Cullen's separate action for costs constituted an abuse of process and if the application for leave to appeal should be granted.

The court found that Cullen's application was not only hindered by Rule 83 but also by the improper splitting of his cause into two distinct proceedings. This division of claims was deemed an abuse of process, as applications for costs are not independent causes of action. Instead, they should be consolidated with the principal claim for economy and fairness. The court held that all claims arising from the same set of circumstances should ideally be addressed in a single proceeding. Cullen should have included his claim for costs in the original proceedings, even though it would have been rejected. The absence of legal representation at the first hearing did not affect this principle.

The court concluded that the proceeding was misconceived and an abuse of process, justifying the Adjudicator's decision to strike it out. The court found no prospect of a successful appeal and accordingly refused the application for leave to appeal. The final orders were that the application for leave to appeal was refused.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 83 is not Cullen’s only difficulty. He has improperly split his cause into two distinct proceedings.[9] That is an abuse of process.[10] Applications for costs are not stand-alone causes of action. In the interests of economy and fairness a single claim (principal and ancillary relief) may not be so divided. So far as possible, all claims arising out of a particularly set of circumstances must be dealt with in one proceeding.[11] Cullen should have included his claim for costs in the original proceedings (although, as already explained, it would inevitably have been rejected). For what it was worth, it merged in the original decision made on 16 February 2018.[12] Absence of legal representation at the first hearing does not affect this principle.[13][9]Southport MCD applications Q718/17 and Q363/18[10]R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26; Mansfield v Fokas [2018] NSWSC 249.[11]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Sahin v National Australia Bank Ltd [2012] VSCA 317.[12]Blair v Curran (1939) 62 CLR 464 at 532; Wall v Halford (No 2) [1960] QWN 51.[13]SZDCF v Minister for Immigration and Citizenship [2007] FMCA 1391; [2007] FCA 2001.Conclusion This proceeding[14] is aptly described as misconceived and an abuse of process.[15] The Adjudicator very properly struck it out. There is no prospect of a successful appeal. The application for leave to appeal will be refused.[14]MCD Q363/18, APL 285-18.[15]Mansfield v Fokas [2018] NSWSC 249; QCAT Act s 47(1).ORDERThe application for leave to appeal is refused.

Ratio Decidendi

Legal Principle Established

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