Dickson v Cubela

Case [2018] QSC 34

SUPREME COURT OF QUEENSLAND

CITATION:

Dickson v Cubela & Ors [2018] QSC 34

PARTIES:

JASON BRETT DICKSON
(plaintiff/respondent)
v
DAMIR ZVONKO CUBELA
(first defendant)
DANIEL GRIER
(second defendant)
HARRISON JOHN CARNES
(third defendant)
JANE MACLUCAS
(fourth defendant)
QPS OFFICERS AT THE FORTITUDE VALLEY POLICE BEAT
(fifth defendant)
QPS OFFICERS AT BRISBANE POLICE HEADQUARTERS
(sixth defendant)
CRIME AND CORRUPTION COMMISION
(seventh defendant/applicant)
DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(eighth defendant)
STATE OF QUEENSLAND
(ninth defendant)

FILE NO:

SC No 8130 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:


Supreme Court of Queensland at Brisbane

DELIVERED ON:

1 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2018

JUDGE:

Crow J

ORDER:

Judgment for the seventh defendant against the plaintiff on all of the plaintiff’s claim against the seventh defendant.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the seventh defendant seeks summary judgment in respect of the parts of the plaintiff’s claim against the seventh defendant – where the seventh defendant argues the plaintiff’s claim discloses no cause of action against the seventh defendant – where the plaintiff is seeking damages for personal injury but has not complied with the Personal Injuries Proceedings Act 2002 – whether the plaintiff has no real prospect of succeeding on that part of their statement of claim

Crime and Corruption Act 2001 (Qld)
Personal Injuries Proceedings Act 2002 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 293

Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) [2017] QSC 75, considered
Downs v Williams (1971) 126 CLR 61; [1971] HCA 45, cited
Heil v Suncoast Fitness [2000] 2 Qd R 23; [1998] QCA 419, cited
O’Connor v SP Bray Ltd (1937) 56 CLR 464; [1937] HCA 18, cited
Rogers v Brambles Australia Ltd[1996] QCA 437, cited
Young v Crime and Corruption Commission [2018] QSC 12, considered

COUNSEL:

Mr B I McMillan for the seventh defendant/applicant
The plaintiff/respondent appeared on his own behalf

SOLICITORS:

Crime and Corruption Commission for the seventh defendant/applicant
The plaintiff/respondent appeared on his own behalf

Background

  1. By a statement of claim issued out of the Supreme Court on 9 August 2017 the plaintiff brings a claim in damages against nine defendants.  The claim relates to an alleged assault upon the plaintiff which occurred on 9 August 2014 and subsequent events.  In his reply of 11 October 2017, the plaintiff says that he accepts that the fifth, sixth and eighth defendants are not entities known to law and he accepts they are therefore not capable of being sued and are “not appropriate defendants in the proceedings, and I will amend the originating claim accordingly”.

  2. In his statement of claim the plaintiff alleges an assault was perpetrated upon him on 9 August 2014 by the first four defendants as police officers and brings his claim against the ninth defendant, the…

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AGLC
Dickson v Cubela [2018] QSC 34
Case
[2018] QSC 34
Decision Date

CaseChat Overview and Summary

In the case of Dickson v Cubela, the plaintiff sought damages for personal injury against multiple defendants, including the seventh defendant, Cubela. The plaintiff alleged that Cubela was negligent in the treatment of the plaintiff's injuries, leading to exacerbation of the plaintiff's condition. Cubela applied for summary judgment under UCPR r 293, arguing that the plaintiff's claim disclosed no cause of action against them and that there was no real prospect of the plaintiff succeeding in their claim. The key legal issue was whether the plaintiff had a real prospect of success against Cubela and if there was a need for a trial of the claim. The court had to consider the relevant legal principles governing summary judgment and the criteria for exercising caution in terminating proceedings summarily.

The court examined the plaintiff's statement of claim and relevant authorities to determine whether the plaintiff had a real prospect of succeeding against Cubela. The court noted that the plaintiff had not complied with the Personal Injuries Proceedings Act 2002, which could affect the prospects of success. The court also considered whether there were any genuine issues of fact or law that needed to be determined in a trial. The court concluded that the plaintiff had no real prospect of succeeding against Cubela and that there was no need for a trial, as the plaintiff's claim was unlikely to succeed due to the lack of compliance with the statutory requirements. The court exercised its discretion under UCPR r 293 to grant summary judgment in favour of Cubela.

The court granted judgment for Cubela against the plaintiff on all parts of the plaintiff’s claim against Cubela. The court found that the plaintiff had no real prospect of succeeding in their claim against Cubela and that there was no need for a trial. The court dismissed the plaintiff's claim in its entirety against Cubela.

Orders

Orders of the court

Judgment for the seventh defendant against the plaintiff on all of the plaintiff’s claim against the seventh defendant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

UCPR r 293 provides:“293 Summary judgment for defendant(1)A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.(2)If the court is satisfied – (a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and(b) there is no need for a trial of the claim or the part of the claim;the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.” In Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq)[1], Bond J said:[1][2017] QSC 75 at [17] and [18].“[17] The approach which would be taken in relation to a defendant’s application for summary judgment (which also applies to an application advanced by a person in the position of defendant to a counterclaim) was concisely summarised by Mullins J in Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2012] QSC 211 at [54] in these terms:‘Under r 293(2) of the UCPR, the two conditions of which the court must be satisfied before it can give judgment for a defendant is that the plaintiff has no real prospect of succeeding on its claim and there is no need for a trial of the claim. Although r 293 (and its counterpart r 292) are modern procedural rules for applying for summary judgment in the context of the philosophy of the UCPR found in r 5, authoritative statements about exercising caution in terminating a proceeding summarily remain applicable: Spencer v Commonwealth (2010) 241 CLR 118 at [24] and [60], LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105 at [29], and Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2011] 2 Qd R 114 at [80]–[81]. Although the provision considered in Spencer was that applying in the Federal Court where the test for summary judgment is “no reasonable prospect,” rather than “no real prospect,” the comments in the judgments in Spencer about the exercise of caution in dismissing an action summarily were intended to apply generally in respect of the procedure of summary judgment.’[18]And, in relation to the power to strike out, I observed in Lee v Abedian [2016] QSC 92 at [38] – [39] that (footnotes inserted) –‘… the power to strike out is to be used sparingly and only in clear cases: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129 to 130. The power cannot be exercised “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it”: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J.’However … the Court will not shrink from striking out a pleading which is defective because it does not disclose a reasonable cause of action, has a tendency to prejudice or delay a fair trial, contains allegations which are unnecessary [A v Ipec Australia Ltd [1973] VR 39 at 43 per Menhennitt J; Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd [2014] QSC 205 at [27] to [30] per Jackson J.], scandalous, vexatious or embarrassing [Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53 at [16] per White JA (with whom McMurdo P and Fraser JA agreed)], or which is otherwise an abuse of the processes of the Court [See, generally, Radisich v McDonald (2010) 198 IR 244 at 251; [2010] FCA 762 at [20] and AED Oil Ltd v Back [2009] VSC 158 at [7] to [9] per Judd J.].’”

Ratio Decidendi

Legal Principle Established

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