Driscoll v DM Developments P/L
[2012] QMC 26
•10 July 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Driscoll v DM Developments P/L [2012] QMC 26
PARTIES:
LEIGH JOHN DRISCOLL
(plaintiff/ respondent)
v
D M DEVELOPMENTS PTY LTD
(defendant/ applicant)
FILE NO/S:
M1328/12
DIVISION:
Magistrates Courts
PROCEEDING:
Application to stay proceeding
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
10 July 2012
DELIVERED AT:
Brisbane
HEARING DATE:
3 April 2012
MAGISTRATE:
Springer BL
ORDER:
1. Pursuant to Rule 16(g), this proceeding is stayed.
2. The plaintiff/respondent pay the defendant/applicant’s costs of and incidental to the application and the proceeding in an amount to be agreed, failing agreement to be determined by me following receipt of written submissions as to the basis of, and quantum of costs, which submissions are to be filed and served not later than 27 July 2012.
CATCHWORDS:
CIVIL LAW – PRACTICE AND PROCEDURE - application to stay proceeding as an abuse of process – whether it is an abuse of process to make a claim that has been previously dismissed for failure to comply with directions
COUNSEL:
SOLICITORS:
Background
On 3 September 2009 the defendant DM Developments Pty Ltd (DMD) filed a claim and statement of claim in the Magistrates Court at Beenleigh seeking $27,200 from Lee John Driscoll as unpaid rent. On 12 April 2010 the appellant filed a notice of intention to defend, defence and a counterclaim seeking $131,790.98 as money owing pursuant to an employment agreement and a further agreement quantifying the amount outstanding; it was alleged that the defendant occupied the premises the subject of the claim pursuant to the employment agreement.
On 12 October 2010 Mr Driscoll’s application to set aside an earlier order for disclosure was dismissed. On that same date, DMD’s application for dismissal of Mr Driscoll’s counter-claim resulted in further orders for disclosure, in default of which judgment was to be entered for DMD. On 30 November 2010 a Deputy Registrar signed a judgment that Mr Driscoll (the plaintiff in this court and the defendant in the Beenleigh proceedings) pay DMD $27,200 and that the counterclaim be dismissed because of Mr Driscoll’s failure to comply with the order of Magistrate McDougall dated 12 October 2010.
On 3 February 2011, an application to set aside that judgment was dismissed by Magistrate Hutton. Mr Driscoll appealed against the decision of 3 February 2011; his appeal was unsuccessful in the District Court before McGill J (Driscoll
v DM Developments Pty Ltd [2011] QDC delivered 14 December 2011.
The current application
The defendant DMD applies pursuant to Rule 16(g) of the Uniform Civil Procedures Rules for the proceeding to be stayed. Although the application was couched more widely in its original form, as I understood the defendant’s counsel, the defendant company only pursues that part of the application relating to Rule 16(g), which reads:
The Court may –
…
(g) stay a proceeding; …
The application also sought costs of and incidental to the application to be assessed on an indemnity basis. The main thrust of submissions before the Court related to whether or not these proceedings were subject to res judicata.
The material provided in the application before me does not contain a copy of any written order of Magistrate McDougall which resulted in the Deputy Registrar’s signing the judgment. At page 8 of the transcript of the hearing before him, which is exhibited to the affidavit of Tracey Eliza Thorp, the following was stated by His Honour:
These are the orders. The matter’s listed for trial on 17 January 2011 at 9 am. Order the defendant to provide a list of documents including particulars of his ATO … portal, tax returns, bank statements, Centrelink documents including the defendant’s Centrelink file and all other documents relevant to the defendant’s claim as to the existence of a contract of employment between the plaintiff and the defendant by 29 November 2010. In default of the above, there will be judgment for the plaintiff and the defendant’s application is dismissed. Costs of this application are reserved.
Although there was nothing in the order about how the default was to be established, it is clear from the transcript of proceedings before Magistrate Hutton on 3 February 2011 when a request by Mr Driscoll to set aside Magistrate McDougall’s order was argued, that there had been a written request for default judgment and accompanying affidavit before the Registrar when she or he signed the judgment on 30 November 2010.
The statement of claim in the current Brisbane proceeding (the Brisbane matter) shares some noticeable similarities with the Counter-claim in the Beenleigh proceeding. Curiously in the Brisbane proceeding, it is pleaded that a Mr Malaki is a “director of the plaintiff” yet in the Beenleigh proceeding, he is also pleaded to be the director of the plaintiff DMD. Paragraph 4 pleads that in April 2009 “the defendant ceased employment with the plaintiff”. Further, the statement of claim in the Brisbane matter purports to claim damages for $178,990.98, an amount beyond this court’s monetary jurisdiction. There are other errors and omissions in the Brisbane statement of claim that reflect poorly on the solicitors for Mr Driscoll.
The issues that I need to determine are:
(a) Does the Order made by Magistrate McDougall result in an issue estoppel or res judicata, which has the effect that the Brisbane matter can not proceed?
(b) If no, ought the proceeding be stayed in any event as an abuse of process?
In the current application, the submissions focussed on two decisions of the Court of Appeal in the same proceeding involving Mango Boulevard (Mango Boulevard P/L v Spencer and Ors [2008] QCA 274 and [2010] QCA 207). The two Court of Appeal decisions are hereafter referred to as “Mango Boulevard 2008” and “Mango Boulevard 2010”.
DMD submits that the question to be determined in this matter has already been decided in the earlier Beenleigh proceedings and on appeal before the District Court and “the plaintiff ought to be estopped from pursuing the current claim” and that the proceeding filed 8 February 2012 (in this Court) “must be stayed”. DMD’s written submissions did not address the Mango Boulevard 2010 decision.
In the appeal to Judge McGill in the Beenleigh proceeding, neither the outline of argument nor His Honour’s reasons referred to Mango Boulevard 2010. At paragraph [34] he referred to Mango Boulevard 2008 when he said:
In that case the Court of Appeal dealt with the effect of a judgment on a counterclaim in default of compliance with a guillotine order as to disclosure in a context where the successor in interest of the party against whom that judgment had been given was seeking to avoid a res judicata. The matter was actually decided by the Court of Appeal on a different basis, but Muir JA with whom the other members of the Court agreed expressed the view that there was a res judicata in the circumstances. If it were necessary for me to decide the point, that would no doubt be of considerable persuasive authority, but I do not need to decide it and do not.
There is nothing to indicate that His Honour was referred to the issue of the Mango Boulevard 2010 but in any event it is clear from the remarks of Fraser JA and Muir JA in Mango Boulevard 2010 (which I will come) that the comments about res judicata in the 2008 case were to be regarded as obiter dicta.
In Mango Boulevard 2008 at paragraph [39] of that decision, Muir JA with whom Mackenzie AJA and Douglas J agreed with the reasons and the orders proposed, said:
In view of the foregoing conclusions it is unnecessary to decide whether and to what extent the doctrine of res judicata operated to prevent the appellant from litigating issues raised in the counterclaim the subject of the 3 April 2007 order. In deference however, to the arguments advanced by counsel I intend to express my views on the question.
That paragraph makes plain that the later words dealing with res judicata should be regarded as obiter.
Similarly, McGill J’s comments extracted above were themselves obiter “… but I do not need to decide and do not”.
The distinction between res judicata and issue estoppel
The distinction between res judicata and issue estoppel was considered by Fraser JA in Mango Boulevard 2010[1] at paragraph [90] where he said:
[1] Muir JA in Mango Boulevard 2008 also considered the distinction and referred to the discussion in Port of Melbourne Authority v Anshun Pty Ltd.
“The distinction was explained by Deane, Toohey and Gaudron JJ in Chamberlain v Deputy Commissioner of Taxation:
Although the defence in the second action uses the language of estoppel, it is apparent that what the appellant relies upon is res judicata. The matter was so argued. The point was made by Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Pty Ltd in this way:
“The distinction between res judicata (in England called ‘cause of action estoppel’) and issue estoppel was expressed by Dixon J in Blair v Karen in these terms:
“In the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”
The distinction was restated by Fullagar J in the dissenting judgment in Jackson v Goldsmith. His Honour expressed the rule as to res judicata by saying: “Where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims “interest reipublicae ut sit finis litium”[2] and “Nemo debet bis vexari pro eadem causa”.[3] His Honour went on to discuss issue estoppel, citing the comment of Dixon J in Blair v Karen: “A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot be afterwards be raised between the same parties or their privies.”
[2] This is defined in Osborn’s Concise Law Dictionary 6th ed (Sweet & Maxwell) to mean “It concerns the State the Lawsuits be not protracted”: p182
[3] This is defined in Words and Phrases Permanent Edition (West Publishing Co, St Paul, Minn) to mean “No one ought to be twice sued for the same cause of action”.
…
The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.”
Statements on when res judicata/issue estoppel arises
In Mango Boulevard 2010 Justice Muir (JA) stated at paragraph [56]:
“It is established that a judgment or order dismissing proceedings for want of prosecution is not a decision on the merits and thus does not give rise to a res judicata. That is also the case with a judgment or order dismissing a claim or defence for failure to comply with an order for discovery.”
His Honour went on at paragraph [58]:
“The principles discussed in Aon[4] provide a rational basis for a rule that, where a claim or defence is dismissed or struck out as an abuse of process, the defaulting party should not be permitted to re-agitate the issues central to the claim or defence. The doctrines of res judicata and issue estoppel are both founded in the public interest in finality in judicial determinations and on the right of the individual to be protected from vexatious and oppressive conduct arising from the re-litigating the same issues.”
[4]Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 275
Justice Muir at paragraph [56] of Mango Boulevard 2008 in considering the Kok Hoongv Leong Cheon Kweng Mines Ltd [1964] AC 993 at 1011 noted a decision of the Privy Counsel that the court was of the view that although a default judgment gave rise to a res judicata “a much more restricted operation must be given to any estoppel [so] arising” than to a judgment pronounced after a hearing on the merits.
After considering various authorities, Muir JA at paragraph [60] in Mango Boulevard 2008 said:
“If Baines, Samuels and Thirteenth Corp Pty Ltd are to be regarded as authority for the proposition that a default judgment may not give rise to a res judicata, they are inconsistent with a long line of authority … Although the learned author of Spencer, Bower, Turner and Handley, Res Judicata 3rd ed states that only a judicial decision on the merits gives rise to a res judicata that conclusion is qualified by the view that decisions on the merits include ‘final judgments by default or consent’. That view with respect derives ample support from the authorities.”
Mr Tam of Counsel for the plaintiff/respondent in the current application argues that the method by which the judgment was obtained in the Beenleigh Magistrates Court assumes “a particular importance” as it was not a default judgment.
As to the nature of that order which led to the judgment against the defendant for $27,200 and the dismissal of his counterclaim in the Beenleigh proceeding, I respectfully adopt the analysis of McGill J in the appeal from the Beenleigh court, where at paragraph [31] of his reasons, said:
“This was not an application under r290, and the judgment was not a default judgment in the true sense. It was a judgment after a failure to comply with a guillotine order for disclosure, which itself had been made after a failure to comply with an earlier order for disclosure in accordance with the rules, which order had been made because of a failure on the part of the appellant to provide disclosure in accordance with the rules. In those circumstances the fact that the defendant has apparently a good counterclaim is not of the same significance as it would be on an application under rule 290. However, as I have said, the relevant exercise of discretion was that on 12 October 2010, and there was no appeal from that decision. All this magistrate was deciding really was whether the order had been complied with.”
I do not categorise the order resulting in the judgment as a default order.
I turn now to Mango Boulevard 2010. At paragraph [1] of Justice Muir’s reasons in that decision he stated his conclusions and reasons “are generally consistent with those of Fraser JA” but he considered it desirable to give reasons, albeit somewhat truncated, of his own.
In that judgment, Fraser JA with whom White JJA agreed, said at paragraph [113] that he agreed with the approach taken by Holmes J (as she then was) in Clout v Klein [2001] QSC 401 at [28]. Fraser JA said:
“I consider that her Honour’s doubt (that a judgment obtained merely as a result of procedural default is capable giving rise to an estoppel) was well founded in relation to a judgment given for non-compliance with a party’s obligations of disclosure under the procedural rules or pursuant to an order for disclosure. Such a judgment involves no actual decision on the merits and its premise is that the procedural defaults of one party are so extreme as to justify the conclusion that the party has forfeited an entitlement to a decision on the merits.”
At paragraph [114] His Honour continued –
“The authorities to the effect that a judgment arising from non-compliance with an order for discovery does not give rise to any issue estoppel are consistent with those decisions which established that the analogous case of a judgment dismissing proceedings for want of prosecution creates no issue estoppel”.
His Honour placed emphasis on the rationale for such a decision being that there has been no decision on the merits. At paragraph [116] Fraser JA applied the reasoning from Pople & Evans [1969] 2 Ch 255 at 268-269 which referred to the concern of the courts:
“ … to limit the operation of res judicata to issues which can be fairly regarded or treated as having been disposed of by the order relied on their merits … It seems to me that the non-technical and substantial nature of res judicata “founded on the considerations of justice and good sense” has no place for mere dismissal for want of prosecution.”
Fraser JA took the view that that reasoning ought to be equally applied to a judgment given for non-compliance with obligations to disclose documents under procedural rules or pursuant to an order for disclosure. As he stated in paragraph [116]:
“The two different forms of order have a common foundation in conduct by a party which is so procedurally deficient as to justify summary termination of the proceeding without regard to the merits. Plainly such judgments do not involve any actual determination on the merits and I see no reasonable basis for treating them as determining the merits of any issue.”
As I understand the submission of Mr Jarro for the applicant, he urges that I should conclude that there has been a determination on the merits. This is because of remarks made during the hearing before Magistrate McDougall because the Court had to consider in some detail whether there had been compliance with the order. At pages 4-5 of the transcript of the application before me, Mr Jarro refers to the transcript of the hearing before Magistrate McDougall when the order was made that led to the judgment being entered by the Beenleigh registrar (page 5 L 17). On page 6, Mr Jarro refers to the appeal to the District Court and to the counterclaim which was “squarely before his Honour Judge MGill when considering the appeal”.
Although the judgment came about following the exercise of a judicial determination, it was not a determination that looked at the strength or weakness of the substantive claim. In my view, it was not a determination on the merits.
Conclusion
In my view, where the prior decision does not involve a decision on the merits, res judicata will not apply (see Mango Boulevard 2010, particularly at paragraph [116] of the reasoning of Fraser JA). Similarly, at paragraph [114] where he accepted that there was a doubt that a judgment obtained merely as a result of a procedural default is capable of giving rise to an estoppel where judgment was given for non-compliance with a party’s obligations of disclosure under the procedural rules or pursuant to an order for disclosure.
At paragraph [60] Mango Boulevard 2010, Muir JA seemed to favour an approach of considering whether there was an abuse of process rather than reliance on res judicata or issue estoppel. He stated:
“The interests of justice are likely to be better served if courts have the ability to assess whether the further agitation of a claim or defence, dismissed otherwise than on the merits, amounts to an abuse of process than by an inflexible rule which results in the irretrievable loss of a defaulting party’s rights in respect of the matters the subject of a claim or defence struck out or dismissed for abuse of process.” (emphasis in italics added)
[34] Similarly, I note the statement by Fraser JA in Mango Boulevard 2010 at paragraph [117]:
“… it is in the public interest that there be an end to litigation, that the finality and conclusiveness of a judicial decision is recognised, and that the private right of an individual is protected from vexatious and oppressive sits arising out of the same circumstances. The same foundations inform the power of the courts to strike out a proceeding as an abuse of process where an earlier proceeding was terminated in a way which did not give rise to a relevant res judicata or issue estoppel. In my view an application for that remedy, rather than the more drastic and inflexible response of res judicata or issue estoppel, is the appropriate response by a party facing subsequent proceedings where the earlier proceedings were terminated for want of prosecution or for a procedural or default in making disclosure”. (emphasis in italics added).
[35] The application before me has been pursued only on the basis of an application to stay the proceeding under rule 16(g). For the reasons given above, I am not persuaded that either on the basis of res judicata or an issue estoppel that Mr Driscoll should be precluded from pursuing the Brisbane proceeding on that basis. However, I turn now to the issue of whether that proceeding should be stayed as an abuse of process. The plaintiff dealt with the ‘abuse of process’ point in his written submissions, particularly at page 9. The plaintiff’s submissions rely on Custodial Limited v Cardinal Financial Services Limited & Ors [2005] 2 Qd.R 115. Atkinson J there took the view that where a plaintiff has an “arguable case”, it would not be appropriate to use the court’s inherent power to stay or dismiss a proceeding.
[36] I note the discussion of abuse of process in Mango Boulevard 2010 commencing at paragraph [143]-[146] and the reasons of Fraser JA for concluding that it would not be an abuse of process to allow some aspects of the proceeding to continue. I consider that parts of the decision in Brocx v Hughes [2010] WASCA 57 (extracts of which appears in paragraph [146] of Mango Boulevard 2010) setting out various principles relevant in a matter said to be an abuse of process are helpful in deciding whether to allow Mr Driscoll to continue the Brisbane proceeding.
[37] The following statement by Newnes JA is extracted from Brocx v Hughes (supra):
“What constitutes an abuse of process cannot be reduced to hard and fast rules or closed categories because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case: Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 74–75; Batistatos [9]. However, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings is capable of constituting an abuse of the process: Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27 [15]; (2006) 226 CLR 256.
…
In Australia, the question of whether a second action constituted an abuse of process came before the Federal Court in Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2001] FCA 173; (2001) 108 FCR 77. In that case, an earlier proceeding had been dismissed following the applicants’ failure to comply with a self-executing order which required the applicants to file a statement of claim by a specified date. The applicants subsequently commenced a fresh proceeding on the same grounds and the respondent applied to have it dismissed as an abuse of process. Sackville J considered Janov and Re Jokai but concluded that it was unnecessary to decide whether the principles described in those cases applied in the Federal Court. The applicants had provided an explanation of their conduct in the earlier proceeding which indicated that the failure to comply with the self-executing order was not the product of contumacious behaviour, but rather was based on counsel’s advice that the proceedings were not properly constituted and should not be pursued. The failure to comply with the order did not reflect wilful disobedience or disregard of the order such that the applicants might be expected to flout directions given by the court in the fresh proceedings.
It is evident, however, that in Australia, as in England, there has in more recent times been a change in the approach of the courts to the conduct of litigation and there is now a much greater focus on the effect that the way in which parties conduct litigation has on the court and other litigants. In that connection, the principles referred to in the older cases now fall to be considered in the light of the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. In that case, the court pointed out that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. Whilst parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute, where a party has had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
Whilst those observations were, of course, made in respect of a late application to amend a pleading, in my view they are of general application. They were made in the context of rules of court which find their counterpart in this court in O 1 r 4B. That rule provides, in effect, that the rules and the processes and procedures of the court are to be applied so as best to attain the just determination of litigation, the efficient use of the resources of the court, and the timely disposal of the business of the court at a cost affordable by parties.[5]
[5] I note the similarities with rule 5 of the Uniform Civil Procedure Rules.
It is axiomatic that peremptory orders are made to be obeyed and they are generally made only where the party in default has already failed to comply with an order of the court, or has failed to pursue the action in accordance with the rules of court and has been responsible for serious delay. As Auld LJ noted in Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666, at 1676, an order of this kind is by its nature intended to mark the end of the line for such a party who fails to comply with it. A springing order is a clear message that the willingness of the court to overlook further non-compliance with its procedures has come to an end. Such orders will often be made before the limitation period has expired and where it is therefore possible for the defaulting party to commence a fresh action of the same nature. It is also notorious that a party who persistently fails to comply with the rules or orders of the court inevitably takes up a disproportionate amount of court time and resources, and unnecessarily increases the costs of the litigation.
The resources of the court are limited and the demands upon them are great. In light of the objects set out in O 1 r 4B, the public interest in the efficient use of those resources and the right of other litigants to have their disputes resolved in an efficient and timely way are properly matters to be taken into account in determining whether proceedings instituted in circumstances such as the present are an abuse of the process of the court. Parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute and must be afforded a sufficient opportunity to resolve their dispute by that process. But that opportunity is not unlimited.
Where a party demonstrates a disregard for the orders or procedures of the court and as a result their claim is dismissed, their right again to invoke the jurisdiction in respect of that same claim cannot be unlimited if the public interest in the efficient use of court resources and the rights of other litigants are to be given due recognition. It cannot be the case that so long as the limitation period has not expired a party can ignore the rules and orders of the court, secure in the knowledge that if the worst happens and the action is struck out they can simply start again. It would bring the administration of justice into disrepute, and be “productive of serious and unjustified trouble and harassment” to the defendant, if a party whose action had been dismissed by reason of their contumacious conduct could simply institute and proceed with a fresh action and, until the limitation period ran out, could continue to repeat that if and when the same fate befell them. To the extent that statements in the older cases, including Birkett v James and Tolley v Morris, may be understood to suggest that such a party is entitled as of right to prosecute a fresh action, I would not follow them. The High Court pointed out in Batistatos:
The “right” of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.
Each case must, of course, depend upon its own circumstances. But, in my view, where an action has been dismissed by reason of the failure of a party to comply with a springing order in circumstances where that party’s conduct was contumacious, a second action by that party to enforce the same claim will generally be an abuse of process. I do not, however, consider that the fact an action was dismissed for failure to comply with a springing order establishes, of itself, that the conduct of the party in default was contumacious. I do not understand the cases to which I have referred to suggest otherwise. In each case, the court found that the conduct was contumacious in the absence of an explanation which showed that it was not. (I think that for all practical purposes “contumelious” and “contumacious” have generally been used interchangeably in the cases as denoting a wilful and obstinate resistance or disobedience to authority.) As Heydon JA (as his Honour then was) pointed out in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274:
‘A satisfactory explanation on affidavit might negate an inference that the plaintiff’s defaults were not [sic] intentional or contumelious. But the absence of any explanation permits that inference to be drawn.’”
In the Beenleigh proceeding, Mr Driscoll’s attitude to obligations imposed as a party to litigation can been seen outlined in the decision of McGill J in the District Court Appeal. Various paragraphs set out the recalcitrant attitude of Mr Driscoll; these are extracted in Appendix A.[6]
[6] Extracts from paragraphs [9], [10], [19], [20], [23] and [24] of McGill J’s decision on appeal are set out in appendix A.
One could take the view that the plaintiff’s lax attitude to the Beenleigh proceeding may not continue if he were allowed to continue to pursue the Brisbane proceeding. Certainly, he was tardy in the Beenleigh proceeding in dealing with his obligations under the Uniform Civil Procedure Rules (including being late with the filing of his Notice of Appeal). He seems to have little understanding of a litigant’s obligations and was given many chances to comply with those obligations. The current statement of claim is deficient and, as noted, contains errors and is not sufficiently particularised. Whether that is the fault of the plaintiff personally, or his solicitors, is unclear. The delay in having that remedied is likely to further vex DMD.
The plaintiff’s claim in the Brisbane proceeding is for significantly more than the judgment obtained against him in the Beenleigh Magistrates Court. The current claim includes the amount of the judgment against him as a result of DMD’s alleged breach of agreement. The judgment amount has not been paid (see paragraph 8 of affidavit of Tracy Thorp, the sole director of DMD). There is a strong overlap between what was sought in the counterclaim in the Beenleigh matter and what is sought in the Brisbane proceeding. Mr Driscoll had multiple opportunities to advance his claim, but failed to do so in a timely way, responding insufficiently to court orders which DMD had to seek. The court’s time was taken up with applications aimed at achieving compliance with procedural rules designed to clearly identify for the opposing party the case it was required to meet and to facilitate a trial being able to be held expeditiously and efficiently.
The defendant has not filed any material in response to the application. There is nothing before me which compels the conclusion that Mr Driscoll’s approach would be any different in the Brisbane proceeding. In my view, it is not enough that he merely has ‘an arguable case’. Use of the court’s resources is a factor I am entitled to take into account and I do so. As noted by Newnes JA in Brocx v Hughes and extracted above:
“Parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute and must be afforded a sufficient opportunity to resolve their dispute by that process. But that opportunity is not unlimited.”
For the reasons given, I am satisfied that the Brisbane proceeding is an abuse of process and it is appropriate to stay the proceeding.
DMD’s basis for the application to stay the proceedings was on the doctrine of res judicata. I did not accept that that doctrine provided a basis for staying the proceeding. DMD in its written submissions in paragraph 11 sought indemnity costs because of the matters raised there. The issue of costs was not argued before me. However, the defendant DMD being successful in its application to stay the proceeding should be entitled to its costs, although the plaintiff/respondent ought to have the opportunity of providing submissions on whether those should be on the standard basis or on an indemnity basis. As the order I make staying the proceeding finalises the matter, it is appropriate that the defendant’s costs of the proceeding in addition to the costs of the application be determined.
Orders:
(a) Pursuant to Rule 16(g), this proceeding is stayed;
(b) The plaintiff/respondent pay the defendant/applicant’s costs of and incidental to the application and the proceeding in an amount to be agreed, failing agreement to be determined by me following receipt of written submissions as to the basis of, and quantum of costs, which submissions are to be filed and served not later than 27 July 2012.
Appendix A
_________________________________________________________________________
Extracts from McGill J’s reasons for judgment
(The references to ‘the appellant’ mean Mr Driscoll; the references to ‘the respondent’ mean DM Developments Pty Ltd).
… The notice of intention to defend was irregular in that it did not contain the details referred to in UCPR r 17(1)(a)(i): see r 140(1). On 23 April 2010 the respondent sought further and better particulars of the defence and counterclaim; some particulars were provided by a two-page document dated 5 May 2010. Disclosure became due on about 4 June, 42 days after the reply and answer filed on 23 April 2010 was served. On 9 July 2010 the respondent sent a letter pursuant to r 444 because of the failure of the appellant to provide disclosure. No response was received from the appellant, and the respondent filed an application which came before a magistrate of 31 August 2010. The appellant did not appear, and an order was made that he discharge his obligation to disclose documents as required by UCPR rr 211 and 214, within seven days of the order.
A copy of that order was sent by email to the appellant on 1 September 2010 by the Magistrates Court at Beenleigh. A copy was also posted to the appellant by the respondent. Nothing occurred within the seven day period. On 10 September 2010 a letter under r 444 was sent to the appellant regarding his failure to comply with the order. On 22 September 2010 the appellant filed an application for the order of 30[7] August 2010 to be set aside; the application was irregular in that it did not comply with the direction on the approved form, Form 9, to state the rule number relied on for the order sought, but presumably the appellant sought the order under r 667(2)(a). On 24 September 2010 the respondent filed an application seeking that the counterclaim be dismissed pursuant to r 225(2)(a), and that the appellant pay to the respondent the sum of $27,200 pursuant to r 225(2)(b), that is to say, that there be judgment for the plaintiff on the claim. In the alternative, the same orders were sought pursuant to r 374.
[7] This should be 31 August
The appellant in an affidavit read before the magistrate filed 6 January 2011 said in paragraph 6, “I have not failed to supply the documents that I was ordered to do.” That, however, was a matter of mere assertion; he did not say what documents were supplied and on what occasion and how. He did not exhibit any copy of any covering letter, nor any copies of documents said to have been supplied on a particular occasion. This is notwithstanding that it is apparent from the next paragraph that he had seen the affidavit relied on by the respondent filed 30 November 2010, which exhibited what was said to be the letter received that day from the appellant and the copies of the documents said to be enclosed in it.
In paragraph 7 he said, “I have given copies of the invoices to the plaintiff”, and that was consistent with the three invoices which were enclosed with that letter to which I have just referred. Reference was made to the blanking out of the bank statements and a justification offered, essentially that only the deposits into his account were relevant, withdrawals were not relevant and they had been blanked out. He said that he did not provide a tax portal because he did not have one: paragraph 10, where he went on to say “I did, however, forward copies of my tax returns to the plaintiff.” He did not say when; if he was supposed to have included them with the letter dated 26 November, there was nothing in the affidavit or the letter to confirm that. He also verified what had been said in the letter about not having obtained a copy of the Centrelink file. Notwithstanding that it must have been obvious by the time that affidavit was drafted that the respondent’s position was that copies of tax returns had not been provided, no copies of tax returns were exhibited to that affidavit.
… There was an issue before the magistrate as to whether the appellant had also provided copies of those [tax] returns, but the magistrate resolved that issue against the appellant. As I have pointed out the appellant’s evidence that he had provided copies of the tax returns was unsatisfactory, he did not provide details and he did not exhibit copies of the tax returns said to have been provided. He also did not produce copies at the hearing, though he offered to provide them in the immediate future. I was told that in fact no copy tax returns were provided after the hearing either, up until the hearing of the appeal, nor has anything else been provided for that matter.
It is not entirely clear to me from the transcript that ultimately counsel for the appellant before the magistrate was pressing the proposition that the tax returns had in fact already been provided. He seems to have moved to the alternative position, that the appellant was in a position to provide the copies in the immediate future. That, however, would not have provided any justification for a conclusion that they had been provided prior to the expiration of the guillotine order …
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