Egan v Taylor

Case [2022] QDC 144

DISTRICT COURT OF QUEENSLAND

CITATION:

Egan & Ors v Taylor [2022] QDC 144

PARTIES:

BRIAN EGAN

(first plaintiff)

NERIDA EGAN
(second plaintiff)

SAMANTHA PRICE
(third plaintiff)

v

KARA TAYLOR

(defendant)

FILE NO:

4563 of 2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

24 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

26 April 2022

JUDGES:

Dearden DCJ

ORDER:

(1) Order under UCPR r 379 that the Further Amended Defence and Amended Counterclaim served 21 April 2022 be disallowed.

(2) Order under UCPR r 16(e) that the Amended Counterclaim served 21 April 2022 be set aside.

(3) Order for summary judgment under UCPR r 293 in favour of the first, second and third plaintiffs/cross defendants against the defendant/cross-claimant in respect of all of the Amended Counterclaim served 21 April 2022.

(4) Order under UCPR rr 416 and 415(6)(a), (b) and (d) that the subpoenas for production issued by the defendant to the following be set aside:

(i)       John Payne; and

(ii)     Natasha Kocks.

(5)     Application by the defendant/cross-claimant dated 15 March 2022 be dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY – COSTS – PARTIES AND NON-PARTIES – where the defendant applicant seeks costs given proceedings have ended for the first plaintiff – where the first plaintiff is now deceased – where $15,000 is sought in costs – whether costs should be awarded in respect of the deceased first plaintiff

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY – SECURITY FOR COSTS – PLAINITFF OR APPLICANT – where the defendant applicant seeks and order for security for costs against the second and third plaintiffs – whether security for costs can be awarded for a self-represented applicant – whether there has been an intention to deceive by the plaintiffs – whether there is impecuniosity of the second plaintiff

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY – PROCEDURAL ASPECTS OF EVIDENCE – SUBPOENAS AND NOTICE TO PRODUCE AT HEARING – where defendant applicant seeks an order compelling compliance with subpoenas – where subpoena addressed to non-party – where subpoena addressed to fourth cross-defendant

LIMITATIONS OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – GENERALLY – where defamation is alleged – where one-year limitation period has expired – whether limitation period can be extended for a further three years

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – whether the Further Amended Defence and Amended Counterclaim be struck out in whole or part – whether the Defence and Counterclaim and particulars amended to them be struck out in whole or part

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where plaintiffs seek summary judgment in the alternative to strike out – whether summary judgment is appropriate

COUNSEL:

M A Polden with M P Hart for the plaintiffs
B Burke (solicitor) for the eighth defendant to the counterclaim
The defendant appeared self-represented

SOLICITORS:

Hall Payne Solicitors for the plaintiffs
Banki Haddock…

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AGLC
Egan v Taylor [2022] QDC 144
Case
[2022] QDC 144
Decision Date

CaseChat Overview and Summary

In the case of Egan v Taylor, the defendant, Taylor, applied for several orders, including costs against the first plaintiff, Egan, who had passed away, and security for costs against the second and third plaintiffs. Taylor also sought an order to compel compliance with subpoenas issued to non-parties and an extension of the limitation period for defamation claims. Additionally, Taylor sought to have the Further Amended Defence and Amended Counterclaim struck out, and the plaintiffs sought summary judgment in the alternative to striking out. The court was required to determine whether Taylor was entitled to costs against the deceased first plaintiff, if security for costs could be awarded to a self-represented applicant, and if the subpoenas could be enforced against non-parties. Furthermore, the court had to decide if the limitation period for defamation claims could be extended and if the Further Amended Defence and Amended Counterclaim should be struck out.

The court considered the principles for amending pleadings, which include the purpose of the rules of civil procedure, the distinction between necessary amendments and those that raise new claims, and the consideration of prejudice caused to other parties. The court also reviewed the principles for summary judgment, which require the existence of a real, as opposed to a fanciful, prospect of success. The court found that the application for costs against the deceased first plaintiff was not appropriate, as the court should not be seen to accede to applications made without adequate explanation or justification. Regarding security for costs, the court held that it could not be awarded to a self-represented applicant. The subpoenas were set aside as they were addressed to non-parties, and the limitation period for defamation claims was not extended. Finally, the Further Amended Defence and Amended Counterclaim were struck out, and summary judgment was granted in favour of the plaintiffs.

The court issued several orders, including disallowing the Further Amended Defence and Amended Counterclaim, setting aside the Amended Counterclaim, and granting summary judgment in favour of the plaintiffs. The subpoenas for production issued by the defendant were set aside, and the application by the defendant was dismissed. The court's decision was based on the principles of civil procedure, the purpose of the rules, and the need for a just and expeditious resolution of the real issues in dispute. The court emphasised the importance of considering the prejudice caused to other parties and the need to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense.

Orders

Orders of the court

(1) Order under UCPR r 379 that the Further Amended Defence and Amended Counterclaim served 21 April 2022 be disallowed.

(2) Order under UCPR r 16(e) that the Amended Counterclaim served 21 April 2022 be set aside.

(3) Order for summary judgment under UCPR r 293 in favour of the first, second and third plaintiffs/cross defendants against the defendant/cross-claimant in respect of all of the Amended Counterclaim served 21 April 2022.

(4) Order under UCPR rr 416 and 415(6)(a), (b) and (d) that the subpoenas for production issued by the defendant to the following be set aside:

(i) John Payne; and

(ii) Natasha Kocks.

(5) Application by the defendant/cross-claimant dated 15 March 2022 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Hartnett v Hynes [2009] QSC 225, Applegarth J articulated those principles as follows:[48][48]Hartnett v Hynes [2009] QSC 225 [27].“1. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. 2. The discretion is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense. 3. There is a distinction between amendments which are necessary for the just and expeditious resolution of “the real issues in civil proceedings” and amendments which raise new claims and new issues.4. The court should not be seen to accede to applications made without adequate explanation or justification. 5. The existence of an explanation for the amendment is relevant to the court’s discretion, and “[i]nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment”. 6. The objective of the court is to do justice according to law, and, subject to the need to sanction a party for breach of its undertaking to the court and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment. 7. Parties should have a proper opportunity to plead their case, but justice does not permit them to raise any arguable case at any point in the proceedings upon payment of costs. 8. The fact that the amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave to amend. 9. Justice requires consideration of the prejudice caused to other parties, other litigants and the court if the amendment is allowed. This includes the strain the litigation imposes on litigants and witnesses.10. The point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources. 11. Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense. 12. The applicant must satisfy the specific requirements of rules, such as UCPR r 376(4) where it seeks to introduce a new cause of action after the expiry of a relevant limitation period.”Principles – summary judgment In Deputy Commissioner of Taxation v Salcedo [2005] QCA 227, the Court of Appeal held:“[46] As a result of r 5, r 292 and r 293 of the UCPR, a party seeking summary judgment is no longer required to satisfy the test set out by Barwick CJ in General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125 at 130 “that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.” [47]As has been held in this court the test to be applied is that adopted by Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 92 in relation to r 24 of the Civil Procedure Rules (UK) which is in similar terms to r 292 and r 293; that is, the court must consider whether there exists a real, as opposed to a fanciful, prospect of success. If there is no real prospect that a party will be successful in all or part of a claim, and there is no need for a trial, then ordinarily the other party is entitled to judgment. These rules benefit both parties as neither faces the expense of taking a matter to trial when the result of such a trial is inevitable as there is no real prospect of one of the parties being successful. There are also obvious advantages to the administration of justice if matters that can and ought be dealt with summarily, are so dealt with.”[49][49]Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 [46]-[47].Principles – setting aside subpoenas

Ratio Decidendi

Legal Principle Established

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