Gibbs v Triscott

[1998] QCA 66

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 1746 of 1998
Brisbane

BeforeFitzgerald P.

Davies J.A.
Ambrose J.

[Gibbs v. Triscott]

BETWEEN:    

ALAN HARRY GIBBS

(Plaintiff)  Applicant

AND:

PAUL ANTHONY TRISCOTT

(Defendant)  Respondent

Judgment delivered 21 April 1998

Judgment of the Court

APPLICATION REFUSED WITH COSTS TO BE TAXED.

CATCHWORDS:     PROCEDURE - striking out of plaint - in District Court - whether any appellable error identified

Gibbs v. Triscott (Appeal No. 83 of 1993, unreported, 13 April 1994)

Counsel:Applicant appeared on his own behalf

Ms D. Skennar for the respondent.

Solicitors:Applicant appeared on his own behalf.

Triscott & Associates for the respondent.

Hearing Date:              15 April 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 April 1998

This application for leave to appeal and for an extension of time is another step in a protracted and undoubtedly costly dispute between the applicant, Alan Harry Gibbs, and a solicitor, Paul Anthony Triscott, who previously acted for a company of which Mr Gibbs was a director, H.B. Homes Pty Ltd.  It is not proposed to trace the full history of the dispute which the Court was told has involved more than 40 court appearances. 

In about 1990, Mr Triscott carried out work for the company on Mr Gibbs’ instructions.  In 1991, Mr Triscott sent a bill of $8,769.00 for his services.  When the bill was not paid, Mr Triscott brought an action in the Magistrates Court at Beenleigh against the company and Mr Gibbs, who informed the Court on the hearing of this application that he was a guarantor of the company’s liability to Mr Triscott.  On Mr Gibbs’ application, on 5 June 1991, a Trial Division Judge ordered that the bill be taxed conditionally upon Mr Gibbs paying $2,000 into court to abide the outcome of the taxation.  On 8 November 1991, the bill was taxed at $6,675.46.  Mr Gibbs made a number of unsuccessful attempts to challenge the taxation and an order was made on 26 November 1991 that the $2,000 paid into court be paid out to Mr Triscott, who then proceeded with his Magistrates Court action.

On 4 December 1991, Mr Triscott obtained judgment by default in the Magistrates Court for the balance of the amount of the taxed costs on the basis of an incorrect statement in an affidavit.  The Magistrates Court set aside that judgment on 14 May 1992, but, on the same day, entered judgment against the company on a judgment summons earlier brought by Mr Triscott, which had been adjourned in May 1991 to allow Mr Gibbs to apply for the order which was made on 5 June 1991 for the taxation of Mr Triscott’s bill.  Also on 14 May 1992, the Magistrates Court refused Mr Triscott’s application for summary judgment against Mr Gibbs on the basis that there appeared to be a triable issue, and ordered that Mr Triscott’s claim against Mr Gibbs be tried unless the company paid its debt to Mr Triscott in full within 21 days.  In the event, payment was not made until 6 August 1992.

Meanwhile, on 30 January 1992, Mr Triscott issued a bankruptcy notice against Mr Gibbs, based on the default judgment which Mr Triscott had incorrectly obtained on 4 December 1991, which, as stated, was subsequently set aside on 14 May 1992.  Since then, Mr Gibbs has made two unsuccessful attempts to sue Mr Triscott in the District Court on the basis that Mr Triscott acted wrongfully and damaged Mr Gibbs when Mr Triscott proceeded against Mr Gibbs personally.  This proceeding is concerned with the second of those actions.

The plaint by which the first of the District Court actions was commenced was struck out on 23 April 1993 and an appeal to this Court was dismissed on 13 April 1994.[1]  It is not clear whether Mr Gibbs has applied for special leave to appeal to the High Court of Australia from that decision of this Court but, subject to that, there appears to have been a lull until 5 December 1994, when Mr Gibbs issued the further District Court plaint.  More than two and a half years later, an amended plaint was filed on 26 August 1997.  Mr Gibbs did not suggest that this amended plaint was materially different in form or substance from his first plaint which, as stated, was struck out on 23 April 1993.  The most recent version was struck out in the District Court on 17 December 1997.

[1]Appeal No. 83 of 1993, unreported.

Mr Gibbs sought to appeal, or to gain leave to appeal, to the High Court from the District Court order of 17 December 1997 and, when that failed, filed his present notice of motion on 26 February this year.  At the hearing in this Court, the relief sought by Mr Gibbs was orally extended from an application for an extension of time to include an application for leave to appeal.[2]

[2]District Courts Act 1967, s. 118.

It is by no means easy to comprehend Mr Gibbs’ allegations and claims, but two additional matters which he referred to before this Court should be recorded.  Firstly, he has at least one current application to the High Court, which is to be considered this week.  Secondly, Mr Triscott is again pursuing Mr Gibbs in bankruptcy proceedings, this time based upon costs which Mr Gibbs has been ordered to pay following one or more of his previous unsuccessful proceedings in this Court.  On 16 October 1996, the Full Court of the Federal Court of Australia dismissed an appeal from the refusal of a single judge of that Court to set aside a bankruptcy notice based on a certificate with respect to those costs.  Mr Gibbs placed weight on a passage in the judgment of the Full Federal Court which he mistakenly thought assisted him in the present proceeding.

No error in the decision of the District Court of 17 December 1997 has been established, and no reason has been identified to warrant granting Mr Gibbs the  indulgences which he seeks.  His application should therefore be refused, with costs to be taxed.