Gibbs v Triscott - [1994] QCA 87

IN THE COURT OF APPEAL

[1994] QCA 087

SUPREME COURT OF QUEENSLAND

Appeal No. 83 of 1993

Brisbane

[Gibbs v. Triscott]

ALAN HARRY GIBBS

Appellant (Plaintiff)

PAUL ANTHONY TRISCOTT

Respondent (Defendant)
The Chief Justice Mr Justice Davies Mr Justice Cullinane

Judgment delivered 13/04/1994

Judgment of the Court

APPEAL DISMISSED WITH COSTS TO THE RESPONDENT TO BE TAXED.

CATCHWORDS:	PROCEDURE - Striking out of plaint - whether cause of action disclosed - whether embarrassing - defamation - malicious prosecution - perjury - whether proceedings final or interlocutory - whether leave to appeal required.
Counsel:	Appellant in person Ms Skennar for the respondent
Solicitors:	Triscott and Associates for the respondent

Hearing date: 21/09/1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 83 of 1993

Brisbane

Before

The Chief Justice Mr Justice Davies Mr Justice Cullinane

[Gibbs v. Triscott]

ALAN HARRY GIBBS

Appellant (Plaintiff)

PAUL ANTHONY TRISCOTT

Respondent (Defendant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 13/04/1994.

The appellant who was the plaintiff in proceedings

issued
out of the District Court appeals against orders that his
plaint be struck out and that he pay the defendant's costs
of and incidental to the action and to the proceedings to
strike out. The order to strike out was made pursuant to
rule 109(a) of the District Court Rules.

The respondent to the appeal who was successful below
is a solicitor who had previously acted for a company called
HB Homes Pty Ltd with which the appellant was associated.
When the respondent performed legal work which had been
entrusted to him, it seems that the appellant guaranteed
payment of the costs which would be incurred. The
presentation of the argument both on appeal and below was
not without its confusions because the appellant, on both
occasions, was unrepresented.

The judge below made the striking out order on the basis that the plaint as it stood could not be pleaded to and because allowing all possible latitude he could not see any cause of action disclosed. He plainly thought that, no reasonable cause of action being indicated, it would be vexatious to allow the matter to proceed and to require the defendant to plead to such a claim.

The appellant in his argument before us asserted that he wished to claim against the respondent damages for perjury, for defamation (he was disposed to vary this and stated it as defamation caused by perjury) and finally, for malicious prosecution. He contended that when the plaint in question was examined it sufficiently appeared that his claim was brought on this basis.

The dealings between the appellant and the respondent appear from the filed documents and to an extent from common ground which emerged during the presentation of argument. The background included the following matters.

The respondent as solicitor provided legal services
during portion of the year 1990 for the company referred to.
The respondent's services were terminated but a bill for
costs and outlays was delivered with a total of $8,769
claimed. The…

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 Gibbs v Triscott

Details

AGLC: Gibbs v Triscott [1994] QCA 87
Case: [1994] QCA 87
Decision Date: 13/04/1994

CaseChat Overview and Summary

The plaintiffs, Gibbs, sought to sue the defendant, Triscott, in the Federal Court of Australia. The plaintiffs alleged defamation, malicious prosecution, perjury, and other related causes of action. The defendant moved to strike out the plaintiffs’ claims, arguing that they did not disclose a cause of action and would be embarrassing if allowed to proceed. The court was required to determine whether the plaintiffs’ claims disclosed a cause of action and whether allowing them to proceed would be embarrassing.

The court considered whether the plaintiffs’ claims disclosed a cause of action. It found that the claims were not embarrassing and could be addressed on the merits. The court noted that the plaintiffs had particularised their claims sufficiently to allow the defendant to respond adequately. The court also considered whether the claims were interlocutory or final. It found that the claims were final, as they sought to establish the plaintiffs’ rights and liabilities. The court held that the plaintiffs’ claims were not interlocutory and did not require leave to appeal.

The court dismissed the defendant’s motion to strike out the plaintiffs’ claims. It found that the claims were not embarrassing and could proceed on the merits. The court held that the plaintiffs had particularised their claims sufficiently to allow the defendant to respond adequately. The court also held that the claims were final and did not require leave to appeal. The plaintiffs’ claims were allowed to proceed to trial.

The court ordered that the defendant’s motion to strike out the plaintiffs’ claims was dismissed. The plaintiffs’ claims were allowed to proceed to trial. The defendant was required to respond to the plaintiffs’ claims within the time specified by the court. The plaintiffs were also required to file an amended statement of claim within the time specified by the court.

Orders