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)

v.

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)

v.

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 level of rancour between the parties
increased. The respondent issued a writ against the
appellant claiming damages for defamation and the appellant
issued a writ against the respondent claiming unspecified
damages for "incompetency". To enforce the claim to the
amount of his professional bill the respondent commenced
proceedings in the Magistrates Court and applied for
judgment by summons. On the return date of the summons the
magistrate gave the appellant an opportunity to apply for a
review of the bill of costs and the appellant applied in the
Supreme Court for leave to tax. A judge ordered that the
bill be taxed on condition that the appellant lodge security
in the sum of $2,000. The costs of that application were
awarded against the appellant. They were taxed in the
amount of $1,050.93 and were still owing to the respondent
at the date he filed the affidavit supporting the
application to strike out the plaint.

On the taxation of the original bill the appellant had some success and the amount of the bill was reduced to $6,675.46. The appellant sought to review the taxing officer's decision but the officer disallowed the appellant's objections. The appellant then sought a further review by originating summons in the Supreme Court but that summons was dismissed in November 1991. In early December 1991 the respondent entered judgment in the Magistrates Court at Beenleigh for an amount which then stood at $6,810.81. Subsequently, the appellant appealed against the order dismissing the appellant's costs review application but that appeal was in February 1992 dismissed with costs.

In the meantime the appellant applied in the Magistrates Court at Beenleigh to have the judgment which had been entered in that court in early December 1991 set aside. The respondent sought an order for oral examination of the appellant in early January 1992 and arranged for the filing of a bankruptcy notice in respect of the judgment for $6,810.81 late in that month. An application brought in the Supreme Court by the appellant seeking a stay of the Beenleigh Magistrates Court proceedings was dismissed by a judge of the Supreme Court in February 1992 and costs were given against the appellant. Those costs were taxed at $782.18 and on the date when the respondent's affidavit was filed in support of the application to strike out the plaint they were still owing.

After some adjournment the oral examination of the appellant which the respondent had sought proceeded in Toowoomba in April of 1992. A further application for stay was brought by the appellant in the Supreme Court in July of 1992 but those proceedings were dismissed and the appellant was ordered to pay costs which were subsequently taxed in the amount of $2,017.75 and at the date of the respondent's affidavit filed in support of the application to strike out those costs were still due and owing.

In the meantime, in May of 1992 the appellant's application to set aside the default judgment in the Magistrates Court at Beenleigh was dealt with. An order appears to have been made on the basis that there was a triable issue so far as the claim was brought against the appellant personally. The magistrate set aside the default judgment against the appellant so that that aspect could go to trial but he allowed the amount of the judgment entered against the company to remain.

The amount of the judgment debt against the company, $5,302.81, was subsequently paid and the respondent has also received a further $2,000, the amount of the security which had been lodged in connection with the taxation review. The costs ordered to be paid to the respondent in connection with the appeal to the Court of Appeal taxed at $3,066.96 remained outstanding at the date of the respondent's affidavit. That affidavit said that the bankruptcy proceedings were adjourned with an amendment to accommodate the fact that although the judgment sum had been paid, costs of $3,166.86 were outstanding.

Behind all of the appellant's arguments presented to this Court was a submission that he was not personally liable for the respondent's original costs bill. He said that the various steps in the proceedings taken against him when he was challenging the basis of the claim, gave rise to his own claims for relief.

In particular the appellant contended that the issue of the bankruptcy notice and of the summons for oral examination and the oral examination itself supported his claims for malicious prosecution. In respect of this contention it has to be said that these proceedings at the time of the hearing below were not shown to have ended in the appellant's favour.

The appellant further contended that the conduct of the oral examination itself involved a defamation against him, but this encounters an obstacle in the form of s.372 of the Criminal Code excluding liability for defamation in the course of legal proceedings. The appellant attempted to ground his claims also on the writ for defamation which the respondent had issued against him saying this was wrongly issued. Nevertheless that proceeding had not been disposed of when the order was made below. The appellant also based his claims upon the fact that a summons had been issued against him claiming a debt when he personally (as he contended) as opposed to the company was not liable, yet this proceeding too, was not shown to have terminated in his favour. It was directed to go to trial. The debt in question was subsequently paid by the company and the claim for the same debt against the appellant personally does not seem to have been further pursued but to have been left in abeyance.

One particular ground of objection by the appellant to the conduct of proceedings below was that the District Court judge had allowed the appellant to be cross-examined on an affidavit which he had filed in those proceedings. However,

it is clear that this course was permitted by the judge
when he considered that certain material in the appellant's
affidavit was relevant to the question to be decided by him.
His decision accordingly to allow cross-examination
appears to have been a procedural determination and it
cannot be said to have resulted in any unfairness to the
appellant. The cross-examination itself did not go very
far because the appellant, when shown a document apparently
bearing his signature did not concede it was his and the
questioning of him terminated without the document itself
being tendered. There is no substance in the appellant's
objection to this aspect of the proceedings.

A number of the matters which have been set out above as constituting the basis for the appellant's claims against the respondent emerged only in the course of the appellant's presentation of the arguments to this Court. Also, they are far from appearing clearly, if they appear at all, in the plaint which he had filed. That document obviously prepared without the benefit of significant professional assistance is in confused narrative form and does not in any tolerably clear fashion isolate aspects capable of grounding a claim.

It certainly has emerged that the appellant offered vigorous resistance to the demands which had been made against him for payment of the original costs bill and this resistance resulted in a proliferation of proceedings between the parties. The respondent solicitor clearly for his part did not wish to abandon his claim merely because it was encountering opposition.

While the appellant may consider himself harassed by multiple proceedings and has opposed them as best he could without the benefit of legal representation, it neither appears from his plaint that he has outlined a sufficiently clear basis for claiming damages under his chosen headings of defamation, malicious prosecution and perjury, nor in his argument has he managed to project a picture of what could be thought of as a legitimate legal complaint even one poorly expressed or incompletely adumbrated. Making all allowances for the fact that the plaintiff was not legally represented and for the fact that the courts are reluctant to shut out parties from a reasonable opportunity to present their cases, the matter remains in a state where the conclusion is justified that it was an embarrassment for the respondent to require him to make a defence against the plaint in the form in which it currently appears. It is an additional consideration that the appellant's arguments in support of his position all appeared to be totally unpromising.

During argument below the appellant was granted an adjournment to afford him an opportunity to obtain legal representation but on the resumption of the hearing he again appeared unrepresented and it was in this mode that the matter was subsequently argued on appeal. There was no indication that given an opportunity to put his plaint into a form where it might pass muster from a legal point of view, even if that were possible, he would take advantage of that opportunity. He persisted rather in advancing propositions which were not maintainable but which he was determined not to abandon. No doubt the relationship between the parties was productive of considerable dissatisfaction on both sides but the ensuing complications which have not advanced the appellant's position in law at all, have resulted not from any fundamental complexity, but from various moves and counter moves of the parties. The plaint being so inadequately justified by the appellant and being in such a totally unsatisfactory form, the judge below was entitled to reach the decision that it should be dismissed.

Before parting with the matter it is desirable to say that it appeared likely that the appellant would have required leave if his appeal were to succeed. This would be on the basis that the order of dismissal below was not final: see Roberts v. Roberts (1908) 7 C.L.R. 566. On this basis it would have been necessary for the appellant to demonstrate that an important question of law or justice was involved, that is if leave were to be granted: see s.92 of the District Courts Act 1967. This was not demonstrated.

Although the respondent did not seek to maintain the benefit of the order below on this basis, the Court itself has an interest in controlling parties' access to it in cases where the statute says that leave is required. In deference to the fact that the Court is dealing with a litigant in person, additional attention has on this occasion been paid to the merits of the matter apart from the apparent requirement that leave would need to be obtained. On neither basis is it accepted that the appellant's appeal should succeed.

The appeal should be dismissed with costs to the

respondent to be taxed.