Giffin v Sensis Pty Ltd - [2020] QSC 357

SUPREME COURT OF QUEENSLAND

CITATION:

Giffin v Sensis Pty Ltd & Anor [2020] QSC 357

PARTIES:

LEE GIFFIN

(Plaintiff)

v
SENSIS PTY LTD (ACN 007 423 912)

(First Defendant)

AND

TELSTRA COPORATION LIMITED (ACN 051 775 556)
(Second Defendant)

FILE NO/S:

BS No. 1692 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

1 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2020

JUDGE:

Brown J

ORDER:

The order of the court is that:

1.   The whole of the Statement of Claim filed on 14 February 2020 be struck out.

2.   The plaintiff has leave to replead.

3.   The plaintiff pay the costs of the second defendant of the application.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – OTHERWISE ABUSE OF PROCESS – where applicant seeks to strike out the plaintiff’s claim and statement of claim – where pleadings contain blank spaces – whether the claim and statement of claim discloses a reasonable cause of action – whether the claim and statement of claim has a tendency to prejudice or delay the fair trial of a proceeding

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – SET ASIDE – LIMITATION DEFENCE – where applicant seeks that the plaintiff’s claim and statement of claim be set aside on the basis that the claim is statute barred – whether the statement of claim disclose a reasonable cause of action – whether the statement of claim fails to plead any breach of a relevant duty – whether the claims are statute barred – whether expiration of the limitation period is a relevant consideration in a set aside or striking out application

Uniform Civil Procedure Rules 1999 (Qld), r 16, r 155, r 157, r 158, r 171

Giffin v Telstra Corporation Limited[2018] QSC 111, cited

Giffin v Telstra Corporation Limited[2018] QCA 335, cited
Pullen v Gutteridge Hashin & Davey Pty Ltd [1993] 1 VR 27, considered
Talbot v Boyd[2019] QSC 80, considered
Wardley Australia v Western Australia (1992) 175 CLR 514, considered

Young v Crime and Corruption Commission[2018] QSC 12, considered

COUNSEL:

The plaintiff appeared on his own behalf
No appearance by the first defendant

J Green for the second defendant

SOLICITORS:

The plaintiff appeared on his own behalf
No appearance by the first defendant
King & Wood Mallesons for the second defendant

The plaintiff, Mr Giffin, had a long running dispute involving Sensis Pty Ltd (Sensis) and Telstra Corporation Limited (Telstra). According to his submissions to the Court the complaint arises out of a failure to properly divert a telephone number used in his business to his new address for his business and a failure to properly advertise the addresses and telephone numbers of his business as he changed address. Mr Giffin claims that as a result of those failures he has lost a significant amount of business…

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.

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Details

Case: [2020] QSC 357
Decision Date: 1 December 2020

CaseChat Overview and Summary

In the matter of Giffin v Sensis Pty Ltd, the plaintiff, Giffin, brought proceedings against the defendants, Sensis Pty Ltd and Telstra, alleging breaches of contract and other related claims. The defendants sought to have the plaintiff's statement of claim struck out, arguing that it was deficient and prejudicial to their fair trial rights. The court was required to determine whether the statement of claim disclosed a reasonable cause of action and whether it had a tendency to prejudice or delay the fair trial of a proceeding. Additionally, the defendants argued that the claim was statute-barred, and the court had to consider whether the expiration of the limitation period was a relevant consideration in a set aside or striking out application.

The court found that the statement of claim was incomplete and lacked particularity, which led to several issues. The statement of claim contained blank spaces where material facts should have been inserted, and certain allegations were made against "the Defendant" without specifying which defendant was the subject of the allegation. The court also noted that the statement of claim did not identify any breach of duty against Telstra, despite alleging that Telstra did not provide advertising services. The court held that the statement of claim provided a skeleton for pleading the causes of action but failed to disclose the relevant cause of action against Telstra or the allegations in such a way that they had a tendency to prejudice or delay a fair trial.

The court struck out the whole of the statement of claim filed on 14 February 2020 and granted the plaintiff leave to replead. The court also ordered that the plaintiff pay the costs of the second defendant of the application. This decision highlights the importance of ensuring that a statement of claim is complete, particular, and discloses a reasonable cause of action to avoid having it struck out.

Orders

Orders of the court

The order of the court is that:

1. The whole of the Statement of Claim filed on 14 February 2020 be struck out.

2. The plaintiff has leave to replead.

3. The plaintiff pay the costs of the second defendant of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This is for several reasons namely that: (a)Although the claim is brought against two defendants a number of allegations in the statement claim are made against “the Defendant” without identifying which defendant is the subject of the allegation; (b)A number of the paragraphs in the Statement of Claim are incomplete because blank spaces have been inserted in place of material facts;(c)The pleaded allegations regarding the circumstance in which certain contracts are alleged to have been entered into between the plaintiff and “the Defendant” and the notification by the plaintiff of his business address and phone numbers are pleaded without any specificity or particularity; (d)The loss alleged to have been suffered by the plaintiff is not particularised or identified at all; and(e)The pleading is inconsistent in that the only breach which is alleged against Telstra, as opposed to “the Defendant” is that “Telstra did not provide advertising services”. However, no part of the pleading identifies any obligation upon Telstra to provide advertising services. The pleaded allegations are that Telstra provided certain phone numbers. Consideration The Statement of Claim provides a skeleton for pleading the causes of action contained in his claim, but is incomplete insofar as it fails to plead material facts so as to disclose the relevant cause of action against Telstra or the allegations are pleaded in such a way that they have a tendency to prejudice or delay a fair trial. While the Statement of Claim is some improvement on that which has previously been the subject of separate proceedings and decisions in this Court it is still deficient. Telstra’s complaints about the pleading are established insofar as: (a)The Statement of Claim does not plead against Telstra that it has provided any advertising services via the yellow pages notwithstanding that the only alleged breach of duty specifically pleaded as a breach by Telstra in paragraph 11 of the Statement of Claim relates to the failure to provide such advertising services. It is only pleaded that Telstra provided certain phone numbers to the plaintiff not advertising services. It fails to identify any breach against Telstra in that regard although it appeared from oral submissions that the plaintiff intends to assert a case that Telstra incorrectly diverted numbers for his business to other businesses;[4](b)The Statement of Claim fails to identify which defendant is being referred to in relation to a number of allegations in paragraphs, namely paragraphs 3(c), 4(c) and (d), 5(c) and (d), 6(c) and (d), 7(c) and (d), 8, 9, 10, 12, 13 and 14, such that, given there are two defendants, it is a matter of speculation which of the defendants is being referred to;(c)There are a number of blanks in the Statement of Claim in paragraphs 4(d), 5(d), 6(d), 7(b) and 7(d) which appear to have been left blank to complete dates and identify some persons, although what was meant to be inserted is unclear. Paragraph 7(d) also leaves a blank where it appears it was intended to plead what the advertisement stated; (d)The plaintiff has asserted there was a contract but it is unclear which “Defendant” it is alleged he entered into a contract with, or more likely both. If it refers to Telstra he failed to provide particulars of the contract entered into “the Defendant” referred to in paragraphs 3, 4, 5, 6 and 7 in not identifying the time when it was entered into and how it was entered into, such as whether it was done in writing or orally over the phone or at a Telstra store. It would appear the plaintiff intended to plead two separate contracts were entered into with Telstra and Sensis but that has not been pleaded;(e)The plaintiff has failed to provide particulars of precisely when and by what means he notified “The Defendant” of changes to his business address and as to changes required for his business telephone number other than by referring to a year; and(f)The amount of loss claimed has not been identified nor has any detail been provided as to how the loss and damage was suffered by the plaintiff or how the actions of the Defendant caused that loss. [4]See for example, p 42-37, 53-61 of exhibit SGO-1 to the affidavit of Mr Ogden, Court document 5.

CITATION:	Giffin v Sensis Pty Ltd & Anor [2020] QSC 357
PARTIES:	LEE GIFFIN (Plaintiff) v SENSIS PTY LTD (ACN 007 423 912) (First Defendant) AND TELSTRA COPORATION LIMITED (ACN 051 775 556) (Second Defendant)
FILE NO/S:	BS No. 1692 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	1 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	28 October 2020
JUDGE:	Brown J
ORDER:	The order of the court is that: 1. The whole of the Statement of Claim filed on 14 February 2020 be struck out. 2. The plaintiff has leave to replead. 3. The plaintiff pay the costs of the second defendant of the application.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – OTHERWISE ABUSE OF PROCESS – where applicant seeks to strike out the plaintiff’s claim and statement of claim – where pleadings contain blank spaces – whether the claim and statement of claim discloses a reasonable cause of action – whether the claim and statement of claim has a tendency to prejudice or delay the fair trial of a proceeding PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – SET ASIDE – LIMITATION DEFENCE – where applicant seeks that the plaintiff’s claim and statement of claim be set aside on the basis that the claim is statute barred – whether the statement of claim disclose a reasonable cause of action – whether the statement of claim fails to plead any breach of a relevant duty – whether the claims are statute barred – whether expiration of the limitation period is a relevant consideration in a set aside or striking out application Uniform Civil Procedure Rules 1999 (Qld), r 16, r 155, r 157, r 158, r 171 Giffin v Telstra Corporation Limited[2018] QSC 111, cited Giffin v Telstra Corporation Limited[2018] QCA 335, cited Pullen v Gutteridge Hashin & Davey Pty Ltd [1993] 1 VR 27, considered Talbot v Boyd[2019] QSC 80, considered Wardley Australia v Western Australia (1992) 175 CLR 514, considered Young v Crime and Corruption Commission[2018] QSC 12, considered
COUNSEL:	The plaintiff appeared on his own behalf No appearance by the first defendant J Green for the second defendant
SOLICITORS:	The plaintiff appeared on his own behalf No appearance by the first defendant King & Wood Mallesons for the second defendant