Giffin v Telstra Corporation Limited - [2018] QSC 111

SUPREME COURT OF QUEENSLAND

CITATION:

Giffin v Telstra Corporation Limited [2018] QSC 111

PARTIES:

LEE GIFFIN
(plaintiff/respondent)
v
TELSTRA CORPORATION LIMITED
ACN 051 775 556

(defendant/applicant)

FILE NO/S:

SC No 11741 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

24 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

29 March 2018

JUDGE:

Atkinson J

ORDERS:

1. The Claim filed 9 November 2017 be set aside pursuant to rule 16 of the Uniform Civil Procedure Rules 1999 (Qld).

2. The Amended Statement of Claim filed 1 March 2018 be struck out pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 (Qld).

3. Unless the plaintiff files written submissions within 7 days as to why such an order should not be made, I will order that the plaintiff pay the defendant’s costs to be assessed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – SETTING ASIDE ORIGINATING PROCESS OR SERVICE THEREOF – where the plaintiff is self-represented and filed a defective claim – where the defendant applied to set aside the claim – whether there was a ‘high degree of certainty’ about the outcome of the proceedings such as to entitle the defendant to have the claim set aside

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – where the plaintiff is self-represented and filed a defective statement of claim – where the statement of claim was struck out in its entirety and the plaintiff was granted leave to replead as a ‘last opportunity’ – where the plaintiff filed an amended statement of claim which failed to improve on the original statement of claim – where the defendant applied to strike out the amended statement of claim – whether the amended statement of claim failed to disclose a reasonable cause of action such as to entitle the defendant to have the amended statement of claim struck out – whether the amended statement of claim was embarrassing and tending to cause delay in the proceedings – whether the amended statement of claim was otherwise an abuse of process

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – IRREGULARITIES AND NON-COMPLIANCE WITH RULES – where the plaintiff is self-represented and has filed claims and statements of claim which do not comply with the rules – where the defendant has applied to strike out or set aside the documents – whether the documents should be struck out or set aside

Uniform Civil Procedure Rules 1999 (Qld), r 16, r 22, r 70, r 74, r 149, r 150, r 155, r 158, r 171, r 371

Markan v Bar Association of Queensland [2013] QSC 146, cited

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

COUNSEL:

The plaintiff/respondent appeared on his own behalf

M W P Ziebell (sol) for the defendant/applicant

SOLICITORS:

The plaintiff/respondent appeared on his own behalf

King & Wood Mallesons for the defendant/applicant

This matter concerns the Further Amended Application of 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.

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Details

Case: [2018] QSC 111
Decision Date: 24 May 2018

CaseChat Overview and Summary

In the Supreme Court of Queensland, Giffin v Telstra Corporation Limited involved a dispute between the plaintiff, who operated a business as a sole trader, and the defendant, Telstra Corporation Limited. The plaintiff alleged that Telstra failed to properly record changes in his business's contact details, resulting in a loss of business due to clients being unable to contact him. The plaintiff's initial claim and statement of claim were found to be defective, leading the defendant to apply to have the claim set aside or struck out. The court was tasked with determining whether the plaintiff's claims were so deficient that they warranted setting aside or striking out the pleadings, and if the plaintiff's amended statement of claim improved upon the original.

The court examined the procedural issues concerning the defectiveness of the plaintiff's original and amended statements of claim. It assessed whether the initial claim was so lacking in substance that it should be set aside, and if the amended statement of claim, despite being a last opportunity for the plaintiff to properly plead his case, still failed to disclose a reasonable cause of action. The court also considered whether the amended statement of claim was embarrassing, caused unnecessary delay, or constituted an abuse of the court process.

The court found that the plaintiff's initial claim was indeed defective and set it aside. When the plaintiff filed an amended statement of claim, the court found that it did not sufficiently improve upon the original pleadings. The amended statement of claim still failed to disclose a reasonable cause of action, and was deemed to be embarrassing and likely to cause delay in the proceedings. Therefore, the court struck out the amended statement of claim in its entirety. The court ordered that unless the plaintiff provided written submissions within seven days as to why the defendant’s application should not succeed, the plaintiff would be liable for the defendant’s costs.

Orders

Orders of the court

1. The Claim filed 9 November 2017 be set aside pursuant to rule 16 of the Uniform Civil Procedure Rules 1999 (Qld).

2. The Amended Statement of Claim filed 1 March 2018 be struck out pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 (Qld).

3. Unless the plaintiff files written submissions within 7 days as to why such an order should not be made, I will order that the plaintiff pay the defendant’s costs to be assessed.

Background

Background to the litigation

Before discussing the merits of each application, it is appropriate to establish the events giving rise to these proceedings.Background facts In 1999, the plaintiff started his business, Japanese 4x4 Spares & Repairs. It appears that this business is not registered as a company but rather was the plaintiff trading as a sole trader.[1] [1] Affidavit of Shane Ogden affirmed 27 March 2018, exhibit “SGO-2”, 1-19. From this time, it appears that he used the services of Sensis Pty Ltd (“Sensis”) to advertise his business, presumably pursuant to a contract between the plaintiff and Sensis and/or Telstra Corporation Limited, the defendant (“Telstra”). No contracts have been exhibited, but there is evidence of the plaintiff paying these companies via direct debit in the material annexed to the plaintiff’s Amended Statement of Claim. Sensis is not presently a party to the proceedings. The name “Sensis” has been added as the second defendant in the plaintiff’s Amended Statement of Claim. However, such addition is not effective, as the addition of a defendant requires an order allowing amendment of the originating process to add Sensis as a party following an application for leave to do so.[2] No such application has been made or order given.[2] UCPR rr 70 and 74. It is clear from the material that the plaintiff’s business used various addresses in Caboolture, Burpengary and Maroochydore and at least three different contact phone numbers from 1999 to present. However, there is nothing exhibited in the documents provided by the plaintiff as to when each change of address happened or when the plaintiff informed Sensis and/or Telstra of the changes of address. The plaintiff’s claim in these proceedings appears to be that these changes were not appropriately recorded by Sensis and/or Telstra and that he suffered a loss in business as a result of his clients (actual and potential) not being able to contact him.Present proceedings On 9 November 2017, the plaintiff filed a Claim and Statement of Claim in the Supreme Court of Queensland. On 27 November 2017, the defendant filed a Conditional Notice of Intention to Defend[3] and an Application to strike out the plaintiff’s Claim and Statement of Claim. On 7 December 2017, the defendant filed an Amended Application to strike out the plaintiff’s Claim and Statement of Claim. [3] UCPR r 144. On 11 December 2017, Bond J heard the application and made orders striking out the entirety of the Statement of Claim and adjourning the decision to set aside or strike out the Claim. When Bond J struck out the Statement of Claim on 11 December 2017, his Honour granted the plaintiff leave to replead a Statement of Claim and directed the plaintiff to file and serve an Amended Statement of Claim by 4:00 pm on 2 March 2018. In his Honour’s reasons delivered ex tempore, Bond J stated that the plaintiff would have a second attempt to file an adequate pleading, but that this would be his ‘last opportunity’.[4][4] Affidavit of Shane Ogden affirmed 27 March 2018, exhibit “SGO-2”, 1-14.

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

Full text does not contain this section.

CITATION:	Giffin v Telstra Corporation Limited [2018] QSC 111
PARTIES:	LEE GIFFIN (plaintiff/respondent) v TELSTRA CORPORATION LIMITED ACN 051 775 556 (defendant/applicant)
FILE NO/S:	SC No 11741 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	24 May 2018
DELIVERED AT:	Brisbane
HEARING DATE:	29 March 2018
JUDGE:	Atkinson J
ORDERS:	1. The Claim filed 9 November 2017 be set aside pursuant to rule 16 of the *Uniform Civil Procedure Rules* 1999 (Qld). 2. The Amended Statement of Claim filed 1 March 2018 be struck out pursuant to rule 171 of the *Uniform Civil Procedure Rules* 1999 (Qld). 3. Unless the plaintiff files written submissions within 7 days as to why such an order should not be made, I will order that the plaintiff pay the defendant’s costs to be assessed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – SETTING ASIDE ORIGINATING PROCESS OR SERVICE THEREOF – where the plaintiff is self-represented and filed a defective claim – where the defendant applied to set aside the claim – whether there was a ‘high degree of certainty’ about the outcome of the proceedings such as to entitle the defendant to have the claim set aside PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – where the plaintiff is self-represented and filed a defective statement of claim – where the statement of claim was struck out in its entirety and the plaintiff was granted leave to replead as a ‘last opportunity’ – where the plaintiff filed an amended statement of claim which failed to improve on the original statement of claim – where the defendant applied to strike out the amended statement of claim – whether the amended statement of claim failed to disclose a reasonable cause of action such as to entitle the defendant to have the amended statement of claim struck out – whether the amended statement of claim was embarrassing and tending to cause delay in the proceedings – whether the amended statement of claim was otherwise an abuse of process PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – IRREGULARITIES AND NON-COMPLIANCE WITH RULES – where the plaintiff is self-represented and has filed claims and statements of claim which do not comply with the rules – where the defendant has applied to strike out or set aside the documents – whether the documents should be struck out or set aside Uniform Civil Procedure Rules 1999 (Qld), r 16, r 22, r 70, r 74, r 149, r 150, r 155, r 158, r 171, r 371 Markan v Bar Association of Queensland [2013] QSC 146, cited Young v Crime and Corruption Commission [2018] QSC 12, cited
COUNSEL:	The plaintiff/respondent appeared on his own behalf M W P Ziebell (sol) for the defendant/applicant
SOLICITORS:	The plaintiff/respondent appeared on his own behalf King & Wood Mallesons for the defendant/applicant