Hammond v Marinerglen Pty Ltd - [2002] QDC 164

DISTRICT COURT OF QUEENSLAND

CITATION:
Hammond v Marinerglen Pty Ltd [2002] QDC 164

PARTIES:
TREVOR JOHN HAMMOND
Appellant
and
MARINERGLEN PTY LTD (ACN 010 930 786)
Respondent

FILE NO/S:
453 / 2001

DIVISION:
Civil

PROCEEDING:
Appeal

ORIGINATING COURT:
Magistrates Court, Southport

DELIVERED ON:

5 April 2002

DELIVERED AT:
Southport

HEARING DATE:
25 March 2002

JUDGE:
Judge Alan Wilson SC

ORDER:
(1)    That the orders of Ms Previtera SM made on 12 April 2001 insofar as they are a dismissal of the appellant’s action against the second defendant or order that the plaintiff institute a new action, be set aside.

(2)    That the plaintiff have leave under r 377 to amend his claim so as to comply with r 22(2).

(3)    That the plaintiff have leave nunc pro tunc to re-plead and to file the re-pleaded statement of claim (previously filed on 20 February 2001).

(4)    That the plaintiff serve the amended statement of claim filed 20 February 2001 and that the first and second defendants deliver their defences within 28 days of service.

(5)    That the costs of and incidental to the application before the learned Magistrate on or about 12 April 2001 be costs in the cause.

(6)    That the respondent pay the appellant’s costs of and incidental to the appeal.

(7)    That the respondent be granted an Indemnity Certificate under the Appeal Costs Fund Act (1973), s 15.

CATCHWORDS:
APPEAL AND NEW TRIAL – ERROR OF LAW – Application to strike out pleading under UCPR r 171 – Magistrate wrongly striking out entire action
UCPR r 171
Magistrates Court Act (1973) s 47(b)

COUNSEL:
Mr Dorney QC and Mr Sive for the appellant
Ms Magee for the respondent

SOLICITORS:
Appellant self-represented
Messrs Short Punch & Greatorix for the respondent

According to a Notice of Appeal filed 9 May 2001, this proceeding purports to be an appeal against the decision of Ms Previtera, Stipendiary Magistrate, made in Southport Magistrates Court on 12 April 2001. The document then goes on, however, to seek the setting aside, or variation, of “all decisions” of the learned Magistrate. The uncertainty engendered by the Notice is representative of the confusion which has beset the action both in the Magistrates Court, and here.

The appellant and another man apparently wish to sue for their alleged entitlement to a portion of real estate commission paid to real estate agents as a consequence of a sale of Gold Coast land by McQuade Dredging & Contracting Pty Ltd to Michael Doohan on 22 July 1996, each contending they were the effective cause of the sale. Each originally sued one Lang, under proceedings commenced in the Magistrates Court in July 1998. Thereafter, the matter went through a series of quite complicated steps including extensive non-party discovery and the joinder of further defendants, who eventually numbered eight. On 10 November 2000 the second defendant Marinerglen Pty Ltd and the fourth defendant Lang applied under UCPR r 171 to strike out the entire claim as against them; and a similar application…

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: [2002] QDC 164
Decision Date: 5 April 2002

CaseChat Overview and Summary

The plaintiff, Hammond, appealed against an order of the District Court of Western Australia which dismissed his action against Marinerglen Pty Ltd. The appeal centred on the court's decision to strike out the plaintiff’s entire action under the Uniform Civil Procedure Rules (UCPR) rule 171. The plaintiff's original claim was dismissed by the Magistrate on the basis that it did not comply with rule 22(2) of the UCPR. The plaintiff sought to amend the claim but the Magistrate ruled that the action had to be re-filed rather than amended. The legal issues before the court were whether the Magistrate's decision to strike out the plaintiff's action was an error of law and whether the plaintiff should be granted leave to amend his claim.

The court found that the Magistrate's decision to dismiss the entire action was indeed an error of law. The court held that the Magistrate did not have the discretion to order the plaintiff to re-plead his entire case under rule 171. Instead, the court should have allowed the plaintiff an opportunity to amend the claim in line with rule 22(2). The court also noted that the Magistrate’s order did not adequately consider the principles of procedural fairness, as the plaintiff was not given a chance to correct the deficiencies in his pleading. The appeal was therefore allowed, and the Magistrate's orders were set aside. The court granted the plaintiff leave to amend his claim to comply with rule 22(2) and to re-plead his statement of claim.

The final orders of the court required the District Court to set aside the Magistrate's dismissal of the plaintiff’s action and to allow the plaintiff to amend his claim. The court also ordered that the plaintiff serve the amended statement of claim and that the defendants deliver their defences within 28 days. Additionally, the court ruled that the costs of the application before the Magistrate be costs in the cause, and that the defendants pay the plaintiff’s costs of the appeal. The court further granted the defendants an Indemnity Certificate under the Appeal Costs Fund Act (1973), section 15.

Orders

Orders of the court

(1) That the orders of Ms Previtera SM made on 12 April 2001 insofar as they are a dismissal of the appellant’s action against the second defendant or order that the plaintiff institute a new action, be set aside.

(2) That the plaintiff have leave under r 377 to amend his claim so as to comply with r 22(2).

(3) That the plaintiff have leave nunc pro tunc to re-plead and to file the re-pleaded statement of claim (previously filed on 20 February 2001).

(4) That the plaintiff serve the amended statement of claim filed 20 February 2001 and that the first and second defendants deliver their defences within 28 days of service.

(5) That the costs of and incidental to the application before the learned Magistrate on or about 12 April 2001 be costs in the cause.

(6) That the respondent pay the appellant’s costs of and incidental to the appeal.

(7) That the respondent be granted an Indemnity Certificate under the Appeal Costs Fund Act (1973), s 15.

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

Full text does not contain this section.

CITATION:	Hammond v Marinerglen Pty Ltd [2002] QDC 164
PARTIES:	TREVOR JOHN HAMMOND Appellant and MARINERGLEN PTY LTD (ACN 010 930 786) Respondent
FILE NO/S:	453 / 2001
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Southport
DELIVERED ON:	5 April 2002
DELIVERED AT:	Southport
HEARING DATE:	25 March 2002
JUDGE:	Judge Alan Wilson SC
ORDER:	(1) That the orders of Ms Previtera SM made on 12 April 2001 insofar as they are a dismissal of the appellant’s action against the second defendant or order that the plaintiff institute a new action, be set aside. (2) That the plaintiff have leave under r 377 to amend his claim so as to comply with r 22(2). (3) That the plaintiff have leave nunc pro tunc to re-plead and to file the re-pleaded statement of claim (previously filed on 20 February 2001). (4) That the plaintiff serve the amended statement of claim filed 20 February 2001 and that the first and second defendants deliver their defences within 28 days of service. (5) That the costs of and incidental to the application before the learned Magistrate on or about 12 April 2001 be costs in the cause. (6) That the respondent pay the appellant’s costs of and incidental to the appeal. (7) That the respondent be granted an Indemnity Certificate under the Appeal Costs Fund Act (1973), s 15.
CATCHWORDS:	APPEAL AND NEW TRIAL – ERROR OF LAW – Application to strike out pleading under UCPR r 171 – Magistrate wrongly striking out entire action UCPR r 171 Magistrates Court Act (1973) s 47(b)
COUNSEL:	Mr Dorney QC and Mr Sive for the appellant Ms Magee for the respondent
SOLICITORS:	Appellant self-represented Messrs Short Punch & Greatorix for the respondent