Johnston v Safaris CC

Case [2016] QDC 302

DISTRICT COURT OF QUEENSLAND

CITATION:

Johnston v Safaris CC [2016] QDC 302

PARTIES:

GRAHAM JOHNSTON
(appellant)

v

KARAN SAFARIS CC        
(respondent)

FILE NO.:

APPEAL NO. 115/16

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Cairns

DELIVERED ON:

25 November 2016

DELIVERED AT:

Cairns

HEARING DATES:

8, 14 & 16 November 2016

JUDGE:

Morzone QC DCJ

ORDER:

Appeal dismissed.1.          

.Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment, the appellant will pay the respondent costs of the proceeding (including reserved costs) to be assessed on the standard basis2.          

CATCHWORDS:

CIVIL APPEAL – PRACTICE & PROCEDURE – appeal pursuant to s 133 District Court of Queensland Act 1967 (Qld) – appeal from interlocutory decision regarding amendment of statement of claim - scope of appeal - where new ground and arguments exceed scope of application before the court at first instance - where plaintiff amended statement of claim – whether leave required to withdraw “admission” in a statement of claim – whether a statement of claim is a “pleading” caught by r 188 Uniform Civil Procedure Rules 1999 (Qld) – whether defendant waived or estopped from challenging a defective pleading by consent orders – whether amendments should be disallowed for contravention of rules – whether court ought strike out all or part of a pleading as a prerequisite to allowing a party to amend a defective part – whether leave to amend appropriate.

Legislation
District Court of Queensland Act 1967 (Qld), s 113
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 149, r 150, r 157, r 166, r 171, r 188, r 367, r 371, r 375 & r 385

Cases

House v The King (1936) 55 CLR 499
Suttor v Gundowda Pty Limited (1950) 81 CLR 418
Coulton v Holcombe (1986) 162 CLR 1
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Monto Coal 2 Pty Ltd v Sanrus Pty Ltd as trustee of the QCTrust [2014] QCA 267
Hartnett v Hynes [2009] QSC 225
Queensland v J L Holdings Pty Ltd 189 CLR 146
A & M Investments Pty Ltd v Eastfire Pty Ltd [2002] QDC 218
Green v Pearson [2014] QCA 110
Aimtek Pty Ltd v Flightship Ground Effect Pte Ltd [2014] QCA 294
Uzsoki v McArthur [2011] QDC 60
Broadlex Services v RCR Resolve FM [2015] NSWSC 1367
Preston & Anor v Nikolaidis [2011] NSWSC 1074
Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268
Murphy v Westpac Banking Corporation [2011] FCA 280
Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 9) [2011] FCA 1087
Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd [2000] FCA 1732
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [1998] FCA 525
Gould v Mt Oxide Mines Ltd (in liq) (1916) 22 CLR 490
Thiess Pty Ltd v FFE Minerals Aust…

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Details
AGLC
Johnston v Safaris CC [2016] QDC 302
Case
[2016] QDC 302
Decision Date

CaseChat Overview and Summary

In the matter of Johnston v Safaris CC, the appellant sought to amend their statement of claim following an interlocutory decision of the District Court of Queensland, which had previously refused leave to amend. The appeal concerned the court's interpretation of the scope of the appeal, specifically whether new grounds and arguments could be introduced that had not been part of the original application before the lower court. Furthermore, the appellant questioned whether they needed leave to withdraw an "admission" from their statement of claim and whether such a statement of claim constituted a "pleading" within the meaning of rule 188 of the Uniform Civil Procedure Rules 1999 (Qld). The appellant also raised the issue of whether the respondent had waived or was estopped from challenging the defective pleading through consent orders. The court was required to determine whether the amendments contravened the rules and whether the court should strike out all or part of a pleading before allowing a party to amend a defective part. Additionally, the court needed to assess whether leave to amend was appropriate.

The court found that the appeal was limited to the grounds and arguments presented in the original application before the lower court. Any new grounds or arguments introduced in the appeal were beyond the scope of the appeal. The court held that a statement of claim was indeed a pleading under rule 188, and therefore, leave was required to withdraw an admission from the statement of claim. The court also held that the respondent had not waived or been estopped from challenging the defective pleading by consent orders. Consequently, the amendments made by the appellant contravened the rules. The court held that it was not necessary to strike out all or part of a pleading as a prerequisite to allowing a party to amend a defective part, and leave to amend was appropriate in this case. Ultimately, the court dismissed the appeal and ordered the appellant to pay the respondent's costs of the proceeding, including reserved costs, to be assessed on the standard basis, unless the parties agreed otherwise within 14 days of the judgment.

Orders

Orders of the court

Appeal dismissed.1.

.Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment, the appellant will pay the respondent costs of the proceeding (including reserved costs) to be assessed on the standard basis2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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