Klerck v Sierocki

Case [2014] QCA 355

SUPREME COURT OF QUEENSLAND

CITATION:

Klerck & Ors v Sierocki & Anor [2014] QCA 355

PARTIES:

PAUL GRANT KLERCK
(first appellant)
INTERACTIVE ENTERTAINMENT AUSTRALIA PTY LTD
ACN 068 003 805
(second appellant)
SK & ASSOCIATES PTY LTD
ACN 155 041 491
(third appellant)
INFOLINK IT PTY LTD
ACN 128 081 489
(fourth appellant)
v
JARROD SIEROCKI
(first respondent)
INSOLVENCY GUARDIAN PTY LTD
ACN 149 298 313
(second respondent)

FILE NO/S:

Appeal No 2257 of 2014
SC No 638 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2014

JUDGES:

Fraser and Morrison JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JUDGMENTS AND ORDERS – OTHER MATTERS – where the respondents commenced a proceeding claiming damages for defamation, and the appellants filed a defence – where multiple orders were made against the appellants with which they did not comply – where the primary judge ordered pursuant to r 374 of the Uniform Civil Procedure Rules that the respondents have judgment against the appellants – whether the primary judge was permitted to consider matters other than non-compliance with an order of the kind mentioned in r 374(1) – whether the primary judge’s discretion miscarried because the judge proceeded on an incorrect factual basis, or because the order was unreasonable or plainly unjust

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 374

Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased)[2010] QCA 260, considered
Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28, cited
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388; [1990] FCA 520, considered
Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486; [2006] HCA 38, cited

COUNSEL:

M Lawrence for the appellants
A Nelson for the respondents

SOLICITORS:

Irish Bentley Lawyers for the appellants
Whitehead and Associates Solicitors for the respondents

  1. FRASER JA: If a party does not comply with an order to take a step in a proceeding, rule 374 of the Uniform Civil Procedure Rules 1999 (“UCPR”) empowers a party entitled to the benefit of that order to make an application requiring the defaulting party to show cause why an order should not be made against it, and it confers a discretionary power upon the judge hearing the application to make orders, including an order for judgment against the defaulting party.

  1. A judge in the Trial Division ordered pursuant to r 374 that the respondents (the plaintiffs) have judgment against the appellants (the first, second, third and fifth defendants), conditional upon the assessment of damages by the Court under Ch 13 Pt 8 of the UCPR. (The…

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Klerck v Sierocki [2014] QCA 355
Case
[2014] QCA 355
Decision Date

CaseChat Overview and Summary

The appeal in Klerck v Sierocki involved the respondents initiating a defamation action against the appellants, who subsequently filed a defence. Despite multiple orders being issued against the appellants, they failed to comply with these orders. The primary judge then ordered, pursuant to rule 374 of the Uniform Civil Procedure Rules, that judgment be entered in favour of the respondents. The appellants contested the validity of this order, arguing that the primary judge was not permitted to consider factors beyond non-compliance with a specific type of order mentioned in rule 374(1), and that the judge’s discretion had miscarried due to an incorrect factual basis or because the order was unreasonable or plainly unjust.

The court considered whether the primary judge could rely on matters other than non-compliance with an order specified in rule 374(1) to grant judgment under that rule. The court further examined if the judge's discretion was misapplied due to an incorrect factual foundation, or if the order was unreasonable or plainly unjust. The appellants argued that the primary judge’s reasoning was flawed because they had provided evidence that they had substantial justification for their non-compliance, which was not considered by the judge.

The court held that the primary judge was entitled to consider factors beyond the non-compliance with a specific type of order, as long as these factors related to the overall proceedings and the appellants' conduct. The judge's discretion was not misapplied as the order was reasonable and just, given the appellants' persistent non-compliance and disregard for the court's orders. The court ultimately dismissed the appeal and ordered the appellants to pay costs.

The court's decision affirmed the primary judge's authority to consider a range of factors in granting judgment under rule 374 and upheld the reasonableness of the order made against the appellants. The appeal was dismissed, and the appellants were ordered to pay costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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