Kotev v. Gold Coast City Council

[2009] QCA 30

[2009] QCA 30

COURT OF APPEAL

McMURDO P
MUIR JA
DAUBNEY J

Appeal No 509 of 2009

GOLD COAST CITY COUNCIL	Applicant/Defendant
and
QUEENSLAND STATE GOVERNMENT (STATE OF QUEENSLAND)	Applicant/Defendant

and

ERIC KOTEV  Respondent/Plaintiff

BRISBANE

DATE 24/02/2009

JUDGMENT

THE PRESIDENT:  This is an application brought by the applicants, the Gold Coast City Council and the Queensland State Government to strike out the notice of appeal filed by the respondent, Eric Kotev, on 14 January 2009.

Mr Kotev's appeal is from an order made in the Trial Division of this Court on 16th December 2008 under the Uniform Civil Procedure Rules, rule 171 striking out his claim and statement of claim which he filed on 10 September 2008.

Mr Kotev's claim and statement of claim is nonsensical and incomprehensible.  The primary judge listened to Mr Kotev's submissions and invited him to explain what his claim was really about.  Mr Kotev did not avail himself of that opportunity in any meaningful or rational way.  The trial judge correctly advised Mr Kotev that if he had a valid claim against the present applicants, he needed legal advice to enable the claim to be properly formulated.  The primary judge struck out Mr Kotev's claim and statement of claim because they disclosed no identifiable cause of action.  He also ordered that his action against the applicants be dismissed.  The applicants, generously in the circumstances, did not ask for costs.

Mr Kotev's notice of appeal, like his claim and statement of claim filed in the Trial Division, is nonsensical and incomprehensible.  The same can be said about his outline of argument and the other material which he has filed in this Court.  Mr Kotev has appeared self-represented in this application by telephone link from Israel.  His oral submissions were no more elucidating than his written submissions.

The primary judge's decision to strike out Mr Kotev's claim and statement of claim and to dismiss his action under rule 171 involved an exercise of discretion, although one sparingly used. In the circumstances of this case, it was patently clear that Mr Kotev's claim and statement of claim disclosed no reasonable cause of action. The only sensible orders were those made by the primary judge: cf Day v Victorian RailwaysCommissioners (1949) 78 CLR 62, 84, 91 to 92 and General Steel Industries Inc v The Commissioner for Railways (NSW) (1964) 112 CLR 125).

The present appeal has absolutely no prospects of success.  In those circumstances, this Court has an inherent jurisdiction to strike out the appeal; Walton v Gardiner (1993) 177 CLR 378, 393. As Mr Kotev's appeal is doomed to fail, it should now be struck out. The primary judge correctly advised Mr Kotev that if he has a legitimate claim, he will need to rearticulate it in a way that is comprehensible, rational, discloses an identifiable cause of action and otherwise complies with the Uniform Civil Procedure Rules.

The applicants have asked for indemnity costs.  Whilst that claim is understandable, the submissions made by Mr Kotev at first instance and in this Court suggest that he may well have mental health problems.
For that reason, I would not make a costs order otherwise than in the usual terms.

I would strike out the appeal, with costs to be assessed.

MUIR JA:  I agree.

DAUBNEY J:  I also agree.

THE PRESIDENT:  The order is the appeal is struck out and costs to be assessed.

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