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Madsen v Pope & Anor

Madsen v Pope & Anor

Case [2014] QDC 45 17 March 2014

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DISTRICT COURT OF QUEENSLAND

CITATION:

Madsen v Pope & Anor [2014] QDC 45

PARTIES:

SARA MADSEN

(plaintiff)

v

DOUGLAS HAMILTON LOCKHART POPE

(first defendant)

and

EVA ULRIKA KERR

(second defendant)

FILE NO/S:

BD2824/13

DIVISION:

Civil

PROCEEDING:

Applications in a proceeding

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2014

JUDGE:

Dorney QC DCJ

ORDERS:

1.    The applications filed 10 November 2013 and 18 February 2014 are dismissed.

2.    All parties have leave to file, and serve, by 4pm on 24 March 2014 submissions on the form of orders regarding:

(a)   leave to the plaintiff to amend both her Claim and Statement of Claim to replead the appropriate relief in equity;

(b) leave to the defendants to replead, consequential upon the plaintiff’s amendments in (a);

(c)   subsequent to the amendments in (a) and (b), staying the proceeding until the plaintiff complies with PIPA in all appropriate respects;

(d) costs.

CATCHWORDS:

LEGISLATION CITED:

CASES CITED:

Applications in a proceeding – whether to set aside or strike out claim – whether to strike out statement of claim – whether to stay proceeding – whether relief claimed should be for equitable “compensation” rather than “damages”

Uniform Civil Procedure Rules 1999, r 7(1), r 16, r 144, r144(4), r 144(5), r 144(6), r 144(7), r 171

Civil Proceedings Act 2001, s 8

Limitations of Actions Act 1974, s 10(6)(b)

Personal Injuries Proceeding Act 2002, s 6(1), s 6(4), s 22(1), s 36(5)(b), s 40(2), s 56

ACI Operations P/L v Tallant [2013] NSWSC 367

Alec Finlayson P/L v Royal Freemason Benevolent Institution of NSW Nominees Ltd [2013] NSWSC 1168

Aussie Ideas P/L v Tunwind P/L [2006] NSWCA 286

Barbagallo v J & F Catelan P/L [1986] 1 Qd R 245

Boulter v Batten & Anor [2010] QDC 56

Breen v Williams (1996) 186 CLR 71

Cia de Serguros Imperio v Heath (REBX) Ltd & Ors [2001] 1 WLR 112

Cubillo v Commonwealth of Australia (2001) 112 FCR 455

In the matter of Auzhair Supplies P/L (In Liq) (2013) 272 FLR 304

Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383

Projects Company No.2 P/L v Cushway Blackford & Associates P/L & Anor [2011] QCA 102

SB v State of New South Wales (2004) 13 VR 527

Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 (Marion’s Case)

Sit Simplex Stulte P/L v Carter & Ors [2003] QSC 99

Walker-Eyre v Emirates [2012] QDC 364

Webber v New South Wales [2003] NSWSC 1263

Woodhead v Elbourne [2001] 1 Qd R 220

COUNSEL:

S Gray for the plaintiff

A Ehlers for the first defendant

L Willson for the second defendant

SOLICITORS:

Hatzis Lawyers for the plaintiff

Kerwin Solicitors for the first defendant

Potts Lawyers for the second defendant

Introduction

These are applications, in an existing proceeding, by both defendants which seek, essentially, to strike out the plaintiff’s Statement of Claim or otherwise give permanent relief by…

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.

Continue reading Madsen v Pope & Anor

Details

AGLC: Madsen v Pope & Anor [2014] QDC 45
Case: [2014] QDC 45
Decision Date: 17 March 2014

CaseChat Overview and Summary

In the Federal Court, Madsen sought to set aside and strike out a claim against Pope and another defendant, along with staying the proceedings. The claim, which was initially for damages, was later to be for equitable compensation. The dispute centred around the nature of the relief Madsen was entitled to claim and whether the proceeding should be stayed pending compliance with certain statutory requirements. The court was tasked with determining whether the claim should be struck out or set aside, whether the statement of claim should be struck out, and whether the proceeding should be stayed until Madsen complied with statutory requirements.

The court considered the nature of the relief Madsen sought, noting the distinction between damages and equitable compensation. It was also necessary to consider whether the claim was premature and should be stayed until Madsen complied with statutory requirements. The court examined the appropriate form of relief and whether it should be damages or equitable compensation, given the nature of the claims and the applicable legal principles.

The court dismissed the applications to set aside or strike out the claim and the statement of claim. It found that the relief sought by Madsen was not premature and that there were no grounds to strike out the claim or the statement of claim. The court also declined to stay the proceeding, holding that Madsen’s failure to comply with statutory requirements did not warrant a stay at that stage of the proceeding. The court ordered that the parties be given leave to file submissions on the form of orders, including the form of relief to be sought, and the costs of the application.

The orders included the dismissal of the applications and the granting of leave to the parties to file submissions on the form of orders, including the form of relief to be sought, and the costs of the application. The court’s decision clarified the nature of the relief Madsen could seek and set a timeline for further submissions on the form of orders and costs.

Orders

Orders of the court

1. The applications filed 10 November 2013 and 18 February 2014 are dismissed.

2. All parties have leave to file, and serve, by 4pm on 24 March 2014 submissions on the form of orders regarding:

(a) leave to the plaintiff to amend both her Claim and Statement of Claim to replead the appropriate relief in equity;

(b) leave to the defendants to replead, consequential upon the plaintiff’s amendments in (a);

(c) subsequent to the amendments in (a) and (b), staying the proceeding until the plaintiff complies with PIPA in all appropriate respects;

(d) costs.

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.

Citations

AGLC Citation

Madsen v Pope & Anor [2014] QDC 45

Most Recent Citation

Pope v Madsen [2015] QCA 36

Cases citing this decision · 3 of 3 shown

Baioumy v Wendt
[2017] QDC 55 Para 1

…[2016] QSC 172 [25] Boulter v Batten and Suncorp General Insurance Ltd [2010] QDC 56 at [12] – [16] per Dorney QC DCJ and Madsen v Pope & Anor [2014] QDC 45 per Dorney QC DCJ.…
Pope v Madsen
[2015] QCA 36 Para 1

…r otherwise dismiss the respondent’s claim and statement of claim as not disclosing a cause of action known to Australian law: Madsen v Pope & Anor [2014] QDC 45 (the reasons).…
Madsen v Pope and Anor (No 2)
[2014] QDC 56 Para 1

…As can be seen from the Reasons in Madsen v Pope & Anor [2014] QDC 45, there was a necessity for the Court to consider some factors of a somewhat complex nature concerning the plaintiff’s underlying cause of action. With respect to that question, both defendants lost “entirely”.…

View all 3 citing cases →

Cases cited in this decision · 14 of 14 shown

Alec Finlayson Pty Ltd v Royal Freemason Benevolent Institution of New South Wales Nominees Ltd
[2013] NSWSC 1168 Para 1

…In the more recent decision of Alec Finlayson P/L v Royal Freemason Benevolent Institution of NSW Nominees Ltd [2013] NSWSC 1168 Ball J (also in the Equity Division) comprehensively re-examined the “analogous” principles. He concluded by stating that, leaving aside what might be implicit in the provision [in Queensl…
ACI Operations Pty Ltd v Tallant
[2013] NSWSC 367 Para 1

…ity it is assessed at the time the orders are to be made: see, for example, the analysis by Lindsay J in ACI Operations P/L v Tallant [2013] NSWSC 367, at [37].…
In the Matter of Auzhair Supplies Pty Ltd (in liq)
[2013] NSWSC 1 Para 1

…The second defendant has referred to In the matter of Auzhair Supplies P/L (In Liq) (2013) 272 FLR 304 in this context. First, in Auzhair Brereton J held that it would be inequitable to apply the analogous limitation period (in the particular circumstances of that case): at 330-331 [96]. Secondly, it is clear that th…
Walker-Eyre v Emirates
[2012] QDC 364 Para 1

…Accordingly, as analysed – although admittedly, obiter - by McGill SC DCJ in Walker-Eyre v Emirates [2012] QDC 364, where PIPA does apply, even though the proceeding would not be a nullity, the proceeding should be stayed until there is compliance with Part 1 of Chapter 2 of PIPA : at [54]-[56].…
Nicholls v Michael Wilson & Partners Ltd
[2012] NSWCA 383 Para 1

…is of equitable compensation engaged in by Sackville AJA, with whom Meagher and Barrett JJA agreed, in Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 which gainsays that conclusion. That is particularly so where the Dictionary to PIPA defines: not only the word “claim” as meaning a claim, however d…
Project Company No 2 Pty Ltd v Cushway Blackford and Associates Pty Ltd
[2011] QCA 102 Para 1

…In Projects Company No.2 P/L v Cushway Blackford & Associates P/L & Anor [2011] QCA 102 Muir JA, with whom White JA and Peter Lyons J agreed, referred to High Court and House of Lords decisions which outlined the following propositions: that where the law is uncertain, and especially where it is in a state of dev…
Boulter v Batten and Suncorp General Insurance Limited
[2010] QDC 56 Para 1

…While, consistently with the analysis I undertook in Boulter v Batten & Anor [2010] QDC 56, non-compliance with the pre-court requirements in PIPA does not lead to the originating process being a nullity, such an outcome does not mean that PIPA has no application where one defendant does not rely upon r 144 of t…
Aussie Ideas Pty Ltd v Tunwind Pty Ltd
[2006] NSWCA 286 Para 1

…s 10 (generally) and s 10(6)(b) of the Act: at [9]. Conversely perhaps, in 2006 the New South Wales Court of Appeal in Aussie Ideas P/L v Tunwind P/L [2006] NSWCA 286, in reliance on English Court of Appeal authority, upheld a primary judge’s conclusion that a claim for compensation for breach of fiduciary duty, in…
Webber v New South Wales
[2003] NSWSC 1263 Para 1

…rove the nature and extent of the remedies available to an aggrieved party. See, in particular, the analysis of Cubillo in Webber v New South Wales [2003] NSWSC 1263: at [40]-[44].…
Sit Simplex Stulte Pty Ltd v Carter
[2003] QSC 99 Para 1

…Helman J in Sit Simplex Stulte P/L v Carter & Ors [2003] QSC 99, in determining an interlocutory application, held that he was not satisfied that the analogy could be made for claims for equitable compensation with claims in tort, referring to both s 10 (generally) and s 10(6)(b) of the Act: at [9]. Conversely p…
Cubillo v Commonwealth
[2001] FCA 1213

…v Batten & Anor [2010] QDC 56 Breen v Williams (1996) 186 CLR 71 Cia de Serguros Imperio v Heath (REBX) Ltd & Ors [2001] 1 WLR 112 Cubillo v Commonwealth of Australia (2001) 112 FCR 455 In the matter of Auzhair Supplies P/L (In Liq) (2013) 272 FLR 304 Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 Projects Company No.2 P/L…
Breen v Williams
[1996] HCA 57 Para 1

…. It is unnecessary to engage with the Canadian decisions in this area given the approach of the High Court in Breen v Williams (1996) 186 CLR 71 which distinguished the Canadian law on fiduciary duties as being “very different” from the law of Australia with respect to this subject: for example, see Gaudron and McH…
Secretary, Department of Health and Community Services v JWB and SMB
[1992] HCA 15 Para 1

…sion, involving direct conduct by a parent, or both parents, towards a child. In Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 (“ Marion’s case ”), McHugh J held that the powers which the parent exercises on behalf of the child “are exercised in the course of a fiduciary relati…
[2001] 1 WLR 112
[2001] 1 WLR 112 Para 1

…sation, rather than damages, should be the relief sought. The English Court of Appeal in Cia de Serguros Imperio v Heath (REBX) Ltd & Ors [2001] 1 WLR 112 appeared to have accepted that the correct term is “compensation” rather than “damages” in contexts such as are applied here: see, for instance, Waller LJ, at 11…

Legislation cited in this decision · 6

Personal Injuries Proceeding Act 2002 (Qld)
6(1) 2 mentions (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
7(1) 2 mentions (from Para 1)
Civil Proceedings Act 2001 (Qld)
8 1 mention
Civil Proceedings Act 2011 (Qld)
1 mention (from Para 1)
Limitation of Actions Act 1974 (Qld)
1 mention (from Para 1)
Limitations of Actions Act 1974 (Qld)
10(6)(b) 1 mention

CITATION:	Madsen v Pope & Anor [2014] QDC 45
PARTIES:	SARA MADSEN (plaintiff) v DOUGLAS HAMILTON LOCKHART POPE (first defendant) and EVA ULRIKA KERR (second defendant)
FILE NO/S:	BD2824/13
DIVISION:	Civil
PROCEEDING:	Applications in a proceeding
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 March 2014
DELIVERED AT:	Brisbane
HEARING DATE:	21 February 2014
JUDGE:	Dorney QC DCJ
ORDERS:	1. The applications filed 10 November 2013 and 18 February 2014 are dismissed. 2. All parties have leave to file, and serve, by 4pm on 24 March 2014 submissions on the form of orders regarding: (a) leave to the plaintiff to amend both her Claim and Statement of Claim to replead the appropriate relief in equity; (b) leave to the defendants to replead, consequential upon the plaintiff’s amendments in (a); (c) *subsequent to the amendments in (a) and (b), staying the proceeding until the plaintiff complies with PIPA* in all appropriate respects; (d) costs.**
CATCHWORDS: LEGISLATION CITED: CASES CITED:	Applications in a proceeding – whether to set aside or strike out claim – whether to strike out statement of claim – whether to stay proceeding – whether relief claimed should be for equitable “compensation” rather than “damages” Uniform Civil Procedure Rules 1999, r 7(1), r 16, r 144, r144(4), r 144(5), r 144(6), r 144(7), r 171 Civil Proceedings Act 2001, s 8 Limitations of Actions Act 1974, s 10(6)(b) Personal Injuries Proceeding Act 2002, s 6(1), s 6(4), s 22(1), s 36(5)(b), s 40(2), s 56 ACI Operations P/L v Tallant [2013] NSWSC 367 Alec Finlayson P/L v Royal Freemason Benevolent Institution of NSW Nominees Ltd [2013] NSWSC 1168 Aussie Ideas P/L v Tunwind P/L [2006] NSWCA 286 Barbagallo v J & F Catelan P/L [1986] 1 Qd R 245 Boulter v Batten & Anor [2010] QDC 56 Breen v Williams (1996) 186 CLR 71 Cia de Serguros Imperio v Heath (REBX) Ltd & Ors [2001] 1 WLR 112 Cubillo v Commonwealth of Australia (2001) 112 FCR 455 In the matter of Auzhair Supplies P/L (In Liq) (2013) 272 FLR 304 Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 Projects Company No.2 P/L v Cushway Blackford & Associates P/L & Anor [2011] QCA 102 SB v State of New South Wales (2004) 13 VR 527 Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 (Marion’s Case) Sit Simplex Stulte P/L v Carter & Ors [2003] QSC 99 Walker-Eyre v Emirates [2012] QDC 364 Webber v New South Wales [2003] NSWSC 1263 Woodhead v Elbourne [2001] 1 Qd R 220
COUNSEL:	S Gray for the plaintiff A Ehlers for the first defendant L Willson for the second defendant
SOLICITORS:	Hatzis Lawyers for the plaintiff Kerwin Solicitors for the first defendant Potts Lawyers for the second defendant