Maguire v Queensland Racing Ltd
[2013] QCA 60
•26 March 2013
SUPREME COURT OF QUEENSLAND
CITATION:
Maguire v Queensland Racing Ltd [2013] QCA 60
PARTIES:
JOHN PATRICK MAGUIRE
(applicant)
v
QUEENSLAND RACING LIMITED
ACN 142 786 874
(respondent)FILE NO/S:
Appeal No 9038 of 2012
SC No 8110 of 2007DIVISION:
Court of Appeal
PROCEEDING:
Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
26 March 2013
DELIVERED AT:
Brisbane
HEARING DATE:
14 March 2013
JUDGES:
Muir JA and Margaret Wilson and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
That the application for an extension of time within which to appeal be refused with costs.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the applicant claimed damages for losses incurred due to the alleged negligence of the respondent in its management of licensed trainers and handlers – where the applicant amended his original statement of claim seven times – where the statement of claim failed to comply with the Uniform Civil Procedure Rules 1999 (Qld) – where the applicant pleaded evidence rather than material facts – where the applicant failed to plead an identifiable cause of action – where the primary judge gave summary judgment for the respondent and dismissed an application seeking an order for directions and costs made by the applicant – where the applicant seeks an extension of time within which to appeal against those orders – whether an extension of time should be granted
Limitation of Actions Act 1974 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 293COUNSEL:
The applicant appeared on his own behalf
A Harding for the respondentSOLICITORS:
The applicant appeared on his own behalf
Cockburn Legal for the respondent
MUIR JA: Introduction On 20 August 2012, the primary judge, after the hearing of a summary judgment application brought by the respondent under r 293 of the Uniform Civil Procedure Rules 1999 (Qld), ordered that judgment in the proceeding be entered for the respondent against the applicant. She also ordered that an application made by the applicant on 6 June 2012 be dismissed. The applicant, who did not appeal within time, applies for an extension of time within which to appeal against those orders.
Since the filing of the first statement of claim on 14 September 2007, there have been seven further versions. The statement of claim current at the time of filing the summary judgment application on 8 May 2012 was one filed on 3 February 2012. Another amended statement of claim was filed on 13 July 2012. The primary judge noted that the amendments to the 3 February 2012 document made by the one filed 13 July 2012 were not substantial. I shall refer to the 13 July 2012 document as the “statement of claim”.
Analysis of the “amended statement of claim” filed 13 July 2012
Paragraph 1 introduces the applicant, identifying him as a married man and giving his age at the time of the statement of claim and at the time of filing his claim on 14 September 2007. Paragraph 2 alleges that the respondent “is and was at all relevant times the controlling body of greyhound racing in Queensland”.
Paragraphs 3–8 inclusive and paragraphs 16 and 17 contain allegations concerning a Mr Mortimer. The substance of these allegations is as follows. In 1996 and 1997, Mr Mortimer prompted the applicant to buy a greyhound for Mr Mortimer to train. The applicant purchased a greyhound and had some discussion with Mr Mortimer about it. Other persons bought an interest in the dog.
Mr Darrin Maguire, the son of the applicant’s first cousin, had conversations with Mr Mortimer and others concerning the dog. Eventually, a number of identified people asked Mr Mortimer if he was going to train the dog and Mr Mortimer said he would. Mr Mortimer was a trainer licensed by the respondent. When the dog was ready to be trained the applicant telephoned Mr Mortimer who said, “I don’t have any room”. The applicant alleged that Mr Mortimer’s “bogus statements, and remarks [are] not the conduct of a person licensed by [the respondent]”.
In paragraphs 16 and 17 it is alleged that the applicant informed one of the respondent’s stewards “about the bogus statements and remarks” of Mr Mortimer. The applicant further contended that the respondent breached its duty of care and was negligent in failing to call Mr Mortimer before it “to show cause why his licence should not be revoked for his bogus statements and remarks”.
For convenience, I will refer in future to a failure to call on a person to show cause as to why his or her licence should not be revoked as calling on a person “to show cause”.
Paragraphs 9–15 inclusive concern another licensed trainer, Mr Dull. It is alleged that two dogs were purchased in 1998 and taken, in 1999, to Mr Dull for rearing and training. When, in 1999, it came time for one of the dogs to be broken in, Mr Dull instructed the applicant to take her to “Biddles” to be broken in. Mr Dull’s conduct was “not what is expected of a [licensed] trainer”. The applicant informed the steward about Mr Dull’s “misconduct”. The steward told the applicant to “take [his] dogs off” Mr Dull immediately. The respondent allegedly breached its duty of care and was negligent in failing to call Mr Dull before it to show cause. No disciplinary action was taken.
Paragraphs 18–21 inclusive concern a licensed “handler”, Ms Harradene. When the applicant went to pick up the two dogs purchased in 1998, Ms Harradene said to him, “[Y]ou’ve got a name in the industry”. There were two witnesses to “this slanderous remark”. Ms Harradene’s conduct was “not what is expected of a [licensed] person”.
The applicant alleged that the respondent was in breach of its duty of care and negligent in failing to call on Ms Harradene to show cause “for slandering [the applicant’s] name”. No disciplinary action was taken.
Paragraph 22 purports to record a conversation between the applicant and another steward concerning the applicant’s good name.
Paragraphs 23–31 inclusive concern another licensed trainer, Ms Green. Ms Green was given the two dogs purchased by the applicant in 1998 to rear, break-in and train on the recommendation of another person. The applicant saw the dogs once a month. He went to see the respondent to air unspecified concerns about unidentified conflicting reports by Ms Green. The respondent arranged for a meeting to be held with Ms Green. Ms Green cancelled the meeting and, negligently and in breach of duty, the respondent failed to call on Ms Green to show cause. No disciplinary action was taken. The applicant retrieved the dogs.
Paragraphs 32–39 inclusive relate to another trainer, Mr Sander, and also to Ms Green. They allege that when one of the dogs retrieved from Ms Green was being trained by Mr Sander, from late 1999 or early 2000, it failed to “chase the drag lure” and instead, before meandering up to the applicant’s wife, it “relieved [itself] on [the] track fence”. The applicant’s wife had some discussions with other persons present about the breaking-in of the dog. The respondent was in breach of duty and negligent in failing to call on Ms Green to show cause. No disciplinary action was taken against Ms Green.
Paragraphs 40–45 inclusive concern the conduct of Mr Sander. When trained by Mr Sander, one of the dogs behaved in a way in which he had never behaved before. The stewards did not ask the applicant why the dog behaved in that manner and the respondent breached its duty of care and was negligent in that regard. The breach of duty and negligence occurred after the applicant had raised with the respondent his problems with Mr Mortimer, Mr Dull, Ms Harradene and Ms Green. Furthermore, Mr Sander failed to treat the dog in a humane manner. The respondent breached its duty of care and was negligent in failing to call on Mr Sander to show cause.
Paragraphs 46–50 inclusive concern the history of the dogs after their removal from Mr Sander. At the suggestion of the applicant’s mother, the dogs were placed for training with Mr Evans who “used to go out with [the applicant’s] sister in the 1960’s”. Mr Evans reported to the applicant that he “had never seen a dog in such a mess”. The applicant told Mr Evans that he was going to sue the respondent. Mr Evans begged him not to.
Paragraphs 52–56 inclusive relate to Mr Fall’s handling of four other young dogs of the applicants in mid-2004. He was a licensed trainer who specialised in teaching young greyhound dogs to chase “the mechanical lure”.
In December 2004 or January 2005, the applicant observed that the dogs, when racing at Ipswich, had “no idea about what chasing the mechanical lure was about”. He was also concerned about the dogs’ condition.
Mr Fall did not educate the dogs “in the desired manner” or treat them “in a humane manner”. The respondent thus breached its duty of care and was negligent.
Paragraphs 56–61 inclusive make the following allegations. In January 2005, the applicant took the dogs from Mr Fall and gave them to a licensed trainer, Mr Caden. Mr Caden and the applicant had discussions about the dogs. Mr Caden’s mother made a remark about them. Mr Caden said something to his mother and the applicant deduced from what was said that Mr Fall did not “educate and break-in [the] dogs in the desired manner”. This showed a breach of duty and negligence. On 26 October 2005, the dogs were found to have “mange” and one of the dogs was found not to be able to use her back leg in a proper manner. Those matters were evidence of a breach of duty of care and negligence on the part of the respondent.
In late August 2007, a veterinarian told the applicant that one of his dogs “had a trauma to [his] leg”. This injury was caused by the respondent being in breach of its duty of care to the applicant and the applicant’s dogs.
I will quote paragraph 61 in full:
“[The respondent] who [is] the controlling body of racing in Queensland breached [its] duty of care and [was] negligent in not taking disciplinary action against trainer Dale Mortimer, trainer Barry Dull, Barry Dull’s female partner handler Kay Harradene and trainer Wendy Green. This sent a clear message to trainer Col Sander and trainer Ricky Fall not to break-in, train and treat [the applicant’s] dogs in a humane manner causing [the applicant] much stress and financial loss.”
The pleading then concludes as follows:
“The [applicant] claims the following relief:
[The applicant] John Maguire borrowed $57,000 on [the applicant’s] home from Heritage Building Society A/C no: 9478639s54 in 2004 for the rearing, breaking-in and training of [applicant] John Maguire’s dogs.
flea Treatment for Jasper, Bruiser, Milly and Molly $80 a month x 12 months= $960 x 8 years
=$7,680.00
Yearly vaccinations for Jasper, Bruiser, Milly and Molly = $40 x 4 dogs = $160 x 8 years
= $1,280
Special Permit and Registration
Ipswich City Council = $330 a year x 8 years= $2,640
Veterinary Bills over 8 years Jasper = $1,194.37
Bruise[r] = $ 450.40
Molly = $ 596.55
Milly = $ 37.77
Everyday expenses for Jasper, Bruiser, Molly, Milly = $8 a day x 4 dogs = $32 x 30 days
= $2,279.00
= $960 a month x 12 months
= $11,520 a year x 8 years
= $92,160
Loan on House
= $57,000
TOTAL
= $163,039.00
= $236,961.00
TOTAL
= $400,000.00
$236,961 is for the irreparable damage to [the applicant’s] dogs and the bogus statements and remarks, misconduct, slander of [the applicant’s] name and the taking of money under false pretences, and [the applicant’s] dogs not being treated in a humane manner caused by a breach of duty of care and negligence by [the respondent] who [is] the controlling body of racing in Queensland.”
The claim
The claim, in its current form, is as follows:
“The [applicant] claims: [The respondent] who [is] the controlling body of racing in Queensland breached [its] duty of care and [was] negligent in that [it] took no disciplinary action what so ever against these licensed trainers and handler: trainer Dale Mortimer bogus statements and remarks, misconduct, trainer Barry Dull misconduct and Dull’s female partner handler Kay Harradene who slandered [the applicant’s] name. Trainer Wendy Green failed to educate ‘Ace’ ‘Highfall’ in the desired manner and the taking of money under false pretences and misconduct. [The respondent’s] non-disciplinary action of Mortimer, Dull, Dull’s female partner Kay Harradene and Wendy Green sent a clear message to Sander and Fall not to break-in, train or treat [the applicant’s] dogs in a humane manner refer to DVD evidence. [The respondent] also failed to take all reasonable steps and breached [its] duty of care and [was] negligent in that [it] did not make sure the [applicant] as an owner was treated in a cordial manner and ensure [the applicant’s] dogs were broken in, trained and treated in a humane manner refer to DVD evidence which caused [the applicant] much stress and financial loss. [The applicant] is claiming $400,000 in irreparable damage to [the applicant’s] dogs and the financial loss to [the applicant] due to the no duty of care and negligence of [the respondent] who is the controlling body of racing in Queensland.”
Consideration
The above summary fails to reveal the full extent to which the statement of claim fails to comply with the Uniform Civil Procedure Rules. Much of what is pleaded is of the nature of evidence rather than material facts and much of it is of dubious relevance. It is hard, if not impossible, to ascertain what is relevant and admissible having regard to the absence of an identifiable cause of action.
The pleading proceeds on the assumption that the respondent owed the applicant a duty of care, which it breached by its failure to call on a licensed trainer to show cause in each of the circumstances revealed in the groups of allegations to which I have referred. The content of the respondent’s duty and the material facts giving rise to it are nowhere identified. It is assumed that it had relevant unspecified duties because it was “the controlling body of racing in Queensland”, and it is alleged that it breached those unspecified duties by its failure to call on the various licensed trainers to show cause for their allegedly wrongful conduct. Further, it is assumed that each of the various licensed trainers breached some obligation, rule or law which made the trainer amenable to discipline by the respondent. For all one can tell from the pleading, Mr Mortimer may have had no legal obligation to train the dogs and a perfectly good reason for not having room to train them.
The allegations against Mr Dull are even vaguer. There is no allegation of a breach by Mr Dull of any obligation, merely the statement that Mr Dull asked the applicant to pick up a dog and take her somewhere else to be broken-in.
As for the allegations against Ms Harradene, no material fact is pleaded which shows that the respondent had some obligation, statutory or otherwise, to discipline licensed handlers for making ambiguous statements which may or may not be defamatory depending on the meaning of what was said and any imputations the subject words might bear.
It is also assumed by the statement of claim that the acts or omissions upon which the applicant relies, give rise to a power on the part of the respondent to revoke a trainer’s or handler’s licence for:
· making “bogus statements and remarks” (Mortimer);
· requesting that a dog placed with him be trained by someone else (Dull);
· making remarks concerning a greyhound owner which are arguably derogatory (Harradene);
· giving an owner “conflicting reports”; failing to attend a meeting with officers of the respondent; and having previously trained a dog which, when being trained by another trainer, failed on one occasion to chase a drag lure (Green);
· failing to treat a dog in a humane fashion in an unspecified way at an unspecified time (Sander); and
· failing to educate dogs in “the desired manner” and to treat them in a humane manner (Fall).
The pleading culminates in the allegations about two injured and infected dogs. However, the injuries and infections occurred long after the dogs were placed with Mr Caden and nothing is pleaded about the cause of the injuries or infections. The pleading is silent as to any linkage between the injuries and infections and the respondent or the respondent’s duties.
Paragraph 61 appears to allege, in effect, that if the respondent had acted properly it would have taken disciplinary action against Mr Mortimer, Mr Dull, Ms Harradene and Ms Green. That action would have caused Mr Sander and Mr Fall “not to break-in, train and treat [the applicant’s] dogs in a humane (sic) manner” and, in consequence, the applicant would not have suffered stress and financial loss.
The allegation does not serve to plead a cause of action as no duty or breach of duty emerges from the pleading in respect of Mr Mortimer, Mr Dull, Ms Harradene, and Ms Green. The pleading is also deficient in failing to allege that the respondent was made aware of whatever transgressions on the part of Ms Green or Mr Sander should have led to the giving of a show cause notice. Nor does the pleading contain material facts from which it could be inferred that if Mr Mortimer, Mr Dull and Ms Harradene had been dealt with for their alleged acts or omissions (which had nothing to do with incompetent training or maltreatment of dogs) the alleged misconduct of Mr Sander and Mr Fall would probably have been avoided.
The pleading of damages, and the pleading generally, fails to explain how, if at all, the damages claimed were caused by any pleaded conduct, let alone any actionable conduct. It will be noticed that damages are claimed in respect of an eight year period, which appears to encompass the allegations against Mr Mortimer, Mr Dull, Ms Harradene and Ms Green.
The proceeding was commenced in September 2007. At least two versions of the statement of claim were struck out. The above discussion shows that the applicant has yet to come close to pleading a case which complies with the Uniform Civil Procedure Rules and which identifies issues which the respondent could properly be called upon to meet. It was plainly open to the primary judge to strike out the claim and statement of claim. In my view, this is a clear case in which to continue the proceeding would be to subject the respondent to continuing vexatious and oppressive conduct without any reasonable prospect of the applicant being able to present an arguable case.
The primary judge chose to give summary judgment. That course was open to her. It was plain from the pleading, and the meagre evidence relied on by the applicant, that the applicant had “no real prospect of succeeding on all or a part of [the applicant’s] claim … [and that] there [was] no need for a trial of the claim or the part of the claim”.[1]
[1]Uniform Civil Procedure Rules, r 293.
Although I am not entirely satisfied that all of the primary judge’s criticisms of the applicant’s case were well founded, her Honour’s central conclusions, that no complete cause of action had been pleaded and that no damages flow from any of the respondent’s alleged wrongful conduct, justify the orders made.
The applicant relied on two written outlines of submissions and also made oral submissions. The written material and the oral submissions, to a lesser extent, criticised aspects of the primary judge’s reasons. Both the oral and written submissions made factual assertions not supported by the evidence. Neither addressed the deficiencies in the applicant’s case identified above. It may be that the primary judge’s findings on the application of the Limitation of Actions Act 1974 (Qld) failed to appreciate the aspect of the applicant’s case referred to in paragraph [30] hereof. Her Honour, however, recognised that limitation periods would provide only a partial answer to the applicant’s claims and her decision was not dependent on the existence of any limitation period defence.
As is apparent from the foregoing, the applicant’s appeal, should an extension of time be granted, would have no prospects of success. Accordingly, I would order that the application for an extension of time within which to appeal be refused with costs.
MARGARET WILSON J: I agree with the order proposed by Muir JA and with his Honour’s reasons for judgment.
DOUGLAS J: I agree with the reasons for judgment of Justice Muir and with the order proposed by his Honour.
0
0
2