McEwan v Mactaggart

Case [2022] QSC 258


SUPREME COURT OF QUEENSLAND

CITATION:

McEwan v Mactaggart [2022] QSC 258

PARTIES:

JULIE McEWAN

(plaintiff)

v

JOHN DUGALD MACTAGGART
(first defendant)
and
ALAN JAMES MONAGHAN
(second defendant)
and
FREDERICK RICHARD HOULT
(third defendant)

FILE NO/S:

BS 6627 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2022

JUDGE:

Martin SJA

ORDER:

1.   The plaintiff’s application to file a new claim and statement of claim is dismissed.

2.   The defendants’ applications are dismissed.

3.   I will hear the parties on costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – where the plaintiff’s claim and amended statement of claim have been struck out – where the plaintiff was given leave to replead on the basis that the plaintiff serve the defendants with an amended claim and statement of claim, and if the defendants to not consent to its filing, the plaintiff bring an application seeking leave to file – where the plaintiff now brings an application for leave to file an amended statement of claim – where the plaintiff has not pleaded that she suffered any loss or damage – whether the statement of claim complies with the pleading rules – whether leave should be given to file the statement of claim

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – STAY OF PROCEEDINGS – where the defendants have applied for a stay of the proceedings pursuant to r 16(g) UCPR – where the claim and statement of claim have previously been struck out – whether there is any proceeding on foot which can be stayed

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY OF DOCUMENTS – UNDERTAKINGS AND USE OF DOCUMENTS – where the plaintiff has indicated that she intends to use certain documents – where the plaintiff could only have obtained those documents through the disclosure process in other proceedings – whether the plaintiff has breached the Harman undertaking

Bankruptcy Act 1966, s 58
Uniform Civil Procedure Rules 1999, r 293

Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (No 2) [1991] 2 VR 636

Australian Liquor, Hospitality and Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) 114 IR 165, [2002] FCA 528
Ballard v Multiplex Ltd (2008) 68 ACSR 208
Coomera Resort Pty Ltd v Kolback Securities Ltd [2004] 1 Qd R 1
Cox v Journeaux (No 2) (1935) 52 CLR 713
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Larkin v Long
[1915] AC 814
Lee v Abedian [2017] 1 Qd R 549
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409
McKernan v Fraser

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Details
AGLC
McEwan v Mactaggart [2022] QSC 258
Case
[2022] QSC 258
Decision Date

CaseChat Overview and Summary

The case of McEwan v Mactaggart involved the plaintiff seeking to amend her statement of claim after it was previously struck out. The plaintiff was granted leave to replead on the condition that she serve the defendants with an amended claim and statement of claim and, if the defendants did not consent to its filing, the plaintiff was to bring an application seeking leave to file. The plaintiff subsequently brought an application for leave to file an amended statement of claim. The defendants opposed the plaintiff's application and applied for a stay of the proceedings pursuant to r 16(g) UCPR. The plaintiff also indicated that she intended to use certain documents in her new statement of claim, which she could only have obtained through the disclosure process in other proceedings. The court was required to determine whether the plaintiff's new statement of claim complied with the pleading rules, whether leave should be granted to file the amended statement of claim, and whether there was a proceeding on foot which could be stayed. Additionally, the court needed to decide whether the plaintiff had breached the Harman undertaking by using documents obtained through the disclosure process in other proceedings.

The court found that the plaintiff's new statement of claim did not comply with the pleading rules as it did not plead that she suffered any loss or damage. The court held that the plaintiff had not provided any evidence of loss or damage and therefore the claim was not sufficiently particularised. The court also held that there was no proceeding on foot which could be stayed as the previous claim and statement of claim had been struck out. The court further held that the plaintiff had breached the Harman undertaking by using documents obtained through the disclosure process in other proceedings. The court found that the plaintiff had not taken reasonable steps to obtain the documents from the defendants and had instead relied on the disclosure process in other proceedings. The court held that this was a breach of the Harman undertaking and that the plaintiff was not entitled to use the documents in her new statement of claim.

The plaintiff's application to file a new claim and statement of claim was dismissed. The defendants' applications were also dismissed. The court will hear the parties on costs. This case highlights the importance of complying with pleading rules and the Harman undertaking in civil proceedings. The court emphasised the need for parties to provide particularised claims and to take reasonable steps to obtain documents from the other party rather than relying on disclosure in other proceedings. The court also emphasised the importance of ensuring that there is a proceeding on foot which can be stayed before applying for a stay of proceedings.

No further orders.

Orders

Orders of the court

1. The plaintiff’s application to file a new claim and statement of claim is dismissed.

2. The defendants’ applications are dismissed.

3. I will hear the parties on 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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