McEwan v Merrin (Magistrate) - [2023] QSC 6

SUPREME COURT OF QUEENSLAND

CITATION:

McEwan v Merrin (Magistrate) & Ors [2023] QSC 6

PARTIES:

JULIE McEWAN

(plaintiff)

v
MAGISTRATE BELINDA MERRIN

(first defendant)

AND

STATE OF QUEENSLAND
(second defendant)

AND

CHIEF MAGISTRATE JANELLE BRASSINGTON

(third defendant)

AND

MAGISTRATE PETER SAGGERS

(fourth defendant)

AND

SUPREME COURT JUSTICE DAVID BODDICE

(fifth defendant)

FILE NO/S:

BS 450/2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

20 January 2023

DELIVERED AT:

Brisbane

HEARING DATE:

17 January 2023

JUDGE:

Brown J

ORDER:

The orders of the Court are that:

1. Leave to issue the claim and statement of claim is refused;

2. No orders as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – GENERALLY – where the plaintiff’s claim and statement of claim was referred to the applications’ Judge pursuant to r 15 of the Uniform Civil Procedure Rules 1999 (Qld) – where the Court directed the Registrar to refuse to file the originating process without leave of the Court – where the plaintiff applied for leave to issue a claim and statement of claim - whether the statement of claim discloses a cause of action identified in the claim

Uniform Civil Procedure Rules 1999 (Qld) r 15

Equititrust Limited v Tucker and Others [2019] QSC 51, considered
Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65, considered
Walter v Premier of Queensland [2018] QSC 237, considered

COUNSEL:

The plaintiff appeared on her own behalf

K L Pitman for the first, third and fourth defendants

SOLICITORS:

The plaintiff acted on her own behalf

K L Pitman for the first, third and fourth defendants

This is an application for leave to issue a claim and statement of claim by the plaintiff which she purported to file on 12 January 2023. On 19 January 2023 I made orders refusing leave and making no order as to costs and stated I would publish my reasons on 20 January 2023.
The plaintiff’s claim and statement of claim was referred to the applications’ Judge pursuant to r 15 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) and Justice Williams subsequently directed the Registrar to refuse to file the originating process without leave of the Court.
The plaintiff has filed an extensive pleading against a number of Magistrates, the Chief Magistrate and a Judge of this court as well as the State of Queensland claiming damages from each of the defendants for misfeasance in public office.
The plaintiff provided submissions to the court which were in two parts. The first part alleged that there was an abuse of process at the Court Registry when the court refused filing and misused r 15 of the UCPR which was continued when the matter was referred to Justice Williams, who ordered that the originating process not be issued without leave of the court. According to the plaintiff the power under r 15 of the UCPR was misused because the proceedings…

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 McEwan v Merrin (Magistrate)

Details

AGLC: McEwan v Merrin (Magistrate) [2023] QSC 6
Case: [2023] QSC 6
Decision Date: 20 January 2023

CaseChat Overview and Summary

The case of McEwan v Merrin, adjudicated by a Magistrate, involved a dispute where the plaintiff sought to issue a claim and statement of claim. However, the claim and statement were referred to the applications’ Judge pursuant to Rule 15 of the Uniform Civil Procedure Rules 1999 (Qld). The Court directed the Registrar to refuse to file the originating process without leave from the Court, prompting the plaintiff to apply for leave to issue the claim and statement of claim. The central legal issue was whether the statement of claim disclosed a cause of action as identified in the claim.

The court examined the plaintiff's application to determine if the statement of claim met the necessary legal standards. It found that the statement did not sufficiently disclose a cause of action, thereby failing to meet the requirements set forth in the Uniform Civil Procedure Rules. The court's reasoning was that the claim lacked the clarity and specificity needed to proceed with the case. Consequently, the application for leave was dismissed, and no leave was granted to issue the claim and statement of claim. The court made it clear that this decision did not prevent the plaintiff from refiling a properly formatted claim and statement of claim in the future.

The court made no order as to costs, and the appearance of Mr Pitman, representing the first, third, and fourth defendants, was noted as being out of courtesy to the court rather than a requirement for the proceedings. The final orders were that leave to issue the claim and statement of claim was refused, and no orders as to costs were made.

Orders

Orders of the court

The orders of the Court are that:

1. Leave to issue the claim and statement of claim is refused;

2. No orders as to 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

The present determination does not preclude the plaintiff in the future from seeking to file a claim and statement of claim in a proper form.Conclusion Leave is refused and the application is dismissed. There should be no order as to costs. Although Mr Pitman of Crown Law appeared at the proceeding on behalf of the first, third and fourth defendants having been served with the originating application, he indicated he did so out of courtesy to the court. As it was an application for leave to issue the originating process his attendance was not required.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McEwan v Merrin (Magistrate) & Ors [2023] QSC 6
PARTIES:	JULIE McEWAN (plaintiff) v MAGISTRATE BELINDA MERRIN (first defendant) AND STATE OF QUEENSLAND (second defendant) AND CHIEF MAGISTRATE JANELLE BRASSINGTON (third defendant) AND MAGISTRATE PETER SAGGERS (fourth defendant) AND SUPREME COURT JUSTICE DAVID BODDICE (fifth defendant)
FILE NO/S:	BS 450/2023
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	20 January 2023
DELIVERED AT:	Brisbane
HEARING DATE:	17 January 2023
JUDGE:	Brown J
ORDER:	The orders of the Court are that: 1. Leave to issue the claim and statement of claim is refused; 2. No orders as to costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – GENERALLY – where the plaintiff’s claim and statement of claim was referred to the applications’ Judge pursuant to r 15 of the Uniform Civil Procedure Rules 1999 (Qld) – where the Court directed the Registrar to refuse to file the originating process without leave of the Court – where the plaintiff applied for leave to issue a claim and statement of claim - whether the statement of claim discloses a cause of action identified in the claim Uniform Civil Procedure Rules 1999 (Qld) r 15 Equititrust Limited v Tucker and Others [2019] QSC 51, considered Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65, considered Walter v Premier of Queensland [2018] QSC 237, considered
COUNSEL:	The plaintiff appeared on her own behalf K L Pitman for the first, third and fourth defendants
SOLICITORS:	The plaintiff acted on her own behalf K L Pitman for the first, third and fourth defendants