Mokrzecki v Popham

Case [2013] QSC 123

SUPREME COURT OF QUEENSLAND

CITATION:

Mokrzecki v Popham & Ors [2013] QSC 123

PARTIES:

STEVE RICHARD MOKRZECKI
(plaintiff)
v
TROY POPHAM
(first defendant)
and
PICKARD ASSOCIATES (a firm)
(second defendant)
and
PICKARDS BDS (a firm)
(third defendant)
and
MOORE STEPHENS (QLD) PTY LTD
ACN 126 220 595
(fourth defendant)

FILE NO/S:

BS 13466 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

13 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2013

JUDGE:

Philip McMurdo J

ORDER:

1.   Paragraphs 35, 36, 38(b), 39, 54, 55, 57(b) and 58 of the third further amended statement of claim filed on 5 November 2012 take effect on and from 22 May 2012.

2.   The application is otherwise refused.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – DEFAULT OF PLEADINGS – where defendants bring application to strike-out paragraphs of plaintiff’s amended statement of claim because the limitation period has expired – where defendants bring alternative application to have those paragraphs take effect from certain date – where it is not clear whether limitation period has expired – whether application should be granted – whether the statement of claim discloses new causes of action – whether the new causes of action in the statement of claim arise out of the same or substantially the same facts as a cause of action already claimed

LIMITATION OF ACTIONS – AMENDMENT OF ORIGINATING PROCESSES AND PLEADINGS OUTSIDE LIMITATION PERIOD – GENERALLY – where plaintiff amended statement of claim – where defendant brings application to strike-out or have amendments take effect from certain date – where it is unclear whether limitation period has expired – where it is difficult for court to fairly determine whether limitation period has expired – whether application should be granted – whether the statement of claim discloses new causes of action – whether the new causes of action in the statement of claim arise out of the same or substantially the same facts as a cause of action already claimed

Australian Securities and Investments Commission Act 2001 (Cth), rr 375, 276, 377, 378, 379, 387
Civil Proceedings Act 2011 (Qld), s 16
Limitation of Actions Act1974 (Qld)

Air Link Pty Limited v Malcolm Ian Paterson (No 2) (2003) 58 NSWLR 388, cited
Cousins Securities Pty Ltd v CEC Group Ltd [2007] 2 Qd R 520, cited
Drane v Barry [2002] 1 Qd R 145, applied
Henry & Henry v Calamvale Estates Pty Ltd [1997] QSC 200, cited
Middleton v O’Neill (1943) 43 SR (NSW) 178 , cited
Fibreglass Pool Works (Manufacturing) Pty Ltd v ICI Australia Pty Ltd [1998] 1 Qd R 149, cited
Tomasetti v Brailey [2012] NSWCA 399, considered
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, cited
Westpac Banking Corporation v Hughes [2012] 1 Qd R 581, considered

COUNSEL:

K E Downes SC with A Stumer for the plaintiff
H L Blattman for the defendants

SOLICITORS:

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Details
AGLC
Mokrzecki v Popham [2013] QSC 123
Case
[2013] QSC 123
Decision Date

CaseChat Overview and Summary

In the matter of Mokrzecki v Popham, the defendants applied to strike out specific paragraphs of the plaintiff's amended statement of claim, asserting that the limitation period had expired. The application was brought before the Supreme Court of Queensland, which was required to determine whether the application should proceed, given the uncertainty around the limitation period, and whether the amended statement of claim disclosed new causes of action.

The primary legal issues before the court were whether the application to strike out should be granted due to the uncertainty surrounding the limitation period, and whether the amended statement of claim introduced new causes of action that arose out of the same or substantially the same facts as the existing claims. The court needed to balance the principles of procedural fairness and the necessity to protect against stale claims.

The court held that while it was difficult to determine whether the limitation period had expired, the application should not be granted as it would not be fair to strike out the paragraphs without a clear resolution on the limitation period. The court also found that the amended statement of claim did not disclose new causes of action but rather related to the same or substantially the same facts as those already claimed. Consequently, certain paragraphs were allowed to take effect from a specified date, and the application was otherwise refused.

The final orders specified that particular paragraphs of the third further amended statement of claim would take effect from 22 May 2012, while the application to strike out was otherwise refused. This decision ensured that the plaintiff's claims were not unfairly dismissed due to procedural uncertainties and that the court maintained a balance between procedural fairness and the protection against stale claims.

Orders

Orders of the court

1. Paragraphs 35, 36, 38(b), 39, 54, 55, 57(b) and 58 of the third further amended statement of claim filed on 5 November 2012 take effect on and from 22 May 2012.

2. The application is otherwise refused.

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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