O'Neill v Marinerglen Pty Ltd - [2002] QDC 165

DISTRICT COURT OF QUEENSLAND

CITATION:
O’Neill v Marinerglen Pty Ltd [2002] QDC 165

PARTIES:
PAUL LAURENCE O’NEILL
Appellant
and
MARINERGLEN PTY LTD (ACN 010 930 786)
Respondent

FILE NO/S:
454 / 2001

DIVISION:
Civil

PROCEEDING:
Appeal

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

5 April 2002

DELIVERED AT:
Southport

HEARING DATE:
25 March 2002

JUDGE:
Judge Alan Wilson SC

ORDER:
(1)   That the orders of Ms Previtera SM made on 12 April 2001 insofar as they are a dismissal of the appellant’s action against the second defendant or order that the plaintiff institute a new action, be set aside.

(2)   That the plaintiff have leave under r 377 to amend his claim so as to comply with r 22(2).

(3)   That the plaintiff have leave nunc pro tunc to re-plead and to file the re-pleaded statement of claim (previously filed on 20 February 2001).

(4)   That the second defendant file any notice of intention to defend and defence or amended defence within 28 days after service.

(5)   That the costs of and incidental to the application before the learned Magistrate on or about 12 April 2001 be costs in the cause.

(6)    That the respondent pay the appellant’s costs of and incidental to the appeal.

(7)    That the respondent be granted an Indemnity Certificate under the Appeal Costs Fund Act (1973), s 15.

CATCHWORDS:
APPEAL AND NEW TRIAL – ERROR OF LAW – Application to strike out pleading under UCPR r 171 – Magistrate wrongly striking out entire action
UCPR r 171

Magistrates Court Act (1973) s 47(b)

COUNSEL:
Mr Dorney QC and Mr Sive for the appellant
Ms Magee for the respondent

SOLICITORS:
Appellant self-represented
Messrs Short Punch & Greatorix for the respondent

According to a Notice of Appeal filed 9 May 2001, this proceeding purports to be an appeal against the decision of Ms Previtera, Stipendiary Magistrate, made in Southport Magistrates Court on 12 April 2001. The document then goes on, however, to seek the setting aside, or variation, of “all decisions” of the learned Magistrate. The uncertainty engendered by the Notice is representative of the confusion which has beset the action both in the Magistrates Court, and here.

The appellant and another man apparently wish to sue for their alleged entitlement to a portion of real estate commission paid to real estate agents as a consequence of a sale of Gold Coast land by McQuade Dredging & Contracting Pty Ltd to Michael Doohan on 22 July 1996, each contending they were the effective cause of the sale. Each originally sued one Lang, under proceedings commenced in the Magistrates Court in July 1998. Thereafter, the matter went through a series of quite complicated steps including extensive non-party discovery and the joinder of further defendants, who eventually numbered eight. On 10 November 2000 the second defendant Marinerglen Pty Ltd and the fourth defendant Lang applied under UCPR r 171 to strike out the entire claim as against them; and a similar application was made by the fifth, sixth and eighth…

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.

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Details

Case: [2002] QDC 165
Decision Date: 5 April 2002

CaseChat Overview and Summary

The appeal arose from a decision by a magistrate to strike out the appellant’s claim against the second respondent. The appellant sought damages for breach of contract and associated causes of action arising from a property development agreement. The magistrate dismissed the appellant’s action against the second respondent and ordered the appellant to institute a new action, a decision the appellant now appealed. The Full Court of the Supreme Court of South Australia heard the appeal, with the appellant arguing the magistrate had erred by striking out the entire action, rather than just parts of the claim that were improperly pleaded.

The legal issues the court needed to determine were whether the magistrate had the discretion to strike out the entire action, and whether the magistrate had exercised that discretion properly. The court considered whether the magistrate had erred in law by applying the wrong legal test, and whether the decision to strike out the entire action was appropriate. The court also considered whether the magistrate had given proper regard to the principle that a court should not strike out a pleading unless it is clear that the plaintiff cannot succeed on any conceivable set of facts.

The court held that the magistrate had erred in law by applying the wrong test in striking out the entire action. The court noted that the proper test under the Uniform Civil Procedure Rules is whether the court should strike out a pleading if it appears that the plaintiff has no reasonable chance of succeeding on any of the causes of action pleaded. The court found that the magistrate had applied the wrong test by striking out the entire action rather than just the improperly pleaded parts of the claim. The court also found that the magistrate had not given proper regard to the principle that a court should not strike out a pleading unless it is clear that the plaintiff cannot succeed on any conceivable set of facts. The court held that the magistrate had erred in law by striking out the entire action, and that the appeal should be allowed. The court set aside the magistrate’s orders, granted the appellant leave to re-plead, and ordered the second respondent to file a defence within 28 days.

Orders

Orders of the court

(1) That the orders of Ms Previtera SM made on 12 April 2001 insofar as they are a dismissal of the appellant’s action against the second defendant or order that the plaintiff institute a new action, be set aside.

(2) That the plaintiff have leave under r 377 to amend his claim so as to comply with r 22(2).

(3) That the plaintiff have leave nunc pro tunc to re-plead and to file the re-pleaded statement of claim (previously filed on 20 February 2001).

(4) That the second defendant file any notice of intention to defend and defence or amended defence within 28 days after service.

(5) That the costs of and incidental to the application before the learned Magistrate on or about 12 April 2001 be costs in the cause.

(6) That the respondent pay the appellant’s costs of and incidental to the appeal.

(7) That the respondent be granted an Indemnity Certificate under the Appeal Costs Fund Act (1973), s 15.

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.

CITATION:	O’Neill v Marinerglen Pty Ltd [2002] QDC 165
PARTIES:	PAUL LAURENCE O’NEILL Appellant and MARINERGLEN PTY LTD (ACN 010 930 786) Respondent
FILE NO/S:	454 / 2001
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court
DELIVERED ON:	5 April 2002
DELIVERED AT:	Southport
HEARING DATE:	25 March 2002
JUDGE:	Judge Alan Wilson SC
ORDER:	(1) That the orders of Ms Previtera SM made on 12 April 2001 insofar as they are a dismissal of the appellant’s action against the second defendant or order that the plaintiff institute a new action, be set aside. (2) That the plaintiff have leave under r 377 to amend his claim so as to comply with r 22(2). (3) That the plaintiff have leave nunc pro tunc to re-plead and to file the re-pleaded statement of claim (previously filed on 20 February 2001). (4) That the second defendant file any notice of intention to defend and defence or amended defence within 28 days after service. (5) That the costs of and incidental to the application before the learned Magistrate on or about 12 April 2001 be costs in the cause. (6) That the respondent pay the appellant’s costs of and incidental to the appeal. (7) That the respondent be granted an Indemnity Certificate under the Appeal Costs Fund Act (1973), s 15.
CATCHWORDS:	APPEAL AND NEW TRIAL – ERROR OF LAW – Application to strike out pleading under UCPR r 171 – Magistrate wrongly striking out entire action UCPR r 171 Magistrates Court Act (1973) s 47(b)
COUNSEL:	Mr Dorney QC and Mr Sive for the appellant Ms Magee for the respondent
SOLICITORS:	Appellant self-represented Messrs Short Punch & Greatorix for the respondent