Petersen v Nolan - [2020] QCA 56

SUPREME COURT OF QUEENSLAND

CITATION:

Petersen v Nolan [2020] QCA 56

PARTIES:

PATRICIA PETERSEN
(appellant)
v
RACHEL GENEVIEVE NOLAN
(respondent)

FILE NOS:

Appeal No 10668 of 2019
SC No 612 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2019] QSC 216 (Martin J)

DELIVERED ON:

27 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2020

JUDGES:

McMurdo and Mullins JJA and Bond J

ORDERS:

1. Appeal dismissed.

2. The appellant must pay the respondent’s costs of the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where primary judge struck out the appellant’s seventh statement of claim and gave summary judgment for the respondent – where statement of claim disclosed no reasonable cause of action – where no further material disclosed suggesting that the appellant could plead a cause of action known to law – whether the appellant should have been given another opportunity to replead

TORTS – MISCELLANEOUS TORTS – MISFEASANCE IN PUBLIC OFFICE – where the respondent was a member of parliament and Minister – where the appellant was contesting the seat for which the respondent was the sitting member – where the appellant alleged the respondent complained to local council about the appellant’s election signs and the appellant was fined – where the appellant unable to identify public power alleged to have been misused by the respondent in complaining to the council – whether use of title attached to public office is sufficient to ground a claim for misfeasance in public office

Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293

Calveley v Chief Constable of the Merseyside Police [1989] AC 1228, cited
Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65, considered
Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59, considered
Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71, cited
Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth of Australia & Ors [2015] QSC 175, considered

COUNSEL:

The appellant appeared on her own behalf
J B Rolls for the respondent

SOLICITORS:

The appellant appeared on her own behalf
Bold Lawyers for the respondent

McMURDO JA: I agree with Mullins JA.
MULLINS JA: The appellant Dr Petersen appeals against the striking out of her seventh statement of claim, the judgment given in favour of the respondent Ms Nolan, and the order that Dr Petersen pay Ms Nolan’s costs on the indemnity basis. These orders were made by the learned primary judge on 9 September 2019: Petersen v Nolan [2019] QSC 216 (the reasons).
The nature of the proceeding
Dr Petersen claimed damages against Ms Nolan for misfeasance in public office and/or negligence. Dr Petersen and Ms Nolan were both candidates at the 2012 Queensland State election with Dr Petersen contesting the seat of Ipswich as an independent candidate and Ms Nolan, as the…

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 Petersen v Nolan

Details

AGLC: Petersen v Nolan [2020] QCA 56
Case: [2020] QCA 56
Decision Date: 27 March 2020

CaseChat Overview and Summary

The appeal in Petersen v Nolan involved the appellant contesting a decision by the primary judge to strike out his seventh statement of claim and enter summary judgment in favour of the respondent. The respondent was a member of parliament and Minister, while the appellant was contesting the seat for which the respondent was the sitting member. The appellant alleged that the respondent had improperly complained to the local council about the appellant’s election signs, resulting in a fine being imposed on the appellant. The appellant sought to bring a claim for misfeasance in public office, but the primary judge found that the statement of claim disclosed no reasonable cause of action.

The central issue before the court was whether the appellant should have been granted another opportunity to replead. The court also considered whether the use of a title attached to a public office was sufficient to ground a claim for misfeasance in public office. The court held that the primary judge was correct in striking out the statement of claim and entering summary judgment for the respondent. The court found that the appellant had failed to identify any public power that the respondent allegedly misused, which is a critical element of a misfeasance in public office claim. The court further found that the use of a title alone was insufficient to establish a cause of action.

In dismissing the appeal, the court confirmed the primary judge’s decision that the appellant's statement of claim disclosed no reasonable cause of action and that there was no further material that suggested the appellant could plead a valid cause of action. The court also upheld the order that the appellant must pay the respondent’s costs of the appeal. The appeal was thus unsuccessful, and the primary judge’s decision was affirmed.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant must pay the respondent’s costs of the appeal.

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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CITATION:	Petersen v Nolan [2020] QCA 56
PARTIES:	PATRICIA PETERSEN (appellant) v RACHEL GENEVIEVE NOLAN (respondent)
FILE NOS:	Appeal No 10668 of 2019 SC No 612 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2019] QSC 216 (Martin J)
DELIVERED ON:	27 March 2020
DELIVERED AT:	Brisbane
HEARING DATE:	6 March 2020
JUDGES:	McMurdo and Mullins JJA and Bond J
ORDERS:	1. Appeal dismissed. 2. The appellant must pay the respondent’s costs of the appeal.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where primary judge struck out the appellant’s seventh statement of claim and gave summary judgment for the respondent – where statement of claim disclosed no reasonable cause of action – where no further material disclosed suggesting that the appellant could plead a cause of action known to law – whether the appellant should have been given another opportunity to replead TORTS – MISCELLANEOUS TORTS – MISFEASANCE IN PUBLIC OFFICE – where the respondent was a member of parliament and Minister – where the appellant was contesting the seat for which the respondent was the sitting member – where the appellant alleged the respondent complained to local council about the appellant’s election signs and the appellant was fined – where the appellant unable to identify public power alleged to have been misused by the respondent in complaining to the council – whether use of title attached to public office is sufficient to ground a claim for misfeasance in public office Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293 Calveley v Chief Constable of the Merseyside Police [1989] AC 1228, cited Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65, considered Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59, considered Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71, cited Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth of Australia & Ors [2015] QSC 175, considered
COUNSEL:	The appellant appeared on her own behalf J B Rolls for the respondent
SOLICITORS:	The appellant appeared on her own behalf Bold Lawyers for the respondent