Pope v Madsen

Case [2015] QCA 36

SUPREME COURT OF QUEENSLAND

CITATION:

Pope v Madsen [2015] QCA 36

PARTIES:

DOUGLAS HAMILTON LOCKHART POPE

(applicant)v
SARA MADSEN

(respondent)EVA ULRIKA KERR
(not a party to the application)

FILE NO/S:

Appeal No 3561 of 2014
DC No 2824 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:


District Court at Brisbane

DELIVERED ON:

13 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2014

JUDGES:

Holmes JA and Mullins and Henry JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Set aside the orders below to the extent they apply to the proceeding between the respondent and the appellant.

4. Instead, strike out the claim and statement of claim against the appellant.

5. The respondent to pay the appellant’s costs of the proceeding below and this application for leave to appeal and the appeal.

CATCHWORDS:

EQUITY – GENERAL PRINCIPLES – FIDUCIARY OBLIGATIONS – PARTICULAR CASES – OTHER CASES – where respondent alleged continued physical and sexual abuse from applicant father during childhood – where respondent alleged abuse constitutes breach of fiduciary duty – where respondent seeks equitable compensation for breach of fiduciary duty – whether the respondent’s claim can succeed under Australian law

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where primary judge refused to strike out, permanently stay or otherwise dismiss claim as disclosing no cause of action – where applicant seeks leave to appeal against decision of primary judge – where the current state of the Australian law does not recognise the right of the respondent to bring a claim for equitable compensation for breach of fiduciary duty alleged by the respondent against a parent based on physical and sexual abuse – whether the matter should proceed to trial

District Court of Queensland Act 1967 (Qld), s 118

Breen v Williams (1996) 186 CLR 71; [1996] HCA 57, followed
Cubillo v Commonwealth (2001) 112 FCR 455; [2001] FCA 1213, followed
J v J [2014] NZCA 445, considered
Paramasivam v Flynn (1998) 90 FCR 489; [1998] FCA 1711, followed
Project Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd & Anor[2011] QCA 102, considered
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218; [1992] HCA 15, considered
Tusyn v State of Tasmania (2004) 13 Tas R 51; [2004] TASSC 50, considered
Woodhead v Elbourne [2001] 1 Qd R 220; [2000] QSC 42, considered

COUNSEL:

A K Ehlers for the applicant
D R Kent QC, with S P Gray, for the respondent

SOLICITORS:

Kerwin Solicitors for the applicant
Hatzis Lawyers for the respondent

  1. HOLMES JA:  I agree with the reasons of Mullins J and…

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AGLC
Pope v Madsen [2015] QCA 36
Case
[2015] QCA 36
Decision Date

CaseChat Overview and Summary

In the case of Pope v Madsen, the respondent alleged that the applicant, her father, had committed acts of physical and sexual abuse against her during her childhood. The respondent sought equitable compensation for what she claimed was a breach of fiduciary duty by the applicant. The dispute was heard in the Supreme Court of Queensland, where the primary judge declined to dismiss the respondent's claim, opting instead to allow it to proceed to trial. The applicant then sought leave to appeal against this decision.

The central legal issue before the court was whether the respondent's claim for equitable compensation for breach of fiduciary duty, based on allegations of physical and sexual abuse by a parent, could succeed under Australian law. This required the court to consider the scope and boundaries of fiduciary obligations in the context of familial relationships and whether the law recognised such claims. The court also needed to determine whether the primary judge had erred in law by not dismissing the claim outright.

The court found that Australian law did not recognise a cause of action for equitable compensation for breach of fiduciary duty in the context of physical and sexual abuse by a parent. The court held that the primary judge had erred in law by not dismissing the respondent's claim, as it did not disclose a cause of action. The court granted the applicant leave to appeal, allowed the appeal, and ordered that the respondent's claim against the applicant be struck out. Furthermore, the respondent was ordered to pay the applicant's costs of the proceeding below and the appeal.

The final orders of the court were that the application for leave to appeal was granted, the appeal was allowed, and the orders that had allowed the claim to proceed to trial were set aside. The respondent's claim and statement of claim against the applicant were struck out. The respondent was also ordered to pay the applicant's costs of the proceeding below and the appeal, including the application for leave to appeal.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Set aside the orders below to the extent they apply to the proceeding between the respondent and the appellant.

4. Instead, strike out the claim and statement of claim against the appellant.

5. The respondent to pay the appellant’s costs of the proceeding below and this application for leave to appeal and 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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