Rogers v Law Coast Mortgages Pty Ltd

[2003] QCA 90

[2003] QCA 90

COURT OF APPEAL

McMURDO P
MACKENZIE J
PHILIPPIDES J

Appeal No 2772 of 2002

GREGORY ERIC ROGERS  Plaintiff (Appellant)

and

LAW COAST MORTGAGES PTY LTD       First Defendant (Respondent)
ACN 065 050 473

and

KIM CHRISTIE  Second Defendant (Respondent)

and

ALAN CHARLES PARRY               Third Defendant (Respondent)

and

IAN CHARLES GRIFFITHS            Fourth Defendant (Respondent)

and

CHRISTINE MATSINGER              Fifth Defendant (Respondent)

and

MALCOLM DONALD McCOLM            Sixth Defendant (Respondent)

BRISBANE

..DATE 04/03/2003

JUDGMENT

APPELLANT conducted his own case

MR M K CONRICK (instructed by McColm Matsinger) for the respondent

THE PRESIDENT:  We are not satisfied that the evidence that the appellant seeks to call on this appeal is relevant to the question for determination by this Court; that is, whether the order made by Justice Helman on 18 March this year striking out the statement of claim was a proper one.

MACKENZIE J:  For my part, I would simply add that it would be a matter of considerable concern if perjury had been committed but the proper approach to that is to make a complaint to the police if such an offence has been committed.  It involves, I think, a misapprehension of the role of this Court to ask it to act as a sort of a Royal Commission or investigatory body at this level in this sort of appeal.

PHILIPPIDES J:  I also agree and I would refuse the application.

...

PHILIPPIDES J:  This is an appeal against orders made by Justice Helman on 18 March 2002 striking out the amended statement of claim filed on 15 March 2002 and granting leave to the appellant to file a further amended statement of claim.
The appellant has now repleaded pursuant to that order.

In striking out the statement of claim, his Honour gave reasons as follows.  His Honour stated that the statement of claim which was some 77 pages long was prolix and that throughout it appeared to confuse claims that might be made on behalf of the company in question; that is, Perdon Proprietary Limited, and claims that might properly be made by the appellant.

His Honour stated that the result was that the amended statement of claim had a tendency to prejudice and delay the fair trial of the proceeding and, in those circumstances, ought to be struck out.

In my opinion, nothing that has been placed before this Court demonstrates that his Honour erred in exercising his discretion to strike out the amended statement of claim.  I would refuse the appeal and order that the appellant pay the respondent's costs of and incidental to the appeal.

THE PRESIDENT:  I agree.

MACKENZIE J:  I agree.

THE PRESIDENT:  That is the order of the Court.

‑‑‑‑‑