Sproats v North Queensland Training Services Pty Ltd - [2019] QCA 102

SUPREME COURT OF QUEENSLAND

CITATION:

Sproats & Anor v North Queensland Training Services Pty Ltd [2019] QCA 102

PARTIES:

LAWRENCE J SPROATS
JENNIFER E GINGER
(applicants)
v
NORTH QUEENSLAND TRAINING SERVICES PTY LTD
ACN 156 512 408
(respondent)

FILE NO/S:

Appeal No 11658 of 2018
DC No 190 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Townsville – Unreported, 28 September 2018 (Lynham DCJ)

DELIVERED ON:

28 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2019

JUDGES:

Holmes CJ and Fraser and Philippides JJA

ORDERS:

1. The application for leave to appeal is refused.

2. The applicants are to pay the respondent’s costs of the application.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – FORM OF PLEADING – STRIKING OUT – where the applicants sought leave to appeal from a decision of a District Court judge not to strike out the respondent’s first amended defence and counterclaim – where the District Court judge struck out 12 paragraphs of the pleading – where the applicants contend that the whole of the pleading should have been struck out – whether the court is satisfied that there is a reasonable argument that the primary judgment contains an error that requires correcting – whether an appeal is necessary to correct a substantial injustice to the applicant

COSTS – APPEALS AS TO COSTS – OTHER MATTERS – where the District Court judge ordered that the parties’ costs of the application in the District Court be their costs in the proceeding – where the costs order was made without submissions from the parties – where it remains open to the parties to apply to have the order set aside – whether the applicant has suffered any substantial injustice

Australian Consumer Law (Queensland)
Competition and Consumer Act 2010 (Cth), sch 2
District Court of Queensland Act 1967 (Qld), s 118(3)
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 149(1)(a), r 149(1)(b), r 171, r 444

Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd & Ors[2011] QCA 252, considered
Fuller v Toms[2010] QCA 283, considered
House v the King (1936) 55 CLR 499; [1936] HCA 40, cited
Pickering v McArthur[2005] QCA 294, cited
Robertson v Hollings & Ors[2009] QCA 303, considered

COUNSEL:

D Forbes for the applicants
K Barlow QC for the respondent

SOLICITORS:

Connolly Suthers for the applicants
Stevenson McNamara for the respondent

HOLMES CJ: The applicants, Mr Sproats and Ms Ginger, seek leave to appeal, pursuant to s 118(3) of the District Court of Queensland Act 1967, against a decision of a District Court judge refusing to strike out the first amended defence and counterclaim filed by the respondent, North Queensland Training Services Pty Ltd. His Honour struck out 12 paragraphs of the pleading, but the applicants contend that the whole should have been struck out.
To obtain leave to appeal under s 118(3) usually requires…

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: [2019] QCA 102
Decision Date: 28 May 2019

CaseChat Overview and Summary

Sproats, the applicant, sought leave to appeal against a decision of the District Court, which had refused to strike out the respondent’s first amended defence and counterclaim. The District Court judge had, however, struck out 12 paragraphs of the pleading. The applicants contended that the entire pleading should have been struck out. The applicants argued that the primary judgment contained errors that required correction and that an appeal was necessary to avoid a substantial injustice.

The court was required to determine whether there was a reasonable argument that the primary judgment contained an error that necessitated correcting. It was also necessary to assess whether an appeal was required to rectify a substantial injustice to the applicant. Furthermore, the court had to consider the costs order made by the District Court judge without submissions from the parties. The court needed to decide if the applicants had suffered any substantial injustice and if the costs order should be set aside.

The court found that there was no reasonable argument that the primary judgment contained an error requiring correction. The court held that the applicants had not suffered any substantial injustice and that it was not necessary to correct the alleged error. The court also determined that the applicants had not demonstrated that the appeal was necessary to avoid a substantial injustice. Regarding the costs order, the court held that it remained open to the parties to apply to have the order set aside.

The court refused the application for leave to appeal and ordered the applicants to pay the respondent’s costs of the application. The court held that the applicants had not established that there was a reasonable argument that the primary judgment contained an error requiring correction or that an appeal was necessary to avoid a substantial injustice. The court also found that the applicants had not suffered any substantial injustice in relation to the costs order.

Orders

Orders of the court

1. The application for leave to appeal is refused.

2. The applicants are to pay the respondent’s costs of the application.

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

LAWRENCE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LAWRENCE J

Full text does not contain this section.

CITATION:	Sproats & Anor v North Queensland Training Services Pty Ltd [2019] QCA 102
PARTIES:	LAWRENCE J SPROATS JENNIFER E GINGER (applicants) v NORTH QUEENSLAND TRAINING SERVICES PTY LTD ACN 156 512 408 (respondent)
FILE NO/S:	Appeal No 11658 of 2018 DC No 190 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Townsville – Unreported, 28 September 2018 (Lynham DCJ)
DELIVERED ON:	28 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2019
JUDGES:	Holmes CJ and Fraser and Philippides JJA
ORDERS:	1. The application for leave to appeal is refused. 2. The applicants are to pay the respondent’s costs of the application.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – FORM OF PLEADING – STRIKING OUT – where the applicants sought leave to appeal from a decision of a District Court judge not to strike out the respondent’s first amended defence and counterclaim – where the District Court judge struck out 12 paragraphs of the pleading – where the applicants contend that the whole of the pleading should have been struck out – whether the court is satisfied that there is a reasonable argument that the primary judgment contains an error that requires correcting – whether an appeal is necessary to correct a substantial injustice to the applicant COSTS – APPEALS AS TO COSTS – OTHER MATTERS – where the District Court judge ordered that the parties’ costs of the application in the District Court be their costs in the proceeding – where the costs order was made without submissions from the parties – where it remains open to the parties to apply to have the order set aside – whether the applicant has suffered any substantial injustice Australian Consumer Law (Queensland) Competition and Consumer Act 2010 (Cth), sch 2 District Court of Queensland Act 1967 (Qld), s 118(3) Uniform Civil Procedure Rules 1999 (Qld), r 5, r 149(1)(a), r 149(1)(b), r 171, r 444 Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd & Ors[2011] QCA 252, considered Fuller v Toms[2010] QCA 283, considered House v the King (1936) 55 CLR 499; [1936] HCA 40, cited Pickering v McArthur[2005] QCA 294, cited Robertson v Hollings & Ors[2009] QCA 303, considered
COUNSEL:	D Forbes for the applicants K Barlow QC for the respondent
SOLICITORS:	Connolly Suthers for the applicants Stevenson McNamara for the respondent