Timothy Alan McConchie Plaintiff v Jalbus No 2 Pty Ltd - [2024] QDC 161

[2024] QDC 161

DISTRICT COURT OF QUEENSLAND

LOURY KC DCJ

Gladstone DC No 1 of 2024

TIMOTHY ALAN MCCONCHIE

Plaintiff

JALBUS NO 2 PTY LTD (ACN 076 744 020)

First Defendant

RICHARD THOMAS HYNE IN HIS PERSONAL CAPACITY AND AS TRUSTEE

FOR THE RT AND AJ HYNE FAMILY TRUST

Second Defendant

AMANDA JILL HYNE IN HER PERSONAL CAPACITY AND AS TRUSTEE OF

THE RT AND AJ HYNE FAMILY TRUST

Third Defendant

TREVSSEC PTY LTD

Fourth Defendant

MARK SPEARING PTY LTD

Fifth Defendant

BRISBANE

20 SEPTEMBER 2024
JUDGMENT
LOURY KC DCJ:

On 2 May 2023, the plaintiff entered into a storage contract with RT and AJ Hyne
Family Trust (the second and third defendants) for the hire of Shed 38 at 54 Chapple
Street, Gladstone. The storage facility was managed by the first defendant pursuant
to a Form 6 Property Occupations agreement. The fifth defendant is the director of
the first defendant, Jalbus No 2 Pty Ltd (Jalbus).
The fourth defendant, Trevssec Pty Ltd is a security provider and is party to a contract
with Jalbus for the provision of security services for the premises at 54 Chapple
Street, Gladstone.
On around 9 May 2023 there was a break-in at the storage facility. The plaintiff’s
property stored in Shed 38 was stolen.
On 16 November 2023, the plaintiff commenced proceedings by way of claim in the
Magistrates Court of Queensland at Gladstone against Jalbus. The relief he claimed
was to “recoup the monies from his assets that were stolen”. A Notice of Intention to
Defend and Defence were filed by Jalbus. In answer to the plaintiff’s claim, Jalbus
pleaded that it was not the owner of the facility; that there was no agreement between
it and the plaintiff; that the agreement was between the plaintiff and RT and AJ Hyne
Family Trust; that Jalbus was not responsible for the security of the premises; and
that the defendant had acknowledged his goods and chattels were stored at the storage
facility at his own risk.
On 23 January 2024, the plaintiff filed an application for summary judgment pursuant
to r 292 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). That application
was dismissed and the matter listed for trial on 6 June 2024 in the Magistrates Court.
The matter came on for trial before His Honour Magistrate McInnes. From a perusal
of the transcript of the proceedings it is clear that Magistrate McInnes had read all of
the material. He considered that the claim was one for a breach of duty. He raised at
the outset his concern that Jalbus was not a party to the contract between the plaintiff and RT and AJ Hyne Family Trust. He considered that a fundamental flaw which
could not be cured by a hearing on the merits. The plaintiff was told that he had sued
the wrong person. The plaintiff was given time to consider his position. An
application was then made for summary judgment.
The learned Magistrate delivered reasons and dismissed the claim on the basis that
the wrong entity had been sued by the plaintiff. The plaintiff did not appeal the
decision of Magistrate McInnes, but rather filed a claim and statement of claim in this
court.
The plaintiff’s statement of claim states that the plaintiff seeks to recover a sum of
money for the assets stolen due to the contributory negligence of the defendants’
breach of duty and misrepresentations.
The plaintiff alleges that he was assured by the first defendant that there had been no
prior break-ins and that the security measures in place were sufficient and that these
assurances were pivotal in his deciding to enter into the contract. He alleges that the
non-disclosure regarding criminal activities at the storage shed constitutes a breach
of care by the first defendant. He further alleges that the first defendant is implicated
in forging security patrol reports related to the break-ins and that the fifth defendant
needs to be responsible for any proven illegal actions committed by himself and the
staff of the first defendant.
The plaintiff’s claim seeks relief under the Civil Liability Act 2003 (Qld); the
Competition and Consumer Act 2010 (Cth); the Criminal Code 1899 (Qld) and the
Fair Trading Act 1989 (Qld).
Each of the defendants have brought an application for summary judgment pursuant
to r 293, or in the alternative, an application to strike out the plaintiff’s pleadings
pursuant to r 171 on the basis that the plaintiff’s statement of claim does not disclose
a cause of action.
Jalbus argues that it (and the fifth defendant) have a complete defence in res judicata
and in Anshun[1] estoppel.
[1] Port of Melbourne Authority v Anshun Pty Ltd (1987) 147 CLR 589.
The rule as to res judicata prevents a party in a second proceeding to litigate a cause
of action which has merged into judgment in a prior proceeding.[2] The plaintiff seeks
the same relief against the first defendant as he did in the Magistrates Court. As
indicated, he has not appealed the decision of the learned Magistrate.
[2] Ibid.
The doctrine of Anshun estoppel provides that when a judicial determination directly
involving an issue of fact or of law disposes once and for all of the issue, it cannot
afterwards be raised between the same parties or their privies.
The first defendant contends that on the face of the pleadings and material filed by
the plaintiff it had no contractual relationship with the first defendant or fifth
defendant, nor any common law or equitable relationship with the first and fifth
defendants that may give rise to a cause of action against them.
With respect to the fifth defendant, the plaintiff has made allegations of criminal
offending against him. The action by the plaintiff has been brought in the civil
jurisdiction of the District Court. The court has no jurisdiction under sections 68 and
69 of the District Court of Queensland Act 1967 (Qld) to entertain his claim on this
basis.
With respect to the second and third defendants, they are each the trustees of the RT
and AJ Hyne Family Trust (the Trust). They have been sued in their personal
capacity as well as their capacity as trustees of the trust. Whilst not formally admitted,
the second and third defendants accept that the plaintiff had a contractual relationship
with the trust.
The plaintiff alleges against the second and third defendants, that prior to entering
into the contract there was a significant misrepresentation and non-disclosure by the
“defendants” (which defendants is not clear from the statement of claim). He alleges
that he was assured by the staff of the first defendant that there were no prior break-
ins and that security measures in place were sufficient. The plaintiff alleges that the
trust breached its duty of care by failing to ensure that adequate security measures
were implemented and maintained. That failure contributed to the theft of the
plaintiff’s assets and signifies a gross neglect of their responsibilities as property
owners. The plaintiff further alleges that the trust did not have public liability insurance and that there was a breach of one of the terms of the contract in that there
was no written approval by the owners of the contract as required by its terms.
The statement of claim contains no properly identified cause of action against the
second and third defendants. There are references to “contributory negligence of the
defendants’ breach of duty and misrepresentations”; breaches and failings of the Civil
Liability Act 2003 (Qld) and contraventions of the Australian Consumer Law,
specifically the provisions against unfair contractual terms and false or misleading
representations.
The second and third defendants contend that they have a complete defence in Anshun
estoppel as they are a privy of the first defendant, as the first defendant was the agent
of the trust. It is contended that the plaintiff was aware that his agreement was with
the trust as that was pleaded by the first defendant in the proceedings in the
Magistrates Court. It was available to the plaintiff to join the second and third
defendants to the proceedings. He failed to ask for an adjournment of the trial in
order to join the second and third defendants.
In respect of the fourth defendant, the statement of claim discloses no discernible
cause of action. It seems that there was no relationship between the plaintiff and the
fourth defendant. Again, the fourth defendant contends that it has a complete defence
in res judicata or Anshun estoppel, in that it was a privy to the cause of action in the
Magistrates Court. The fourth defendant contends that it was open to the plaintiff to
join the fourth defendant to the claim but that he made a forensic decision to not
pursue the fourth defendant in Magistrates Court.
The plaintiff was unrepresented in the Magistrates Court and remains unrepresented
in the District Court. It is clear that there was a contractual relationship between
himself and the trust. Although the plaintiff’s statement of claim contains no cause
of action, it may be that he has a cause of action available to him. I do not know
whether the plaintiff may have a cause of action against the fourth defendant as the
statement of claim does not disclose anything from which a cause of action could
even be inferred. However, I do not consider that the circumstances in which the
application for summary judgment was brought in the Magistrates Court, on the day
of the trial without the usual notice, that it is fair to close off any cause of action that
the plaintiff may have against the trust or the fourth defendant. Whilst there is some substance in the argument that the second and third defendants should have been
added to the proceedings in the Magistrates Court and that those proceedings were
not a learning experience for the plaintiff, I would not exercise my discretion to
summarily end his claim on that basis. The second and third defendants acknowledge
that as its agent, if there were misrepresentations made by the first defendant then it
would be liable to indemnify the second and third defendants for any damages
suffered on the basis that the agent failed to perform their agency with due care and
skill.
Summary judgment should only be given if I am satisfied that the plaintiff has no real
prospect of succeeding on all or a part of his claim and there is no need for a trial of
the claim or part of the claim. Summary judgment, however, should only be given in
the clearest of cases and in exceptional circumstances. In circumstances where the
plaintiff is unrepresented and where he may have a claim against the second and third
defendants, I decline to exercise my discretion to dismiss the plaintiff’s claim.
However, the statement of claim is hopelessly defective. It does not accord with any
requirements in the UCPR; contains no statement of any material facts necessary to
support any cause of action; and contains no cause of action against any of the
defendants. I order pursuant to r 171 of the UCPR that the statement of claim be
struck out.
I give the plaintiff leave to file an amended statement of claim within 28 days of this
judgment.
Orders
My orders are as follows:

1. Pursuant to r 171(2) of the UCPR, the Statement of Claim filed 25 July 2024 is
struck out.
2.    Pursuant to rules 375 and 377(1)(c) of the UCPR, the plaintiff has leave to file
any amended Claim and amended Statement of Claim within 28 days from the
date of this order.
3.    The plaintiff is to file and serve any amended Claim and amended Statement of
Claim on each of the defendants within 28 days from the date of this order.
4.    The defendants are to file and serve any amended defence within 28 days from
the date of service.
5.    The plaintiff is to file and serve any reply within 14 days from the date of service
of any amended defence.
6.    The plaintiff is to pay the first, second, third and fourth and fifth defendants’ costs
of and incidental to the application on the standard basis to be agreed or assessed.