Tutos v Catholic Education Services Cairns - [2019] QDC 57

DISTRICT COURT OF QUEENSLAND

CITATION:

Tutos v Catholic Education Services Cairns [2019] QDC 57

PARTIES:

MARIUS LUCIAN TUTOS
(plaintiff)

v

THE ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF CAIRNS trading as CATHOLIC EDUCATION SERVICES CAIRNS ABN 42 498 340 094
(defendant)

FILE NO:

73/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

18 April 2019

DELIVERED AT:

Cairns

HEARING DATE:

8, 11 February 2019

Further written submissions 22 February 2019, 1 March 2019

JUDGE:

Fantin DCJ

ORDER:

The defendant’s application to strike out the amended claim filed 4 October 2018 is adjourned.1.

The amended statement of claim filed 4 October 2018 is struck out.2.

The plaintiff has leave to file and serve an amended statement of claim by 4pm on 24 May 2019.3.

The plaintiff’s application filed 24 July 2018 is dismissed.4.

The proceeding is listed for review before me on 12 June 2019 at 9:00am.5.

Unless the plaintiff or defendant files written submissions within 14 days as to why such an order should not be made, I will order that the plaintiff pay the defendant’s costs of:6.

the plaintiff’s application filed 24 July 2018; and a.

the defendant’s application filed 24 July 2018; and b.

the defendant’s application filed 19 November 2018;c.

to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKE OUT – where the plaintiff is self-represented and filed a claim and statement of claim - where the plaintiff applied to set down the proceeding for trial - where the defendant applied to strike out the claim and statement of claim - whether the statement of claim failed to disclose a reasonable cause of action such as to entitle the defendant to have it struck out - whether the statement of claim was embarrassing and tending to cause delay in the proceeding - whether the statement of claim was an abuse of process - whether the claim and statement of claim do not comply with the rules - whether the documents should be struck out or set aside

Legislation
Public Service Act 2008 (Qld), s 126(5)
Uniform Civil Procedure Rules 1999 (Qld), r 5(3),
r 149(1)(a), r 149(1)(b), r 149(1)(c), r 155(1), r 155(4),
r 171(1)(a), r 171(1)(b), r 171(1)(e)

Cases
du Boulay v Worrell & Ors [2009] QCA 63
Markan v Bar Association of Queensland [2013] QSC 146
Robertson v Hollings & Ors [2009] QCA 303
Ross v Hallam [2011] QCA 92

COUNSEL:

The plaintiff appeared on his own behalf

EB Jesurasingham (solicitor) for the defendant

SOLICITORS:

The plaintiff appeared on his own behalf
Miller Harris Lawyers for the defendant

There are two applications before the court:

1. the plaintiff’s application to set the matter down for trial; and

2. the defendant’s application to strike out the plaintiff’s amended claim and amended statement of claim and for summary judgment.

The plaintiff is a self represented litigant from a non-English speaking background.

Overview of…

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] QDC 57
Decision Date: 18 April 2019

CaseChat Overview and Summary

The case of Tutos v Catholic Education Services Cairns involved a self-represented plaintiff who filed a claim and statement of claim against the defendant. The plaintiff sought to set down the proceeding for trial, while the defendant applied to strike out the claim and statement of claim. The defendant argued that the statement of claim failed to disclose a reasonable cause of action, was embarrassing, tended to cause delay in the proceeding, and was an abuse of process. Additionally, the defendant claimed that the claim and statement of claim did not comply with the rules.

The court had to determine whether the statement of claim was sufficient enough to entitle the defendant to have it struck out. The court also considered whether the statement of claim was embarrassing and tending to cause delay in the proceeding. Furthermore, the court examined whether the statement of claim was an abuse of process and whether the claim and statement of claim complied with the rules. The court found that the amended statement of claim filed on 4 October 2018 was struck out, while the defendant’s application to strike out the amended claim filed on the same date was adjourned. The plaintiff was granted leave to file and serve an amended statement of claim by 4pm on 24 May 2019. The plaintiff’s application filed on 24 July 2018 was dismissed, and the proceeding was listed for review before the court on 12 June 2019 at 9:00am.

The court held that unless the plaintiff or defendant filed written submissions within 14 days as to why such an order should not be made, the plaintiff would pay the defendant’s costs of the plaintiff’s application filed on 24 July 2018, the defendant’s application filed on the same date, and the defendant’s application filed on 19 November 2018, to be assessed on the standard basis. This decision highlights the importance of ensuring that statements of claim comply with the rules and disclose a reasonable cause of action. It also emphasises the court's discretion to strike out pleadings that are deemed to be an abuse of process or tend to cause delay in the proceeding.

Orders

Orders of the court

The defendant’s application to strike out the amended claim filed 4 October 2018 is adjourned.1.

The amended statement of claim filed 4 October 2018 is struck out.2.

The plaintiff has leave to file and serve an amended statement of claim by 4pm on 24 May 2019.3.

The plaintiff’s application filed 24 July 2018 is dismissed.4.

The proceeding is listed for review before me on 12 June 2019 at 9:00am.5.

Unless the plaintiff or defendant files written submissions within 14 days as to why such an order should not be made, I will order that the plaintiff pay the defendant’s costs of:6.

the plaintiff’s application filed 24 July 2018; and a.

the defendant’s application filed 24 July 2018; and b.

the defendant’s application filed 19 November 2018;c.

to be assessed on the standard basis.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Tutos v Catholic Education Services Cairns [2019] QDC 57
PARTIES:	MARIUS LUCIAN TUTOS (plaintiff) v THE ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF CAIRNS trading as CATHOLIC EDUCATION SERVICES CAIRNS ABN 42 498 340 094 (defendant)
FILE NO:	73/18
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	18 April 2019
DELIVERED AT:	Cairns
HEARING DATE:	8, 11 February 2019 Further written submissions 22 February 2019, 1 March 2019
JUDGE:	Fantin DCJ
ORDER:	The defendant’s application to strike out the amended claim filed 4 October 2018 is adjourned.1. The amended statement of claim filed 4 October 2018 is struck out.2. The plaintiff has leave to file and serve an amended statement of claim by 4pm on 24 May 2019.3. The plaintiff’s application filed 24 July 2018 is dismissed.4. The proceeding is listed for review before me on 12 June 2019 at 9:00am.5. Unless the plaintiff or defendant files written submissions within 14 days as to why such an order should not be made, I will order that the plaintiff pay the defendant’s costs of:6. the plaintiff’s application filed 24 July 2018; and a. the defendant’s application filed 24 July 2018; and b. the defendant’s application filed 19 November 2018;c. to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKE OUT – where the plaintiff is self-represented and filed a claim and statement of claim - where the plaintiff applied to set down the proceeding for trial - where the defendant applied to strike out the claim and statement of claim - whether the statement of claim failed to disclose a reasonable cause of action such as to entitle the defendant to have it struck out - whether the statement of claim was embarrassing and tending to cause delay in the proceeding - whether the statement of claim was an abuse of process - whether the claim and statement of claim do not comply with the rules - whether the documents should be struck out or set aside Legislation Public Service Act 2008 (Qld), s 126(5) Uniform Civil Procedure Rules 1999 (Qld), r 5(3), r 149(1)(a), r 149(1)(b), r 149(1)(c), r 155(1), r 155(4), r 171(1)(a), r 171(1)(b), r 171(1)(e) Cases du Boulay v Worrell & Ors [2009] QCA 63 Markan v Bar Association of Queensland [2013] QSC 146 Robertson v Hollings & Ors [2009] QCA 303 Ross v Hallam [2011] QCA 92
COUNSEL:	The plaintiff appeared on his own behalf EB Jesurasingham (solicitor) for the defendant
SOLICITORS:	The plaintiff appeared on his own behalf Miller Harris Lawyers for the defendant