Von Schulz v Morriello - [1999] QCA 436

COURT OF APPEAL	[1999] QCA 436
DAVIES JA PINCUS JA DOUGLAS J
Appeal No 10932 of 1998
KARL AND THERESIA MARTHA CITRA VON SCHULZ
(Plaintiffs)	Applicants
and

VALENTINO AND GERARDA MORRIELLO

(First Defendant)	First Respondent
and

GRANT CURRIE AND CURE ALL PEST CONTROL PTY LTD

(Second Defendant)	Second Respondent
BRISBANE
..DATE 16/11/99
JUDGMENT

161199 T8/RB28 M/T COA276/99

DAVIES JA: Until this morning the application which was before this Court was an application to set aside an order striking out an appeal to this Court by the applicants and to reinstate that appeal. The order, which was made by the President, was one that the applicants file an appeal record book by 5 November and that if they fail to do so their appeal be struck out with costs for want of prosecution.

The applicants failed to file the appeal record book by the due date and the appeal was struck out. There would be no point in setting aside this order and reinstating the appeal if it were plain that there was no substance in the appeal. It is appropriate, therefore, that I turn to that question first.

The appeal was from an order of a Supreme Court judge in Chambers on 29 October 1998 that the writ of summons in this matter be struck out on the ground that it was vexatious and an abuse of process. The proceedings instituted by the writ were, as appears from the

statement of claim intended to be delivered by the applicants, identical to proceedings
resolved between the applicants and the respondents by a mediation agreement pursuant to
s.107 of the Supreme Court of Queensland Act 1991.

That action resolved by mediation was commenced by writ number 5486 of 1997. The present proceedings were commenced by writ number 8411 of 1998 issued on 12 October 1998. The former action resulted in a mediation on 3 December 1997 in which the applicants were represented by counsel and solicitors.

The mediation was conducted by Ms Wilson QC, as Her Honour then was. The mediation agreement, which recorded the terms of settlement between the parties on 3 December 1997, recorded that the respondents would pay to each appellant the sum of $20,000 of which $2,000 would go to the Health Insurance Commission and the balance to the applicants.

In consideration of that agreement the applicants agreed to execute the deeds of release discharge and indemnity. The agreement was signed by the applicants' solicitors on their behalf. On the same day however each of the applicants signed a release discharge and indemnity in favour of the respondents. The sums of $20,000 were duly paid on

17 December and those cheques were presented and paid. It is plain that the applicants
were anxious to receive that money and that they received it.

It is unnecessary to detail the course of events subsequent to that. It is sufficient to say that the applicants failed to file a notice of discontinuance of the first action and it was ordered to…

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.

Continue reading Von Schulz v Morriello

Details

AGLC: Von Schulz v Morriello [1999] QCA 436
Case: [1999] QCA 436
Decision Date: 16/11/1999

CaseChat Overview and Summary

In the matter of Von Schulz v Morriello, the plaintiffs, Karl and Theresia Martha Citra Von Schulz, sought to appeal a decision of the Supreme Court to strike out their writ of summons on the grounds that the proceedings were vexatious and an abuse of process. The defendants in the appeal were Valentino and Gerarda Morriello, and Grant Currie and Cure All Pest Control Pty Ltd. The Court of Appeal was tasked with determining whether the appeal had merit and if the plaintiffs were entitled to set aside the order and reinstate their appeal. The court also considered whether the plaintiffs could proceed with a criminal information against certain persons, alleging maliciously administering poison with intent to harm or negligently causing harm.

The court had to address the question of whether the appeal had substance, particularly given that the plaintiffs' writ sought to litigate issues that had already been resolved by a mediation agreement. The plaintiffs had previously been involved in a mediation conducted by Ms Wilson QC, where they agreed to receive $20,000 from the respondents in exchange for executing deeds of release, discharge, and indemnity. Despite receiving the agreed sum, the plaintiffs did not file a notice of discontinuance, leading to the dismissal of their first action. The plaintiffs then sought to appeal this dismissal, and subsequently, they commenced new proceedings seeking to litigate the same issues.

The Court of Appeal found that the plaintiffs' attempt to relitigate the same issues was an abuse of process. The court dismissed the application to set aside the order striking out the appeal, finding that there was no arguable basis for appeal against the original order. The court further determined that the plaintiffs' request to proceed with a criminal information based on the same facts was not justified and should also be dismissed.

The Court of Appeal unanimously dismissed the application to set aside the order striking out the appeal and denied leave for the plaintiffs to proceed with the criminal information, both with costs. The decision underscored the importance of adhering to mediation agreements and the consequences of attempting to circumvent previously resolved issues through further litigation.

Orders