Whiting v Whiting

Case [2014] QSC 187

SUPREME COURT OF QUEENSLAND

CITATION:

Whiting v Whiting & another [2014] QSC 187

PARTIES:

His royal highness, King of the Whiting Kingdom, Baron of the Whiting region, King Steven I ATF STEVEN JAMES WHITING

(plaintiff)

AND

KAREN ELISHA WHITING

(first defendant)

AND

BRUCHELLE PTY LTD ACN 126 289 469 T/A Colville Johnstone Family Lawyers ABN 22 126 289 469

(second defendant)

FILE NO/S:

BS 6709 of 2014

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

18 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2014

JUDGE:

Atkinson J

ORDER:

1.     The claim and statement of claim filed on 22 July 2014 be struck out.

2.     The plaintiff pay the defendants’ costs of the proceedings on an indemnity basis pursuant to r 171(2) and r 703 of the Uniform Civil Procedure Rules 1999.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES – ORIGINATING PROCESS – where the Federal Circuit Court made orders with regard to parental responsibility for the children of the marriage between the plaintiff and the first defendant and the division of property – where the plaintiff claimed ‘Compensation for damages caused by the actions of the defendants. Specifically restoration of my children to my care immediately’ – where the defendants submitted that the proceeding had not been properly started as the court lacks jurisdiction in respect of the relief sought – whether the court has jurisdiction to hear the claim

PROCEDURE – SUPREME COURT PROCEDURE – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES – PLEADING – CLAIM AND STATEMENT OF CLAIM – whether the claim and statement of claim should be struck out

The Australian Constitution, s 51(xxi), s 51(xxii), s 109
Commonwealth Powers (Family Law – Children) Act 1990, s 3
Family Law Act 1975 (Cth), s 4, s 8, s 39(5), s 39(5A), s 39(7), s 69H

Uniform Civil Procedure Rules 1999 (Qld), r 16, r 150(3), r 171, r 703

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd[2011] QCA 252
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27

Dey v Victoria Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1

Davis v The Commonwealth of Australia (1986) 61 ALJR 32

General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125; [1964] HCA 69

Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd [1899] 1 QB 86
Madden v Kirkegard Ellwood and Partners [1983] 1 Qd R 649

Markan v Bar Association of Queensland[2013] QSC 146
Markan v Bar Association of Queensland[2013] QCA 379

Platinum United II Pty Ltd v Secured Mortgage Management Ltd(in liq)[2011] QCA 162
Ronbar Enterprises Pty Ltd v Elliot Harvey Securities[2011] QSC 239
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Stone v ACE-IRM Insurance Broking P/L[2003] QCA 218
von Risefer v  Permanent Trustee Company Limited [2005] 1…

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AGLC
Whiting v Whiting [2014] QSC 187
Case
[2014] QSC 187
Decision Date

CaseChat Overview and Summary

In the case of Whiting v Whiting, the plaintiff sought relief in the Supreme Court of Australia, following earlier orders made by the Federal Circuit Court regarding parental responsibility and property division in relation to the children and assets of the marriage between the plaintiff and the first defendant. The plaintiff's claim, which included a demand for damages and the immediate restoration of the children to their care, was challenged by the defendants on the basis that the Supreme Court lacked jurisdiction to hear the matter. The defendants also contended that the plaintiff's claim and statement of claim should be struck out due to procedural inadequacies.

The legal issues before the court involved the proper commencement of the proceeding under the Uniform Civil Procedure Rules, specifically whether the Supreme Court had jurisdiction to hear the plaintiff's claim. Additionally, the court had to determine if the claim and statement of claim were appropriately drafted and if any deficiencies warranted their dismissal. The court considered the nature of the relief sought and the procedural history of the case, including the Federal Circuit Court's earlier orders, to assess the plaintiff's entitlement to the relief requested.

In its decision, the court found that the proceeding had not been properly started, as the Supreme Court lacked jurisdiction over the relief sought by the plaintiff. The court further held that the claim and statement of claim were inadequately drafted and should be struck out. The court emphasised that the plaintiff's claim for damages and restoration of the children did not fall within the jurisdictional scope of the Supreme Court, given the prior orders made by the Federal Circuit Court. Consequently, the plaintiff's claim was dismissed, and the court ordered that the claim and statement of claim be struck out. Additionally, the plaintiff was directed to pay the defendants' costs on an indemnity basis.

The court's final orders included the striking out of the claim and statement of claim filed on 22 July 2014 and the direction that the plaintiff pay the defendants' costs of the proceedings on an indemnity basis, in accordance with the relevant provisions of the Uniform Civil Procedure Rules 1999.

Orders

Orders of the court

1. The claim and statement of claim filed on 22 July 2014 be struck out.

2. The plaintiff pay the defendants’ costs of the proceedings on an indemnity basis pursuant to r 171(2) and r 703 of the Uniform Civil Procedure Rules 1999.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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