Woolnough v Isaac Regional Council - [2016] QSC 172

SUPREME COURT OF QUEENSLAND

CITATION:

Woolnough & Anor v Isaac Regional Council [2016] QSC 172

PARTIES:

TIMOTHY EARL WOOLNOUGH
(First Respondent/ Plaintiff)

CHRISTEEN WOOLNOUGH

(Second Respondent/ Plaintiff)

v

ISAAC REGIONAL COUNCIL

(Applicant/ Defendant)

FILE NO/S:

S 12/16

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Mackay

DELIVERED ON:

3 August 2016

DELIVERED AT:

Mackay

HEARING DATE:

1 August 2016

JUDGE:

McMeekin J

ORDERS:

The Statement of Claim is struck out;1.

The plaintiffs shall file and serve such amended Statement of Claim as they may be advised on or before 4pm on 29 August 2016;2.

The plaintiffs are ordered to pay the costs of the defendant of and incidental to this application;3.

The application is adjourned to a date to be fixed to be brought on, on the giving of three days’ notice.4.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the defendant applies for summary judgment or in the alternative to strike out the plaintiffs’ statement of claim – where the proceedings concern the plaintiffs’ claim that the council entered onto their land without authority and constructed defective sewage lines permitting raw sewage to escape onto their land – whether there is a need for a trial – whether the pleadings have a tendency to prejudice or delay the fair trial of the proceeding – whether the plaintiffs should be given leave to re-plead

Acquisition of Land Act 1967 (Qld)
Civil Liability Act 2003 (Qld)
Local Government Act 1993 (Qld) s 1070
Local Government Act 2009 (Qld) s 141
Personal Injury Proceedings Act 2002 (Qld)
Uniform Civil Procedure Rules1999 (Qld) r 149, r 155, r 157, r 158, r 171, r 292, r 293, r 374

Chicco v Corporation of the City of Woodville (1990) Aust Torts Rep 67,893

Deatons Pty Ltd v Flew (1949) 79 CLR 370
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232

Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29

General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125

Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378

Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233
Queensland v Coffey [2005] QSC 212

COUNSEL:

P Cullinane for the applicant

The respondents appeared in person

SOLICITORS:

Barry Nilsson for the applicant

McMeekin J: The defendant, the Isaac Regional Council, applies for summary judgment pursuant to r 293 Uniform Civil Procedure Rules 1999 (“UCPR”) or in the alternative to strike out the plaintiffs’ Statement of Claim pursuant to r 171 UCPR. In the further alternative it seeks judgment pursuant to r 394 UCPR on the grounds that the plaintiffs have failed to comply with my order of 30 May that they file a compliant Statement of Claim.

The plaintiffs are unrepresented. The male plaintiff spoke for both.

On 30 May last…

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: [2016] QSC 172
Decision Date: 3 August 2016

CaseChat Overview and Summary

In the matter of Woolnough v Isaac Regional Council, the plaintiffs brought an action against the council, alleging that it had entered their land without authority and constructed defective sewage lines, which resulted in raw sewage leaking onto their property. The case was heard in the Queensland Supreme Court, which was required to consider the defendant's application for summary judgment and/or to strike out the plaintiffs' statement of claim.

The central legal issues revolved around whether there was a genuine dispute requiring a trial, whether the pleadings had a tendency to prejudice or delay the fair trial of the proceeding, and whether the plaintiffs should be granted leave to re-plead. The court needed to determine if the statement of claim disclosed a reasonable cause of action, and if not, whether it should be struck out or if the plaintiffs should be given an opportunity to amend their pleadings.

The court found that the plaintiffs' statement of claim was deficient as it failed to adequately disclose a cause of action against the defendant. The pleadings did not provide sufficient details regarding the alleged entry onto the plaintiffs' land, the construction of the sewage lines, or the resulting damage. The court concluded that the plaintiffs had not made out a case on their pleadings, and that there was no genuine dispute requiring a trial. Furthermore, the court held that the pleadings had a tendency to prejudice or delay the fair trial of the proceeding. Consequently, the court struck out the statement of claim and ordered the plaintiffs to file and serve an amended statement of claim by a specified date. The plaintiffs were also ordered to pay the defendant's costs associated with the application. The application was adjourned to a later date to be determined.

Orders

Orders of the court

The Statement of Claim is struck out;1.

The plaintiffs shall file and serve such amended Statement of Claim as they may be advised on or before 4pm on 29 August 2016;2.

The plaintiffs are ordered to pay the costs of the defendant of and incidental to this application;3.

The application is adjourned to a date to be fixed to be brought on, on the giving of three days’ notice.4.

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:	Woolnough & Anor v Isaac Regional Council [2016] QSC 172
PARTIES:	TIMOTHY EARL WOOLNOUGH (First Respondent/ Plaintiff) CHRISTEEN WOOLNOUGH (Second Respondent/ Plaintiff) v ISAAC REGIONAL COUNCIL (Applicant/ Defendant)
FILE NO/S:	S 12/16
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Mackay
DELIVERED ON:	3 August 2016
DELIVERED AT:	Mackay
HEARING DATE:	1 August 2016
JUDGE:	McMeekin J
ORDERS:	The Statement of Claim is struck out;1. The plaintiffs shall file and serve such amended Statement of Claim as they may be advised on or before 4pm on 29 August 2016;2. The plaintiffs are ordered to pay the costs of the defendant of and incidental to this application;3. The application is adjourned to a date to be fixed to be brought on, on the giving of three days’ notice.4.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the defendant applies for summary judgment or in the alternative to strike out the plaintiffs’ statement of claim – where the proceedings concern the plaintiffs’ claim that the council entered onto their land without authority and constructed defective sewage lines permitting raw sewage to escape onto their land – whether there is a need for a trial – whether the pleadings have a tendency to prejudice or delay the fair trial of the proceeding – whether the plaintiffs should be given leave to re-plead Acquisition of Land Act 1967 (Qld) Civil Liability Act 2003 (Qld) Local Government Act 1993 (Qld) s 1070 Local Government Act 2009 (Qld) s 141 Personal Injury Proceedings Act 2002 (Qld) Uniform Civil Procedure Rules1999 (Qld) r 149, r 155, r 157, r 158, r 171, r 292, r 293, r 374 Chicco v Corporation of the City of Woodville (1990) Aust Torts Rep 67,893 Deatons Pty Ltd v Flew (1949) 79 CLR 370 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29 General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125 Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378 Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233 Queensland v Coffey [2005] QSC 212
COUNSEL:	P Cullinane for the applicant The respondents appeared in person
SOLICITORS:	Barry Nilsson for the applicant