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[2020] QCA 56
respondent. Appeal dismissed. The appellant must pay the respondent's costs of the appeal ([27]).
The Court of Appeal upheld the dismissal of Petersen's claim against Nolan. The key problem was that the alleged complaint about election signs was not shown to involve a power Nolan held as a parliamentarian or Minister. Her public title or use of office-related resources did not fill that gap. The alternative negligence claim also failed on the pleaded facts. Given seven attempts to plead a viable claim and no material indicating another attempt could succeed as a matter of law, the primary judge was not required to permit further amendment. The appeal was dismissed, with appeal costs payable by Petersen.
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2,621 words · generated 02/10/2026
Patricia Petersen and Rachel Nolan were opposing candidates for the seat of Ipswich at the 2012 Queensland State election. Petersen ran as an independent; Nolan was the sitting member and the endorsed Labor candidate ([3]). Petersen alleged that Nolan caused Ipswich City Council to seize Petersen's election signs and have her fined. Petersen said Nolan's conduct was dishonest and misleading and was intended to harm her ([3]).
No linked legislation citations have been extracted yet.
Petersen claimed damages in misfeasance in public office and, alternatively, negligence. The amounts claimed included $3.42 million for misfeasance, sums for indignity, reputational damage and loss of liberty, estimated past and future earnings losses, and punitive or aggravated damages ([5]). The Court of Appeal did not determine whether those losses had occurred or what amount might be recoverable. The appeal concerned whether the pleaded case disclosed a legally recognisable cause of action and whether the primary judge made procedural or costs errors.
The litigation had involved repeated amendments. Nolan had filed a defence to the original statement of claim in February 2018. After further versions, Nolan applied to strike out the claim. Petersen then filed a sixth and seventh statement of claim, with the application being heard in relation to the seventh version on 22 May 2019 ([6]). The primary judge struck it out and entered judgment for Nolan on 9 September 2019 ([2], [9]-[10]). The primary judge also ordered indemnity costs.
Petersen's appeal raised a range of matters, including whether the claim disclosed misfeasance or negligence, whether she should have received another opportunity to amend, whether she had been properly recorded as content to proceed, whether there was a denial of natural justice, whether the primary judge relied on inaccurate information, and whether the costs order was wrong ([11]). The Court of Appeal dismissed the appeal and ordered Petersen to pay Nolan's appeal costs ([27]).
The reasons were given by Mullins JA, with McMurdo JA and Bond J agreeing ([1], [2], [28]). The core question was not simply whether Nolan made a complaint to the Council. The Court considered whether, even on the assumption that a complaint was made and prompted Council action, it was conduct involving public power Nolan held by virtue of her office ([12]).
The central holding was that misfeasance in public office requires a connection between the impugned conduct and a power or authority held because of the public office. Mullins JA described the essence of the tort as “the exercise or the purported exercise of the power or authority of public office” ([13]). The judgment also referred to Obeid v Lockley, which described the tort as addressing acts by public officers abusing or misusing powers conferred for public duties ([13]).
Petersen's case, as the Court understood it, relied on Nolan's status as a member of Parliament and Minister, and on the way Petersen said Nolan used that status and office-related resources. The primary judge had considered assertions that Nolan identified herself, used electorate or ministerial email addresses and a parliamentary telephone, and signed documents using public titles ([7]). Even assuming those actions occurred, they did not disclose the exercise of a power or authority held by Nolan by virtue of those offices ([7]). The appeal court reached the same conclusion: a complaint to the Council about election signs was not, on the existing law, an exercise of Nolan's parliamentary or ministerial authority ([13], [17]).
The distinction is between a public officer acting in a matter connected with public duties and a public officer exercising, or purporting to exercise, a power conferred by public office. The Court did not treat public status, apparent influence, or use of office-related resources as equivalent to an exercise of public power. Its reasoning was tied to the pleaded case and the authorities it discussed. It did not decide a broader question about every possible circumstance in which a title or resource might matter.
The Court considered Petersen's reliance on Nyoni v Shire of Kellerberrin. It explained that Nyoni did not establish that title alone was enough. In that case, the communications concerned the only pharmacy operating in the Shire, an essential service, and were held to constitute the exercise of power in public office ([14]). The Court treated those circumstances as materially different from the alleged complaint about election signs.
The Court also addressed Pro Teeth Whitening. That case involved an official's recommendation concerning a compulsory recall of products and the Minister's subsequent action. Mullins JA explained that the relevant passage did not decide that a purported exercise of power was unnecessary. Rather, it was part of a decision not to rule out a proposed claim at the amendment stage, in circumstances involving recommendations, statutory processes and a possible denial of natural justice ([15]-[16]). The Court therefore did not accept Petersen's reading of that decision as supporting her proposed expansion of the tort.
The alternative negligence claim also failed. The Court held that Nolan's status as a member of Parliament and Minister, combined with the fact that the parties were election opponents, did not establish the pleaded duty of care not to harm Petersen in the course of the election campaign. In addition, the pleaded allegations described intentional acts rather than negligent ones ([18]). The appeal court consequently found no error in the conclusion that neither pleaded cause of action was disclosed ([19]).
The Court then considered whether Petersen should have another opportunity to amend. The relevant circumstances included that the seventh statement of claim was already the seventh attempt and that no further material before the primary judge suggested Petersen could plead a cause of action known to law ([20]). The Court found no error in refusing another amendment. Summary judgment followed from that refusal ([20]).
The remaining grounds did not change the result. The transcript supported the primary judge's statement that Petersen was content to proceed after she said the medical certificate was “superfluous” because the hearing was continuing ([21]). The affidavit complaint did not establish material unfairness because further consideration would not have cured the fundamental pleading defects ([23]). Petersen's absence when the reasons and orders were delivered made no difference to the making of the orders ([24]). An additional factual assertion raised during submissions was not supported by evidence properly before the primary judge ([25]). Finally, the Court found no error in indemnity costs, given the state of the seventh pleading and the respondent's written submissions seeking that basis ([26]).
The judgment applies the existing doctrine of misfeasance in public office rather than announcing a new test. It records the established requirement that the conduct involve the exercise, or purported exercise, of power or authority existing by virtue of the public office ([13]). The Court relied on Calveley and referred to Obeid for the purpose of the tort, which is redress for abuse or misuse of powers conferred for public duties ([13]).
The decision's contribution is its application of that requirement to allegations involving a public official's complaint about a political opponent's election signs. It held that the alleged complaint was not itself an exercise of Nolan's public powers, and that public office, title, or office-related means of communication did not establish the missing connection on the pleaded facts ([7], [12]-[17]). The Court did not establish that official title or resources can never be relevant. It held that they did not disclose the required exercise of public power in this pleading.
The judgment also clarifies the limited use Petersen sought to make of Nyoni and Pro Teeth Whitening. It described Nyoni as involving communications about an essential local service that constituted an exercise of public power ([14]). It described Pro Teeth Whitening as dealing with whether a proposed claim should be ruled out at the amendment stage, rather than laying down a definitive rule that a purported exercise of power was unnecessary ([15]-[16]).
For negligence, the Court's treatment was confined to the pleaded facts. It rejected the proposition that the defendant's roles as a parliamentarian and Minister, in the context of an election campaign, established the duty alleged, and noted that the pleaded acts were intentional ([18]). The judgment does not set out a comprehensive account of negligence duties in election campaigns.
On procedure, the decision illustrates the Court's assessment of a proposed further amendment in the particular setting of seven statements of claim and no material indicating that a legally recognised cause of action could be pleaded ([20]). It should not be read as announcing that seven attempts will always bar amendment. The judgment's reasoning depends on the procedural history and the absence of material supporting another viable pleading.
At [13], Mullins JA states: “It is the exercise or the purported exercise of the power or authority of public office that is the essence of the tort of misfeasance in public office.” In plain English, it is not enough that a defendant holds public office or acts in a way that affects someone. The pleaded conduct must involve using, or purporting to use, a power attached to that office.
At [13], the Court describes the tort, by reference to Obeid v Lockley, as providing redress for “acts done by public officers in abuse or misuse of powers conferred on them for the purpose of their public duties”. This explains why the source and character of the power matter: the alleged wrongdoing must concern misuse of public authority, rather than merely conduct by a person who happens to be a public officer.
At [14], the Court distinguishes Nyoni. Its account is that the communications there concerned the only pharmacy in the Shire, an essential service, and constituted an exercise of power in public office. The plain-English point is that the Court did not treat Nyoni as authority that use of a public title, without more, satisfies the tort.
At [16], the Court explains that the relevant observation in Pro Teeth Whitening was a rejection of arguments against allowing an amendment, not a definitive statement that a purported exercise of power is unnecessary. The practical interpretive point is that a decision allowing a proposed claim to proceed at an amendment stage does not necessarily determine the final elements of the cause of action.
At [18], the Court says that Nolan's status as a member of Parliament and Minister did not itself give rise to the pleaded duty of care, and that the allegations concerned intentional rather than negligent acts. In plain English, describing intentional conduct as negligence did not resolve the absence of a pleaded basis for the asserted duty or negligent behaviour.
At [20], the Court says there was “nothing further” in the material suggesting that another opportunity would allow Petersen to plead a cause of action known to law. That passage explains why the pleading history mattered: the decision was not based only on the number of amendments, but also on the absence of material supporting a viable further claim.
The decision is relevant to pleadings alleging that a public officer committed misfeasance through a complaint, communication, or other act that allegedly caused a private person harm. The key issue is whether the alleged conduct involves an exercise or purported exercise of a power attached to public office. In Petersen, the alleged complaint concerned an election opponent's signs, and the pleading did not identify a parliamentary or ministerial power being exercised ([12]-[17]).
The decision is particularly relevant where the alleged connection to public office rests on factors such as the defendant's title, use of an office email address, use of a public telephone, or signing documents with an official designation. Those matters were raised in Petersen, but the Court held that they did not establish an exercise of public power on the facts alleged ([7], [17]). The judgment does not say those details are irrelevant in every case. It says that they did not supply the missing element here.
The comparison with Nyoni indicates that the subject matter and nature of the communication may be important to the analysis. The Court described that case as concerning an essential local service and as involving an exercise of public power ([14]). The contrast helps identify the question to examine: whether the impugned communication is connected to a power or authority held for public duties, not merely whether it was made by a public officer.
The case also bears on pleadings that frame intentional conduct as negligence. Petersen's pleading alleged intentional acts, and the Court found no basis for the claimed duty of care ([18]). A pleading that includes both tort labels must still allege facts supporting the elements of each cause of action.
Finally, the procedural reasoning may be relevant where a party has repeatedly amended a pleading. The Court considered both the seventh statement of claim and the absence of material suggesting a further attempt could state a cause of action known to law ([20]). The judgment does not prescribe a general numerical limit on amendments.
The supplied judgment contains no decisions made after 27 March 2020 and therefore provides no information about how later courts have treated Petersen v Nolan. It would not be grounded in this source to say that later courts have followed, distinguished, applied, or criticised it.
The judgment itself explains how it treated the authorities before it. It considered Northern Territory v Mengel as the source for the generally accepted elements of misfeasance in public office, as identified by the primary judge ([7]). It cited Calveley for the proposition that the tort involves an act done in the exercise of a power or authority existing by virtue of public office ([13]). It cited Obeid for the tort's purpose ([13]) and considered Nyoni and Pro Teeth Whitening in response to Petersen's arguments about the required connection to public power ([14]-[16]).
Those are relationships within this judgment, not evidence of subsequent treatment of Petersen itself. Any account of later judicial consideration would require later case materials not included in the provided text.
The judgment leaves open the broader proposition Petersen advanced: whether the law might develop to prevent a public official from avoiding misfeasance liability where conduct is associated with the office but does not involve an exercise of public power. The Court said the authorities did not support that speculation on the case before it ([14], [17]). It did not decide a hypothetical future case in which different facts or legal arguments might arise.
The decision also does not determine every circumstance in which use of a public title, office contact details, or public resources might be evidence relevant to the exercise of public power. It concludes only that the alleged matters in Petersen's pleading did not establish the necessary connection ([7], [17]).
The Court's discussion of Pro Teeth Whitening is similarly bounded. It explains why that decision did not establish Petersen's proposed proposition, but does not provide a comprehensive treatment of all circumstances in which a recommendation or purported exercise of statutory power may support a misfeasance claim ([15]-[16]).
On amendment, the judgment does not establish a general rule that a particular number of attempts makes further amendment impermissible. Its conclusion was based on the seventh pleading and the lack of material suggesting that another version could plead a recognised cause of action ([20]). The judgment also does not determine whether any different cause of action could have been available on facts not pleaded or material not before the primary judge.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this analysis, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Petersen v Nolan [2020] QCA 56
PARTIES: PATRICIA PETERSEN (appellant) v RACHEL GENEVIEVE NOLAN (respondent)
FILE NOS: Appeal No 10668 of 2019 / SC No 612 of 2018
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2019] QSC 216 (Martin J)
DELIVERED ON: 27 March 2020
DELIVERED AT: Brisbane
HEARING DATE: 6 March 2020
JUDGES: McMurdo and Mullins JJA and Bond J
ORDERS: Appeal dismissed.The appellant must pay the respondent’s costs of the appeal.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where primary judge struck out the appellant’s seventh statement of claim and gave summary judgment for the respondent – where statement of claim disclosed no reasonable cause of action – where no further material disclosed suggesting that the appellant could plead a cause of action known to law – whether the appellant should have been given another opportunity to replead / TORTS – MISCELLANEOUS TORTS – MISFEASANCE IN PUBLIC OFFICE – where the respondent was a member of parliament and Minister – where the appellant was contesting the seat for which the respondent was the sitting member – where the appellant alleged the respondent complained to local council about the appellant’s election signs and the appellant was fined – where the appellant unable to identify public power alleged to have been misused by the respondent in complaining to the council – whether use of title attached to public office is sufficient to ground a claim for misfeasance in public office / Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293 / Calveley v Chief Constable of the Merseyside Police [1989] AC 1228, cited / Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65, considered / Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59, considered / Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71, cited / Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth of Australia & Ors [2015] QSC 175, considered
COUNSEL: The appellant appeared on her own behalf / J B Rolls for the respondent
SOLICITORS: The appellant appeared on her own behalf / Bold Lawyers for the respondent
McMURDO JA: I agree with Mullins JA.
MULLINS JA: The appellant Dr Petersen appeals against the striking out of her seventh statement of claim, the judgment given in favour of the respondent Ms Nolan, and the order that Dr Petersen pay Ms Nolan’s costs on the indemnity basis. These orders were made by the learned primary judge on 9 September 2019: Petersen v Nolan [2019] QSC 216 (the reasons).
The nature of the proceeding
Dr Petersen claimed damages against Ms Nolan for misfeasance in public office and/or negligence. Dr Petersen and Ms Nolan were both candidates at the 2012 Queensland State election with Dr Petersen contesting the seat of Ipswich as an independent candidate and Ms Nolan, as the sitting member, contesting the same seat as the endorsed Labor candidate. Dr Petersen alleged that Ms Nolan caused Ipswich City Council to seize Dr Petersen’s election signs and have her fined and thereby intentionally aimed to cause harm to Dr Petersen. Dr Petersen made a series of allegations in the statement of claim against Ms Nolan as to the conduct she alleged Ms Nolan engaged in that was alleged to be dishonest and misleading in relation to Dr Petersen’s election signs.
Apart from the allegations based on alleged misuse by Ms Nolan of her office, Dr Petersen pleaded that Ms Nolan owed her a duty of care in her capacity as the member for Ipswich and a Minister of the Government not to harm Dr Petersen.
The damages that Dr Petersen claimed from Ms Nolan were described in the statement of claim as $3.42m for misfeasance, $20,000 for indignity, $50,000 for damage to reputation, $50,000 for loss of liberty, estimated loss of earnings to date of trial of $800,000, estimated loss of earning capacity in the future of $1.5m and punitive or aggravated damages of $1m. The additional or alternative claim for damages for negligence was for like amounts, except the sum of $3.42m was claimed for negligence rather than misfeasance.
Ms Nolan’s defence had been filed on 13 February 2018 in response to the original statement of claim filed on 16 January 2018. After Dr Petersen had filed an amended claim and her fifth statement of claim on 29 March 2019, Ms Nolan filed an application on 16 April 2019 to have that amended claim and the fifth statement of claim struck out pursuant to s 171 of the Uniform Civil Procedure Rules 1999 (Qld), judgment entered pursuant to r 293 of the UCPR and an order for costs of the proceeding, including the costs of the application, to be assessed on the standard basis. Dr Petersen then filed the sixth statement of claim on 20 May 2019 and the seventh statement of claim on 21 May 2019. Ms Nolan’s application was heard by the primary judge on 22 May 2019 in relation to the seventh statement of claim.
The reasons
At [14] of the reasons, the primary judge identified the five elements about which there is general agreement that they constitute the tort of misfeasance in public office, based on Northern Territory v Mengel (1995) 185 CLR 307, 345-348, and observed at [18] of the reasons that Dr Petersen did not identify anywhere in the pleading the public power alleged to have been misused. At [19] of the reasons, the primary judge dealt with each of the matters that Dr Petersen put forward in her submissions (even though they were not pleaded) in an attempt to show that Ms Nolan’s actions were the exercise of a power that was an incident of the office she held. Dr Petersen asserted that when Ms Nolan made demands of the council, she identified herself, used her electorate office, email address and her ministerial email address, used her parliamentary telephone, signed documents as the member for Ipswich and as a Minister, and that she was acting as such when she did those things. The primary judge concluded that, even assuming that the alleged actions did occur, it still did not disclose an exercise of some power or authority which Ms Nolan had by virtue of the offices she held.
The primary judge noted at [24] of the reasons that the pleading did not disclose any basis to support that a member of Parliament or a Minister owed a duty of care of the type pleaded to Dr Petersen. Although Dr Petersen had framed her alternative claim in terms of negligence, the primary judge observed at [25] of the reasons that nothing in the pleading disclosed negligence, as the allegations in the pleading were concerned with intentional acts. It was also noted at [27] of the reasons that there was no evidence which supported in any way Dr Petersen’s allegations that the seizure of her signs and the fine from the Council were the result of arrangement, demand or any other form of persuasion by Ms Nolan.
On the basis Dr Petersen had seven attempts to formulate a viable statement of claim, the primary judge concluded at [29] of the reasons that “It does justice to no one to allow for this to be repleaded”. The reason for giving summary judgment was set out in [31] of the reasons that there was no real prospect of Dr Petersen succeeding on all or a part of her claim and there was therefore no need for a trial, in the absence of any viable course of action or any evidence which suggested that some other cause of action might exist. The reason the primary judge ordered costs against Dr Petersen on an indemnity basis was set out in [34] of the reasons that it was a case which was doomed to fail and that it had such a remote prospect of success “it should never have been brought”.
The reasons were published in court on 9 September 2019, when the orders set out in the reasons were made. Dr Petersen was not present in the court when the reasons were published and the orders made.
Grounds of appeal
Did the seventh statement of claim disclose causes of action?
The issue that was before the primary judge was whether, even if Ms Nolan had made a complaint to the Council about Dr Petersen’s election signs and that prompted the Council to take action, the complaint by Ms Nolan was an exercise of power by her in a public office. Dr Petersen’s submission was that Ms Nolan was the holder of a public office at the time the complaint was made to the Council and there was therefore the requisite connection between her office and the conduct that resulted in the harm to Dr Petersen.
As the primary judge explained in the reasons at [16] by quoting from Calveley v Chief Constable of the Merseyside Police [1989] AC 1228, 1240, the tort of misfeasance in public office involves an act done in the exercise by the public officer of some power or authority that exists by virtue of the office the public officer holds. On the basis of the existing law, there is not that connection between Ms Nolan’s then public office as a member of Parliament and a Minister and her communication with the Council. Any complaint by Ms Nolan to the Council was not an exercise of her authority or power by virtue of being the sitting member or a Minister. It is the exercise or the purported exercise of the power or authority of public office that is the essence of the tort of misfeasance in public office. As Bathurst CJ (with whom Beazley P and Leeming JA agreed) observed in Obeid v Lockley (2018) 98 NSWLR 258 at [100], the tort of misfeasance in public office “is designed to provide redress for acts done by public officers in abuse or misuse of powers conferred on them for the purpose of their public duties”.
As noted at [20] of the reasons, the primary judge was cognisant that Dr Petersen was advancing an argument to the effect that the law may develop to preclude a public official from avoiding liability for a misfeasance on the basis that the public official’s acts do not involve the exercise of the public power. That argument was developed on appeal by Dr Petersen in reliance on Nyoni v Shire of Kellerberrin (2017) 248 FCR 311 to assert the tort of public misfeasance in public office may be widened to include the use of a title attached to the public office rather than the exercise of a power. Nyoni was not such a case. In Nyoni the Chief Executive Officer and the Shire were held to have committed the tort of misfeasance in public office, as the CEO’s impugned communications to the regulatory authorities about the only pharmacy operating in the Shire that was an essential service for the Shire were about matters that directly affected the Shire and constituted the exercise of power in public office.
Dr Petersen also relies on Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth of Australia & Ors [2015] QSC 175 where Peter Lyons J was not prepared to refuse the plaintiff leave to amend the statement of claim where the defendants submitted that the proposed claim for damages for misfeasance in public office must fail. Dr Petersen relies particularly on [62] where Peter Lyons J stated:
“Having regard to the cases which have been discussed, it does not seem to me that I can safely conclude that the plaintiff’s claim for damage for misfeasance in public office must fail, because the plaintiff does not allege conduct of the fourth defendant which amounted to a purported exercise of power.”
That statement has to be understood in the context of the issues that arose in Pro Teeth. It was the conduct of the fourth defendant who held a position with the third defendant, the Australian Competition and Consumer Commission, that was relevant. The fourth defendant in the course of his duties made a demand of the plaintiff to recall the plaintiff’s teeth whitening products and recommended to the second defendant (who was the relevant Minister) that the plaintiff’s products be compulsory recalled without delay and without a conference process that was provided for by the Competition and Consumer Act 2010 (Cth). The Minister acted on the recommendation. The plaintiff alleged that the fourth defendant’s recommendation in favour of the compulsory recall was a wilful abuse of his public function and the decision of the Minister to exercise the powers of recall was unlawful, because natural justice was not afforded to the plaintiff in giving him a hearing in the conference process. The main issue was whether the making of a recommendation by the fourth defendant to the second defendant was an exercise of power that could be the subject of the tort of misfeasance in public office and, after a survey of the authorities (at [31]-[53]) Peter Lyons J did not conclude that the making of a recommendation could not constitute the tort of misfeasance in public office. Peter Lyons J was also not satisfied (at [55]-[56]) that the tort of misfeasance in public office could not apply to the purported exercise of public power by the fourth defendant, if it were invalid due to a denial of natural justice. It was also conceded by the defendants that a failure to act, rather than some positive conduct, might come within the scope of the tort. The issue of whether the fourth defendant would be found to be the holder of a public office (which was accepted at [66] to be an element of the cause of action) was left for the trial of the action. The statement at [62] of the reasons is therefore a rejection of the defendants’ arguments for why the leave to amend the statement of claim should not be given, rather than a definitive statement that a purported exercise of a power is not required for the tort of misfeasance in public office.
The authorities do not support Dr Petersen’s speculation, should it be relevant, as to what the law might become. There was no error on the part of the primary judge in finding that Dr Petersen’s pleading did not disclose the constituent facts to pursue the tort of misfeasance in public office against Ms Nolan.
The mere fact that Ms Nolan was a member of parliament and a Minister of the Government who was seeking re-election in the same seat in which Dr Petersen was a candidate did not give rise to a duty of care not to harm Dr Petersen in the course of the election campaign. In any case, as the primary judge found, the allegations that were pleaded by Dr Petersen were of intentional acts and not negligent acts.
There was no error in the primary judge’s conclusion that the seventh statement of claim did not disclose a reasonable cause of action.
Should Dr Petersen have been given the opportunity to replead?
Was Dr Petersen content to proceed with the hearing of the application?
“Ms Petersen originally sought that this hearing be adjourned on the basis of ill-health but, when the matter came on, she was content to proceed.”
The primary judge did not err by stating that Dr Petersen was content to proceed, when that reflected what happened.
Was there a denial of natural justice?
There are two aspects in which Dr Petersen alleges she was denied natural justice.
The first aspect is that Dr Petersen complains that she did not have an opportunity to carefully consider the affidavit of Mr Wright (who was Ms Nolan’s solicitor) that was filed on 15 May 2019. Dr Petersen asserts that she did not have time to peruse adequately the affidavit that included a copy of the Magistrates Court file in relation to the legal proceeding brought by Dr Petersen against the Council to recover her electoral signs and banners taken by the Council. First, before the primary judge Dr Petersen relied on her affidavit filed on 20 May 2019 in which she complained of the delay in receiving Mr Wright’s affidavit and requested an adjournment of the application, but she did not then pursue the adjournment at the hearing of the application. Second, there was little in the exhibits to Mr Wright’s affidavit that was relevant to the way in which the primary judge disposed of the application. Because of the fundamental defects in Dr Petersen’s seventh statement of claim, further opportunity to respond to Mr Wright’s affidavit would not have affected the outcome of the application.
The second aspect of the denial of natural justice arises from the fact that Dr Petersen was apparently outside the courtroom and not called in when the reasons were published and the orders made by the primary judge. Whether Dr Petersen was present or not made no difference whatsoever to the making of the orders that were set out in the reasons that were published on that occasion. Dr Petersen’s complaint does not amount to a denial of natural justice.
Did the primary judge rely upon inaccurate information provided by Ms Nolan?
Did the exercise of the discretion in relation to costs miscarry?
Orders
Appeal dismissed.
The appellant must pay the respondent’s costs of the appeal.
Petersen
Nolan [2020] QCA 56
(1995) 185 CLR 307
(2017) 248 FCR 311
(2018) 98 NSWLR 258
Appeal dismissed. The appellant must pay the respondent's costs of the appeal ([27]).