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[2024] QCA 221
General information, not legal advice.
Court of Appeal (Qld)
2024-11-12
Mullins P and Boddice JA and Crow J
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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: Quach v Daly [2024] QCA 221
PARTIES: Dr MICHAEL VAN THANH QUACH / (appellant) / v / KEVIN JOHN DALY / (first respondent) / ROBIN DALY / (second respondent)
FILE NO/S: Appeal No 7316 of 2024 / SC No 15806 of 2022
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2024] QSC 115 (Martin SJA)
DELIVERED ON: 12 November 2024
DELIVERED AT: Brisbane
HEARING DATE: 10 October 2024
JUDGES: Mullins P and Boddice JA and Crow J
ORDER: Appeal dismissed with costs.
CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – GENERALLY – where the appellant argued that the orders striking out the appellant’s claim and statement of claim and restraining him from instituting further proceedings without the leave of a Judge of the Trial Division of the Supreme Court were interlocutory orders and were wrong, and ought to be overturned – where the appellant argued that there had been a lack of a jurisdictional fact – whether the primary judge had proceeded incorrectly / Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293, r 658 / Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, cited / Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219; [2007] QCA 364, cited / Cordes v Dr Peter Ironside Pty Ltd [2010] 2 Qd R 235; [2009] QCA 302, cited / du Boulay v Worrell [2009] QCA 63, followed / Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43, considered / Michael Van Thanh Quach v Kevin John Daly and Robin Daly [2024] QSC 115, cited / Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2) (2018) 265 FCR 290; [2018] FCAFC 132, considered
COUNSEL: The appellant appeared on his own behalf / B Lambert (sol) for the respondents
SOLICITORS: The appellant appeared on his own behalf / Birch & Co for the respondents
THE COURT: The appellant, who is self-represented, has filed a notice of appeal with the sole ground as “Res judicata does not apply to interlocutory proceedings.” Whilst self-represented litigants should be afforded a degree of indulgence and given appropriate assistance, they are as much bound by the rules of court as any other litigant.1
“Res” literally “the thing”, “judicata” literally “decided”, is a familiar phrase and concept to lawyers. There are both similarities and differences from issue estoppel.2 The proposition that res judicata or issue estoppel cannot apply to interlocutory proceedings is, as a matter of law, incorrect. Holmes JA (with whom Wilson J agreed) in Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219 at paragraphs [50] to [58], particularly at [56]:
“[56]In Makhoul v Barnes the full Federal Court described as “too broadly expressed” the proposition (expressed by a single judge in an earlier decision) that the determination of an issue determined in interlocutory proceedings could not give rise to an issue estoppel. The Court referred to Carl Zeiss Stiftung (No. 3) and Joseph Lynch Land Co. as indicating that the correct approach was to consider whether the earlier decision ought to be regarded as a final determination of the issue, rather than focussing on the nature of the proceedings.” [footnotes omitted]
Even if the appellant’s ground of appeal was correct, it is difficult to comprehend what that assertion has to do with the appeal. The appellant’s eight paragraphs in his written submission do not bring any illumination to the appellant’s argument.
As best as can be understood, it appears the appellant wishes to argue that the orders made by Martin SJA on 5 June 2024, striking out the appellant’s claim and statement of claim and restraining him from instituting further proceedings without the leave of a Judge of the Trial Division of the Supreme Court, were interlocutory orders and were wrong, and ought to be overturned.
In order to understand and assess the appellant’s argument, it is necessary to have reference to the history of proceedings.
On 15 December 2022, the appellant filed an originating application seeking the following orders:
"1.Order the respondents to sell, at the agreed price of $3.0 million less agent’s fee, the following:
I.the property 57 Weedon Street, West, QLD MANSFIELD 4122, Lot L2 RP120516 and L2 RP87099 (house and land); and
II.Daly's Native Plants, including wholesale business, all nursery stock, tools & machinery and equipment in situ, with all debts paid.
2.Compensatory damages for the extensive delay.
3.The respondents pay the applicant’s costs of the application.
4.The respondents pay interest."
On 26 July 2023, it was ordered that the proceedings continue as if started by claim.
On 25 August 2023, the appellant filed his first statement of claim, which on the face of it, was severely deficient and did not plead a cause of action.
On 4 September 2023, the respondent served a Rule 444 letter and requested particulars.
On 13 September 2023, the appellant filed an amended statement of claim.
On 18 September 2023, the respondent served a second Rule 444 letter requesting particulars of the amended statement of claim.
On 25 September 2023, the appellant replied to the Rule 444 letter.
On 14 November 2023, the appellant filed a further amended statement of claim (‘FASC’).
On 17 November 2023, the respondent served their third Rule 444 letter complaining about the FASC.
On 30 November 2023, the respondent served a fourth Rule 444 letter and a request for particulars of the FASC.
On 7 December 2023, the respondent filed an application seeking, amongst other things, that the FASC be struck out.
On 14 December 2023, Kelly J struck out the FASC and gave leave to replead on or before 15 February 2024.
On 15 February 2024, the appellant filed his second further statement of claim (‘2FASC’).
On 19 February 2024, Freeburn J gave leave to the respondent to bring a strike out application and for the appellant to issue a Rule 222 notice.
On 22 March 2024, the respondent served their fifth Rule 444 letter and request for particulars of the 2FASC.
On 5 April 2024, the respondent filed a strike out application.
On 12 April 2024, the strike application was listed for hearing, however, the appellant filed a third further amended statement of claim (‘3FASC’), and the application to strike out was adjourned to 23 April 2024.
On 17 April 2024, the respondent filed an amended strike out application (Court Document 55). In response, the appellant filed his fourth amended statement of claim (‘4FASC’) with the title “Revised, Amended, Repleaded Statement of Claim”. This is Court Document 58 and it attached seven appendices.
The application was heard on 23 April 2024 by Martin SJA, who in reasons3 delivered on 5 June 2024, ordered that the appellant’s claim and 4FASC be struck out as the appellant had been unable to plead a cause of action after six attempts to do so. Martin SJA also made a order, that:
“The plaintiff, by himself, his servants and agents be restrained from instituting any proceedings or taking any further action against the defendants so far as it might relate to or concern the allegations made by him in this matter without first obtaining the leave of a judge of the Trial Division of the Supreme Court."
The appellant’s written submissions
“5.Conclusion to legal analysis:
I.There is no application for summary judgement without first filing a defence. Pursuant to the Full Court of the Federal Court Ruling in ‘Dragon Pearl’, r 658 cannot be used in an interlocutory proceeding to apply res judicata.
II.The orders of Martin J are in breach for the Full Court Ruling in ‘Dragon Pearl’. Therefore, the orders of Martin J should be set aside.
III.The respondent did not have leave for an application for summary judgement.
IV.The Court below has ruled that the Contracts are binding. Pursuant to the High Court ruling in Harrington v Browne, ‘it must be remembered that there can be only one construction given to a contract.’
V.The Court below [Kelly J] on the 14 December 2023 ruled, that the Statement of Claim ‘points made are correct.’” [footnotes omitted]
Points 1 and 2
Whilst the appellant is correct that under Rule 293 Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’), summary judgment cannot be granted for a defendant until a notice of intention to defend has been filed, the problem with the appellant’s first point is that the respondent did not apply for summary judgment under Rule 293, and nor did the primary judge grant judgment under Rule 293 or under Rule 658. The respondents had sought an order striking out the claim and statement of claim pursuant to Rule 171 and Rule 658 of the UCPR or in the Court’s inherent jurisdiction.
As to the appellant’s submission regarding the ‘ruling’ in Dragon Pearl6 it is again difficult to understand the appellant’s submission. Rule 658 provides:
“658****General
(1)The court may, at any stage of a proceeding, on the application of a party, make any order, including a judgment, that the nature of the case requires.
(2)The court may make the order even if there is no claim for relief extending to the order in the originating process, statement of claim, counterclaim or similar document.”
Point 3
Point 4
“The other matters pleaded in the various iterations of the Statement of Claim concerning valuation and so on only go to further demonstrate that no agreement has been reached between the parties. This is confirmed by the changing versions of relief sought by Mr Quach as he attempted to plead his case.”
Point 5
The appellant’s oral submissions
In oral submissions, the appellant asserted there was a res judicata without identifying if it could apply, or how it could assist him in his appeal. When the appellant was referred to paragraph 35 of the primary judgment which contained the von Risefer order (allowing the appellant to institute further proceedings on the same issues only with the leave of a judge of the Trial Division of the Supreme Court), the appellant continued to argue that there was a res judicata, despite the obvious and only conclusion that there could not be a res judicata as he could replead his case, with the leave of a Judge, and take his case to trial. The appellant could not articulate any argument based on res judicata which could possibly assist in his appeal.
In his oral submissions, the appellant raised a new argument based loosely upon an allegation of a breach of the rules of natural justice, with reference to the first sentence in the second paragraph of the judgment of Mason CJ, Deane and McHugh JJ in Annetts v McCann (1990) 170 CLR 596 where their Honours said:
“It can now be taken as settled that, when a statute confers a power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.”
The appellant argued there were no plain words of ‘necessary intendment’, however, he could not explain how this applied to any part of this case. The appellant did not articulate, and it was impossible to understand any submission based upon any suggestion of a breach of the rules of natural justice. When it was pointed out to the appellant that he had now made six attempts at formulating a pleading, the appellant’s response was that as six of his statements of claim had been struck out, he was in fact only given one attempt to plead a statement of claim. That is plainly nonsense.
The appellant raised a further argument that the primary judge had proceeded incorrectly, as there was “lack of a jurisdictional fact”. The appellant cited paragraph 43 of the reasons of the High Court in Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120, where the court said at [43]:
“The expression “jurisdictional fact” was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in the exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.”
Conclusion
du Boulay v Worrell & Ors [2009] QCA 63 at [69] per Muir JA. ↩
Cordes v Dr Peter Ironside Pty Ltd [2010] 2 Qd R 235 at [44] to [48] per Holmes JA (as her Honour then was) and Chesterman JA. ↩
Michael Van Thanh Quach v Kevin John Daly and Robin Daly [2024] QSC 115. ↩
Ibid, at [32]. ↩
Ibid, at [33] and [35]. ↩
Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2) [2018] FCAFC 132, at [14]. ↩
Quach
Daly [2024] QCA 221
(1990) 170 CLR 596
(2008) 236 CLR 120
(2018) 265 FCR 290