Gibbs v Triscott B10/1998 [1999] HCATrans 213 (24 June 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B10 of 1998

B e t w e e n -

ALAN HARRY GIBBS

Applicant

and

PAUL ANTHONY TRISCOTT

Respondent

Application for special leave to appeal

McHUGH J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 1999, AT 1.06 PM

Copyright in the High Court of Australia

(The parties were called outside the Court)

McHUGH J: There is no appearance for the parties in this matter. However, written submissions have been filed and the Court is able to give a judgment on those materials.

The applicant seeks special leave to appeal against an order of the Court of Appeal of the Supreme Court of Queensland dismissing his application for leave to appeal and for an extension of time to appeal against an order of the District Court which struck out his plaint filed in the District Court.

The applicant contends that special leave should be granted on the grounds:

That there is a difference of opinion between the full bench of the Federal Court and the Supreme Court of appeal and there is no legal reason for refusing to have my claims heard.

The present application is another step in a long history of litigation between the applicant and the respondent which has arisen out of a claim by the respondent that the applicant was responsible for the payment of professional legal costs.

As a result of this litigation, the applicant sued the respondent for damages alleging wrongful and malicious prosecution, perjury and an abuse of legal process over a number of years. That action was filed in the civil jurisdiction of the District Court.

On 17 December 1997, Judge Forde, sitting in that court, struck out the plaint on a number of grounds including that it disclosed "no reasonable cause of action", that it was "frivolous or vexatious" and "that the issues raised by the action were res judicata".

By a notice of motion dated 26 February 1998, the applicant sought an extension of time for the filing of a notice of appeal against the orders made by Judge Forde. The Court of Appeal dismissed that notice of motion on the ground that no error in the decision of the District Court of 17 December 1997 has been established and no reason has been identified to warrant granting Mr Gibbs the indulgence which he seeks.

In the course of its reasoning, the Court of Appeal said that the applicant had placed:

weight on a passage in the judgment of the Full Federal Court which he mistakenly thought assisted him in the present proceeding.

This was a reference to a passage in a judgment delivered by the Full Court of the Federal Court in October 1996 dismissing an appeal by the applicant from the refusal of a single judge of that court to set aside a bankruptcy notice. The applicant contends in his written argument before this Court that the Court of Appeal erred in stating that the passage in the judgment of the Full Court did not help him, and this is the basis of the first of the grounds for special leave.

In our view, there is no substance in that contention. What the Full Court of the Federal Court said is set out at page 37 of the book:

Correspondingly, the conclusion by a Court of Bankruptcy that it is not satisfied of the existence of a counterclaim or cross-demand does not preclude a debtor from pursuing a cross-demand in any court of competent jurisdiction which the debtor is able to persuade of the existence of an arguable cause of action.

This passage says nothing whatever as to the validity of the particular plaint that Judge Forde struck out. As to the second ground relied on by the applicant, there is not the slightest reason for thinking that the Court of Appeal erred in refusing to extend the time for applying for leave to appeal, or in refusing to make the orders sought by the applicant, nor is there any ground for thinking that the learned District Court judge erred in any way, striking out the applicant's plaint. That being so, the application is dismissed.

The respondent seeks an order for costs of and incidental to the application on an indemnity basis. However, we think that the application should be dismissed on the basis that the applicant simply pay the respondent's costs.

AT 1.14 PM THE MATTER WAS CONCLUDED