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Queensland Judgments
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  • Unreported Judgment

Kleeman v The Star Entertainment Group Limited and Another (No 1)

 

[2020] QSC 390

SUPREME COURT OF QUEENSLAND

CITATION:

Kleeman v The Star Entertainment Group Limited and Another (No 1) [2020] QSC 390

PARTIES:

JOHN BRIAN KLEEMAN

(plaintiff/respondent)

v

THE STAR ENTERTAINMENT GROUP LIMITED

(first defendant/applicant)

THE STAR ENTERTAINMENT QLD LIMITED

(second defendant/applicant)

FILE NO:

12236 of 2018

DIVISION:

Trial Division

PROCEEDING:

Interlocutory application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 October 2020 ex tempore 

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2020 

JUDGE:

Ryan J

ORDERS:

  1. The defendants’ application is dismissed.
  2. The plaintiff’s statement of loss and damage is to be treated as the pleadings in this case.

CATCHWORDS:

DAMAGES – GENERAL PRINCIPLES – GENERAL AND SPECIAL DAMAGES – where the plaintiff appears for himself in a claim for damages for personal injury – where the plaintiff’s pleadings are deficient in many respects – whether the plaintiff ought to be constrained in his evidence about loss and damage because of the inadequacy of his pleadings

Uniform Civil Procedure Rules 1999, r 150, r 155, r 166

Meredith v Palmcam Pty Ltd & Anor [2001] 1 Qd R 645; [2000] QCA 113, distinguished

W & I Wright Nominees Pty Ltd v Haxview Pty Ltd & Ors [2003] QDC 10, cited

COUNSEL:

The plaintiff appeared for himself

D Cormack for the first and second defendants

SOLICITORS:

The plaintiff appeared for himself

Moray and Agnew lawyers for the first and second defendants

HER HONOUR:   This is an application in a claim for damages for personal injury by John Kleeman. 

Mr Kleeman appears for himself.  He claims, in damages, $2.2 million.  Perhaps unsurprisingly, his pleadings are deficient in many respects.  The defendants have made many, many attempts to cause the plaintiff to amend or regularise his pleadings, which he has resisted.  He insists, in effect, that he has done enough.  The defendants brought applications with a view to ending the proceedings early which obviously have not succeeded.

By way of overview, the original claim and statement of claim were filed on 12November 2018.  The first and second defendants applied to have the statement of claim struck out, or alternatively, summary judgment, or alternatively, a stay of the claim on 30 April 2019. 

Their application was heard by his Honour Justice Bradley on 29 May 2019.  The defendants identified the deficiencies in the plaintiff’s pleadings to his Honour, as well as other issues. 

His Honour Justice Bradley made certain orders, including one requiring the plaintiff to amend his statement of claim and to file it and serve it by a certain time.  His Honour adjourned the defendants’ application (for strike out et cetera) until 24 June 2019.

The defendants’ application was heard on that day (24 June 2019) by her Honour Justice Bowskill. 

Her Honour made orders which, in effect, gave the plaintiff more time to file and serve an application for leave to amend his claim and statement of claim, and to actually amend it (that is, by 15 July 2019).  If the plaintiff failed to comply with her Honour’s timetable, her Honour ordered that the proceedings would stand dismissed.  The defendants’ application was adjourned to a date to be fixed. 

The plaintiff did not file an amended statement of claim or related application by the date stipulated in her Honour’s order.  Indeed, relevant documents had not been filed by 23 July 2019. 

The matter came back on before her Honour on 24 July 2019. 

Her Honour vacated her earlier order (that the proceedings would stand dismissed if the documents were not filed) and instead extended time for compliance with her orders until 7 August 2019.  Her Honour listed the matter for review on 9 August 2019. 

An amended claim and statement of claim were filed, and I assume served, on 2 August 2019.

At the review, on 9 August 2019, her Honour made certain procedural orders and further adjourned the defendants’ application to a date to be fixed.  Her Honour also ordered that the matter be reviewed by her on 10 October 2019, after the parties attended a settlement conference, which her Honour assumed would take on 2 October 2019. 

No such conference did take place, nevertheless, the defendants filed an amended defence on 21 August 2019.

The plaintiff filed a document which purported to be his statement of loss and damage on 4 September 2019.  He filed his reply to the amended defence on 4 September 2019, as well.  His reply to the amended defence, I note, refuted almost every paragraph of it. 

The matter came back on before her Honour Justice Bowskill on 10 October 2019 for review.  Her Honour made further procedural orders, including an order that the plaintiff file and serve a written statement of loss and damage by 31 October 2019, and that the parties appear before the Resolutions Registrar on 19 November 2019 for a settlement conference.  Her Honour made no order on that day about the defendants’ application.

The plaintiff filed another statement of loss and damage on 28 October 2019. 

Obviously, the parties did not resolve the matter at a settlement conference, and the Resolution Registrar made certain orders to facilitate the trial of this matter. 

The plaintiff filed a list of documents on 3 December 2019.  I note that the documents listed included income tax returns and medical records, although not every document included in the list bore a date. 

A further amended defence was filed on 3 December 2019.  I note that, with respect to the paragraphs of the statement of claim which concern the plaintiff’s claims for general and special damages, the defendants assert, among other assertions, that (a) the plaintiff has not identified any injury suffered as a result of the incident the subject of the claim, and (b) he has not suffered economic loss because he was not working at the relevant time.

The defendants also assert, in the further amended defence, that the defendant failed to comply with the requirements of rules 150 and 155 of the Uniform Civil Procedure Rules.  And they complained that the pleadings are bereft of sufficient material facts to enable the defendants to respond to them.

The plaintiff replied to the further amended defence by, again, refuting almost every paragraph of it. 

On 9 December 2019, the defendants filed a notice to admit documents and a notice to admit facts.  The matter came on again before her Honour Justice Bowskill for another review on 10 December 2019.  Her Honour put in place a timetable for dealing with the notices to admit facts and documents.

Her Honour allowed the defendants until 14 February 2020 to pursue their application to strike out the claim and statement of claim.

The defendants did pursue that application by way of an amended application, which was heard by his Honour Justice Bradley on 13 March 2020.

It became apparent at the hearing of that application that the plaintiff’s true case went beyond his statement of claim.  His reply to the defendants’ complaint, that his statement of claim did not properly plead matters, was to identify parts of his statement of loss and damage, which addressed, at least so the plaintiff said, those deficiencies. 

Ultimately, his Honour Justice Bradley gave the plaintiff more time to –

“…articulate his case as best he can, and in a manner that allows the defendant to understand clearly the material facts on which the plaintiff relies to make his claim against each of them.”

His Honour made orders allowing the plaintiff to so articulate his case by way of a new, clean statement of claim. 

That new, clean statement of claim was filed on 3 April 2020. 

The defendants filed a defence to it, making similar complaints about the pleadings as they had made previously, particularly about the way in which damages were pleaded, and also identifying the absence of evidence to establish certain of the assertions about injury and damage made in the statement of claim.

There was a further case conference held on 11 June 2020, at which the plaintiff was directed to amend his statement of claim to deal with the deficiencies in it identified by his Honour Justice Bradley. 

By 14 July 2020, the plaintiff had not made relevant amendments to the statement of claim.  The defendants sought an order from the Court that, if the case were not re-pleaded by 29 July 2020, then the proceedings would stand dismissed.  The application for that order was heard by his Honour Justice Boddice, who gave the plaintiff even more time to amend his statement of claim.  His Honour made other timetabling orders for the defendants’ defence and the plaintiff’s reply, and listed the matter for trial, starting today.

The defendants’ complaint today is, in effect, that the statement of claim is still not compliant with the rules, especially insofar as it asserts loss and damage.  The defendants submit that it is not good enough for the plaintiff to rely upon his statement of loss and damage to place the defendants on notice about the material facts said to support his claim.  They contend, in effect, that the plaintiff ought to be constrained in his evidence about loss and damage because of the inadequacy of his pleadings.  They also argue that, because of the rules concerning non-admissions, the plaintiff ought to be prevented from leading evidence of the matters he “refuted” in his reply.

The defendants rely upon two decisions.  The first is W & I Wright Nominees Pty Ltd v Haxview Pty Ltd & Ors [2003] QDC 10, a judgment of her Honour Judge O’Sullivan, and the Court of Appeal decision of Meredith v Palmcam Pty Ltd & Anor [2001] 1 Qd R 645; [2000] QCA 113. 

Meredith v Palmcam makes it plain that the requirements of rules 150 and 155, about matters to be specifically pleaded and damages, are not satisfied by pleading an intention to provide a statement of loss and damage.  I have considered, though, the language used in that case, which I note was the decision of the Court constituted by their Honours McPherson and Thomas JJA, and her Honour Justice Atkinson.  In that case, the plaintiff pleaded damages by way of an assertion that full particulars of the plaintiff’s special damages would be provided prior to the trial of the action, and that full particulars of the plaintiff’s loss and damages claim would be provided in her statement of loss and damage.

The statement of loss and damage was later furnished, but the defendant argued that it did not achieve compliance with the relevant rules. 

The Court of Appeal acknowledged that the requirements of the rules had not be satisfied, and there was no reason why the matters included in the statement of loss and damage were not included in the statement of claim.  The Court also noted the duplication in the pleading requirements and in the requirement that the plaintiff serve a statement of loss and damage, but acknowledged that they served different purposes.  It was not mere pedantry to require a plaintiff to comply with the rules, which had been the approach of the primary Judge.

Nevertheless, the Court in that case noted that the defendants were themselves in breach of the rules and refused leave to appeal from the primary Judge’s decision. 

The Court went on to observe that the statement of claim had been amended, but not by way of additional matters pleaded, rather, in the form of claims for relief. 

Although that was not the way particulars of types and amounts should have been pleaded, the Court ordered that the matters be treated as pleadings to save the expense of a further statement of claim. 

The Court said that it was preferable for the particulars in response to the requirements of rules 150 and 155 to appear as allegations in the statement of claim, and not just in the prayer for relief.  I note the Court’s use of the word “preferable”. 

I acknowledge that the noncompliance here is more significant than the ultimate noncompliance in Meredith v Palmcam, but in my view, when one remembers the purpose of pleadings, that is to ensure that the respective parties know the case they have to meet, I consider that the defendants are in a position to meet the plaintiff’s case on damages on the strength of the plaintiff’s statement of loss and damage.

I have sympathy for the defendants, who are attempting to meet a case which is irregularly pleaded and deal with what they might perceive to be a sense of defiance on the part of the plaintiff here, who has had many opportunities to regularise his pleadings.  But, as I have already mentioned, bearing in mind the purpose behind the rules, I am prepared to treat the statement of loss and damage as, in effect, the pleadings in this case.

The defendants also relied upon the rules which concern non-admissions.  They argued that the plaintiff’s evidence was curtailed by rule 166, because his reply contained no explanation of the reason why he refuted the defendants’ defence. 

The defendants relied upon paragraphs [21] and [22] of the W & I Wright case.[1] I was not assisted much by that case.  I note, though, that the defendants’ complaint is about the plaintiff’s reply to their defence. 

Their defence challenges the plaintiff’s assertions, as per his statement of claim.  Given the plaintiff’s position as expressed in his reply, there was really no need for the reply.  And any properly drawn reply would have simply, by way of explanation for the denial or refuting of the assertion in the defence, repeated the statement of claim. 

In those circumstances, I will not curtail the evidence of the plaintiff for his noncompliance with rule 166, but that is not to say that I will allow the plaintiff free reign when it comes to the evidence he may lead in this case.  By way of example, it all must have been properly disclosed to the defendants. 

So the effect of all of that is, and I acknowledge that that is treating the self-represented plaintiff quite generously, to allow this trial to proceed.

Footnotes

[1] W & I Wright Nominees Pty Ltd v Haxview Pty Ltd & Ors [2003] QDC 10

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Editorial Notes

  • Published Case Name:

    Kleeman v The Star Entertainment Group Limited and Another (No 1)

  • Shortened Case Name:

    Kleeman v The Star Entertainment Group Limited and Another (No 1)

  • MNC:

    [2020] QSC 390

  • Court:

    QSC

  • Judge(s):

    Ryan J

  • Date:

    26 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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