Johnston v Safaris CC[2016] QDC 302

DISTRICT COURT OF QUEENSLAND

1. [1]
   The parties have become embroiled in pleading and interlocutory squabbles resulting in wasted costs and retarded progress of these proceedings since their commencement in 2012.

2. [2]
   The appellant/defendant challenges a decision in the Magistrate Court in Cairns on 24 June 2016 for failing to strike out all or parts of the respondent/plaintiff’s pleadings and stay the proceeding pursuant to an interlocutory application.

3. [3]
   I’ve had the advantage of detailed outlines of argument, and oral submissions on the hearing of the appeal. The appellant subsequently applied to reopen the appeal hearing, which was allowed in part. The parties have provided further outlines of argument, and I have considered this additional material.

Background

4. [4]
   The proceeding was commenced by Claim and Statement of Claim in the Magistrates Court over four years ago on 20 September 2012.

5. [5]
   By Amended Statement of Claim the respondent alleges that on or about 20 July 2010 the respondent agreed to provide to the appellant a game hunting safari tour in the United Republic of Tanzania in September/October 2010.

6. [6]
   The relevant terms of the safari contract are pleaded in paragraph 4 of the amended pleading, and allegedly included an African Safari Hunt, extra services and excluded costs of certain services (including “side trips”). The consideration to be provided by the appellant for the safari was variously pleaded as:

1. US$34,300 payable by the appellant to the respondent on or about 20 July 2000;

2. Payment of “Hunt Extras” for rifle import permits and particularised fees for successful hunts of animals including leopard, buffalo, zebra, hartebeest, hyena and baboon; and

3. A fishing trip to be provided by the appellant to the respondent in Australia before 31 December 2012.

7. [7]
   The Australian fishing trip is pleaded as a contra deal whereby the appellant would provide an 11-day deep sea marlin fishing expedition to the Great Barrier Reef for up to four people aboard his 50 foot boat.^[1] 

8. [8]
   The initial Defence indicates that the parties are not in dispute about the following:

1. The appellant paid the initial US34,300 on or about 14 July 2010;^[2]

2. The respondent relocated the appellant to the Selous area of Tanzania;^[3]

3. The appellant (and his son) successfully hunted a leopard, two buffalo, two zebra, a hartebeest, a hyena and a baboon;^[4]and

4. The contra fishing trip was agreed for the purposes of the contract to be valued at US$22,500.^[5]

9. [9]
   However, the pleadings disclose a significant dispute about the form, terms and date of the contract, as well as the adequacy of the respondent’s performance of the contract. The appellant also contends that the side trip was ‘not the best available location’ and was ‘inferior’ as to quality and availability of game, and relies upon an email waiving or abandoning extra fees of US$3,000 in relation to a ‘side trip’.^[6]

10. [10]
    The appellant counter-claims for a declaration, damages for breach of contract, misleading and deceptive conduct and unconscionable conduct in breach of ss 18 or 21 of the Australian Consumer Law and orders reducing the contract price, compensation and repayment of the contract sum. The counterclaim is defended by an Amended Reply & Answer.

11. [11]
    The progress of this proceeding has been slow since it commenced over four years ago. The matter has not progressed beyond amended pleadings. It has been burdened by interlocutory proceedings for security for costs, challenges to pleadings, and now, this appeal.

12. [12]
    On 21 May 2015 the respondent filed an Amended Statement of Claim.

13. [13]
    Consent orders made on 3 November 2015 set the proceeding on a course of directions notwithstanding the amended pleading was filed in non-compliance with r 389(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”). However, the proceeding did not progress as directed because the appellant took further issue with the respondent’s amended pleading.

14. [14]
    By an application filed on 7 March 2016 (and amended on 5 April 2016), the appellant applied for the following orders:

1. That the respondent’s Amended Statement of Claim filed irregularly on 21 May 2015 and the subject of leave to file given on 10 November 2015, or alternatively, paragraphs 3, 4(f), 5, 7, 10, 15, 19 and 20 thereof, be set aside as irregular pursuant to r 371(2)(b), or struck out pursuant to r 171(1)(b) by reason of non-compliance with r 188(1) of the UCPR and paragraphs 4(f), 5, 7, 10 and 15 thereof be struck out pursuant to r 171(1)(b) by reason of non-compliance with rr 149, 150 and 157;

2. That the respondent’s Amended Reply be struck out pursuant to r 171(1)(b) on the grounds that, since the filing of the Amended Statement of Claim, it has become embarrassing and thereby has a tendency to prejudice or delay the fair trial of the proceeding;

3. That the respondent’s Amended Answer be struck out pursuant to r 171(1)(b) on the grounds that:

1. (i)
   to the extent it purports to join issue with the appellant, it does not comply with r 166(4) of the UCPR;

2. (ii)
   alternatively it is (since the filing of the Amended Statement of Claim) embarrassing and thereby has a tendency to prejudice or delay the fair trial of the proceeding;

4. Alternatively to 3, that paragraph 19 of the respondent’s Amended Answer be struck out pursuant to r 171(1)(a) on the grounds that it does not disclose any proper defence to the allegations made in paragraphs 37(a) and 38 of the Counterclaim.

5. That, pending due compliance by the respondent with r 188 or further order, this proceeding be stayed;

6. That the respondent pay the appellant’s costs of and incidental to order 1 above on an indemnity basis and in respect of orders 2 and 3 or 2 and 4 above on the standard basis.

15. [15]
    The application was determined on the papers, and in a written decision delivered on 24 June 2015, the magistrate allowed the application (in part) with costs. In doing so, Her Honour:

1. Decided that if the amendments did constitute the withdrawal of admissions which, in the absence of leave, would have contravened r 188 of the UCPR, she would have given leave to amend in any event; and in any case, the appellant had by reason of the orders made in November 2015 waived any entitlement to object to such amendments on the ground of requiring leave for withdrawal of admissions;

2. Decided that, whilst some amendments in the Amended Statement of Claim were not pleaded compliantly with the rules, others were adequately pleaded albeit may require additional particulars;

3. Determined that, despite finding that some such amendments were not pleaded compliantly with the rules, as were some paragraphs in the Amended Reply, those ought not be struck out but that the respondent ought be permitted to re-plead;

4. Decided that the Answer as pleaded was substantially deficient but made no order that it be struck out in whole or part or re-pleaded;

5. Ordered that:

1. (a)
   The respondent be given leave to further amend its Amended Statement of Claim and to amend its Reply to the appellant’s counterclaim within 28 days of the order.

2. (b)
   In the event that the respondent failed to file and serve an Amended Statement of Claim within 28 days, the Statement of Claim would be struck out.

3. (c)
   In the event that the respondent failed to file and serve an Amended Reply within 28 days, the Reply would be struck out.

4. (d)
   The respondent would pay the appellant’s costs of and incidental to the application to be agreed or determined on giving seven days’ notice.

16. [16]
    The respondent, in compliance with the orders, has filed a second Amended Statement of Claim and a second Amended Reply and Answer. The appellant has made no attempt to file any further pleadings pursuant to these or earlier orders.

17. [17]
    The appellant appeals the magistrate’s decision and associated orders.

Grounds of Appeal

18. [18]
    The grounds of appeal in the notice of appeal are narrow but multifaceted. They have been distilled in paragraph 3.1 of the appellant’s outline of argument as follows:

1. Whether any of the amendments in the Amended Statement of Claim require leave pursuant to r 188 of the UCPR (or otherwise);

2. Whether certain amendments in the Amended Statement of Claim found by Her Honour to be adequately pleaded were not, on further consideration, pleaded compliantly with the rules, or, in some instances, consistently with the law of contract;

3. Whether the deficiently pleaded parts of the respondent’s Amended Statement of Claim and Amended Reply pleadings ought to have been struck out, in addition to being the subject of leave to replead; and

4. Whether certain parts of the Amended Answer ought to have been struck out.

19. [19]
    The appellant seeks the following orders in the notice of appeal:

1. (a)
   That the appeal be allowed.

2. (b)
   That paragraphs 3, 4(f), 5, 7, 10, 15, 19 and 20 in the Amended Statement of Claim be set aside pursuant to r 371(2)(b) of the UCPR.

3. (c)
   Further or alternatively to paragraph (b) that the amendments by way of paragraphs 4(f), 5, 7, 10, and 15 in the Amended Statement of Claim be set aside pursuant to r 371(2)(b) of the UCPR, or alternatively, struck out pursuant to r 171(1)(b) of the UCPR.

4. (d)
   That the Reply be struck out pursuant to r 171(1)(b) of the UCPR.

5. (e)
   That the Amended Answer, or alternatively paragraphs 19 and those paragraphs thereof pleading joiner of issue, be struck out pursuant to r 171(1)(a) or 171(1)(b) of the UCPR as the case may be.

6. (f)
   That the respondent pay the appellant’s costs of and incidental to the appeal.

20. [20]
    The appellant’s outline of argument also seeks to prosecute further arguments and deficiencies in the respondent’s pleadings.

21. [21]
    Where a point was not taken in the hearing below, and they could have been or the point requires a further hearing, it cannot be taken afterwards.^[7]Otherwise, appellate courts generally tolerate new points.

22. [22]
    The appellant’s new points were not taken in the interlocutory hearing below and extend beyond the scope of the interlocutory application. Due notice was not given and the appellant has failed to provide the requisite details in breach of r 372 of the UCPR. I accept that the respondent may have realised the obvious need to revisit its pleadings to avoid disputation, or otherwise presented different arguments or adduce evidence to meet the points. Therefore, I uphold the respondent’s objection to the additional matters. This decision is confined to the appeal grounds.

Appeal from interlocutory orders

23. [23]
    This court has the same powers as the Court of Appeal when hearing an appeal.^[8]Those powers are contained in Part 3 Division 1 of the Supreme Court of Queensland Act 1991, and the relevant rules, in particular Chapter 18 Part 3.  By virtue of r 785 of the UCPR, Part 1, other than rr 746, 753, 758, 766(3), 767, 776 and 777, applies to appeals to the District Court, with necessary changes, and subject to any practice direction of the court in which the appeal is brought.

24. [24]
    The mode of the appeal is by rehearing,^[9]in the context of an appeal from an interlocutory decision involving an exercise of discretion.

25. [25]
    The principles in Aon Risk Services Australia Limited v Australian National University^[10]generally apply to amendments before a request for trial date. In Monto Coal 2 Pty Ltd v Sanrus Pty Ltd as trustee of the QC Trust the Court held:^[11]

“Aon Risk is not a one size fits all case. Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending upon the facts in the individual case. As the plurality in Aon Risk observed at [75], statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of general application.”

26. [26]
    In Hartnett v Hynes,^[12]Applegarth J at [27] distilled the principles applying to amendments of a statement of claim for which leave is required as follows:

1. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation.
2. The discretion is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense.
3. There is a distinction between amendments which are necessary for the just and expeditious resolution of “the real issues in civil proceedings” and amendments which raise new claims and new issues.
4. The Court should not be seen to accede to applications made without adequate explanation or justification.
5. The existence of an explanation for the amendment is relevant to the Court’s discretion, and “[i]nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment”.
6. The objective of the Court is to do justice according to law, and, subject to the need to sanction a party for breach of its undertaking to the Court and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment.
7. Parties should have a proper opportunity to plead their case, but justice does not permit them to raise any arguable case at any point in the proceedings upon payment of costs.
8. The fact that the amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave to amend.
9. Justice requires consideration of the prejudice caused to other parties, other litigants and the Court if the amendment is allowed.  This includes the strain the litigation imposes on litigants and witnesses.
10. The point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources.
11. Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense.
12. The applicant must satisfy the specific requirements of rules, such as UCPR r 376(4) where it seeks to introduce a new cause of action after the expiry of a relevant limitation period.

27. [27]
    To this list I respectfully add that a pleading should not be held defective merely because it might have been expressed better or more elegantly.^[13]

28. [28]
    In the event that a pleading is found to be defective, a court may order further amendment pursuant to r 375, or strike out all or part of a pleading pursuant to r 171, or pursuant to r 371 the court may to set aside a step taken, declare a document or a step to be ineffectual, or make another order. This involves an exercise of discretion.

29. [29]
    The High Court held in House v The King^[14]that:

"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

30. [30]
    In relation to interlocutory proceedings, the High Court in Queensland v J L Holdings Pty Ltd,^[15]affirmed that “Special restraint will be exercised where the interlocutory order challenged is one concerned with practice or procedure … the appellate court will be slow to intervene”.

31. [31]
    In Green v Pearson,^[16]the Court of Appeal held:

[4]  First, the statutory right of appeal to the Court of Appeal from an interlocutory order of a Judge of the Supreme Court engages principles applied in similar contexts in appellate courts in this country, including this Court. A helpful statement appears in Liao v New South Wales[2014] NSWCA 71, a recent decision of the Court of Appeal of New South Wales, about an appeal from an order of the Supreme Court of New South Wales about admissions. Barrett JA said: 

 “The discretionary nature of the decisions means that appellate intervention is warranted only on grounds identified in House v R [1936] HCA 40; (1936)55 CLR 499 at 504-5 including that the decision is affected by extraneous or irrelevant matters or the judge mistakes the facts, acts on a wrong principle or does not take into account a material consideration or the decision is unreasonable or plainly unjust. The fact that matters of practice and procedure only are involved means that the appellant court should exercise the ‘added restraint’ that that circumstance attracts (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] 148 CLR 170) and ‘be extremely reluctant to interfere’ (In the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318).”

[5]  Secondly, the philosophy of the UCPR is important in considering an appeal from the exercise of a power conferred by those rules. As r 5(1) provides, the purpose of the rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. And as r 5(2) provides, accordingly the rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of the rules. 

[6] That philosophy is also reflected in r 367(1) under which the court may make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of the rules. As r 367 (2) provides, in deciding to make an order or direction, the interests of justice are paramount. Rule 367(5) then provides that if a court’s order or direction is inconsistent with another provision of the rules, the court’s order or direction prevails to the extent of the inconsistency. 

[7]  The decision of the primary Judge, made under r 188, to give leave to the respondent to amend the defence, must be viewed against the background of r 5 and r 367, when this Court asks the question whether it should interfere with his Honour’s exercise of discretion.

32. [32]
    The Court of Appeal in Aimtek Pty Ltd v Flightship Ground Effect Pte Ltd,^[17]remarked that:

“This appeal involves only procedural questions. The settled rule is that the Court should exercise restraint and be reluctant to interfere with interlocutory decisions which do not determine substantive questions but are concerned only with practice and procedure. That rule plainly should be applied in this case, where the primary judge was managing the proceeding in the Trial Division with a view to expediting a trial. The primary judge was therefore well placed to determine the appropriate procedural response to any defect in the respondent’s pleading. It is also relevant to mention that the appeal record includes a further amended answer in which two of the impugned paragraphs have been amended, including by substituting denials for non-admissions; in those respects the appeal appears now to involve only hypothetical questions.”

33. [33]
    These principles are applicable to the present appeal.

Waiver or Estoppel

34. [34]
    Before I address the grounds separately, I wish to deal with a threshold issue. The magistrate accepted the respondent’s contention that since the appellant had consented to the filing of the Amended Statement of Claim in the orders made on 3 November 2015, he could not now seek to strike out parts of it on the basis that leave was required under r 188.^[18]

35. [35]
    It is open to a party to waive an irregularity under the rules.^[19]However, the circumstances here involve specific applications that were compromised by consent orders.

36. [36]
    The appellant objected to the respondent filing the Amended Statement of Claim and applied to strike out the process for non-compliance with r 389(1). He also applied separately for security for costs. The applications were resolved by consent orders made on 3 November 2015 by the registrar pursuant to r 666 of the UCPR including orders that:

1. (a)
   The respondent be at liberty to proceed with the matter notwithstanding any non-compliance with r 389(1) of the UCPR;

2. (b)
   That the respondent be granted leave for the filing of the Amended Claim and Statement of Claim on 21 May 2015.

37. [37]
    The orders also provided for security for costs, and directions for the parties to file and serve consequential amended pleadings and also participating in a settlement conference by 19 December 2015.

38. [38]
    In those circumstances, it seems to me that the scope of the orders was framed by the applications. There was no live dispute about the content of the pleading and the present dispute was not in the contemplation of the parties in making the orders.

39. [39]
    The proceeding did not progress as directed because the appellant took issue with the respondent’s amended pleading and made no attempt to file any further pleadings pursuant to the orders. By virtue of r 381, the benefit of the order has ceased and pursuant to r 385(3), the last filed Defence and counterclaim is taken as an answer to the respondent’s amended pleadings, including any implied non-admissions under r 168(2), and r 165(2).

40. [40]
    In my view the appellant was not inhibited by his conduct to later apply to deal with the amendments in the pleading pursuant to r 188 or another rule of pleading.

Does r 188 UCPR apply to a Statement of Claim (as amended)?

41. [41]
    The appellant contends that paragraphs 3, 4(f), 5, 7, 10, 15, 19 and 20 of the Amended Statement of Claim should be struck out pursuant r 371(2)(b) or r 171(1)(b) because they effected withdrawals of admissions without leave and contravened r 188 of the UCPR. On the contrary, the respondent contends that r 188 does not apply to an allegation of fact in a claim or statement of claim.

42. [42]
    The appellant relies upon the respondent’s contravention of r 188 because the amendments effect withdrawals of admissions without leave. Rule 371(2)(b) empowers the court to set aside a step taken in the proceeding or order made in the proceeding. Rule 171(2) empowers the court to strike out all or any part of a pleading for non-compliance with r 171(1)(b) if the pleading has a tendency to prejudice or delay the fair trial of the proceeding. Ultimately the appellant relies upon the respondent’s noncompliance with r 188.

43. [43]
    Rule 188 is in very simple terms:

“A party may withdraw an admission made in a pleading or under rule 187 only with the court’s leave.”

44. [44]
    Rule 187 deals with voluntary admissions by serving a notice on another party and is not relevant in this case. The critical issue is whether a statement of claim (or as amended) is a “pleading” in which an admission can be made and subsequently withdrawn for the purposes of r 188.

45. [45]
    There are no cases directly on point. Instead, the appellant relies upon decisions of other jurisdictions, but they are readily distinguishable and of no comparative assistance. I deal with each in turn.

46. [46]
    Broadlex Services v RCR Resolve FM [2015] NSWSC 1367 is readily distinguishable legally and factually. The case involved s 56 of the Civil Procedure Act 2005 (NSW), which is similar, but not identical, to r 5 of the UCPR. The case did not concern an analogy of r 188 of the UCPR, nor a regime for the progress of pleadings in Chapter 6 Part 4 and Part 6 of the UCPR. The relevant NSW rule expressly applied to the “withdrawal of a matter raised in a defence or subsequent pleading”, not a statement of claim. The case concerned an admission by the plaintiff in its defence to a cross-claim (not made in a statement of claim). The subject application was belatedly made during a hearing, which would have necessitated vacating the hearing, remitting the matter, incurring costs completely disproportionate to the amount in dispute, and further delay.

47. [47]
    Preston & Anor v Nikolaidis [2011] NSWSC 1074 can also be distinguished because it did not concern an analogous rule and the facts are very different. It concerned an application to amend an allegation made in a summons filed many years before where the court had exercised its jurisdiction to hear and determine the proceedings on the basis of the subject allegation, which was necessary to invoke the court’s jurisdiction.

48. [48]
    Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268 is also legally and factually different. It concerned the precursor to O 13 r 2 of the Federal Court Rules 1979, which provided that the court may, at any stage of a proceeding, order that a party have leave to amend a document in such a manner as the court thinks fit. This is akin to r 375(1) of the UCPR (as distinct from r 188). Factually, the applicant sought leave to withdraw an admission in a defence to cross-claim and in affidavits and also sought leave to further amend a statement of claim. The application to withdraw the admission was made on the fourth day of the hearing following revelations arising out of cross-examination.

49. [49]
    Another case relied upon by the appellant of Murphy v Westpac Banking Corporation [2011] FCA 280 concerned the amended O 13 r 2 of the Federal Court Rules, which was the general power to amend a pleading. The applicant applied to amend a statement of claim including the deletion of paragraphs in which the applicant had admitted signing a deed of release. The Court allowed the amendments but did not refer to any rule dealing with withdrawal of admissions.

50. [50]
    In Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 9) [2011] FCA 1087, both sides sought to amend their pleadings. The Court did not make any authoritative statement as contended by the appellant here. On the contrary, the Court did not accede to the respondent’s argument that certain allegations in a statement of claim were admissions for the purposes of O 18 r 1(2) Federal Court Rules concerning the withdrawal of admissions. Ultimately, the amendment was allowed to correct a factual error. Further to the absence of any authoritative value, O 18 r 1(2) is distinguishable. Order 18 r 1 provided for voluntary admissions by notice from one party to another. This rule is more akin to r 189 of the UCPR, which is not relevant to this case. That Queensland rule does not expressly deal with admissions in pleadings at all, unlike r 188 of the UCPR.

51. [51]
    In a further case of Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd [2000] FCA 1732 the applicants applied to amend their statement of claim. The respondents argued that the amendments were inconsistent with “admissions” previously made and that leave was required under O 11 r 8 of the Federal Court Rules (superseded) to withdraw them. The rule provided that: “A party shall not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with a previous current pleading of his”. This is akin to r 154 in the UCPR (which is not relevant here). The decision does not involve any rule analogous to r 188 of the UCPR, and renders no assistance to my task on this appeal.

52. [52]
    On this basis, I return to r 188 and consider whether a statement of claim (or as amended) is a “pleading” caught by r 188.

53. [53]
    Rule 4 of the UCPR provides that:

3. (1)
   The dictionary in schedule 4 defines terms used in these rules.

3. (2)
   Words and expressions used in the Civil Proceedings Act 2011 have the same meaning in these rules as they have in that Act.

3. (3)
   Subrule (2) does not apply to the extent that the context or subject matter otherwise indicates or requires.

54. [54]
    The term “pleading” is defined in Schedule 4 Dictionary:

“pleading means—

1. (a)
   for a plaintiff—a concise statement in a claim of the material facts on which the plaintiff relies; or

2. (b)
   for a defendant—the defence stated in a notice of intention to defend or a defence;

and includes a joinder of issue and an affidavit ordered to stand as a pleading.”

55. [55]
    Pursuant to s 32AA of the Acts Interpretation Act 1954 (Qld) a definition in or applying to an Act applies to the entire Act. Section 32A provides that: “Definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires.”

56. [56]
    The philosophy of the UCPR also provides context to the application of the rules. Rule 5 relevantly provides:

3. (1)
   The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

3. (2)
   Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

3. (3)
   In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.

57. [57]
    The question is whether the context or subject matter of r 188 otherwise indicates or requires leave to withdraw admissions pleaded in a statement of claim (including any amendment). Obviously, before an admission can be withdrawn it must be capable of being made in the first place. So the answer turns on the incidence of an “admission” in relation to a statement of claim (as distinct from other pleadings) under the rules.

58. [58]
    The term “admission” (including other grammatical forms, eg. “admit” and “admitted”)^[20]is not defined in the UCPR or the Civil Proceedings Act 2011 (Qld).

59. [59]
    Although the term appears about 69 times throughout the UCPR, it is never expressly used in relation to a “statement of claim” in the UCPR. As to the generic reference to a “pleading”, the term is only used in the context of answering or responding to an opponent’s pleading. For example: r 74(7)(b) relating to an admission made by a defendant or respondent, and rr 165, 166, 167 and 168 relating to answering another parties’ pleading.

60. [60]
    Critically, the only regime for a party to plead an admission in a pleading (being the precursor to any withdrawal) is in Part 4 of Chapter 6 of the UCPR dealing with the progress of pleadings as follows:

165 Answering pleadings

3. (1)
   A party may, in response to a pleading, plead a denial, a nonadmission, an admission or another matter.

3. (2)
   A party who pleads a nonadmission may not give or call evidence in relation to a fact not admitted, unless the evidence relates to another part of the party's pleading.

166 Denials and nonadmissions

3. (1)
   An allegation of fact made by a party in a pleading is taken to be admitted by an opposite party required to plead to the pleading unless –

1. (a)
   the allegation is denied or stated to be not admitted by the opposite party in a pleading; or

2. (b)
   rule 168 applies.

3. (2)
   However, there is no admission under subrule (1) because of a failure to plead by a party who is, or was at the time of the failure to plead, a person under a legal incapacity.

3. (3)
   A party may plead a nonadmission only if –

1. (a)
   the party has made inquiries to find out whether the allegation is true or untrue; and

2. (b)
   the inquiries for an allegation are reasonable having regard to the time limited for filing and serving the defence or other pleading in which the denial or nonadmission of the allegation is contained; and

3. (c)
   the party remains uncertain as to the truth or falsity of the allegation.

3. (4)
   A party's denial or nonadmission of an allegation of fact must be accompanied by a direct explanation for the party's belief that the allegation is untrue or can not be admitted.

3. (5)
   If a party's denial or nonadmission of an allegation does not comply with subrule (4), the party is taken to have admitted the allegation.

3. (6)
   A party making a nonadmission remains obliged to make any further inquiries that may become reasonable and, if the results of the inquiries make possible the admission or denial of an allegation, to amend the pleading appropriately.

3. (7)
   A denial contained in the same paragraph as other denials is sufficient if it is a specific denial of the allegation in response to which it is pleaded.

167 Unreasonable denials and nonadmissions

If the court considers an allegation of fact denied or not admitted should have been admitted, the court may order the party who denied or did not admit the allegation to pay additional costs caused by the denial or nonadmission.

168 Implied nonadmission

3. (1)
   Every allegation of fact made in the last pleading filed and served before the pleadings close is taken to be the subject of a nonadmission and rule 165(2) then applies.

3. (2)
   However, nothing in these rules prevents a party at any time admitting an allegation contained in a pleading.”

61. [61]
    It seems to me that these rules facilitate the philosophy in r 5 by prescribing a mechanism for a party to admit, not admit or deny allegations of fact made in another party’s pleading. Consequences flow from the party’s choice. An admission is galvanised against any attempt to withdraw at whim, and is otherwise treated as a proved fact without the cost and expense of adducing evidence. Indeed, r 190 empowers the court to give judgment or make an order in reliance upon admissions. Where a trial is necessary, the regime allows the parties and the court to resolve the remaining real issues (isolated by non-admissions or denials) in a just and expeditious way and at minimal cost. Ironically, the appellant disputes the allegations originally pleaded by the respondent and subject of amendment in the Amended Statement of Claim.

62. [62]
    There are also difficulties in a practical sense. Not the least of which is the ability to characterise an allegation in a statement of claim as an admission with any degree of certainty and consistency. So much was illuminated in the following exchange during the appeal hearing:^[21]

HIS HONOUR:   …  The matter that occurred to me, if you were right in your argument about an admission being contained in the statement of claim, how is it that every single allegation wouldn’t be then an admission?

MR MORROW:   It depends on the nature of the allegation, your Honour. Obviously, for example, if a plaintiff pleads that it is a corporation incorporated – let’s say the Republic of South Africa – then, that would be an admission. On the other hand, if it pleads that my client is a corporation incorporated in Australia, that can’t be an admission in the same sense because it’s – it’s not a – not a fact in respect of which the plaintiff can compel an outcome, if you like, without a pleading.

HIS HONOUR:   So it’s really, you say, a concession against self-interest.

MR MORROW:   Yes, your Honour. And it fits under that general evidentiary rubric, I think.

63. [63]
    Later in argument, the appellant’s advocate argued that the characterising of an admission involved a sliding scale of significance. The argument was put this way:

MR MORROW:   Well, your Honour, I certainly would take a view that one couldn't simply run around willy‑nilly asserting that one can go through a statement of claim with a fine tooth comb and try to then argue that nearly everything in it was somehow an admission which couldn't be changed without the leave of the court, but this pleading about the contract is one that is of single significance in the context of the proceedings as a whole and when you look at it basically you've been ‑ you'd say, "Here's a contract and this is what it's comprised of," all these documents backwards and forwards, and your Honour would turn around and saying, "No, no, it's not all of that, it's just this."  That is a very significant change to the case and, as I say, it's not a case where we say it can never be done, but such a change involving a reversal of significant import and I say is within that conceptual purview of what rule 188 is intended to address, which is ‑‑‑‑‑‑ people willy‑nilly reversing their position.

MR MORROW:   I don't see any reason why a plaintiff reversing its position should be in a better position than a defendant reversing its position.

64. [64]
    It seems to me that the difference in the position of a plaintiff and a defendant in relation to their respective pleadings is fundamentally entrenched in the rules of pleading. The UCPR identifies particular circumstances where plaintiffs need leave before amending,^[22]or where an amendment can be later challenged and disallowed.^[23]However, there is no prescribed mechanism in the UCPR that enables a plaintiff to plead an “admission” in a statement of claim. If no admission can be pleaded in a statement of claim, then it must inevitably follow that there is nothing capable of withdrawal in a statement of claim. This perhaps explains why there is a dearth of cases applying r 188 to a statement of claim.

65. [65]
    I conclude that r 188 of the UCPR does not apply to an amended statement of claim. Therefore, this ground of appeal will fail.

Should paras 4(f), 5, 7, 10 and 15 of the Amended Statement of Claim be struck out?

66. [66]
    The appellant further contends that that the respondent’s amendments to paragraphs 4(f), 5, 7, 10 and 15 of the Amended Statement of Claim ought be struck out pursuant to r 171(1)(b) of the UCPR by reason of noncompliance with rr 149, 150 and 157 and their tendency to prejudice the fair trial of the proceeding.

67. [67]
    Rule 171 relevantly provides that:

3. (1)
   This rule applies if a pleading or part of a pleading—

1. (a)
   discloses no reasonable cause of action or defence; or

2. (b)
   has a tendency to prejudice or delay the fair trial of the proceeding; …

3. (2)
   The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.

3. (3)
   On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.

68. [68]
    Rule 149 of the UCPR provides:

3. (1)
   Each pleading must—

1. (a)
   be as brief as the nature of the case permits; and

2. (b)
   contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and

3. (c)
   state specifically any matter that if not stated specifically may take another party by surprise; and

4. (d)
   subject to rule 156, state specifically any relief the party claims; and

5. (e)
   if a claim or defence under an Act is relied on—identify the specific provision under the Act.

3. (2)
   In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.

69. [69]
    Rule 150 then sets out a non-exhaustive list of matters, which must be specifically identified in the pleading as required by r 149(c) to prevent surprise. Rule 157 prescribes that a party must include in a pleading, particulars necessary to:

1. (a)
   define the issues for, and prevent surprise at, the trial; and

2. (b)
   enable the opposite party to plead; and

3. (c)
   support a matter specifically pleaded under rule 150.

Paragraph 4(f)

70. [70]
    In the court below the appellant complained that paragraph 4(f) offended rr 149, 150 and 157 because it fails to plead the material facts to support a conclusion that an agreement was made, and ought be struck out.

71. [71]
    Sub-paragraph 4(f) of the Amended Statement of Claim pleads:

“4.Relevantly the Contract included the following: …

(f)The Australian Fishing Trip was agreed between the parties to be valued at $22,500.”

72. [72]
    This amended the original allegation that: “(f) The Australian Fishing Trip was valued at US$22,500” by asserting an agreement between the parties to that effect.

73. [73]
    It is tolerably clear that the expression “Relevantly the contract included …” is a reference to the terms of the contract (rather than performance of the contract). So much was appreciated by the magistrate. The magistrate dealt with paragraph 4(f) in the context of paragraph 3 of the amended pleading. She found that paragraph 3 pleaded the formation of the contract and contained particulars of it, and paragraph 4 (including 4(f)) further detailed the contents of the contract pleaded at paragraph 3. Her Honour concluded, “In those circumstances it cannot be said that the plaintiff has failed to state the material facts upon which it relies in support of the assertion at paragraph 4(f)”.^[24]

74. [74]
    The appellant contends that the magistrate misconstrued the issue for determination in respect of paragraph 4(f) “which was on what factual basis the fishing trip was said to be “agreed to be ‘valued at’” an amount” and it ought be struck out or set aside pursuant to rr 149, 150 and 157.

75. [75]
    It seems to me that the appellant’s argument is rendered impotent when considered in light of his defence to the superseded statement of claim, and which by virtue of r 385(3) is taken as an answer to the respondent’s amended pleading.

76. [76]
    In paragraph 4.2 of his defence the appellant admits the factual basis of the contra fishing deal alleged in paragraph 4(d) of the (amended) Statement of Claim as follows:

“(d) “Services to be provided by the Defendant to the Plaintiff as part of the consideration due by the Defendant to the Plaintiff under the contract no later than 31 December 2012 subsequent to the African Safari Hunt, being an 11 day deep sea marlin fishing expedition aboard the Defendant’s 50 foot boat in the Great Barrier Reef Region of Australia on the following basis:

(i) Including all necessary equipment, tackle, and fishing staff;

(ii) On board accommodation and catering for up to 4 persons;

(iii) Fuel for boat.

(iv) Return airport transfers form Cairns airport to the location at which the boat is docked.

(v) Excluding international and domestic airfares.

(vi) Excluding pre-post expedition accommodation or tours.

(vii)  To be taken at any time suitable and agreed between the parties up to and including 31 December 2012.”

77. [77]
    Having admitted those facts, the appellant then positively pleaded to paragraph 4(f) of the Amended Statement of Claim. In particular, at paragraph 4.3 of the Defence, the appellant made this admission:

4.3 admits the allegations contained in sub-paragraphs 4(e) and (f) on the assumption that the expression valued means, in the contract, “agreed to for the purposes of the Contract to be valued at”.

78. [78]
    It seems to me that in its proper context, albeit inelegantly pleaded, paragraph 4(f) in the Amended Statement of Claim complies with the requirements of rr 149, 150 and 157. The appellant was not disabled from pleading and there will be no surprise at trial. Indeed, the amended pleading merely adopts the appellant’s admission affirming the alleged agreement and no dispute remains to warrant further amendment.

79. [79]
    In my view there is no warrant to disturb the magistrate’s orders in this regard.

Paragraphs 5, 10 and 15

80. [80]
    In its original application, the appellant sought to strike out paragraphs 4(f), 5, 7, 10 and 15 pursuant to r 171(1)(b) of the UCPR on the grounds that they had a tendency to prejudice or delay the fair trial of the proceeding for noncompliance with rr 149, 150 and 157.

81. [81]
    The appellant also argues inconsistency between those paragraphs and paragraphs 3 and 10.

82. [82]
    Paragraphs 3, 5, 10 and 15 of the Amended Statement of Claim are in the following terms (as tracked to distinguish the superseded allegations):

3 On or about 20 July 201025 August 2010, following an exchange of correspondence by email and facsimile transmission, the Plaintiff and the Defendant  entered into a contract wherebyagreed that the Plaintiff would provide to the Defendant a safari hunting tour in the United Republic of Tanzania in September/October 2010 (the Contract).

Particulars …

5. Under the express terms of the Contract:

(a) Upon the Defendant successfully hunting a Leopard and other selected game in the Runga Hunting Block, the safari party would relocate to the Selous area of Tanzania area to hunt buffalo if required.

(b)  The Defendant was required to pay the Plaintiff;

(i) US$34,300 for the African Safari Hunt.

(ii) Any extra’s The total cost of Hunt Extras as additional consideration calculated as set out in the contract at final cost based on the number of rifles imported and the number of game successfully hunted.

(c) The Plaintiff was not required to pay the Defendant the value of the Australian Fishing Trip because the cost to the Defendant of the African Safari Hunt was discounted by the value of this trip.

10. On or about 30 September 2010 or 1 October 2010 the Plaintiff relocated the Defendant to the Selous area of Tanzania by way of agreed side trip (the Relocation to Selous).

15. The second Invoice wasis for the cost of the Hunt Extras and other costs incurred by the Plaintiff relevant to the African Safari Hunt and payable by the Defendant pursuant to the contract.

83. [83]
    The appellant contends that the magistrate “misconstrued the issue for determination in respect of paragraphs 5, 7 and 15 of the Amended Statement of Claim, those pleadings being embarrassing by reason of the inconsistency between the express or inferred allegation in those paragraphs that the Selous relocation was a term of the original contract and the pleading in paragraph 10, the latter having been found by the learned Magistrate to plead that such relocation was the subject of ‘a supplemental agreement’”.^[25] 

84. [84]
    The appellant’s contention was developed in paragraphs 5.10 to 5.12 of his outline of argument as follows:

5.8 In summary:

(i) By the amendments in paragraph 3 the Respondent pleaded that the agreement was made on or about 20 July 2010 (by an offer and acceptance by documents and a payment);

(ii) By paragraph 5(a) however the Respondent pleads that it was an express term of that agreement that the safari party would relocate from Runga area to Selous area, Tanzania. This allegation is embarrassing as the documents pleaded in paragraph 3 as amended do not contain any such term;

(iiii) Then by paragraph 10 it is pleaded that this relocation was “by way of   agreed side trip.”;

(iv) Finally in paragraph 15, there is reference to amounts due “under the contract”- which amounts can only include amounts claimed in respect of the “Selous relocation” if the contract includes that relocation.

5.9 The current state of the pleading leaves the Appellant to guess at when and how the “Selous relocation” was agreed to. In its present form it is also embarrassing by reason of the inconsistency between paras 3 and 5(a).

5.10 Her Honour accepted the first point [at 32] but then seems to have found [at 36] that there was no embarrassing inconsistency-albeit when considering the Reply rather than the ASOC.

85. [85]
    It seems to me that the appellant’s argument is one of inconsistency of allegations in the pleading. That is the province of r 154, which provides:

Inconsistent allegations or claims in pleadings

3. (1)
   A party may make inconsistent allegations or claims in a pleading only if they are pleaded as alternatives.

3. (2)
   However, a party must not make an allegation or new claim that is inconsistent with an allegation or claim made in another pleading of the party without amending the pleading.

86. [86]
    The court may make punitive orders pursuant to r 371(2) for a failure to comply with the rules. However, any application for such an order “must set out details of the failure to comply” with the rules in accordance with r 372 of the UCPR.  The appellant has neither applied under this rule (in this aspect) nor set out the details of a failure under r 154 of the UCPR.  The appeal is not a new application as if to consider the arguments advanced for the first time. Faced with this argument, it is likely that the respondent would have responded differently to the original application to meet the new point.^[26]I am not prepared to entertain the argument in this forum.

87. [87]
    The appellant’s outline of argument also raises a new complaint that paragraph 5(a) is not supported by the evidence of the terms of the contract. I see that paragraph 5 seems to place an unnecessary gloss on the terms already pleaded in paragraphs 4(b) and (c) of the amended pleading. However, no evidence has been adduced to support the appellant’s new assertion, and I will not speculate. I am not in a position to adjudicate upon the matter.

88. [88]
    Taken in isolation it is arguable that paragraph 10 may engender confusion about some collateral contract. However, when read as a whole, the allegation in paragraph 10 is no more than part performance of “the Contract” as defined and pleaded in paragraphs 3 and its terms pleaded in paragraph 4 regarding a “side trip”. The magistrate found that paragraph 10 was deficient because it did not plead the material facts of the alleged agreement. That finding is not challenged on appeal. Paragraph 10 (now renumbered paragraph 11) has since been amended as part of the Second Amended Statement of Claim filed 21 July 2016.^[27]Therefore, it would be a futile, costly and delaying exercise to strike out the amended allegation in paragraph 10.

89. [89]
    As to paragraph 15, the learned magistrate found that it was deficient because it did not plead the necessary material facts. That finding is not challenged on appeal. Paragraph 15 (now renumbered paragraph 16) has since been amended by the Second Amended Statement of Claim filed 21 July 2016.^[28]Like paragraph 10, any strike out of paragraph 15 would be a futile waste of time and costs.

90. [90]
    I do not accept the appellant’s grounds in relation to allegations in paragraphs 5, 10 and 15 and associated paragraphs.

Paragraph 7

91. [91]
    In its original application, the appellant sought to strike out paragraph 7 pursuant to r 171(1)(b) of the UCPR on the ground that it had a tendency to prejudice or delay the fair trial of the proceeding for noncompliance with rr 149, 150 and 157.

92. [92]
    Paragraph 7 of the Amended Statement of Claim is that:

“7.  The plaintiff performed the contract according to its terms between about 14 September 2010 and 4 October 2010.” 

93. [93]
    By his existing Defence, the appellant admits that he undertook an African safari hunt provided by the respondent between 14 September 2010 and 4 October 2010,^[29]but denies that the African safari hunt complied with the contract for the reasons pleaded in paragraph 4.6 of the defence.^[30]

94. [94]
    The magistrate found that the amended pleading “does assert that the plaintiff performed the contract according to its terms and specifies the dates between which that performance occurred. Given that the plaintiff’s obligations under the terms of the agreement have been pleaded in paragraph 4, looking at the whole of the pleadings it seems clear that what is being asserted in paragraph 7 is that the plaintiff performed the contract according to its terms … if the defendant seeks further particulars of the acts of performance it can seek that through a request for further and better particulars.”^[31]

95. [95]
    The appellant contends that the magistrate erred in construing the operation of rr 150(1)(n) and 150(2) as applied to paragraph 7 because performance of a contract ought to be specifically pleaded.^[32]It is further argued, and I accept, that particulars ought not be relied upon to cure deficiencies of pleading.^[33]However, it seems to me that the magistrate was simply referring to the effect of r 157 which requires a party to include particulars in a pleading necessary to “support a matter specifically pleaded under rule 150”.

96. [96]
    The question is whether the paragraph 7 offends rr 150(1)(n) and 150(2).

97. [97]
    Rule 150 must be read subject to r 149 and sets out a non-exhaustive list of matters, which must be specifically identified in the pleading as required by r 149(c) to prevent surprise. Relevantly here, “performance” must be specifically pleaded^[34]and any fact supporting an inference to that end must also be specifically pleaded.^[35]

98. [98]
    These rules of pleading ensure brevity and clarity in pleadings to facilitate proper notice of the material facts (not evidence), and to distil the real issues in the proceeding.^[36]

99. [99]
    In this case, the respondent’s case is that it has discharged its obligations under the contract. Accordingly, in paragraph 7 the respondent specifically pleaded that it has performed the contract according to its terms between about 14 September 2010 and 4 October 2010. By necessary implication those terms are pleaded in paragraphs 4 and 5 of the contract formed as pleaded in paragraph 3. In the interests of brevity and clarity there was no need to be repetitive by recasting the terms, nor impermissibly plead evidence.

100. [100]
     For these reasons, I will not allow the appeal in respect of paragraph 7.

Paragraphs 19, 20 & 26

101. [101]
     The appellant’s outline of argument belatedly complains about paragraphs 19, 20 and 26 of the Amended Statement of Claim.

102. [102]
     As I have alluded to, the court may strike out all or part of pleadings which fail to comply with the rules. However, any application for such an order “must set out details of the failure to comply” with the rules in accordance with r 372 of the UCPR.

103. [103]
     This appeal ought not be hijacked by arguments advanced for the first time outside the scope of the original application and without proper particularity required by r 372. Paragraphs 19 and 20 were subject of the appellant’s attack in fateful reliance upon r 188 discussed above, but they were not otherwise relied upon in the original application (in this way). Paragraph 26 was never within the scope of the application in this way.

104. [104]
     Faced with these arguments, it is likely that the respondent would have responded differently to the original application to meet the new point.^[37]I am not prepared to entertain the argument in this forum.

Should the Amended Reply & Answer be struck out?

105. [105]
     In his original application filed on 7 March 2016 (as amended), the appellant applied for the following orders to strike out all or part of the respondent’s first Amended Reply and Answer filed on 21 January 2014 because it discloses no reasonable cause of action pursuant to r 171(1)(b) or it has the tendency to prejudice or delay the fair trial of the proceeding pursuant to r 171(1)(a).

106. [106]
     The appellant contends that the magistrate erred by allowing the respondent to replead the “remarkably deficient”^[38]pleading without first striking out all or parts of the Reply and Answer pursuant to r 171(1)(a) or (b).^[39]

107. [107]
     I disagree.

108. [108]
     The magistrate’s discretion was guided by the purpose of the rules, namely to avoid undue delay, expense and technicality and facilitated the just and expeditious resolution of the real issues in the proceeding at a minimum of expense. And this appellate court ought employ added restraint and be slow to intervene on matters of practice and procedure.^[40]

109. [109]
     Prior to the application, the parties committed to a series of amended pleadings in the consent orders made on 3 November 2015. Compliance with these orders would have seen the respondent file and serve an amended rely and answer in response to the appellant’s amended defence and counterclaim. However, the proceeding did not progress as directed because the appellant took further issue with the respondent’s amended pleading. It is inevitable that the pleadings will undergo another series of amendment. In the meantime, the respondent has heeded the magistrate’s remarks and also complied with her order by filing its Second Amended Reply and Answer on 21 January 2014.

110. [110]
     In the circumstances, it seems to me that the course urged by the appellant would involve a futile waste of time and costs in circumstances where the pleadings are in a state of flux pending amended pleadings.

111. [111]
     Further, I do not accept that a court is bound to strike out all or part of a pleading as a prerequisite to allowing a party to amend a defective part. Rule 375(1) generally empowers the court to allow amendments before the limitation period as follows:

“(1) At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.”

112. [112]
     I respectfully conclude that the magistrate’s decision to allow the respondent to replead the First Reply and Answer without first striking out the offending pleading was open and appropriate in the circumstances. The same could be said of the orders made about the Amended Statement of Claim.

113. [113]
     Therefore, I do not accept that the magistrate erred in principle in the exercise of the magistrate’s discretion, or that the discretion miscarried, or that the result was manifestly inappropriate. The relevant appeal grounds will fail.

Orders

114. [114]
     For these reasons and subject to hearing the parties further on the issue of costs, I make the following orders:

1. Appeal dismissed.

2. Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment, the appellant will pay the respondent’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

Judge Dean P. Morzone QC