Robinson v Westpac Life Insurance Services Limited
[2017] QDC 40
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- Unreported Judgment
- Robinson v Westpac Life Insurance Services Limited[2017] QDC 40
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Robinson v Westpac Life Insurance Services Limited[2017] QDC 40
Robinson v Westpac Life Insurance Services Limited[2017] QDC 40
DISTRICT COURT OF QUEENSLAND
CITATION: | Robinson & Anor v Westpac Life Insurance Services Limited [2017] QDC 40 |
PARTIES: | SCOTT ROBERT ROBINSON (First Plaintiff) & MICHELLE ROBINSON (Second Plaintiff) v WESTPAC LIFE INSURANCE SERVICES LIMITED (Defendant) |
FILE NO/S: | 2633 of 2011 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 22 February 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 January 2017 |
JUDGE: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | INSURANCE LAW – Claim under TPD policy – the date of commencement of the cause of action – whether at the expiration of 6 months after incapacity commences – whether at date opinion formed to reject the claim – whether on dates of reconsiderations – whether at trial PROCEDURE – Whether particular paragraphs of the pleadings should be struck out as insufficient justification of dates alleged – whether causation sufficiently pleaded Insurance Contracts Act 1984 (Cth) s 13 Uniform Civil Procedure Rules 1999 (Q) rr 162, 171 Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2015) 89 NSWLR 412 Body v Mount Isa Mines Ltd [2013] QSC 188 Coco v Ord Minnett Ltd [2012] QSC 324 Fletcher & Barnett & Ors v Fortress Credit Corporation (Australia) No. 2 Pty Ltd [2013] QSC 104 Hannover Life RE of Australasia Ltd & Anor v Dargan (2013) 83 NSWLR 246 McArthur v Mercantile Mutual Life Insurance Company Limited [2002] 2 Qd. R. 197 Mirvac Queensland Pty Ltd v Shamrock Civil Engineering Pty Ltd [2015] QSC 271 Platinum United II Pty Ltd & Anor v Secured Mortgage Management Limited (in liq) [2011] QCA 162 Reynolds v Sunsuper Pty Ltd and Anor [2016] QDC 129 Schuhmacher & Ors v ATO The Schuhmacher Superannuation Fund v Zurich Australia Limited [2014] QDC 136 Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 |
COUNSEL: | Mr M. Alexander for the plaintiff Mr K. Holyoak for the defendant |
SOLICITORS: | Maurice Blackburn Lawyers for the plaintiff Cooper Grace Ward Lawyers for the defendant |
Introduction
- [1]This is an application by the defendant to strike out various parts of the plaintiffs’ pleadings and for orders for further and better particulars.
- [2]The plaintiffs apply for the dispensation of the certificate of readiness and for the dismissal of the defendant’s application.
- [3]The strike out applications are brought under rules 162 and 171 of the Uniform Civil Procedure Rules 1999 (Q).
- [4]When considering a strikeout application I bear in mind that which was stated by Fraser JA in Platinum United II Pty Ltd & Anor v Secured Mortgage Management Limited (in liq)[1]where his Honour said:
“Issues in proceedings should ordinarily be decided at trial and should not be decided summarily unless there is a ‘high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way’ or a ‘demonstrated certainty of outcome’.”
- [5]The court needs to consider whether the facts pleaded are capable in law of giving rise to the relief sought (Coco v Ord Minnett Ltd.[2])
Background
- [6]The claim is by the plaintiffs against the defendant alleging that the defendant has breached a contract of insurance by failing to pay out on a TPD claim.
- [7]The further amended statement of claim (“FASOC”) was filed on 10 May 2016.[3] In the FASOC it is alleged that on or about 28 August 2002 the plaintiffs entered into a “Westpac Term Life” policy of life insurance with the defendant with the first plaintiff as the insured person.
- [8]In paragraph 4 it is alleged:
“There were terms of the policy that:
- (a)‘if an insured person is totally and permanently disabled by any injury, disease or sickness we will pay to you the disability benefit as a lump sum’. The meaning of ‘total and permanent disability’ depends on the type of disability benefit which applies under the policy for that insured person (clause 20.1).
- (b)If an ‘any occupation’ benefit applies ‘total and permanent disability’ means:
An injury, disease or sickness which has prevented the insured person from working for six consecutive months and which in our opinion is likely to prevent them from ever working again in any occupation for which they are reasonably qualified because of education, training or experience (clause 20.3).”
- [9]In paragraph 5 it is alleged that the first plaintiff suffered an injury, disease or sickness which prevented him from working for six consecutive months. In the particulars it is alleged that he contracted a virus in August 2004 which caused permanent brain damage and:
“He suffered damage to the brain causing cognitive dysfunction including loss of memory and difficulty communicating and focussing. He suffered anxiety and depression, irritability and sleep disturbance. He first suffered anxiety and depression, irritability and sleep disturbance all since August 2004. Cognitive dysfunction was first diagnosed in August 2005. He was hospitalised in the period 5-12 August 2004. The hospitalisation between 5-12 August 2004 was due to viral illness, delirium and brain dysfunction. He was unable to work from 5 August 2004 until 4 October 2004 or from 19 November 2004 until 3 January 2005. He attempted to return to work without success between 4 October 2004 and 19 November 2004 and again between 4 January 2005 and 2 August 2005, because of his injuries and has not resumed work since. The plaintiff has been prevented from working from 2 August 2005 due to damage to the brain causing cognitive dysfunction including loss of memory and difficulty communicating and focussing; anxiety and depression, irritability and sleep disturbance.”
- [10]Paragraph 6 alleges:
“The defendant should have formed the opinion that an injury, disease or sickness was likely to prevent the first plaintiff from ever working again in any occupation for which he was reasonably qualified because of his education, training or experience. The plaintiff repeats the particulars listed in paragraph 5 above. In addition the plaintiff completed Year 12 at Noosa High School. He subsequently completed an Associate Diploma in Business (Banking and Finance). He has completed a Certificate in Financial Markets and a Diploma in Financial Advising.”
- [11]In paragraph 7 it is alleged:
“In the premises, the plaintiff was totally and permanently disabled by an injury or sickness since 2 August 2005 until the date of this pleading and the plaintiffs were entitled to be paid the benefit.”
- [12]It is alleged that on 22 June 2011 the plaintiffs claimed the benefit from the defendant (paragraph 8) together with various documents.
- [13]In paragraph 9 it is alleged that on 20 January 2012 the defendant refused to pay the first claim. It is alleged that the reasons for the first decision were not valid (paragraph 9 B). It is alleged:
“The material referred to justified a conclusion that the plaintiffs were entitled to the benefit sought. Paragraph 11 hereof is referred to and repeated.”
- [14]Paragraph 11 alleges that the defendant failed to consider the insurance claim with proper regard to the interest of the plaintiff and then sets out the reasons why the insurance claim was not properly considered.
- [15]It is then alleged that on 16 March 2012 the plaintiffs requested the defendant to review the first decision which was refused on 2 May 2012 (paragraphs 9C and D). It is again alleged that the second decision was not valid (paragraph 9F) for the reasons pleaded in paragraph 11.
- [16]Finally it is alleged in paragraph 9H that by letter dated 11 September 2015 the defendant refused to pay the third claim (the third decision) and alleges the reasons for the third decision were not valid (paragraph 9I).
- [17]Paragraph 10 alleges various duties the defendant had and paragraph 11 alleges that these duties were breached in material respects.
- [18]It is alleged in paragraph 12 that the defendant has refused or failed to pay the sum or benefit and loss and damage in the amount of $173,674.00 has been suffered.
- [19]Further particulars of the further amended statement of claim were sought by the defendant.[4] In particular, paragraph 1 sought identification of the virus contracted by the first plaintiff alleged in paragraph 5 of the FASOC.
- [20]Paragraph 2 sought this particular:
“As to paragraphs 5 and 6 in relation to the allegation that the first plaintiff has become incapacitated within the meaning of the policy the date which was the end of the period of six consecutive months when the incapacity fell to be assessed.”
- [21]
“In relation to the virus he contracted:
- 9.1The plaintiff suffered some kind of febrile illness;
- 9.2He otherwise objects on the best particulars ground and the evidence ground.”
- [22]With respect to request 2 the response was:
“As to paragraph 6 of the FASOC:
- The date at which the defendant ought to have assessed the plaintiff’s incapacity was either:
5.1 2 February 2006; or
5.2 20 January 2012; or
5.3 2 May 2012; or
5.4 11 September 2015;
5.5 The date of trial.”
Submissions as to the dates of assessment
- [23]The defendant submits that the particulars concerning the dates of assessment are inadequate and should be struck out and proper particulars provided. The defendant submits that on decided cases the dates pleaded are wrong (or at least most of them) and the dates other than 2 February 2006 are not sustainable and raise false issues. It is submitted that it is important to pin down a date in this case because this is relevant to the medical evidence that needs to be obtained.
Plaintiffs’ submissions
- [24]It is submitted that Westpac complaints are not about the adequacy of particulars but are more rather an attempt to obtain summary judgment on this issue. It is submitted that it is a matter for trial as to what is proved in terms of the relevant date. It is also submitted that all of the dates pleaded are justifiable on the cases.
Relevant law
- [25]In McArthur v Mercantile Mutual Life Insurance Company Limited[6]the Queensland Court of Appeal considered an action under an accident and sickness insurance policy. McMurdo P agreed with Muir J. McPherson JA agreed in the result but expressed some concerns about it.
- [26]In that case the claim was rejected by the respondent on the ground it was not satisfied that the appellant was totally and permanently disabled within the meaning of that expression in the policy. The policy was in similar terms:
“In general terms, an insured under the policy was to be regarded as totally and permanently disabled only if the insured had not been able to work in his or her occupation for six months and that the insurer formed the opinion that the insured was likely never to work again.”[7]
- [27]A claim was brought on the policy but the respondent on 14 October 1996 rejected the claim stating:
“We have noted that there seems to be a reluctance in classifying this disablement as permanent and therefore we are not prepared to admit this claim. As chronic fatigue syndrome is a fairly recently diagnosed illness, there is not a lot of evidence to say that the incapacity could be long term. Whilst appreciating that Mr McArthur may currently be disabled, we have not seen sufficient evidence to satisfy us that he would be totally disabled for the balance of his working life. If such evidence were to become available, we would review this decision.”[8]
- [28]The appellant’s case was that the respondent’s opinion in the letter dated 14 October 1996 was invalid. The Judge at first instance, asked himself the question “did the insurer act in breach of the obligation to act reasonably, fairly and in good faith towards the plaintiff when considering whether it should form the opinion required by the definition of disabled”.[9]His Honour formed the view that the opinion had not been properly formed because the respondent had applied an erroneous test. Therefore it was appropriate for the Court to determine whether the appellant was in fact, totally and permanently disabled within the meaning of the policy and his Honour proceeded to determine whether the appellant met the criteria for TPD disregarding the requirement for the formation of an opinion by the respondent but taking into account all relevant evidence available at the time of trial. His Honour ultimately concluded that he was not satisfied that the plaintiff was TPD.
- [29]It was common ground on appeal that the opinion dated 14 October 1996 had miscarried and there being no dispute that the respondent was obliged to act reasonably. Muir J held at [58]:
“Where a party to a contract is in breach of a contractual obligation, the innocent party’s remedy, absent the availability of specific performance, and putting aside the question of whether the breach is such as to give the innocent party a right to terminate, is to sue for damages for breach of contract. In this case, the insurer having been in breach of a contractual obligation, an orthodox contractual analysis would suggest that the appellant’s remedy was to sue for damages for breach of contract.”
And further at [60]:
“Damages for breach of contract are awarded with the object of placing the plaintiff in the position in which he would have been had the contract been performed.If the contract had been performed in this case, the respondent would have formed the subject opinion honestly, bona fide and reasonably… if it is concluded that an insurer acting reasonably would have accepted the claim, the appellant would be entitled to the payment of the sum stipulated by the policy to be payable in the event of total and permanent disability. There are, however, possible complicating factors. In some circumstances, it may be that an insurer acting reasonably may deem it advisable to seek further evidence or even to postpone a determination pending the resolution of various matters.Where a response of such a nature by the insurer is possible, the damages recoverable may need to be quantified by reference to the principles relating to a loss of chance.”
- [30]After a discussion of the authorities, Muir J held at [72]:
“There is thus a substantial body of authority in support of the conclusion that where, as in this case, payment is dependent on the formation by a party to a contract of an opinion as to the existence of a state of affairs and the opinion is not duly formed through the fault of that party, the Court may proceed to decide, as a question of fact, whether such state of affairs exists. Having made a determination in favour of the insured the court may then order payment of the sum which, would have been payable had the insurer’s opinion been duly formed in favour of the insured. That is the course the primary judge took in this case and, not without some misgivings, I accept that it was correct…”
- [31]At [73]:
As the Court’s role is to determine whether the definition of total and permanent disablement has been fulfilled, disregarding the requirement for the formation of an opinion by the respondent, there is no reason why the Court performing that task, should be confined to the evidence before the respondent on 14 October 1996. It may be that the determination needs to be made as at the date on which the breach of contract occurred and the cause of action arose but on the facts of this case, it is not likely to matter a great deal whether the relevant time is taken to be the time of trial or 14 October 1996.”
- [32]At [74]:
“Medical reports coming into existence after the relevant time will be admissible provided that they are pertinent to the determination of the appellant’s condition at the relevant time.”
- [33]McPherson JA did not doubt the plaintiff’s right to recover damages for breach of contract if there was a failure to perform an opinion in accordance with the terms of the insurance contract (see [10]). His Honour held that if the opinion was totally flawed it was an “opinion” within the meaning of that provision. A party is entitled to sue for damages for breach of an express or an implied contractual obligation to form a conforming opinion. His Honour at [23] held:
“Because the opinion of the defendant insurer in the present case was found to be invalid, the question whether the plaintiff was totally and permanently disabled fell, according to Butcher v Port, to be determined by the court. It is not altogether clear to me whether the date to which that determination is to be related is the date at which the defendant’s opinion was, or ought to have been, formed and communicated; or the time at which the matter is determined in court; or some other possible date, such as when the repudiation was accepted. Whatever it is, however, I agree with Muir J in thinking that the evidence adduced before the primary judge was admissible and properly admitted.”
- [34]It is my determination that Muir J and McMurdo P formed the majority in McArthur.
- [35]In those circumstances, it is my view of the law in Queensland that the date on which the assessment of damages is to be made is the date on which the formation of the opinion occurred.
- [36]My view is fortified by the cases from New South Wales. In Hannover Life RE of Australasia Ltd & Anor v Dargan[10] the New South Wales Court of Appeal was concerned with a policy which read:
“1.3Total and permanent disablement in respect of an insured person who was gainfully employed within the six months prior to the date of disablement is where:
1.3.1The insured person is… unlikely ever to be able to engage in any regular remuneration work for which the insured person is reasonably fitted by education, training or experience.”
- [37]The respondent had been employed as a truck driver and labourer. On 5 July 2007 he injured his lower back at work and was unable to continue in his occupation. He attended a taxi driving course. His claim was rejected on the grounds:
“Evidence submitted does not support Mr Dargan’s claim for total and permanent disablement, which is evidenced by the member demonstrating the ability to perform regular ruminative work as a taxi driver for which he was reasonably fitted according to his previous work experience as a truck driver.”
- [38]The primary Judge disagreed with this conclusion holding that Mr Dargan at the relevant time obvious assessment of his condition, namely six months after his injury, was not able to engage in regular remuneration work for which he was reasonably fitted by education, training and experience and his Honour concluded as a result the respondent was totally and permanently disabled and make declarations sought and ordered payment of the amount due to him.
- [39]The Court noted at [33] that it was common ground between the parties that the date the question of the claimant’s TPD was to be assessed was a date six months after the incident giving rise to the claim. At [41] it was noted in Halloran, Brereton J emphasised (at [35]) that “the assessment under the claim in question had to be made at the expiration of six months and could only take into account work for which the employee was suited at the expiration of that period.That may be accepted but his Honour did not have to deal with the question which arose in the present case.”
- [40]Ultimately the appeal was allowed on the basis that it was possible for the respondent to engage in remunerative employment.
- [41]In Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd[11]the relevant clause read:
“Unable to work for an initial period of six consecutive months and in our opinion is incapacitated to such an extend as to render the insured person unlikely ever to engage in or work for award in any occupation or work which the insured person is reasonably capable of performing by reason of education, training or experience.”
- [42]In that case the insured person had been employed as a motor mechanic but suffered injury which prevented him from working in that occupation from 4 October 2010. He applied to the insurer for a TPD benefit. The decision of the insurer to refuse the claim was made on 19 April 2012 and the trustee’s decision on 7 May 2012. Again at [40] it was noted that:
“The Date of Disablement as it applies to the appellant’s claim, is defined as ‘the date of occurrence of the event or the manifestation of the condition which is the commencement of the six months consecutive inability to work that results in the total and permanent disablement’. It was common ground that in relation to the appellant, this date was 4 October 2010.”
- [43]Further, at [58]:
“First, the parties accepted that where the insurer’s opinion is not formed in accordance with each express and implied contractual obligations, the Court may decide, as a question of fact, whether that state of affairs existed or did not exist. No challenge was made to the correctness of the line of authority applied in McArthur v Mercantile Mutual notwithstanding a thoughtful analysis undertaken by McPherson JA in that case which calls into question the correctness of the reasoning of Butcher v Port. Having made such a determination but depending always on the term of the contract of insurance, the Court may order that sum which would have been payable had the insurer’s opinion been duly formed, be paid to the trustee or insured person.”
- [44]At [59]:
“Secondly, it was not in contest that the time at which the question of incapacity was to be addressed by the insurer was as at the end of the initial period of six months during which the appellant had been unable to work. In this case that was April 2011. It was also not in issue that the evidence to which the Court can have regard in making its determination was not limited to the evidence before the insurer and could include any evidence speaking as to the question of the appellant’s capacity to work as at that date.”
- [45]
- [46]It is with the law in mind that I now turn to the specific challenges made by the defendant.
Paragraphs 5.1-5 of the further and better particulars
- [47]In this case there is no definition clause like that in Birdsall’s case so the matter becomes one of construction of the insurance contract. In my view, absent any pleading of a breach of an implied term, the opinion date is either, 2 February 2006 (the end date of the six consecutive month period); or 20 January 2012 (the refusal by the insurer when the benefits were first applied for).
- [48]Presently there are no facts pleaded to support the contentions that the assessment dates were 2 May 2012 or 11 September 2015 or the date of trial. Indeed, I think it highly unlikely it could ever be the date of trial despite the statements made by McPherson JA.
- [49]In the circumstances, I strike out paragraphs 5.3, 5.4 and 5.5 of the further and better particulars of the further amended statement of claim of the plaintiffs filed 28 July 2016, but give leave to re-plead within 28 days. It seems to me justifiable that there is such an implied condition, particularly bearing in mind paragraph 38 and 47 of the insurance policy and potentially section 13 of the Insurance Contracts Act 1984 (Cth).
- [50]Once adequately pleaded then it is a matter for the trial judge to determine on the evidence, when the “opinion” date happened.
Paragraph 4 (a) of the further and better particulars dated 9 October 2012
- [51]It is next alleged by the defendant that paragraph 4(a) of the further and better particulars of the amended statement of claim filed 9 October 2012 be struck out. As I understand the position, the further amended statement of claim and particulars dated 28 July 2016 have superseded the earlier particulars and it is unnecessary to make this order.
Paragraphs 2(c)(ii) – 2(c)(vi) of the amended reply filed 23 November 2016
- [52]The defendant submits that paragraphs 2(c)(ii) to 2(c)(vi) inclusive of the amended reply of the plaintiffs filed 23 November 2016 should also be struck out. It is submitted that by the amended reply the plaintiffs allege different amounts which are recoverable under the policy depending on when the plaintiffs were first entitled to be paid, aligning with the allegations of the dates of the assessments in paragraphs 5.2 to 5.5 of the particulars filed 28 July 2016. This argument is bound up with the argument concerning the date of the opinion.
- [53]For the reasons I have previously given, I strike out paragraphs 2(c)(iii); (iv); (v) and (vi) but give leave to re-plead within 28 days.
Striking out of paragraphs numbered 7 of the FASOC
- [54]The defendant submits that paragraph 7 of the FASOC is inconsistent with paragraphs 2(c)(ii) to 2(c)(vi) of the amended reply and paragraphs 5.1 to 5.5 of the further and better particulars filed 28 July 2016.
- [55]For the reasons given previously, I strike out paragraph 7 and give leave to re-plead within 28 days.
Paragraph 9B of the FASOC
- [56]The defendant submits that it has sought particulars of why the reasons for the first decision referred to in paragraph 9B were “not valid” by its request for particulars of 25 July 2016. That response refers to paragraph 11 of the amended statement of claim which has been expanded and particularised in the FASOC. In essence the plaintiffs rely on the totality of paragraphs 8, 9C and 11 of the FASOC. It is submitted the allegations in paragraph 11 contain a scattergun approach of alleged breach. It is submitted the plaintiffs require the defendant to trawl through documents to “hunt and peck” through the allegations to work out the case. It is submitted that what must be particularised is why the reasons for the first decision were not valid and it is submitted there is no correlation between the invalidity of the reasons alleged and the allegations of breach or failure in paragraph 11.
- [57]By way of reply, the plaintiff submits that the paragraphs sufficiently plead the defects in the reasons relied upon.
- [58]In my opinion, the criticisms raised by the defendant are more a matter of style than substance. It no doubt would be preferable to plead separate paragraphs of the alleged invalidities relating to each decision as they may be different.
- [59]Ultimately though, I am persuaded that paragraph 9B, which refers in its terms to paragraph 11, sufficiently apprises the defendant of the basis of the alleged invalidity.
Paragraph 2 of the defendant’s application – paragraph 5 of the FASOC
- [60]The defendant submits that in the request for particulars of 25 July 2016, it requested particulars as to the virus and the nature of the brain damage. In the particulars dated 28 July 2016, paragraph 1, the plaintiffs responded that the virus was “some kind of febrile illness” and otherwise objected on the grounds that these were the best particulars which could be provided and that otherwise evidence was sought. It is submitted that the allegation of a “febrile illness” is not the same as alleging that there was a virus which damaged the first plaintiff’s brain. It is submitted the defendant needs to understand the allegation of cause and effect so that it may properly prepare its case. The nature of any virus may permit the defendant to understand the allegation that such virus caused brain damage and dysfunction. A defendant is entitled to know the material facts constituting the causal connection.
- [61]The plaintiffs, on the other hand, submit that they have pleaded and provided particulars of the brain injury. It is submitted that Westpac has been provided sufficient evidence to plead and prepare for trial. It is submitted also that at one stage the matter was certified as ready for trial on substantially the same allegation and it is surprising that this submission is made and it is submitted the request is now for evidence, not material facts and accordingly should be refused.
Discussion
- [62]It is well established that an allegation of causation requires pleading and particularisation of the material facts which, if proved, will establish cause and effect.[14]
- [63]In this case the FASOC sets out in detail as to the contraction of a virus which caused permanent brain damage. It is understandable that particulars of the virus were sought. It seems however, that further particulars of this virus cannot be provided which resulted in the plaintiffs, in its particulars filed 28 July 2016 (document 22), stating:
“In relation to the virus he contracted,
- 1.1The plaintiff suffered some kind of febrile illness;
- 1.2He otherwise objects on the best particulars ground and the evidence ground.”
- [64]In Schuhmacher & Ors ATO The Schuhmacher Superannuation Fund v Zurich Australia Limited[15] Durward SC DCJ noted at [24]:
“However a party can only be required to give those particulars that the party is able to provide; that much is axiomatic.When a party exhausts its knowledge of what it says are the facts, then that is sufficient, it can do no more.”
- [65]I agree. I think the particulars are sufficient for the defendant to prepare for trial and refuse to make the orders sought.
Plaintiff’s application
- [66]As the pleadings are not yet in order it is appropriate to dismiss the plaintiff’s application.
Conclusion
- [67]For the reasons given, the Court makes the following orders:
- I strike out paragraphs 5.3, 5.4 and 5.5 of the further and better particulars of the further amended statement of claim (“FASOC”) filed 28 July 2016.
- I strike out paragraphs 2 (c), (iii), (iv), (v) and (vi) of the plaintiff’s amended reply filed 23 November 2016.
- I strike out paragraph 7 of the FASOC.
- I dismiss the application to strike out paragraph 4 (a) of the further and better particulars of the amended statement of claim filed 9 October 2012.
- I dismiss the application for further and better particulars of paragraph 5 of the FASOC.
- I dismiss the application to strike out paragraph 9B of the FASOC.
- I allow the plaintiff 28 days to re-plead.
- I dismiss the plaintiff’s application.
- I will hear the parties on the question of costs.
Footnotes
[1] [2011] QCA 162 at [13].
[2] [2012] QSC 324 at [18].
[3] Document 21.
[4] Exhibit TJB6 to affidavit of Terence Joseph Batch filed 12 January 2017 (document 28).
[5] Document 22 filed 28 July 2016.
[6] [2002] 2 Qd. R. 197.
[7] Ibid at [27].
[8] Ibid at [44].
[9] Ibid at [51].
[10] (2013) 83 NSWLR 246.
[11] (2015) 89 NSWLR 412.
[12] [2016] QDC 129.
[13] Ibid at [9].
[14] Body v Mount Isa Mines Ltd [2013] QSC 188 at [17] – [18] – Appeal [2014] QSC 214; Fletcher & Barnett & Ors v Fortress Credit Corporation (Australia) No. 2 Pty Ltd [2013] QSC 104 at [25] – [28]; Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 at [15]; Mirvac Queensland Pty Ltd v Shamrock Civil Engineering Pty Ltd [2015] QSC 271 at [23].
[15] [2014] QDC 136.