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Buchanan v Bowen Old Peoples Home Society[2021] QDC 160

Buchanan v Bowen Old Peoples Home Society[2021] QDC 160

DISTRICT COURT OF QUEENSLAND

CITATION:

Buchanan v Bowen Old Peoples Home Society [2021] QDC 160

PARTIES:

ALLISON MAREE BUCHANAN

(Plaintiff)

v

BOWEN OLD PEOPLES HOME SOCIETY

(Defendant)

FILE NO:

338 of 2019

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

13 August 2021

DELIVERED AT:

Townsville

HEARING DATE:

19 July 2021

JUDGE:

Coker DCJ

ORDER:

  1. That the Application filed by the Defendant on 8 July 2021 is dismissed.
  2. That the proceedings No. 338/2019 are to be listed for trial notwithstanding that the Request for Trial Date has not been signed by the Defendant.
  3. That the Defendant pay the Plaintiff’s cost of the two Applications filed 8 July 2021 and 14 July 2021 as may be agreed between the parties and failing agreement to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – DISTRICT COURT QUEENSLAND – PRACTICE UNDER THE UNIFORM CIVIL PROCEDURE RULES 1999 (Qld) – PLEADINGS GENERALLY – Where the Defendant seeks to have certain paragraphs of the Amended Statement of Claim struck out pursuant to r 149(1)(b) of the UCPR – whether the paragraphs comply with the requirements of r 150(1) and (2) of the UCPR – where the Defendant seeks a declaration that various paragraphs of the Second Further Amended Defence are properly pleaded pursuant to r 149 of the UCPR being mindful of the philosophy of the UCPR as detailed in r 5 – where in the alternative leave is sought to replead the Second Further Amended Defence – whether such a declaration should be made or leave granted – whether leave should be granted to amend or alternatively to withdraw certain paragraphs of the Second Further Amended Defence.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) r 5, r 149, r 150, r 166, r 187, r 188, r 469

CASES:

Hookey v Manthey (2020) 4 QR 371

Baldwin v Icon Energy Ltd [2018] QSC 233

Slack and Anor v HRL Ltd and Ors [2012] QSC 387

Lighthouse Forward Planning Pty Ltd & Anor v Queensland Newspapers Pty Ltd & Ors [2014] QSC 217

Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209

Robinson v Laws [2003] 1 Qd R 81 

Groves v Australian Liquor, Hospitality and Miscellaneous Workers’ Union [2004] QSC 142

Chief Executive Officer of Customs v Preston unreported decision of 5 January 2000, BC 200004663

Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455

Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738

Equuscorp Pty Ltd v Orazio [1999] QSC 354

COUNSEL:

P Mylne for the Plaintiff

G O'Driscoll for the Defendant

SOLICITORS:

O'Shea & Dyer Solicitors for the Plaintiff

Cooper Grace Ward Lawyers for the Defendant

Introduction

  1. [1]
    There are two applications before the court.  The first is filed by the Defendant on 8 July 2021 and seeks orders in these terms:
    1. (1)
      Paragraph 21 and 22 of the Amended Statement of Claim be struck out for pleading evidence contrary to Rule 149(b) of the Uniform Civil Procedure Rules (‘UCPR’);
    2. (2)
      Declaration that paragraphs 9, 11, 12, 15, 21, 22 and 26 are properly pleaded denials in accordance with Rule 149 of the Uniform Civil Procedure Rules;
    3. (3)
      Leave be granted for the Defendant to amend paragraphs 4, 5 and 20 of the Second Further Amended Defence as set out in the draft Third Further Amended Defence pursuant to Rule 188 of the UCPR or alternatively, the Defendant be granted leave;
    4. (4)
      The Plaintiff pay the costs of the Defendant of the application.
  2. [2]
    The second application is filed by the Plaintiff on 14 July 2021.  The orders sought there are as follows:
    1. (1)
      The signature of the Defendant on the Request for Trial Date form be dispensed pursuant to Rule 469 UCPR;
    2. (2)
      The Defendant pay the Plaintiff’s costs of the application to be assessed on the standard basis;
    3. (3)
      Such other order as the Court deems fit.
  3. [3]
    As is apparent in the application filed by the Defendant, the Defendant seeks the listing of the matter for trial.  The Plaintiff has conceded this point, though says that subject to the outcome of their application, time should be made available if necessary, to withdraw and replead the Second Further Amended Defence of the Defendant to the Amended Statement of Claim.  In the circumstances, it is appropriate that such an order be made and it will be so ordered.
  4. [4]
    Before such an order is formally made however, it is necessary to address each of the orders sought in the Defendant’s application.  The first order sought relates to rule 149(1)(b) of the UCPR though the application refers to rule 149(b).   Rule 149(1)(b) is in these terms:
    1. (1)
      Each pleading must –
      1. 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.

The Plaintiff submits that paragraphs 21 and 22 of the Amended Statement of Claim is in breach of the rule.  Paragraphs 21 and 22 are as follows:

[21] Megan Murray states in a statement dated 29 June 2018 and provided in relation to the Plaintiff’s common law claim for damages:

“[44] The Care Plan in place for Resident A on 13 September is the same Care Plan that was in place on 13 November 2015.  That Care Plan states Resident A required manual and mechanical assistance with transfers, requiring manual assistance of a fill hoist and manual assistance of a team of three AINs.  The Care Plan for Resident A states that Resident A required manual assistance with mobility in bed of a team of three AINs with a slide sheet.

[45] The decision to allocate three AINs to assist with Resident A’s transfers was based on the recognition that AINs have different physical abilities themselves, that Resident A did have a significant weight and also that Resident A’s response to nursing interactions was sometimes unpredictable.

…

[47] When I say that Resident A’s response to nursing interactions was sometimes unpredictable, I mean that Resident A does have anxiety issues and can sometimes react physically if she is feeling anxious.  She can sometimes flair her arms and legs around; she can sometimes present as panicking during transfers.

[48] This is not new behaviour however and Resident A was well-known to potentially have such responses during transfer.  Accordingly, her Care Plan called for three AIN to participate in the transfer.

[22] The reference to Resident A by Megan Murray in her statement is a reference to Jenny. 

  1. [5]
    However, the Plaintiff argues that paragraphs 21 and 22 must be considered in the context of paragraph 23 of the Amended Statement of Claim which alleges that the Defendant knew or ought to have known certain matters relating to the patient, Jenny, and that those matters rely upon certain facts including those pleaded in paragraphs 21 and 22.
  2. [6]
    Paragraph 23 pleads matters pertaining to matters of notice and knowledge and the Plaintiff argues that there is the need to specifically plead those matters set out in paragraphs 21 and 22.  In particular, the Plaintiff relies upon r 150 of UCPR.  R 150, insofar as it is relevant to this argument is in these terms:

150 Matters to be specifically pleaded

  1. (1)
    Without limiting rule 149, the following matters must be specifically pleaded—
    1. (a)
      breach of contract or trust;
    2. (b)
      every type of damage claimed including, but not limited to, special and exemplary damages;

Note—

See also rule 155 (Damages).

  1. (c)
    defence under the Limitation of Actions Act 1974;
  2. (d)
    duress;
  3. (e)
    estoppel;
  4. (f)
    fraud;
  5. (g)
    illegality;
  6. (h)
    interest (including the rate of interest and method of calculation) claimed;
  7. (i)
    malice or ill will;
  8. (j)
    misrepresentation;
  9. (k)
    motive, intention or other condition of mind, including knowledge or notice;
  10. (l)
    negligence or contributory negligence;
  11. (m)
    payment;
  12. (n)
    performance;
  13. (o)
    part performance;
  14. (p)
    release;
  15. (q)
    undue influence;
  16. (r)
    voluntary assumption of risk;
  17. (s)
    waiver;
  18. (t)
    want of capacity, including disorder or disability of mind;
  19. (u)
    that a testator did not know and approve of the contents of a will;
  20. (v)
    that a will was not properly made;
  21. (w)
    wilful default;
  22. (x)
    anything else required by an approved form or practice direction to be specifically pleaded.
  1. (2)
    Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded.
  1. [7]
    Specifically, r 150(1)(k) requires that the pleading addressed various matters including knowledge or notice and paragraph 23 sets out the matters suggested by the plaintiff to be known.  Additionally and most significantly, sub rule (2) requires any fact from which any of the matters mentioned in sub rule (1) is claimed to be an inference must be specifically pleaded because, as Ryan J noted in Hookey v Manthey (2020) 4 QR 371:

“[The Defendant] is entitled to know the facts upon which it is contended one might draw an inference of actual knowledge.”

  1. [8]
    To not follow such a course gives rise to other difficulties as a Defendant may otherwise take objection, during the trial, to the admission of evidence said to support such an inference, which evidence goes beyond the matters already pleaded as supporting the inference.  Such an argument was the subject of determination by Bond J in Baldwin v Icon Energy Ltd [2018] QSC 233 and similarly by McMeekin J in Slack and Anor v HRL Ltd and Ors [2012] QSC 387.  As McMeekin J said,

“…the plaintiffs are required to plead the state of mind of the third defendant both in its knowledge and intent. That being so particular pleading rules apply. In my view there has been a failure to comply with rr 150(1)(k) and 150(2) UCPR which provide that where intention is to be alleged (or indeed any condition of mind including knowledge or notice) it must be expressly pleaded and the facts relied on for drawing an inference of that intention (or knowledge) must also be expressly pleaded.”

  1. [9]
    Finally, and most significantly, in Lighthouse Forward Planning Pty Ltd & Anor v Queensland Newspapers Pty Ltd & Ors [2014] QSC 217 the Court noted at paragraph 24:

“[If an inference] is to be inferred then the facts from which such inference is to be drawn should be specifically pleaded. This arises because of a combination of r 149 and r 150(2) of the UCPR. Rule 150(1) identifies matters that are to be specifically pleaded but without limiting r 149. Rule 149(b) requires a pleading to contain a statement of all the material facts on which the party relies. If one of those material facts is an inference that a person read the online publications then it is incumbent on the plaintiffs to plead those facts from which such an inference may be drawn.”

  1. [10]
    In the circumstances here, the Plaintiff pleads that the Defendant knew or ought to have known certain matters detailed in paragraphs 23 of the Amended Statement of Claim, drawing an inference from what is pleaded in the earlier paragraphs.  Those pleadings accord with the requirements of rule 150 of UCPR and should not be struck out.  Accordingly, the order sought in order 1 of the Application filed 8 July 2021 is dismissed. 
  2. [11]
    The second order sought in the Application of 8 July 2021 is for a declaration that paragraphs 9, 11, 12, 15, 21, 22 and 26 of the Second Further Amended Defence of the Defendant to the Amended Statement of Claim are properly pleaded denials.  Again, the Defendant relies upon r 149 of the UCPR, but in addresses counsel for the Defendant also relied upon the philosophy and purpose of the rules as set out in r 5 UCPR.  R 5 is in these terms:

5 Philosophy—overriding obligations of parties and court

  1. (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.
  2. (2)
    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.
  4. (4)
    The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

Example—

The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.

  1. [12]
    In particular, the Defendant relied upon sub rule (2), and specifically the objective of avoiding undue technicality.  In that respect the Defendant argues that to require the Defendant to plead a denial in respect of each allegation, when the Defendant says that the allegation relates to something unknown to the Defendant is contrary to the philosophy outlined in r 5 UCPR or the requirements for brevity as required pursuant to r 149.
  2. [13]
    The Defendant however, makes no specific reference to r 166 of UCPR, which sets out the manner in which denials or non-admissions are to be pleaded.  R 166 of UCPR is in these terms:

166 Denials and non-admissions

  1. (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. the allegation is denied or stated to be not admitted by the opposite party in a pleading; or
    2. rule 168 applies.
  2. (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 non-admission only if—
    1. the party has made inquiries to find out whether the allegation is true or untrue; and
    2. 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 non-admission of the allegation is contained; and
    3. the party remains uncertain as to the truth or falsity of the allegation.
  4. (4)
    A party’s denial or non-admission 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.
  5. (5)
    If a party’s denial or non-admission of an allegation does not comply with subrule (4), the party is taken to have admitted the allegation.
  6. (6)
    A party making a non-admission 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.
  7. (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.
  1. [14]
    The Plaintiff’s position is clear and has been set out at least twice in correspondence from the Plaintiff’s solicitors of 24 November 2020 and 6 April 2021.  The Plaintiff argues that there is no direct explanation for the Defendant’s belief that the allegations are untrue and that general denials as seems to be what the Defendant seeks to do are unacceptable and contrary to the UCPR. 
  2. [15]
    The solicitors for the Plaintiff addressed these matters in the correspondence to which I have referred.  The first of those letters specifically addressed r 166 UCPR and the suggested failure of the Defendant’s defence to address a direct explanation for the Defendant’s belief.  On page 2 of the letter of 24 November 2020, the writer says:

Each of these paragraphs uses the formula usually adopted when a party intends to make a non-admission of facts by reference to rule 166(3) UCPR – that the “Defendant has made reasonable enquiries with respect to the allegations…and remains uncertain as to the truth or accuracy of the matters alleged therein”.  We take it that that is what you intend even though it is not expressly stated that the facts are not admitted.  Were it otherwise, there would be no point of use of this formula.

In those circumstances, the result of the above discussion is that you are left with (Inadequate) denials of the facts alleged in paragraph 24 Amended Statement of Claim by virtue of paragraph 15 Amended Defence followed by non-admissions of all those facts contained in paragraph 24 by virtue of paragraph 16 and 17 Amended Defence.  Such a situation is not permissible.  In Green v Pearson [2014] QCA 110 at [19], Jackson J said that “it is not permissible to plead alternatively that a party either does not admit or denies an allegation of fact contained in the statement of claim.”

The denials in paragraph 15 are also inconsistent with the statement made further in the pleading that the defendant “remains uncertain as to whether or not Daniel left the room or otherwise” and “the Defendant does not know whether Daniel left the room or otherwise” set out in paragraphs 24 and 25 of the Amended Defence respectively.  Such statements are obviously inconsistent with a denial of the allegation contained in paragraph 24(j) Amended Statement of Claim. 

We understand your position that you allege that there have been a number of explanations which you wish to rely upon pertaining to pain suffered by the Plaintiff.  However, none of that bears upon the factual circumstances pleaded in paragraph 24 and in respect of which we require direct responses to each of those allegations.

We do not wish to engage in a protracted pleading dispute here.  However, at the same time, the Plaintiff is entitled to know what position the Defendant is adopting.  As set out above, you are not entitled to plead alternatively a denial and a non-admission.  Because of what is pleaded in paragraphs 16, 17, 24 and 25 of the Amended Defence we take it that what you intend is that the allegations of fact which are made by the Plaintiff and set out in paragraph 24 are the subject of non-admissions by the Defendant.  Is this correct? If it is, would you please confirm by correspondence and the Amended Defence can be further amended in due course.

  1. [16]
    Such a course was not followed with the two further amendments and the Plaintiff’s solicitor was still concerned about the pleadings and what was argued were deemed admissions pursuant to r 166(5) UCPR.  The Plaintiff now argues that a declaration as sought by the Defendant is irregular and should not be allowed, in light of the clear requirements set out in r 166.  I am satisfied that such declaration as sought would be contrary to the clear obligation that arises pursuant to r 166(4) UCPR. 
  2. [17]
    I am comforted in that determination when consideration is given to the decision in Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209 where White J noted in paragraphs 114 to 116 as follows:

“[114] Some judicial observations on r 166(4) will assist in guiding the approach to FFE’s principal application. In Robinson v Laws [2003] 1 Qd R 81  the Court of Appeal considered the “explanation” for the denial in a defamation pleading and concluded that the defendant’s “bland” alternate meaning for the alleged defamatory words was not available as an explanation for a denial pursuant to r 166(4). At paragraph 37 de Jersey CJ said in conclusion

“Those parts of the amended defence in which the respondents advance, as part of their denial of the appellant’s particularised defamatory meanings, alternative meanings of their own, should have been struck out, because they could not rationally be justified as true matters of denial.”

[115] In Groves v Australian Liquor, Hospitality and Miscellaneous Workers’ Union [2004] QSC 142 Mackenzie J at para 12 noted that

“[T]he denial consists of simply stating the negative of the propositions pleaded in the amended statement of claim without any further elaboration why the defendants believed that the allegation is untrue. UCPR 166(4) provides that the party’s denial of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegations are untrue.”

His Honour elaborated this further at para 15 of his reasons.

[116] As Fryberg J stated in Chief Executive Officer of Customs v Preston unreported decision of 5 January 2000, BC 200004663, at page 5 about the requirements of r 166(4)

“[i]t is necessary under the rules for the statement of defence clearly to relate to particular allegations made in the statement of claim. … Each particular allegation must be dealt with …””

  1. [18]
    However, that does not bring an end to any determination here because counsel for the Defendant indicate that whilst the primary position of the Defendant was that a declaration as sought should be made, were that not to be the case, then the Defendant sought leave to withdraw the pleading and replead.
  2. [19]
    The Plaintiff’s response to that is that there should be a ‘line in the sand’ drawn and that without proper explanation, leave should not be granted.  R 188 of UCPR is relevant therefore and is as follows:

188 Withdrawal of admission

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

  1. [20]
    As is noted in Volume 1 of Civil Procedure Queensland, a number of matters will be relevant in determining whether leave should be given to withdraw an admission made in a pleading.  They include:
  • How and why the admissions came to be made;
  • The evidence surrounding the issues the subject of the admission; is there likely to be a real genuine dispute about this evidence?
  • Any delay in making the application for leave to withdraw the admission; and
  • Prejudice to the respondent.
  1. [21]
    The learned authors go on to note that, ‘a court will ordinarily expect sworn verification of the circumstances justifying a grant of leave to withdraw an admission’, and ‘a party should not expect leave to be given simply because an error or mistake was made’.
  2. [22]
    Justice White in Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209, specifically addressed this matter at paragraphs 118 and 119 where she said:

“[118] Rule 188 provides that:

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

There has been extensive correspondence between the parties about the pleadings including the defence and the deemed admissions. FFE contends that the impugned paragraphs of its defence do not contain deemed admissions because the explanation required by r 166(3) or (4) is sufficient. However, FFE seeks leave generally to re‑plead any identified deemed admissions in its defence by virtue of r 166(5), that is, its non‑compliance with r 166(3) and (4). It submits that it is entitled to do so because the application is timely and the trial is not imminent and there is no identified prejudice to Thiess apart from the loss of the deemed admissions. Thiess argues that each admission needs to be scrutinised carefully particularly as FFE has not provided an affidavit deposing to why it needs to contest the deemed admitted allegations of fact.

[119] In Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 , a case relied on by Thiess, the defendant insurer in a worker’s compensation case did not respond to a notice to admit facts in the time limited by the rules with the consequence that the facts were deemed to be admitted. The plaintiff prepared for trial on that basis. About a week before trial, the insurer’s new solicitors alerted the plaintiff that an application would be made to withdraw the deemed admissions at the commencement of the trial. It was refused by the trial judge. On appeal, de Jersey CJ said at pp.458‑9 that the court below had been given no explanation as to why the notice was not responded to and what response it would have made and ordinarily a court would expect sworn verification of the circumstances justifying a grant of leave. The Chief Justice observed at paragraphs 20 and 21 of his reasons

“[20] There is no principle that admissions made, or deemed to have been made, may always be withdrawn ‘for the asking’, subject to payment of costs. The discretion is broad and unfettered, as exemplified by Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 and Equuscorp Pty Ltd v Orazio [1999] QSC 354.

[21] The charter of procedure contained in the Uniform Civil Procedure Rules cannot be approached on the basis that if important provisions are ignored, even if inadvertently (and that is not established here), the court may be expected to act indulgently and rectify the omission. Fulfilling procedural requirements will often contribute significantly to securing an ultimate result which may be considered just. Allowing the appellant to withdraw these deemed admissions would substantially erode the beneficial worth of a very important procedural mechanism directed, through expediting cases and reducing costs, to promoting the interests of justice.””

  1. [23]
    What was being addressed by Her Honour was the situation as it existed between the Parties to that litigation but what is clear is that there does need to be some explanation provided to justify a grant of leave.  Here that seems to be absent.  The Affidavit of Kimberley May Villis provides some explanation as to steps taken and enquiries made on behalf of the Defendant but does not properly address the issues raised directly in the letters previously forwarded by the Plaintiff’s solicitor and specifically the deemed admissions arising pursuant to r 166(5) UCPR. 
  2. [24]
    In Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209, leave was granted to withdraw any deemed admissions and to replead the relevant paragraphs.  However, there were a number if distinct differences there as opposed to the situation in this matter.
  3. [25]
    Firstly, it was contended that the application was timely and the trial was not imminent.  This is not a timely application, being brought nearly eight months after notice was given by the Plaintiff as to the matter of deemed admissions and even then, only on the day of hearing was there any application for leave to withdraw the pleading if the declaration sought was not made.
  4. [26]
    Further, it is not a situation where the trial is not imminent.  The affidavit of Anthony Ivan Baxter, the Plaintiff’s solicitor, notes the service upon the Defendant’s solicitors of the Request for Trial Date on 11 June 2021.  Mr Baxter sought the return of the request by 2 July 2021 and noted in his Affidavit, that on that day, he received a letter from Cooper Grace & Ward returning the unsigned Request for Trial Date and then being advised of the intention to make the application now before the court.
  5. [27]
    It is not a situation where the trial was not imminent.  The Plaintiff has sought the signing of the Request for Trial Date weeks before.  Additionally, in a letter of 28 January 2021, the Plaintiff’s solicitors noted their client’s wish to have the matter progressed so that a trial could be sought. 
  6. [28]
    Mr Baxter’s Affidavit also addresses the Plaintiff’s circumstances in paragraphs 31 to 33 and explains the prejudice to the Plaintiff of further delay.  Prejudice to the Respondent to the application such as that brought by the Defendant here is one of the relevant considerations in determining whether leave should be given.
  7. [29]
    These matters, coupled with the fact that an alternative position to having a declaration as sought in the second of the orders sought in the Defendant’s application was only raised at the time of argument being heard lead me to find that leave should not be granted to withdraw the pleading and to replead the Defence.  There is an unexplained delay in making any application for the declaration or leave to withdraw the pleading and to replead.
  8. [30]
    Further, the issues which now give rise to the Defendant’s application were raised eight months earlier and were not addressed and further opportunity to replead will only delay the proceeding being heard and cause further prejudice to the Plaintiff.  As was put by the Chief Justice in Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455:

“There is no principle that admissions made, or deemed to have been made, may always be withdrawn ‘for the asking’”

 and:

“Fulfilling procedural requirements will often contribute significantly to securing an ultimate result which may be considered just. Allowing the appellant to withdraw these deemed admissions would substantially erode the beneficial worth of a very important procedural mechanism directed, through expediting cases and reducing costs, to promoting the interests of justice.”

  1. [31]
    The order sought in order 2 of the application of 8 July 2021 or the alternative order raised in addresses is dismissed. 
  2. [32]
    Finally, the third of the orders sought by the Defendant can be dealt with in short compass.  Whilst the application seeks to amend paragraphs 4, 5 and 20 of the Second Further Amended Defence, it is an application brough pursuant to r 188 UCPR and matters relevant to such an application to withdraw an admission have been addressed in these reasons.
  3. [33]
    For those same reasons, I am not satisfied that leave should be granted and as such, order 3 contained in the application filed 8 July 2021 is dismissed.
  4. [34]
    Accordingly, the application brought by the Defendant on 8 July 2021 is dismissed in its entirety.  As previously indicated, the order sought by the Plaintiff, to dispense with the signature of the Defendant on the Request for Trial Date is not opposed and the order is made.  Additionally, orders as to costs relating to the two applications are also made in terms as indicated at the commencement of these reasons.
Close

Editorial Notes

  • Published Case Name:

    Buchanan v Bowen Old Peoples Home Society

  • Shortened Case Name:

    Buchanan v Bowen Old Peoples Home Society

  • MNC:

    [2021] QDC 160

  • Court:

    QDC

  • Judge(s):

    Coker DCJ

  • Date:

    13 Aug 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Baldwin v Icon Energy Ltd [2018] QSC 233
2 citations
Jump To
Cite 1 - [2018] QSC 233
Cite 2 - [2018] QSC 233
Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738
2 citations
Jump To
Cite 1 - (1992) 26 NSWLR 738
Cite 2 - (1992) 26 NSWLR 738
Equuscorp Pty Ltd v Anthony Orazio [1999] QSC 354
2 citations
Jump To
Cite 1 - [1999] QSC 354
Cite 2 - [1999] QSC 354
Green v Pearson [2014] QCA 110
1 citation
Jump To
Cite 1 - [2014] QCA 110
Groves v Australian Liquor Hospitality & Miscellaneous Workers' Union [2004] QSC 142
2 citations
Jump To
Cite 1 - [2004] QSC 142
Cite 2 - [2004] QSC 142
Hookey v Manthey(2020) 4 QR 371; [2020] QSC 125
2 citations
Jump To
Cite 1 - (2020) 4 QR 371
Cite 2 - (2020) 4 QR 371
Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217
2 citations
Jump To
Cite 1 - [2014] QSC 217
Cite 2 - [2014] QSC 217
Ridolfi v Rigato Farms Pty Ltd[2001] 2 Qd R 455; [2000] QCA 292
3 citations
Jump To
Cite 1 - [2001] 2 Qd R 455
Cite 2 - [2001] 2 Qd R 455
Cite 3 - [2001] 2 Qd R 455
Robinson v Laws[2003] 1 Qd R 81; [2001] QCA 122
2 citations
Jump To
Cite 1 - [2003] 1 Qd R 81
Cite 2 - [2003] 1 Qd R 81
Slack v HRL Limited [2012] QSC 387
2 citations
Jump To
Cite 1 - [2012] QSC 387
Cite 2 - [2012] QSC 387
Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209
4 citations
Jump To
Cite 1 - [2007] QSC 209
Cite 2 - [2007] QSC 209
Cite 3 - [2007] QSC 209
Cite 4 - [2007] QSC 209

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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