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- Unreported Judgment
Quilkey & another v Tractile Combined Pty Ltd QDC 185
DISTRICT COURT OF QUEENSLAND
Quilkey & another v Tractile Combined Pty Ltd & others  QDC 185
STEVEN ROBERT QUILKEY AND Yukiko Nozaki
TRACTILE COMBINED PTY LTD ACN 627 772 212
TRACTILE PTY LTD ACN 142 809 381
JASON DEAN PERKINS
TRAC GROUP HOLDINGS PTY LTD ACN 115 007 540
Brisbane District Court
18 August 2022
15 August 2022
Porter QC DCJ
PROCEDURE – DISTRICT COURT PROCEDURE – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES 1999 – where the plaintiffs apply to the Court for a declaration that the defendants have admitted or deemed to have admitted various allegations in the statement of claim – where the defendants cross-apply for leave to withdraw their admissions or deemed admissions in their previously filed defence – where the defendants submit that leave is not required to withdraw any admission arising from earlier pleadings if they plead a ‘new’ defence under rule 385(1) in response to an amended statement of claim – where such a construction of that rule would be inconsistent with the philosophy and purpose of the UCPR.
Queensland Building and Construction Commission Act 1991
Uniform Civil Procedure Rules 1999 rr 166, 168, 188, 189, 190, 382 & 385
Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited  1 Qd R 116
Groves v Australian Liquor, Hospitality and Micellaneiouo Workers’ Union  QSC 142
Kellehan v Hughes  QDC 97
P. Travis for the Plaintiffs
S. Hogg for the Defendants
Aitken Whyte Lawyers for the Plaintiffs
Celtic Legal for the Defendants
- The plaintiffs have applied for declarations that certain allegations made in various statements of claim have been expressly admitted or deemed admitted. The defendants have variously disputed that admissions arise and/or have cross applied in the alternative for leave to withdraw any alleged admissions established by the plaintiffs. The defendants raised an argument which they relied upon as a complete answer to the plaintiffs’ application, regardless of whether express or deemed admissions were made out. On the hearing of the applications, I rejected that argument and went on to determine the various points raised by the parties on each specific alleged admission. The defendants sought reasons only for my rejection of their plenary argument.
- It is first necessary to set out the relevant procedural context. The plaintiffs commenced these proceedings in April 2021. The original statement of claim pleaded that the plaintiffs and the first and second defendants entered into a building contract pursuant to which the first and second defendants were to supply and install a solar roofing system on the plaintiffs’ home under construction. The roof was to be constructed using branded Tractile Eclipse roof tiles and associated equipment to provide solar power, hot water and rainwater collection.
- The plaintiffs advanced two main complaints in their pleading. The first was that the work was done without the relevant Queensland Building and Construction Commission Act 1991 (QBCC Act) licence and that they are entitled to restitution of all sums paid under the contract. The second is that the Tractile Eclipse product was not able lawfully to be used in construction under the relevant statutes, with the consequence that necessary certification for the work could not be obtained. This second complaint was articulated as giving rise to various causes of action for breach of contract, negligence and misleading or deceptive conduct. The third and fourth defendants were alleged to be liable to the plaintiffs in respect of the non-contractual claims. The precise basis is unnecessary to further consider in these reasons.
- In May 2021, the first to third defendants filed a defence and counterclaim (the first defence). The counter claim sought to recover certain sums said to be due under the contract totalling about $48,000. The first defence contained a number of express admissions. A relevant example is paragraph 8(a) of the first defence which expressly admits paragraph 8(a) of the statement of claim. It also contained a number of inadequate denials. For example:
- (a)The first defence failed to plead to each specific factual allegation in paragraphs of the statement of claim in the manner required by rule 166 Uniform Civil Procedure Rules 1999 (UCPR) as explained in Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited  1 Qd R 116 at  to ; and
- (b)The first defence pleaded bare denials which simply alleged that the allegation in the statement of claim were untrue. Such is the equivalent of a bare denial: see Groves v Australian Liquor, Hospitality and Micellaneiouo Workers’ Union  QSC 142 at .
- An example of both failures can be seen when paragraph 36 of the statement of claim is compared to paragraph 36 of the first defence.
- There were subsequently amendments to the statement of claim and the first defence, though most of the relevant allegations in the amended statement of claim were unchanged and the express admissions and inadequate denials remained largely unchanged in the amended defence. The fourth defendant joined in the amended defence so would be taken to have adopted the deficiencies in the first defence.
- On 28 March 2022, a further amended statement of claim was filed. A responsive defence was filed on 1 July 2022. It was not described as a further amended defence. It was described as the defence of the first to fourth defendants. The reason for that description arises from the argument of the defendants that filing a new defence excluded the effect of any express or deemed admission in a prior pleading.
- It is convenient to set out the argument as articulated in the defendants’ written outline:
9. As a first point, the defendants submit that they do not need leave to withdraw admissions made in their previous defences. The most recent defence is not an amended defence, it is a new one pleaded to the most recent statement of claim as is permitted by r 358(1). Defendants do not need leave to withdraw deemed admissions if they plead a new defence under r 385(1). In Kellehan v Hughes  QDC 97, Everson DCJ said:
 The provisions of r 166 must be seen in the context of the UCPR as a whole. Relevantly, r 385(1) provides that “if a party amends a pleading, another party may plead to the amended pleading or amend the opposite party’s own pleading”. It is a broadly worded provision, which is reflective of the realities of how civil litigation is conducted pursuant to the UCPR. Curiously, despite being expressly taken to r 385, in both written and oral submissions, the magistrate failed to refer to it at all in his decision dismissing the application.
 The respondent submits that the relevant amendments to the Statement of Claim were merely by way of particulars and that the appellant remained subject to the deemed admission in respect of paragraph 13 of the original Statement of Claim. The submission is contrary to the plain meaning of r 385, however. The respondent can point to no authority that suggests that there are any implied limits to the application of r 385. As the pleadings currently stand, no implied admission concerning whether at any stage the respondent was ready, willing and able to effect completion of the contract between the parties arises.
10. Therefore, where there were any deemed admissions in the previous defences that are not contained in the most recent defence, the defendants do not need to withdraw them.
- While paragraphs  and  of Kellahan v Hughes could be read as supporting the defendants’ argument, in my opinion read correctly the case is not authority for the broad proposition which the defendants articulate. The defendants’ submission fails to appreciate the issue which was before his Honour. That issue is articulated by his Honour as follows:
 The dispute between the parties concerned the failure of the appellant to complete a contract for the sale of a unit at Freshwater in circumstances where the respondent was the vendor and the appellant was the purchaser. The negotiations between the parties that occurred as the appellant’s difficulties in completing the contract became apparent, resulted in alternative scenarios being pleaded by the respondent in the Statement of Claim filed on 28 February 2012. Relevantly, however, the respondent pleaded at paragraph 13 that he was “at all material times…ready, able and willing to effect completion of the Contract”. Initially the appellant filed a defence on her own behalf omitting to plead to paragraph 13 of the Statement of Claim. It is this omission, which is said to potentially give rise to a deemed admission pursuant to r 166(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). R 166(1)(a) relevantly states that “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 the allegation is denied or stated to be not admitted by the opposite party in a pleading”.
 The appellant subsequently engaged legal representation and an Amended Defence was filed on 7 September 2012. The Amended Defence denied the allegations in paragraph 13 of the Statement of Claim. The respondent filed an Amended Statement of Claim on 16 November 2012. Paragraph 13 now reads: “at all material times, the Plaintiff was ready, able and willing to effect completion of the Contract on 30 September 2011”. A further paragraph 17A was added alleging that “at all material times, the Plaintiff was willing and able to effect completion of the Contract on 10 October 2011”. Both of these allegations were expressly denied by the appellant in her Further Amended Defence filed on 25 March 2013 and subsequently in her Further Amended Defence and Counterclaim filed on 10 May 2013. The allegation that the respondent was not capable of completing the contract on any relevant date now lies at the heart of her defence.
- The context in which his Honour made the observations relied upon by the defendants was one where there had been an amendment in the further amended statement of claim to the allegation initially advanced in the first statement of claim and admitted in the first defence. In my view, his Honour’s view was that the varied allegation in the further amended statement of claim could be the subject of a denial by the further amended defence. His Honour was not stating that merely by the device of doing a ‘new’ defence and calling it ‘defence’, instead of amending the existing defence and calling it ‘amended defence’ a party could renege on all previous express admissions of unchanged allegations and avoid the effect of rule 166 where deemed admissions arose on the previous pleadings.
- Further, any such construction of rule 385 would be wrong.
- First, rule 385(1) does not confer the choice on a defendant which the defendants contend it does. rule 385 provides:
- (1)If a party amends a pleading, another party may plead to the amended pleading or amend the opposite party’s own pleading.
- (2)The pleading or amendment must be served within the time the opposite party then has to plead, or within 8 days after the day of being served with the amendment, whichever is the later.
- (3)If an opposite party has pleaded before being served with an amendment to a pleading and does not plead again within the time specified in subrule (2), the opposite party is taken to rely on the original pleading as an answer to the amended pleading.
- The defendants’ argument involves the contention that rule 385(1) gives a defendant who has already pleaded to a statement of claim (for example) a choice as to whether to do a ‘new’ defence in response to an amended statement of claim or an ‘amended’ defence in response. That is not what rule 385(1) contemplates. The words “may plead to the amendment or” concerns the scenario where before the amendment, no responsive pleading had been filed, but where the amendment calls for a responsive pleading. Such a situation could easily arise where a party was content to rely on the statutory non-admission in rule 168 before an amendment, but needed to file a responsive pleading after the amendment because it needed to run a positive case in response to the allegation in the amendment and had to plead the allegations necessary to make that case. In any case where there is already a responsive pleading, the second limb of rule 385(1) applies and the party must amend that pleading.
- This construction is confirmed if regard is paid to rule 382. That rule provides:
- (1)All amendments must be distinguished so as to be identifiable from the remainder of the document.
- (2)If an amendment is made, the document amended must have a notation on it showing—
- (a)the date of the amendment; and
- if the amendment was made by leave of the court, the date of the order giving leave; or
- if the amendment was made other than by leave of the court, the number of the rule under which it was made.
- An amendment may be made in writing on the document being amended.
- However, if writing an amendment on the document is inconvenient or makes the document difficult to read, the party making the amendment must file a revised document incorporating and distinguishing the amendment.
- Subject to rule 74, if an originating process is amended and the amendment is made on the originating process, the appropriate officer of the court must stamp near the amendment with the seal of the court.
- If a revised originating process is filed under subrule (4), the appropriate officer of the court must stamp the revised originating process with the seal of the court.
- The court may direct how an amendment is to be made.
- It is evident from that rule that, subject to express direction from the Court to the contrary, all amendments must be made to the existing document by incorporating and distinguishing the amendment. The rule does not contemplate any right to respond to an amended pleading by filing a ‘new’ pleading.
- Second, the defendants’ argument would be inconsistent with the general philosophy of the UCPR and the specific purpose of the pleading regime in the UCPR in relation to responsive pleadings. Daubney J summarised both philosophy and purpose in Cape York Airlines:
 It ought now be regarded as uncontroversial that the introduction of the UCPR effected significant changes to the principles and practice of pleading in civil cases in Queensland. Underlying those principles and informing the way in which the practices are put into effect are the philosophies expressed in rule 5. Subrule 5(2) requires the Court to apply the UCPR ‘with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules’. The purpose on which that requirement is premised is the facilitation of the ‘just and expeditious resolution of the real issues in civil proceedings at a minimum of expense’ (emphasis added). Observance of this purpose requires the Court and the parties, from the outset of a proceeding, to utilise the processes provided under the UCPR to hone and refine the matters about which the parties to civil litigation perceive themselves to be in dispute to identify the ‘real issues’ between them. In Robinson v Laws & Anor, de Jersey CJ said:
‘ ... The system of pleading in this State is geared to early comprehensive disclosure of the case to be mounted by the plaintiff, and the response of the defence. Beyond that, it remains geared, consistently with good commonsense, upon the plaintiff’s having the obligation to define the case he mounts, such that whether he succeeds depends on his sustaining that case. Civil litigation is, sensibly must be, claimant driven. After analysing the specific effect of Rule 166, set out in part above, his Honour observed:
 The Uniform Civil Procedure Rules are premised on the need for that early, comprehensive definition of the case being mounted, and that equally early responsive definition of the position of the defence. Rule 5(1) states that the purpose of the rules is to facilitate “the just and expeditious resolution of the real issues in civil proceedings at the minimum of expense”. Rule 157 obliges a party to include in that party’s pleading “particulars necessary to ... define the issue for, and prevent surprise at, the trial.” The objective is early definition of the points at issue, and where possible their limitation.’
 With a view to implementing this philosophy, the UCPR radically changed the manner and mode of pleading defences. Generally speaking, it was permissible under the Rules of the Supreme Court (‘RSC’) for a defendant simply to traverse, either by denial or non-admission, every allegation in a statement of claim. Indeed, in Pinson v Lloyds and National Provincial Foreign Bank Ltd, Stable J could see no reason why a defendant was not entitled to put a plaintiff to proof on its whole case, if so advised, saying:
‘It is a commonplace of pleading to put in issue a fact as to which there is no real dispute to compel the plaintiff to call a particular witness to prove that fact and so afford the defendant an opportunity of cross-examining the witness on other matters material to the case. This seems to me a legitimate and well recognised method of pleading and one which on occasion serves a useful purpose.’
- The early and comprehensive disclosure of the cases to be mounted by each party is achieved as much by the clear articulation in a defence (or other responsive pleading) as to what is not in issue as by the clear articulation of what is in issue and why. The making of an admission in a responsive pleading assists greatly in achieving the purpose of the pleading rules and is consistent the philosophy of the UCPR by informing the other side that a particular allegation is not in dispute. The deemed admission provisions in rules 166(4) and (5) are the key method by which the rules compel clear articulation of what is in issue and what is not. Evasion of the effect of those rules and the effect of express admissions by a drafting device would entirely undermine the effectiveness of those rules.
- In those circumstances, the proposition that rule 385(1) could be construed as permitting a defendant to avoid express and deemed admissions arising from a previous pleading simply by drafting a new defence where there is fortuitous opportunity arising from an amendment to the existing statement of claim is one which is inimical to the philosophy and purpose of the UCPR.
- Third, and perhaps most compelling of all, the defendants’ argument is inconsistent with the rules regulating the withdrawal of admissions. Relevant to this point are rules 188 to 190 which provide:
188Withdrawal of admissions
A party may withdraw an admission made in a pleading or under rule 187 only with the court’s leave.
189Notice to admit facts or documents
- (1)A party to a proceeding (the first party) may, by notice served on another party ask the other party to admit, for the proceeding only, the facts or documents specified in the notice.
- (2)If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document specified in the notice.
- (3)The other party may, with the court’s leave, withdraw an admission taken to have been made by the party under subrule (2).
- (4)If the other party serves a notice under subrule (2) disputing a fact or the authenticity of a document and afterwards the fact or the authenticity of the document is proved in the proceeding, the party must pay the costs of proof, unless the court otherwise orders.
- (1)If an admission is made by a party, whether in a pleading or otherwise after the start of the proceeding, the court may, on the application of another party, make an order to which the party applying is entitled on the admission.
- (2)The court may give judgment or make another order even though other questions in the proceeding have not been decided.
- (3)The court may, instead of assessing the amount claimed, make a judgment conditional on the assessment of damages under chapter 13, part 8.
- (4)If the court gives judgment under subrule (3), the court must specify in the order the court to perform the assessment under rule 507.
- The construction of rule 385(1) contended for by the defendants is inconsistent with each of those Rules.
- Rule 188 expresses the plenary rule dealing with withdrawal of an admission made in a pleading that it may only be done with leave. The proposition that it might be done by the device of delivering a new defence in response to an amended statement of claim is directly inconsistent with that clear limitation. That conclusion is all the more compelling because of the emphasis in the authorities on the burden on a party who has made an admission to justify its withdrawal: leave under rule 188 is not given just on the asking. Evidence demonstrating that the allegation admitted is genuinely in dispute and (in some cases) explaining how the admission came to be made is required. Further, to the extent it is necessary to say more, rule 188 is the more specific provision. It deals directly with admissions. Rule 385(1) is a provision dealing with amendment generally. It is orthodox statutory construction to give the more specific provision precedence.
- A more interesting issue arises from Kellahan v Hughes however. His Honour’s judgment raises the question of whether an admission of a specific allegation in a defence which is contained in an earlier statement of claim continues to bind the defendant if the specific allegation which was admitted is amended by a later statement of claim. His Honour’s judgment seems to suggest that it does not. As I read the judgment, his Honour considered that adding the words “on 30 September 2011” to the previously admitted allegation meant that the defendant was no longer bound by the admission of the earlier allegation in identical words except for the added date: see paragraph  of the reasons above.
- I do not necessarily cavil with his Honour’s conclusion on the particular allegations in that case. However, whether and to what extent an earlier admission on the pleadings is released by virtue of amendment to the allegation by a later pleading is a matter open to debate.
- If the amendment to the allegation admitted does not change the earlier allegation in any material manner, why should the earlier admission be ignored? Such a situation might arise where a statement of claim adds particulars or narrows an allegation. It hardly advances the purpose of the pleading rules to permit a non-material change to the allegation to nullify an admission.
- Further, even if the the admitted allegation is materially changed or even entirely omitted, it could be argued that the admission continues to bind the party making or deemed to have made the admission. The words of rule 188 impliedly support that conclusion. Its language is not confined to an admission made in a current pleading.
- I express no final view on this point without full argument, but I am inclined at present to think that other things being equal, the admission arising in an earlier amended pleading remains binding despite later amendments to the admitted allegation. Of course, where the earlier allegation is amended in a manner which makes the earlier admitted allegation otiose, the earlier admitted allegation might cease to be relevant in the proceedings. But that does not mean that the earlier pleadings did not give rise to an admission, just that the admission is irrelevant in the proceedings.
 Ridolfi v Rigato Farms Pty Ltd  2 Qd R 455 at 457 to 461; Hanson Construction Materials P/L v Davey  QCA 246 at  to , where Chesterman JA (with whom Muir JA and Applegarth J agreed) suggested the latter consideration was less compelling than the former.
 D C Peace & R S Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths 8th ed) at [4.40]
 The same issue arises for admissions in a reply of a fact alleged in a defence and so on for later responsive pleadings.
- Published Case Name:
Quilkey & another v Tractile Combined Pty Ltd & others
- Shortened Case Name:
Quilkey & another v Tractile Combined Pty Ltd
 QDC 185
Porter QC DCJ
18 Aug 2022