Chan v Goldenwater LDL Pty Ltd & Ors

In this matter, in rejecting a submission that a pleading was deficient because it pleaded the effect in English of conversations that had occurred in Mandarin, Sofronoff P provided an important reminder of the principles of restraint that an appellate court will exercise before interfering with a primary judge’s decision on a matter of practice and procedure.

Sofronoff P and Mullins JA and Wilson J

4 May 2021

The second respondent, Ms Liu, provided monies to the appellant, Mr Chan, for the purpose of purchasing real property in Queensland. [2]–[5]. The respondents brought proceedings against the appellant alleging that Ms Liu was induced to pay the monies by deceit. [6].

Mr Chan, and parties associated with him, brought an application to strike out paragraphs in the statement of claim. These paragraphs pleaded the effect in English of conversations that had occurred in Mandarin between Mr Chan and Ms Liu. [7]–[9]. It was submitted that the actual words used in the foreign language and the plaintiff’s translation of them into English were material facts that had to be pleaded. [9]. The primary judge dismissed the application ([2020] QSC 358; [2020] 50 QLR, 13). Mr Chan appealed.

The Court of Appeal dismissed the appeal. [19]. The President (with whom Mullins JA and Wilson J agreed) observed that the “real question” in this case was whether the pleading would prejudice a fair trial of the proceeding, not whether it disclosed a cause of action. [11].

His Honour explained that:

“The Uniform Civil Procedure Rules 1999 (UCPR) requires a pleading … state specifically any matter that, if not stated, may take the other party by surprise. That final aspect of the rule does not require a pleader to guarantee that the opposing party will encounter nothing unexpected at the trial. Trials are full of the unexpected. The rule requires a pleading to contain all that is reasonably and fairly necessary to ensure that the opposing party is not met at the trial by an unexpected turn in the case which that party, acting in good faith and reasonably, is unable to meet because of a natural failure to prepare to meet it having regard to the content of the pleading. That is what surprise means in the context of this rule …” [11].

Compliance with r 149, and the potential effect of alleged non-compliance with the rule, was a matter for the trial judge, not the Court of Appeal. [13]. Indeed, “[a] rehearing of the case by the Court of Appeal would offend the principle which UCPR [r 5] entrenches into the procedure of the court”. [13]–[14]. The President emphasised that “particular caution should be exercised [by appellate courts] when asked to review decisions pertaining to matters of practice and procedure”. An error of principle and substantial injustice needed to be shown. In Sofronoff P’s view, “[t]he enactment of UCPR [r 5] makes this venerable principle even more exigent”. [15].

There was no basis to interfere in the present case. This was not a case where the exact words needed to be pleaded, and there was no possibility of misapprehension of the case against Mr Chan. [16]–[18]. The primary judge’s conclusion was, according to Sofronoff P, “the only possible one open”. [18].

S Walpole of Counsel