Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 6 – Pleadings
- Part 1--IntroductionPart 2--Rules of pleading
- [149] Statements in pleadings
- [150] Matters to be specifically pleaded
- [151] Presumed facts
- [152] Spoken words and documents
- [153] Condition precedent
- [154] Inconsistent allegations or claims in pleadings
- [155] Damages
- [156] General relief
- [157] Particulars in pleading
- [158] Particulars of damages
- [159] Interest
- [160] Way to give particulars
- [161] Application for order for particulars
- [162] Striking out particulars
- [163] Failure to give particulars
- [164] Time for serving answer to counterclaim and reply
- [165] Answering pleadings
- [166] Denials and nonadmissions
- [167] Unreasonable denials and nonadmissions
- [168] Implied nonadmission
- [169] Close of pleadings
- [170] Confession of defence
- [171] Striking out pleadings
- [172] Defence of tender
- [173] Set-off
- [174] Defamation pleadings
- [175] Application of div 2
- [176] Counterclaim after issue of claim
- [177] Counterclaim against plaintiff
- [178] Counterclaim against additional party
- [179] Pleading and serving counterclaim
- [180] Answer to counterclaim
- [181] Conduct of counterclaim
- [182] Exclusion of counterclaim
- [183] Counterclaim after judgment, stay etc. of original proceeding
- [184] Judgment for balance
- [185] Stay of claim
- [191] Explanation of pt 6
- [192] Reason for third party procedure
- [193] Content of third party notice
- [194] Filing third party notice
- [195] Serving third party notice
- [196] Effect of service on third party
- [197] Notice of intention to defend by third party
- [198] Third party defence
- [199] Pleadings
- [200] Counter claim by third party
- [201] Default
- [202] Disclosure
- [203] Trial
- [204] Extent third party bound by judgment between plaintiff and defendant
- [205] Judgment between defendant and third party
- [206] Claim against another party
- [207] Subsequent parties
- [208] Contribution under Law Reform Act 1995
- Division 1--Various
- Division 2--Counterclaims
[145] Application of pt 1 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[146] Formal requirements go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[147] Filing pleadings go to top
Repealed.
[148] Judgment pleaded go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[149] Statements in pleadings go to top
“Pleading” for the purpose of r 149 includes both the claim and statement of claim: Cousins Securities Pty Ltd v CEC Group Limited [2007] 2 Qd R 520 ; [2007] QCA 192, [9] (McMurdo P).
The matters of form mandated by rr 149 and 150 need to be applied for the purpose of ensuring that the pleadings fulfil their functions. To approach pleadings otherwise would ignore the fundamental principles on which the UCPR are based: Virgtel Ltd v Zabusky [2008] QSC 213, [14] (Daubney J).
Where a party pleads a conclusion of fact that will be alleged at trial to arise as a matter of inference from other facts, that party must plead such of those other facts as will be relied on as material to sustaining the inference or as would take the other party by surprise if not pleaded: Weipa Hire Pty Ltd v Commonwealth of Australia [2014] QSC 254, [12] (Henry J).
A general plea that a sublease will be referred to at trial for its full terms, true meaning and effect, and incorporating the same into the pleading, is not sufficient to give notice under rr 149 and 150(4) of a claim that the defendant had avoided the sublease: United Petroleum Pty Ltd v 7-Eleven Stores Pty Ltd [2013] 1 Qd R 272 ; [2012] QCA 172, [23] (Fraser JA, McMurdo P and Philippides J agreeing).
Statement of material facts - r 149(1)(b)
In its primary meaning, a material fact is a fact that the plaintiff must prove to succeed in a claim for relief upon a cause of action. There is a place for detailed factual and legal submissions, but it is not as replacement for the identification of the material facts: Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 211, [64] (Jackson J).
In a case of complexity, it is critical that the pleading allege “all the material facts … but not the evidence by which the facts are to be proved”. Otherwise, the would-be analyst of the pleading is left swimming in a sea of evidentiary facts while trying to identify the material facts for each cause of action: Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 211, [60] (Jackson J).
Where a pleading alleges a lengthy historical account of facts that occurred over an extensive period of a commercial relationship, and particular specific causes of action are then pleaded on the basis that the reader is invited to find the relevant material facts for any cause of action in all that has gone before it, there is a remedy. It is to require that the pleading identify the material facts for each cause of action. That will exclude those facts which go to another cause of action, as well as any “narrative” non-material facts. A direction can be made, for example, that the pleader separately plead the material facts for each cause of action alleged. But that is not often a remedy which will lead to expedition or a minimum of expense, and so must be used in sparing measure: Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 211, [63] (Jackson J).
Even if one material fact necessary to sustain the particular cause of action in law sought to be made out is omitted, then that part of the claim is liable to be struck out: Ashton v Dorante [2012] QCA 175, [69] (White JA, McMurdo P and North J agreeing).
A direct explanation under r 166(4) is not a statement of a material fact for the purposes of r 149. It may be, however, that the nature of the direct explanation of the party's belief that an allegation is untrue necessarily compels the party to plead, in compliance with r 149, the material facts (not evidence) on which it will rely to controvert the allegation or other matters to prevent the opponent being taken by surprise. Thus, if the direct explanation given by a defendant is that the alleged fact is so inconsistent with other matters that the defendant believes it to be untrue, the defendant should plead those other matters by way of response either as material facts under r 149(1)(b) or as matters required to be stated to prevent surprise under r 149(1)(c): Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2009] 1 Qd R 116 ; [2008] QSC 302, [30] (Daubney J).
State specifically any matter that may take a party by surprise - r 149(1)(c)
The word "matter" in r 149(1)(c) is readily capable of comprehending a matter of mixed fact and law, and also, where appropriate, a matter of law alone: Nelson v BHP Coal Pty Ltd [2000] QCA 505, [5] (McPherson JA).
Of its very nature, information that must be pleaded under the “no surprise” rule (r 149(1)(c)) may be information that attracts the penalty privilege because it may lead the plaintiff to discover other evidence, which will matter for the ultimate proof of its case. The requirements of this rule are irreconcilable with the penalty privilege. In such a case the court may order that r 149 need not be complied with: Anderson v ASIC [2013] 2 Qd R 401 ; [2012] QCA 301, [36] (P McMurdo J, Holmes and White JJA agreeing).
State specifically any relief a party claims - r 149(1)(d)
Rule 149(1)(d), like all rules within the UCPR, is to be applied with an objective of avoiding undue technicality and facilitating the purpose of those rules, which is the just and expeditious resolution of the real issues in civil proceedings: Mio Art Pty Ltd v Mango Boulevard Pty Ltd (No 5) [2014] QSC 81, [24] (P McMurdo J).
Rules 149(1)(d), 150 and 155 were intended to contain the universe of alternatives where a common law claim for a money judgment is made: Shaft Drillers International LLC v Australian Shaft Drilling Pty Ltd [2013] QSC 79, [4] (Jackson J).
To comply with r 149 it is sufficient if the relief sought is included in the statement of claim attached to the claim: Cousins Securities Pty Ltd v CEC Group Limited [2007] 2 Qd R 520 ; [2007] QCA 192, [9] (McMurdo P).
Pleadings in defamation cases
The terms of r 149 require a plaintiff to plead the allegation of fact that the publication by the defendant involved an imputation to a certain effect: Magub v Hinchliffe [2004] QSC 4, [10] (McMurdo J).
The requirement to specify each imputation relied upon requires a plaintiff to do so with sufficient specificity to prevent injustice by avoiding confusion and uncertainty. The satisfaction of this requirement in a particular case depends upon the facts and circumstances of that case, which may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter: Magub v Hinchliffe [2004] QSC 4, [11] (McMurdo J).
The degree of precision required in respect of the pleading of an imputation is a matter of judgment and will vary according to the circumstances of the case. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice: Palmer v Turnbull [2018] QCA 112 at [36].
If the necessary element of someone reading the publication is to be inferred, then the facts from which such inference is to be drawn should be specifically pleaded: Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217, [24] (Flanagan J).
Given that publication of defamatory matter to a third party is fundamental to the cause of action in defamation, the facts from which the inference is to be drawn should be pleaded irrespective of the taking of any interlocutory steps including the administration of interrogatories and disclosure. This is because once the material facts from which the inference is to be drawn are pleaded, the extent of publication becomes a relevant issue in the litigation. The defendants would be required thereafter to perform disclosure in respect to documents directly relevant to that issue: Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217, [25] (Flanagan J).
Pleading Causation
In a claim for damages, it is necessary to plead the material facts which establish the causal link between the breach alleged and the damages claimed. The necessary causal link may involve facts relating to the actual events which occurred, and also the counter-factual of what it is alleged would have occurred but for the breach: Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) [2017] QSC 75 (Bond J) at [42]; Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221(Jackson J) at [26], [27].
In complex cases, such as building cases where breaches or multiple breaches are alleged to have resulted in consequential delays to a project, it may not be possible or appropriate to plead in full detail all the facts relevant to causation: Santos Ltd v Fluor Australia Pty Ltd [2017] QSC 153 (Flanagan J).
Where the damage claimed is the loss of a valuable opportunity, it is necessary to identify the material facts which resulted in the loss of that opportunity and the material facts which are relied upon to establish that it was valuable: Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) [2017] QSC 75 (Bond J) at [42]; Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221(Jackson J) at [46], [51]; Birbilis Bros Pty Ltd v Chubb Fire and Security Pty Ltd [2018] QSC 3 (Brown J).
Pleading Foreign Law
Where Australian choice of law rules indicate that the law of a foreign jurisdiction is the governing law, a plaintiff is not required to plead the foreign law to make it justiciable and establish a cause of action. In the absence of such a pleading, it will be presumed that the foreign law is the same as local law. However, if a plaintiff seeks to rely on foreign law or otherwise wishes to rely on a forensic advantage in the foreign law, the plaintiff is required to plead the foreign law in its statement of claim. Similarly, if the defendant wishes to rely upon a foreign law but the plaintiff does not and relies on the presumption, then it is for the defendant to allege and prove that law: Palmer v Turnbull [2018] QCA 112 at [21].
Pleadings and Preservation of Privilege
The rules of pleading must give way to the rights arising from privilege, whether the privilege against self-incrimination or penalty privilege. These rights entitle a defendant to be relieved against the need to deliver a defence which would comply with the pleading rules, if it there is a sufficient risk that obligation may override the privilege. The court is not required to assess the precise measure or degree of risk, as long as there is a degree of risk which cannot be dismissed as tenuous or illusory or so improbable as to be virtually without substance. However, the preservation of privilege should not become a weapon of oppression against the opposite party: Chardon v Bradley [2017] QCA 314 at [30]-[40].
[150] Matters to be specifically pleaded go to top
The matters of form mandated by rr 149 and 150 need to be applied for the purpose of ensuring that the pleadings fulfil their functions. To approach pleadings otherwise would ignore the fundamental principles on which the UCPR are based: Virgtel Ltd v Zabusky [2008] QSC 213, [14] (Daubney J).
Pleading damage under r 150(1)(b)
Rules 149(1)(d), 150 and 155 were intended to contain the universe of alternatives where a common law claim for a money judgment is made: Shaft Drillers International LLC v Australian Shaft Drilling Pty Ltd [2013] QSC 79, [4] (Jackson J).
The requirements of rr 150(1)(b) and 155 are not satisfied by pleading an intention to provide a statement of loss and damage under r 547: Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645 ; [2000] QCA 113, [6] (McPherson and Thomas JJA, Atkinson J).
It is preferable that statements of particulars in response to the requirements of rr 150(1)(b) and 155 appear as allegations in the body of a statement of claim and not only in what used to be called the prayer for relief: Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645 ; [2000] QCA 113, [9] (McPherson and Thomas JJA, Atkinson J).
There is sufficient compliance with Form 16 (Statement of Claim) if the claims made in it simply refer back to the amounts or matters pleaded in relevant paragraphs of the statement of claim without repeating them in full in the prayer for relief at the end: Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645 ; [2000] QCA 113, [9] (McPherson and Thomas JJA, Atkinson J).
Pleading a limitations defence under r 150(1)(c)
Simply pleading that the cause of action is out of time complies with r 150(1)(c) in a superficial sense, but does not amount to a pleading of the material facts in support of the conclusion of law as required by r 149(2): Mad Dogs Pty Ltd (in liq) v Gilligan’s Backpackers Hotel & Resort Pty Ltd [2015] QSC 140, [10] (Henry J).
Pleading fraud under r 150(1)(f)
A pleading must not oppress a defendant by vague or uncertain allegations lacking particularity. This principle is applied with rigour where the allegations made against a defendant are of fraudulent or serious misconduct. In such a case, more precision is required than in other cases. As well, the proof required is affected, although the standard remains on the balance of probabilities: Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 211, [70] (Jackson J).
Pleading in a defence or a pleading after a defence - r 150(4)
The purpose of the Defence as a document is to set out the basis on which the plaintiff’s claim is not maintainable. A reply is necessary only where the defence raises new matters by reason of which the claim of the other party is said to be not maintainable or where facts are alleged which otherwise fall within r 150(4): Melco Engineering Pty Ltd v Eriez Magnetics Pty Ltd [2007] QSC 198, [17] (Dutney J).
Rule 150(4) does not require a party to re-plead facts it has asserted in an earlier pleading. Where something has already been pleaded, it may be adopted into a subsequent pleading by reference: Melco Engineering Pty Ltd v Eriez Magnetics Pty Ltd [2007] QSC 198, [17] (Dutney J).
A general plea that a sublease will be referred to at trial for its full terms, true meaning and effect, and incorporating the same into the pleading, is not sufficient to give notice under rr 149 and 150(4) of a claim that the defendant had avoided the sublease: United Petroleum Pty Ltd v 7-Eleven Stores Pty Ltd [2013] 1 Qd R 272 ; [2012] QCA 172, [23] (Fraser JA, McMurdo P and Philippides J agreeing).
[151] Presumed facts go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[152] Spoken words and documents go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[153] Condition precedent go to top
Rule 153 does not alter the burden of proof; rather it avoids the necessity for a plaintiff to expressly allege the satisfaction or performance of all conditions precedent: Mango Boulevard Pty Ltd v Spencer [2009] QSC 389, [66] (P McMurdo J), citing Foran v Wright (1989) 168 CLR 385, 402.
In r 153 a “condition precedent” is a condition agreed between the parties or imposed by statute, which must be fulfilled before a party is entitled to succeed in an action. If non-performance or non-fulfilment of a condition precedent is properly pleaded by a defendant, the burden of proving its performance or fulfilment then shifts back to the plaintiff: Gilbert v Goodwin [2003] QSC 380, [17] (Wilson J), citing Bank of New South Wales v Laing View on: ICLRUK[1954] AC 135.
A “condition precedent” within the meaning of r 153 must be distinguished from a material fact, which is of the essence of a cause of action. The latter must be pleaded: Gilbert v Goodwin [2003] QSC 380, [17] (Wilson J), citing Zuk v Miller [1957] SASR 25.
[154] Inconsistent allegations or claims in pleadings go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[155] Damages go to top
Rules 149(1)(d), 150 and 155 were intended to contain the universe of alternatives where a common law claim for a money judgment is made: Shaft Drillers International LLC v Australian Shaft Drilling Pty Ltd [2013] QSC 79, [4] (Jackson J).
Rule 155 introduced a rule requiring much more specificity in pleading damages than had previously been the case. This serves the purpose of defining the relief sought by the plaintiff with greater clarity so that the defendant knows what case it has to meet and the court what issues it has to decide with regard to that relief: NDC Investments (Aust) Pty Ltd v Sign Vision (Aust) Pty Ltd [2013] QSC 35, [41] (Atkinson J).
The requirements of rr 150(1)(b) and 155 are not satisfied by pleading an intention to provide a statement of loss and damage under r 547: Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645 ; [2000] QCA 113, [6] (McPherson and Thomas JJA, Atkinson J).
It is preferable that statements of particulars in response to the requirements of rr 150(1)(b) and 155 appear as allegations in the body of a statement of claim and not only in what used to be called the prayer for relief: Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645 ; [2000] QCA 113, [9] (McPherson and Thomas JJA, Atkinson J).
There is sufficient compliance with Form 16 (Statement of Claim) if the claims made in it simply refer back to the amounts or matters pleaded in relevant paragraphs of the statement of claim without repeating them in full in the prayer for relief at the end: Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645 , [9] (McPherson and Thomas JJA, Atkinson J).
Ordinarily a failure to comply with r 155 leads to a request for particulars and not to an order that the pleading be struck out: Robertson v Dogz Online [2011] QSC 158, [34] (A Lyons J).
That expert evidence is required is not normally a reason to relieve a party from the obligation to state a relevant amount in compliance with the rules: Shaft Drillers International LLC v Australian Shaft Drilling Pty Ltd [2013] QSC 79, [5] (Jackson J).
Where a claim for special damages is made, the plaintiff should be in a position to at least particularise the claim. It is not appropriate that claims of this type remain un-particularised until service of an expert report: Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217, [44] (Flanagan J).
There is no absolute bar upon a court awarding damages in a higher amount than claimed in the pleadings or the statement of loss and damage: AAI Limited v Marinkovic [2017] 2 Qd R 672 (CA) at [105].
[156] General relief go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[157] Particulars in pleading go to top
The purpose of particulars is to add context and depth to the pleaded material facts: Dawnlite Pty Ltd v Riverwalk Realty Pty Ltd [2010] QSC 249, [44] (White J); and early definition of the points at issue, and where possible their limitation: Robinson v Laws [2003] 1 Qd R 81 ; [2001] QCA 122, [53] (de Jersey CJ).
The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on guard as to the case he or she has to meet and to enable him or her to prepare for trial: Bruce v Odhams Press Ltd View on: ICLRUK[1936] 1 KB 697, 712-713 (Scott LJ), quoted in Thiess Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209, [35] (White J).
Particulars promote the fair and efficient conduct of litigation. The openness afforded by adequate particulars facilitates effective resolution of the dispute. Discovery becomes more efficient. Particulars may beneficially impact on other interlocutory steps. The need for interrogatories, with their attendant delay and expense, may be diminished. Informed attention to the oral testimony and other material likely to be required at the hearing will also aid trial preparation. It is even possible that an early investigation of the pleader’s own case and the better appreciation of an opponent’s case achieved by particulars may help the parties to a settlement. Some cost will of course be incurred in the collation of the information needed to frame particulars. But if the litigation proceeds, the expense is only accelerated. Appropriate costs orders will obviate the risk of applications for particulars being used oppressively: NRNQ (a limited partnership) v MEQ Nickel Pty Ltd [1991] 2 Qd R 592 , 594-595 (Byrne J), cited in Thiess Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209, [35] (White J).
One of the specific functions of particulars is to limit the generality of the pleadings: Virgtel Ltd v Zabusky [2008] QSC 213, [37] (Daubney J), citing Saunders v Jones (1877) 7 Ch D 435.
There is a distinction between allegations of fact in a pleading (which should be properly particularised) and the reasons given by a party for their denials or non-admissions (which are not allegations and do not require particularisation). However, it is commonplace that a party who pleads an explanation so as to comply with r 166(4) also relies on what is pleaded in the explanation to advance a positive case and to comply with the obligation under r 149(1)(c) of the UCPR to plead facts which, if not stated specifically, might take another party by surprise. If facts pleaded in an explanation are also relied on in this way, then it is perfectly legitimate for an opponent to subject them to ordinary interlocutory scrutiny, including by requests for production of documents pleaded and requests for further particulars: Tri-Star Petroleum Company v Australia Pacific LNG Pty Limited (Bond J) [2017] QSC 136 at [25].
In a case based upon a contract, the defendant is entitled to particulars identifying the documents which are alleged to give rise to the contract, the persons whose statements are alleged to have given rise to the contract and the substance of the material statements: Love v North Goonyella Coal Mines Pty Ltd [2017] QSC 131 (McMeekin J).
[158] Particulars of damages go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[159] Interest go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[160] Way to give particulars go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[161] Application for order for particulars go to top
When there has already been some attempt to provide particulars, a request for further and better particulars should specify the matters in respect of which further particularity is sought: Keeble v Bentley [2003] QDC 417, [6] (McGill DCJ).
[162] Striking out particulars go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[163] Failure to give particulars go to top
Special circumstances would be required before the court would accompany a first order for particulars with a guillotine order under r 163. Experience has shown that guillotine orders are apt to cause trouble and they should be made with great circumspection given the dire consequences that sometimes ensue: Bruce v Palazzi [2006] QDC 314, p.2 (Robin QC DCJ).
[164] Time for serving answer to counterclaim and reply go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[165] Answering pleadings go to top
Answering pleadings where a claim for privilege exists
In Anderson v ASIC [2013] 2 Qd R 401 ; [2012] QCA 301, in order to protect a claim for penalty privilege, the Court of Appeal ordered that the defendants file and serve a defence that contains admissions, non-admissions and denials, but without the constraints on non-admissions and denials that are imposed by rr 165 and 166: [42] (P McMurdo J, Holmes and White JJA agreeing).
Where an alleged fact is something of which the defendant would have direct knowledge, a claim of privilege in respect to the allegation could found an inference that the allegation was true: Anderson v ASIC [2013] 2 Qd R 401 ; [2012] QCA 301, [27] (P McMurdo J, Holmes and White JJA agreeing).
The requirements of r 166 are difficult to reconcile with the penalty privilege and the privilege against self-incrimination, according to which, in penalty cases, the plaintiff must prove its case without any assistance from the defendant: Anderson v ASIC [2013] 2 Qd R 401 ; [2012] QCA 301, [32] (P McMurdo J, Holmes and White JJA agreeing).
The limitation imposed by r 165(2) would not impede a defendant in relation to a fact for which the defendant had made a claim for privilege. In that instance, where the defendant believed the allegation to be true at the time of pleading, the fact could be contradicted by evidence in the defendant’s case. Yet where the defendant was simply uncertain, r 165(2) would prevent the defendant from doing so: Anderson v ASIC [2013] 2 Qd R 401 ; [2012] QCA 301, [38] (P McMurdo J, Holmes and White JJA agreeing).
[166] Denials and nonadmissions go to top
The scheme of pleading provided for under the UCPR means that a party may only plead a denial of an allegation of fact made by its opponent if the party believes that allegation to be untrue: Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2009] 1 Qd R 116 , [21] (Daubney J).
A non-admission can only be pleaded when a party was uncertain as to the truth or falsity of the allegation of fact being responded to and, if the truth of the fact is subsequently ascertained, it must be admitted: Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2009] 1 Qd R 116 ; [2008] QSC 302, [22] (Daubney J).
It is not permissible to plead alternatively that a party either does not admit or denies an allegation of fact contained in a statement of claim: Green v Pearson [2014] QCA 110, [19] (Jackson J, Fraser and Morrison JJA agreeing).
A pleading should be construed in light of the requirements of sub-rules 166(3) and (6) and with regard to the presumption of regularity. There is no implicit requirement in sub-rule (4) that a pleaded non-admission recites or adverts expressly to the requirements of sub-rule (3). However, compliance with sub-rule (3) is a precondition of the right to plead the non-admission: Barker v Linklater [2008] 1 Qd R 405 ; [2007] QCA 363, [50] (Muir JA, Douglas J and Jerrard JA agreeing).
A non-admission will not satisfy the requirements of r 166 unless it is “stated” to be a non-admission: Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2012] QSC 314, [20] (Martin J).
The rules concerning nonadmissions differ from the rules concerning denials. It is mere pedantry to insist that a pleaded expression of belief is defective merely because it does not precisely adopt the words used in r 166(4): Aimtek Pty Ltd v Flightship Ground Effect Pte Ltd [2014] QCA 294, [8] (Fraser JA, Holmes and Morrison JJA agreeing).
The fact that an allegation involves a matter of law does not ipso facto mean that it cannot be admitted: Pollock v Thiess Pty Ltd [2014] QSC 22, [14] (McMeekin J).
The rules permit a conclusion of law to be pleaded (r 149(2)) and the rules require a proper response to that pleading as much as to any other. The avoidance of a direct response at least offends the spirit of the rules and is to be discouraged. The difficulty, however, lies in applying the strictures of r 166(5). By its terms r 166(4) only applies to a “party’s denial or nonadmission of an allegation of fact”, not to a conclusion of law: Pollock v Thiess Pty Ltd [2014] QSC 22, [15] (McMeekin J).
Rule 166 cannot be called in aid of a claimant who fails to plead or prove the material facts required to support the claim: Arnold Electrical and Data Installations Pty Ltd v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100, [35] (Fraser JA, McMurdo P and Lyons J concurring).
Rule 367 means that the privilege against self-incrimination or self-exposure to a penalty is not abrogated by r 166: Commissioner of Taxation v Price [2006] 2 Qd R 316 ; [2006] QCA 108, [31], [41] (Keane JA, McMurdo P and Holmes J agreeing).
A mere statement in a Reply that issue is joined with matters in the Defence does not comply with the requirements of this rule: Mineralogy Pty Ltd v BGP Geoexplorer [2017] QSC 18 at fn 4.
Direct explanation for denial or nonadmission – r 166(4)
ASIC v Managed Investments Ltd (No.3) (2012) 88 ACSR 139; [2012] QSC 74
The elements of r 166(4) ought be read disjunctively as follows:
- a party's denial of an allegation of fact must be accompanied by a direct explanation for the party's belief that the allegation is untrue; and
- a party's non-admission of an allegation of fact must be accompanied by a direct explanation for the party's belief that the allegation can not be admitted: Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2009] 1 Qd R 116 ; [2008] QSC 302, [22] (Daubney J).
The requirement for a defendant to give its “direct explanation” for its belief that an allegation is untrue should not be elided with the obligations on a defendant imposed by r 149(1)(b) and (c) requiring it to state all the material facts on which it relies and to state specifically any manner that, if not stated specifically, may take the plaintiff by surprise: Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2008] QSC 302, [27] (Daubney J).
A direct explanation under r 166(4) is not a statement of a material fact for the purposes of r 149. It may be, however, that the nature of the direct explanation of the party's belief that an allegation is untrue necessarily compels the party to plead, in compliance with r 149, the material facts (not evidence) on which it will rely to controvert the allegation or other matters to prevent the opponent being taken by surprise. Thus, if the direct explanation given by a defendant is that the alleged fact is so inconsistent with other matters that the defendant believes it to be untrue, the defendant should plead those other matters by way of response either as material facts under r 149(1)(b) or as matters required to be stated to prevent surprise under r 149(1)(c): Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2009] 1 Qd R 116 ; [2008] QSC 302, [29] (Daubney J).
A “direct explanation” for a party’s belief that an allegation is untrue is precisely what it says – a direct explanation for the belief. At first blush, it might be thought curious that the rule requires such an exposition of an essentially subjective matter. However, the requirement fulfils two important functions: (1) it compels the responding party to expose, at an early stage of the proceeding, its rationale for a joinder of issue on a particular allegation; and (2) it necessarily compels the responding party to formulate that rationale: Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2009] 1 Qd R 116 ; [2008] QSC 302, [28] (Daubney J), approved in Smith v Offermans (2015) 105 ACSR 230; [2015] QCA 55, [57] (Morrison JA).
Explanations provided pursuant to r 166(4) are provided to comply with the rules and do not thereby create issues of fact for determination at the trial of the proceeding: Gilbert v Goodwin (No 3) [2006] 1 Qd R 499 , 499 (Helman J).
However, it is commonplace that a party who pleads an explanation so as to comply with r 166(4) also relies on what is pleaded in the explanation to advance a positive case and to comply with the obligation under r 149(1)(c) of the UCPR to plead facts which, if not stated specifically, might take another party by surprise. If facts pleaded in an explanation are also relied on in this way, then it is perfectly legitimate for an opponent to subject them to ordinary interlocutory scrutiny, including by requests for production of documents pleaded and requests for further particulars. Tri-Star Petroleum Company v Australia Pacific LNG Pty Limited [2017] QSC 136 (Bond J) at [25]
The explanation required under r 166(4) for a denial is an explanation for a party’s belief that the allegation is untrue, not an explanation for the denial. The focus is upon the state of mind of the party at the time of the pleading: [2012] 88 ACSR 139 [2012] QSC 74, [32] (Fryberg J).
The “direct explanation” should be as brief as is consistent with a statement of material facts: Ballesteros v Chidlow (No 2) [2005] QSC 285, [20] (White J).
In order for a direct explanation to “accompany” a denial or non-admission under r 166(4), the explanation must be clearly connected with the denial or non-admission. It will not be sufficient for a non-admission and the explanation to be contained in separate paragraphs unless there is a clear statement of connection. A series of non-admissions may be pleaded with the explanation to be given by direct reference to the first non-admission and the explanation given for it: Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2012] QSC 314, [21] (Martin J).
The explanation must be “direct”. That is, it must unambiguously relate to the allegation and the non-admission: Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2012] QSC 314, [22] (Martin J).
A mere statement to the opposite of what is alleged by an opposing party is not a denial “accompanied by a direct explanation for the party’s belief that the allegation is untrue”. A direct explanation is more than this. There does not need to be a pleading of evidence as that term is understood by the rules of pleading. A statement of fact as to why it is believed that the allegation is untrue does not involve contravention of the rule: Groves v Australian Liquor, Hospitality and Miscellaneous Workers’ Union [2004] QSC 142, [15] (Mackenzie J).
Pleading that a matter that is the subject of dispute “is a matter to be determined by the court having regard to the entirety of the evidence and application of relevant legal principles” should never appear, at least in supposed compliance with the requirements of r 166(4): Pollock v Thiess Pty Ltd [2014] QSC 22, [14] (McMeekin J).
[167] Unreasonable denials and nonadmissions go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[168] Implied nonadmission go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[169] Close of pleadings go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[170] Confession of defence go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[171] Striking out pleadings go to top
The power to strike out pleadings is sparingly exercised because judges recognise that great care must be exercised to ensure that under the guise of achieving expeditious finality a claimant is not improperly deprived of the opportunity for the trial of the case by the appointed tribunal: Coley v Nominal Defendant [2004] 1 Qd R 239 ; [2003] QCA 181, [23] (McMurdo P, Jerrard JA agreeing), citing General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 130 (Barwick CJ); Noble v State of Victoria [2000] 2 Qd R 154 , 165. See also Fletcher (as liquidators of Octaviar Administration Pty Ltd (in liq)) v Fortress Credit Corp (Aust) II Pty Ltd [2013] QSC 104, [24] (Boddice J).
It has long been held that the power to strike out is not mandatory but permissive, and confers a discretionary exercise based on the quality and surrounding circumstances of the offending pleading, including due regard to the function of the pleadings and appropriate observance of the fundamental principles set out in r 5: Virgtel Ltd v Zabusky [2008] QSC 213, [16] (Daubney J).
In considering applications to strike out a pleading it is relevant to have regard to the purpose of a pleading, which is to ensure the parties know the case they have to meet: Fletcher (as liquidators of Octaviar Administration Pty Ltd (in liq)) v Fortress Credit Corp (Aust) II Pty Ltd [2013] QSC 104, [25] (Boddice J).
The purpose of r 171 is that a pleading which engages one of the grounds to strike out a pleading should not proceed to engage the obligations of the opposite party to plead in response and to proceed to trial on the infringing pleading. That purpose is informed by the objective that a claim should proceed in a timely way and that the rules are to be applied with the objective of avoiding undue delay, expense and technicality and to facilitate the just and expeditious resolution of the real issues, under r 5: Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271, [37] (Jackson J); see also Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd [2014] QSC 205, [18] (Jackson J).
The exercise of discretion under r 171 varies according to which of the relevant paragraphs of that rule is in play: Coco v Ord Minnett Ltd [2012] QSC 324, [18] (Jackson J).
The power to strike out a pleading under r 171 is in addition to the court’s inherent power to dismiss or stay proceedings as an abuse of process: Sino Iron Pty Ltd v Palmer [2014] QSC 259, [12] (Jackson J).
An inability on the part of a plaintiff to properly formulate a statement of claim is an important consideration in favour of granting a striking out application: Butler v Crowley & Greenhalgh; Butler v Simmonds Crowley & Galvin [2000] QSC 120, [17] (Atkinson J), citing Cooper v Hopgood & Ganim [1991] 2 Qd R 113, 119.
A pleading that contains unnecessary facts or matters is liable to be struck out, as the pleading of unnecessary facts or matters is not authorised by either r 150(4) or r 166(4): Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd [2014] QSC 205, [27]-[32] (Jackson J).
In circumstances where a pleading is an extensive document, containing multiple causes of action against multiple defendants and whereby those allegations are the subject of extensive particularisation, it is necessary, when considering any application to strike out only parts of the pleading, to have regard to the context of the pleading as a whole: Fletcher (as liquidators of Octaviar Administration Pty Ltd (in liq)) v Fortress Credit Corp (Aust) II Pty Ltd [2013] QSC 104,[29] (Boddice J).
Any pleading which is difficult to follow or objectively ambiguous or creates difficulty for the opposite party insofar as the pleading contains inconsistencies, is liable to be struck out because it can be said to have a tendency to prejudice or delay the fair trial of the proceeding: Robert Bax and Associates v Cavenham Pty Ltd [2011] QCA 53, [16] (White JA, McMurdo P and Fraser JA agreeing).
Considerations relevant to deciding if a pleading is deficient include whether it fails to fulfil the function of pleadings, which are “to state with sufficient clarity the case that must be met” and thus define the issues for decision thereby ensuring procedural fairness. A pleading will lack sufficient clarity if it is “ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”. Likewise a pleading will be deficient if the pleader’s case is not “advanced in a comprehensible, concise form appropriate for consideration both by the court, and for the purpose of the preparation of a response”. A deficiency in pleading material facts needed to establish a cause of action may not be remedied through the use of particulars, which are intended to meet a further and quite separate requirement. On the other hand, a pleading may be liable to be struck out where it includes irrelevant allegations which, by their nature, will affect the expeditious determination of the proceeding: Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252, [27]-[28] (Philippides J, Chesterman JA and North J agreeing) (citations omitted).
There should not be a greater predisposition towards making an order for costs to be paid on the indemnity basis in the case of applications to strike out under r 171 than in the case of other interlocutory applications, notwithstanding the specific reference to the indemnity basis in r 171(2): Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271, [37] (Jackson J).
A pleading may be struck out on the ground that it is involves a proposition which is bad in law. This power can be exercised even if prolonged argument is necessary in order to expose the lack of a claim or the lack of a defence. However, it is a discretionary matter. It would generally be inappropriate to proceed to hear extensive argument unless the court not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of preparing for a trial or the burden of the trial itself: Caffrey v AAI Limited [2017] QSC 339 (Applegarth J).
Division 1--Various
[172] Defence of tender go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[173] Set-off go to top
Leaving bankruptcy or corporate winding up legislation aside, the repeal of the Statutes of Set-Off in Queensland meant that from 1 July 1999 statutory set-off was regulated solely by UCPR r 173(1). It is now also supported by s.20 of the Civil Proceedings Act 2011 (Qld): Westpac Banking Corporation v Zilzie Pty Ltd [2017] 2 Qd R 214 (Jackson J) at [38]-[39].
The availability of an equitable set-off between cross-claims does not depend upon an unfettered discretion or assessment of whether it would be “unfair” in a general sense for a plaintiff to insist on payment of the debt owed to it while the cross-claim remains unpaid. It is essential that there be such a connection between the claim and cross-claim that the cross-claim can be said to impeach the claim so as to make it unfair for the claim to be allowed without taking account of the cross-claim: Forsyth v Gibbs [2009] 1 Qd R 403 ; [2008] QCA 103, [10] (Keane JA, McMurdo P and Fraser JA agreeing).
There must be a connection between claim and cross-claim beyond the mere fact that the payment of the claim has been rendered more difficult than would have been the case had it not been for the matters the subject of the cross-claim: Forsyth v Gibbs [2009] 1 Qd R 403 ; [2008] QCA 103, [15] (Keane JA, McMurdo P and Fraser JA agreeing).
Rule 173(3)(b) permits discretionary considerations to be taken into account, although it is unclear whether this rule goes beyond the preservation of equities’ requirement that all relevant factors be looked at before permitting an equitable set off: IRM Pacific Pty Ltd v Nudgegrove Pty Ltd [2008] QSC 195, [21] (McMeekin J).
The principles governing the availability of equitable set-off of cross-claims are couched in open textured terms, such as “sufficient connection” and “unfairness”. In some cases, it will be necessary to engage in an evaluation of a range of facts which might establish “sufficient connection” or “unfairness” of the relevant kind. But the principles to be applied are not so vague or subjective that it is never possible to determine, for the purposes of an application for summary judgment, that the facts alleged by a defendant simply fall short of what is required: Forsyth v Gibbs [2009] 1 Qd R 403 ; [2008] QCA 103, [9] (Keane JA, McMurdo P and Fraser JA agreeing).
White JA, in obiter, appeared to acknowledge that r 173 does not accord a substantive right to a set-off: LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105, [36] (White JA, Wilson AJA and A Lyons J agreeing) citing Knockholt Pty Ltd v Graf [1975] Qd R 88 .
[174] Defamation pleadings go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 2--Counterclaims
[175] Application of div 2 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[176] Counterclaim after issue of claim go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[177] Counterclaim against plaintiff go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[178] Counterclaim against additional party go to top
A counterclaim cannot be brought in a proceeding after it has been discontinued: Toms v Fuller [2010] QCA 73, [34] (Chesterman JA, McMurdo P and Holmes JA agreeing).
[179] Pleading and serving counterclaim go to top
A counterclaim will be irregular where it is filed with a document that purports to be a defence but is in fact an unequivocal admission of the claim: Australand Corporation (Qld) Pty Ltd v Tang [2009] QSC 221, [19]-[20] (McMurdo J).
[180] Answer to counterclaim go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[181] Conduct of counterclaim go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[182] Exclusion of counterclaim go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[183] Counterclaim after judgment, stay etc. of original proceeding go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[184] Judgment for balance go to top
Rule 184 permits a single judgment to be entered, notwithstanding that the parties have respectively succeeded on the claim and counterclaim: [2001] QConvR 54 [2001] QCA 145, [39] (Thomas JA, Byrne and Dutney JJ agreeing).
[185] Stay of claim go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 3--Admissions
[186] Application of div 3 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[187] Voluntary admission go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[188] Withdrawal of admission go to top
Before permitting the admission to be withdrawn, the first step to be determined is whether there is a genuine dispute about the defendant’s liability. It is not enough for this purpose simply to assert that a dispute exists. Some proper basis must be laid for that assertion, which would ordinarily include an explanation of how the earlier admission came to be made and why it should now be permitted to be withdrawn: Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 ; [2000] QCA 292, [27] (McPherson JA).
Generally, the following matters will be relevant in determining whether leave should be given to withdraw an admission made in a pleading:
- how and why the admission came to be made;
- the evidence surrounding the issues, the subject of the admission;
- any delay in making the application for leave to withdraw the admission;
- whether there is any demonstrated prejudice to the respondent,
Green v Pearson [2014] QCA 110, [34] (Jackson J, Fraser and Morrison JJA agreeing), citing Hanson Construction Material Pty Ltd v Davet [2010] QCA 246.
An admission flowing from the operation of r 189 should not be withdrawn merely for the asking. A clear explanation on oath should be given as to how and why the admission came to be made and then detailed particulars given of the issue or issues which the party would raise at trial if the admission was withdrawn: Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 ; [2000] QCA 292, [20] (de Jersey CJ), [32] (Williams J); cf [2010] 79 ACSR 668 [2010] QCA 246, [1] (Muir JA), [14] (Chesterman JA).
A detailed and clear explanation as to how an admission came to be made may not be necessary where an admission is deemed by the rules: [2010] 79 ACSR 668 [2010] QCA 246, [14] (Chesterman JA).
In exercising the discretion to give leave to withdraw an admission, there is no a priori rule as to what evidence is required in every case. Nor is there an a priori rule that an affidavit generally verifying a proposed defence will not be enough: Green v Pearson [2014] QCA 110, [46] (Jackson J, Fraser and Morrison JJA agreeing).
Giving an explanation in support of an application to withdraw an admission does not necessarily result in leave being given to withdraw. However, where the evidence suggests that the admission was due to a production error in the process of drafting a subsequent version of the defence, the case is strong: Lilypond Constructions Pty Ltd v Homann [2006] 1 Qd R 411 ; [2005] QSC 263, [16] (Mackenzie J).
[189] Notice to admit facts or documents go to top
In an appropriate case the facts can be "specified" by reference to paragraphs in a pleading. However, this will not be appropriate where, for example, more than one fact is alleged in a single paragraph of a pleading or where there are mixed allegations of fact and law: Cormie v Orchard [2001] QSC 21, p.6 (Wilson J).
Where some facts have already been admitted on the pleadings, and others not admitted because the opposite party is uncertain as to their truth or still making relevant inquiries, it is not a legitimate use of the procedure to call for admission of all the paragraphs in the pleading: Cormie v Orchard [2001] QSC 21, p.6 (Wilson J).
It is within the court's inherent powers to strike out a notice to admit if it is oppressive or an abuse of process: Cormie v Orchard [2001] QSC 21, p.5 (Wilson J).
Rule 189(2) does not have the effect of deeming admitted a matter of law or mixed fact and law set out in a Notice to Admit Facts: Pollock v Thiess Pty Ltd [2014] QSC 22, [55] (McMeekin J).
Leave to withdraw an admission – r 189(3)
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: Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 , [20] (de Jersey CJ).
Asked to exercise the discretion under r 189(3), a court would ordinarily expect sworn verification of the circumstances justifying a grant of leave. Those circumstances may include why no response to the notice was made as required, the response the party would belatedly seek to make, and confirmation that the response would accord with evidence available to be led at a trial. Issues of prejudice may also fall for consideration upon the hearing of such an application: Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 , [19] (de Jersey CJ).
Before permitting the admission to be withdrawn, the first step to be determined is whether there is a genuine dispute about the defendant’s liability. It is not enough for this purpose simply to assert that a dispute exists. Some proper basis must be laid for that assertion, which would ordinarily include an explanation of how the earlier admission came to be made and why it should now be permitted to be withdrawn: Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 , [27] (McPherson JA).
An admission flowing from the operation of r 189 should not be withdrawn merely for the asking. A clear explanation on oath should be given as to how and why the admission came to be made and then detailed particulars given of the issue or issues which the party would raise at trial if the admission was withdrawn: Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 , [32] (Williams J); cf [2010] 79 ACSR 668 [2010] QCA 246, [1] (Muir JA), [14] (Chesterman JA). A detailed and clear explanation as to how an admission came to be made may not be necessary where an admission is deemed by the rules: [2010] 79 ACSR 668 [2010] QCA 246, [14] (Chesterman JA).
Deemed admissions, made as a result of a failure to plead, might be thought to be more readily subject to a successful application for leave to withdraw than admissions which appear to have been consciously made. It is therefore most important to examine how and why the admissions came to be made: Kislyakova v Pointon [2015] QSC 158, [10] (Atkinson J).
The purpose of r 189, and the decision in Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 , is to encourage parties to identify what is and is not really in issue between them: Queensland Showerscreens and Wardrobes Pty Ltd v J M Kelly (Project Builders) Pty Ltd [2007] QCA 419, [20] (Jerrard JA, McMurdo P and Daubney J agreeing).
An admission that comes about from a failure to respond to a Notice to Admit Facts is potentially in a different category of case to a deemed admission under r 166. That is not to say that somewhat similar considerations may not need to be addressed; it depends on the facts: Pollock v Thiess Pty Ltd [2014] QSC 22, [36] (McMeekin J).
[190] Admissions go to top
Judgment on admissions under r 190 involves the exercise of a discretion: ASIC v Managed Investments Ltd No4 [2013] QSC 15, [12] (Fryberg J).
In order for the court to act on an admission in the way contemplated by r 190(1), the admission must be sufficiently clear and settled, and not subject to application for amendment or withdrawal: Crawley v Crawley Land [2012] QSC 294, [61] (Atkinson J), citing ACT Leagues Club v ACT Rugby League, (Unreported, Federal Court of Australia, 2 August 1995, Higgins, Tamberlin and Kiefel JJ).
[191] Explanation of pt 6 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[192] Reason for third party procedure go to top
Rule 192 sets out the conditions which permit a defendant to file a third party notice. It does not, at least in terms, limit the content of a third party notice once the threshold of r 192 is crossed. What may be joined in proceedings once that threshold is crossed is governed by the rules on joinder: Gibson v Mount Isa Mines Ltd [2004] QSC 71, pp.4-5 (Fryberg J).
[193] Content of third party notice go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[194] Filing third party notice go to top
As to r 194(2), in MGM Containers v Wockner [2006] QCA 502 (Chesterman J, with whom Williams JA and Keane JA agreed) held that in relation to late applications to introduce a third party:
“[27] The applications called into question two conflicting principles. The first is that there are good reasons why a third party should be joined in an action where a defendant has an arguable case for contribution or indemnity from the third party against a plaintiff’s claim. Such a joinder ensures finality in litigation, avoids multiple proceedings with associated extra cost, and obviates the possibility that there might be different decisions given on the same issues if tried by different courts. The second principle is that a plaintiff should be allowed to prosecute its action and obtain judgment without being delayed or inconvenienced by the defendant’s endeavours to offset its liability. See Phonesivorabouth v Tops Services Pty Ltd (1992) 106 FLR 471.”
In Villinger Group Ltd v Redmond [2009] QSC 60 at [11] Daubney J (referring with approval to the reasons of Philippides J in the primary decision in Wockner) held that on an application under r 194(2), a court may have regard to the following factors in exercising its discretion:
- The extent of any delay by the defendant in bringing the application, and whether there has been a satisfactory explanation for any such delay;
- Whether the issuing of the third party proceedings would unduly complicate the hearing of the matter, having regard to the complexity of the issues which would be required to be determined at trial, and also having regard to the additional length and cost of the proceedings;
- Whether the issuing of the third party proceedings would unduly delay finalisation of the extant proceeding; and
- Whether it is available to the defendant to bring separate proceedings against the proposed third parties, and whether the issues that arise in the proposed third party proceedings are of a distinct nature from those raised in the defence.
[195] Serving third party notice go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[196] Effect of service on third party go to top
Rule 196 entitles the third party to avail itself of r 16: Bjerring v Kline [2013] QDC 233, [19] (Robin QC DCJ).
“Defence” in r 196 refers to not to the eponymous pleading but to the whole process of the third party’s defending itself: Bjerring v Kline [2013] QDC 233, [20] (Robin QC DCJ).
[197] Notice of intention to defend by third party go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[198] Third party defence go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[199] Pleadings go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[200] Counter claim by third party go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[201] Default go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[202] Disclosure go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[203] Trial go to top
In considering whether to order under r 203(2) that third party proceedings be heard separately, the governing test is whether the interests of justice require such an order. Given the objective of the third party procedure, compelling circumstances are required to outweigh its advantages: Portland Downs Pastoral Co Pty Ltd v Great Northern Developments Pty Ltd [2010] QSC 467, [35] (Applegarth J).
Rules 203 and 204 retain the power of the court to grant leave to a third party to defend the plaintiff’s claim: Coote v Richards [2001] 2 Qd R 20 ; [2000] QCA 112, 21-22 (Thomas JA, McMurdo P and Ambrose J agreeing).
[204] Extent third party bound by judgment between plaintiff and defendant go to top
Rules 203 and 204 retain the power of the court to grant leave to a third party to defend the plaintiff’s claim: Coote v Richards [2001] 2 Qd R 20 ; [2000] QCA 112, 21-22 (Thomas JA, McMurdo P and Ambrose J agreeing).
[205] Judgment between defendant and third party go to top
This rule has not been judicially considered.
[206] Claim against another party go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[207] Subsequent parties go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[208] Contribution under Law Reform Act 1995 go to top
Rule 208 proceeds on two assumptions: first, that the purposes served by delivery of pleadings will, for the purposes of a claim between defendants under s 6 of the Law Reform Act 1995 (Qld), be satisfied by the service of a notice under this rule; and secondly, that the notice itself serves as a pleading. The assumptions underlying the rule would be defeated if a defendant was allowed to advance a factual basis for apportioning liability to the plaintiff as between defendants, which is different from the factual basis advanced by the plaintiff's statement of claim, without pleading those different facts: Robinson v Fig Tree Pocket Equestrian Club Inc [2005] QCA 271, [24] (Keane JA, McPherson and Williams JJA agreeing).
It would be quite wrong to regard r 208 as impliedly dispensing with the entitlement enjoyed by parties to litigation as a matter of natural justice to a proper pleading of these different allegations of fact in accordance with the standards prescribed for pleadings in the other provisions contained in Part 6 of Chapter 6: Robinson v Fig Tree Pocket Equestrian Club Inc [2005] QCA 271, [25] (Keane JA, McPherson and Williams JJA agreeing).
To the extent that one defendant may wish, for the purposes of its claims for contribution against another defendant, to rely upon allegations of material facts not raised by the plaintiff in his or her statement of claim against the defendants, the firstmentioned defendant cannot hide behind a notice given under r 208 which does not sufficiently plead the actual case which that defendant wishes to run against the other defendant: Robinson v Fig Tree Pocket Equestrian Club Inc [2005] QCA 271, [26] (Keane JA, McPherson and Williams JJA agreeing).
Rule 208 permits a notice given under that rule to fulfil the function of a statement of claim; certainly it conveys the allegations of material facts which are relied upon by the defendant claiming contribution against another defendant. An amendment to those allegations is an amendment to what is treated by the rules as a statement of claim. It would be open to disallow, as a matter of discretion pursuant to r 379, any attempt to rely on fresh allegations of material facts once they have been properly formulated: Robinson v Fig Tree Pocket Equestrian Club Inc [2005] QCA 271, [28] (Keane JA, McPherson and Williams JJA concurring).