Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 11 – Evidence
- Part 1 – General
- [390] Way evidence given
- [391] Court may call evidence
- [392] Evidence by telephone, video link or another form of communication
- [393] Plans, photographs, video or audio recordings and models
- [394] Repealed
- [395] Evidence in other proceedings
- [395A] Application to obtain evidence for civil proceedings in another jurisdiction
- [396] Order for examination
- [397] Documents for examiner
- [398] Appointment for examination
- [399] Conduct of examination
- [400] Examination of additional persons
- [401] Objections
- [402] Recording evidence
- [403] Authentication and filing
- [404] Report of examiner
- [405] Default of person required to attend
- [406] Expenses etc. of person required to attend
- [407] Admissibility of deposition
- [408] Letter of request
- [409] Undertaking
- [410] Application
- [411] Proceeding to obtain evidence for future right or claim
- [412] Order to obtain evidence for future claim
- [413] Taking, use and admissibility of evidence obtained for future right or claim
- [414] Power to issue subpoena
- [415] Formal requirements
- [416] Setting aside subpoena
- [417] Order for cost of complying with subpoena
- [418] Cost of complying with subpoena if not a party
- [419] Conduct money
- [420] Production by non-party
- [421] Service
- [422] Repealed
- [423] Purposes of pt 5
- [424] Application of pt 5
- [425] Definitions for pt 5
- [426] Duty of expert
- [427] Expert evidence
- [428] Requirements for report
- [429] Disclosure of report
- [429A] Supplementary report
- [429B] Court may direct experts to meet
- [429C] Immunity
- [429D] Costs
- [429E] Application of div 3
- [429F] Definition of div 3
- [429G] Appointment of experts
- [429H] Expert appointed by parties
- [429I] Expert appointed by Court on application
- [429J] Expert appointed by Court on Court initiative
- [429K] Considerations for Court when appointing an expert
- [429L] Report by Court appointed expert given to registrar etc.
- [429M] Orders and directions for Court appointed experts
- [429N] Consequences of Court appointment
- [429O] Court may direct access to information
- [429P] Expert may apply for directions
- [429Q] Definition for div 4
- [429R] Expert appointed by disputants
- [429S] Expert appointed by Court on application
- [430] Contents of affidavit
- [431] Form of affidavit
- [432] Swearing or affirming affidavit
- [433] Certificate of reading or signature for person making affidavit
- [434] Alterations
- [435] Exhibits
- [436] Irregularity
- [437] Filing
- [438] Service
- [439] Examination of person making affidavit
- [440] Scandal and oppression
- [441] Affidavit taken before party
- Division 1 – Preliminary
- Division 2 – Evidence given by an expert
- Division 3 – Experts appointed after proceeding started
- Division 4 – Experts appointed before proceeding started
[390] Way evidence given go to top
There is a widely held view, although not universally or inflexibly applied, that a direction should not be made to permit a person to give evidence by affidavit where credibility is in issue: Plumley v Moroney [2014] QSC 3, [51] (Margaret Wilson J).
It is open under r 390 for the Court to take a staged approach to the form in which the plaintiff is to give their evidence-in-chief, which is an approach sometimes taken in commercial cases. Such an approach may be effected by directing the plaintiff to provide a list of topics on which they propose to give evidence, and summaries of their evidence on those topics. Further directions should then be sought, to identify those topics on which the plaintiff might give evidence-in-chief by affidavit, and those on which they must give evidence orally, and limitations (if any) on cross-examination and re-examination on each topic: Plumley v Moroney [2014] QSC 3, [54] (Margaret Wilson J).
Where the plaintiff has a litigation guardian, consideration might also be given to requiring the plaintiff to file an affidavit by the person who assisted the plaintiff in preparing her affidavit, describing the process by which it was prepared: Plumley v Moroney [2014] QSC 3, [54] (Margaret Wilson J).
[391] Court may call evidence go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[392] Evidence by telephone, video link or another form of communication go to top
In considering whether to grant an application to take evidence by video-link, each case must be assessed on its merits and having regard to the interests of justice. Such considerations include costs, appropriateness of facilities for centrally important evidence, assessment of credit, difficulties relating to the use of documents during cross-examination, technological difficulties in transmission and difficulties where cross-examination may be lengthy. The exercise of the power is a discretionary one and other factors may bear upon whether it is appropriate to grant leave to adduce evidence in this way: Business & Professional Leasing Pty Ltd v Akuity Pty Ltd of Brown & Benson Pty Ltd [2007] QDC 48, pp. 2-3 (Kingham DCJ), citing ASIC v Ridge (2004) 49 ACSR 578.
[393] Plans, photographs, video or audio recordings and models go to top
The discretion to be exercised under r 393 is unfettered except by the constraint that it be exercised judicially in the particular circumstances. There are however a number of competing factors to be considered in exercising the discretion: Coster v Bathgate [2005] 2 Qd R 496; [2005] QCA 210, [20] (McMurdo P, Muir and Philippides JJ).
The competing factors to be considered in exercising the discretion under r 393 include, on the one hand, the trend that hearings take place against the background of full and timely disclosure of their respective cases, and including in certain instances of the evidence they intend to rely upon (cf: rr 212(2), 393 and 547). On the other hand, there is an inherent desirability in allowing for the role of surprise to assist in unmasking exaggeration, deception or fraud (cf: Martin v. Kennedy [1992] 1 Qd R 109, 112). In some circumstances, particularly where the plaintiff’s case is heavily dependant on his or credibility, it may be unjust to deny a defendant full opportunity to test that credibility: Coster v Bathgate [2005] 2 Qd R 496; [2005] QCA 210, [20]-[24] (McMurdo P, Muir and Philippides JJ).
Rule 393(2) implicitly abolishes the common law right of a party to claim privilege for video recordings of the type under consideration on the grounds that the recording was brought into existence for the purpose of the litigation: Coster v Bathgate [2005] 2 Qd R 496; [2005] QCA 210, [13] (McMurdo P, Muir and Philippides JJ).
[394] Repealed go to top
Repealed
[395] Evidence in other proceedings go to top
The requirement to obtain leave for the purpose of r 395 applies only in cases where the evidence in the affidavit filed in another proceeding or in an earlier stage of the proceeding is tendered to prove the truth of its contents: ASIC v Managed Investments Ltd No 1 [2012] QSC 59, p. 4 (Fryberg J).
[395A] Application to obtain evidence for civil proceedings in another jurisdiction go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[396] Order for examination go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[397] Documents for examiner go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[398] Appointment for examination go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[399] Conduct of examination go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[400] Examination of additional persons go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[401] Objections go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[402] Recording evidence go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[403] Authentication and filing go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[404] Report of examiner go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[405] Default of person required to attend go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[406] Expenses etc. of person required to attend go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[407] Admissibility of deposition go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[408] Letter of request go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[409] Undertaking go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[410] Application go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[411] Proceeding to obtain evidence for future right or claim go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[412] Order to obtain evidence for future claim go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[413] Taking, use and admissibility of evidence obtained for future right or claim go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[414] Power to issue subpoena go to top
The rules relating to subpoenas, particularly r 414, should not be limited by implication, such that the Court could issue only a subpoena requiring directly relevant documents: Xstrata Queensland Ltd v Santos Ltd; Santos Ltd v Xstrata Queensland Ltd [2005] QSC 323, [47] (McMurdo J).
Any attempt to use a subpoena to obtain non-party disclosure will be set aside as an abuse of process. Non-party disclosure in the pre-trial phase of a proceeding should be obtained under Chapter 7, Part 2 of the Rules: Re Leighton Contractors Pty Ltd v Western Metals Resources Ltd [2001] 1 Qd R 251; [2000] QSC 27, [22] (Mackenzie J).
While it is not incumbent on the Registry to make specific enquiries, if it is apparent that a request for a subpoena is being made where it is unconnected with a trial or hearing, it would be appropriate for the discretion in r 414(4) to be exercised against issuing it: Re Leighton Contractors Pty Ltd v Western Metals Resources Ltd [2001] 1 Qd R 251; [2000] QSC 27, [22] (Mackenzie J).
[415] Formal requirements go to top
A request in a subpoena that is too wide and lacking in particularity is capable of being characterised as oppressive for the purpose of r 415(2)(c): Westsand Pty Ltd v Johnson (Unreported, Supreme Court of Queensland, 15 November 1999), [17] (Wilson J).
As to the relevance of documents sought by the subpoena: “although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist [the defence]”: Braudmont Pty Ltd v Gold Coast City Council [2012] QPELR 607; [2012] QCA 140, [17] (Fraser JA, Muir JA and Martin J agreeing), citing Alister v R (1984) 154 CLR 404, 414 (Gibbs CJ).
As to whether relevant documents are sought, the question to be addressed is whether the documents are apparently relevant in the undemanding sense of the requirement for relevance in this context: Braudmont Pty Ltd v Gold Coast City Council [2012] QPELR 607; [2012] QCA 140, [17] (Fraser JA, Muir JA and Martin J agreeing), citing Xstrata Queensland Ltd v Santos Ltd; Santos Ltd v Xstrata Queensland Ltd [2005] QSC 323, [47]–[48], [55].
[416] Setting aside subpoena go to top
Any attempt to use a subpoena to obtain non-party disclosure will be set aside as an abuse of process: Re: Leighton Contractors Pty Ltd v Western Metals Resources Ltd [2001] 1 Qd R 251; [2000] QSC 27, [22] (Mackenzie J).
As to the relevance of documents sought by the subpoena, “although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist [the defence]”: Braudmont Pty Ltd v Gold Coast City Council [2012] QPELR 607; [2012] QCA 140, [17] (Fraser JA, Muir JA and Martin J agreeing), citing Alister v R (1984) 154 CLR 404, 414 (Gibbs CJ).
As to whether relevant documents are sought, the question to be addressed is whether the documents are apparently relevant in the undemanding sense of the requirement for relevance in this context: Braudmont Pty Ltd v Gold Coast City Council [2012] QPELR 607; [2012] QCA 140, [17] (Fraser JA, Muir JA and Martin J agreeing), citing Xstrata Queensland Ltd v Santos Ltd; Santos Ltd v Xstrata Queensland Ltd [2005] QSC 323, [47]–[48], [55].
To an extent, the policy evident in limiting disclosure to directly relevant documents, might inform the exercise of the Court’s discretion in relation to a subpoena. That policy recognises a proliferation of documents unheard of when previous rules were formulated, and the consequent need to confine the process of disclosure to avoid its being an oppressive burden. However, it does not follow that, in general, a subpoena should be set aside if it requires the production of more than is directly relevant. The documents must be apparently relevant in the sense explained by the authorities. Accordingly, the subpoenas should not be set aside simply for the reason that they require the production of documents not presently demonstrated to be directly relevant:Xstrata Queensland Ltd v Santos Ltd; Santos Ltd v Xstrata Queensland Ltd [2005] QSC 323, [47]-[48] (McMurdo J).
If there is an interpretation which is reasonably open, according to which the documents sought would be apparently relevant, then the relevance requirement is met: Xstrata Queensland Ltd v Santos Ltd; Santos Ltd v Xstrata Queensland Ltd [2005] QSC 323, [49] (McMurdo J).
It is not necessary that all documents subpoenaed to be produced be admitted in evidence, however that may be a factor to be considered in determining whether or not the subpoena is oppressive:Xstrata Queensland Ltd v Santos Ltd; Santos Ltd v Xstrata Queensland Ltd [2005] QSC 323, [47] (McMurdo J).
The fact that the purpose of the subpoena is to obtain commercially sensitive confidential documents, which were the property of a third party, is plainly relevant to the exercise of the discretion conferred by r 416, even though confidentiality, of itself, might not be sufficient for a successful challenge: AGL Wholesale Gas Limited v Origin Energy Limited [2009] 1 Qd R 305, [28] (Muir JA, Holmes JA and White AJA agreeing).
The strength of the party’s contentions as to the relevance of the subpoenaed documents is also relevant to the exercise of the discretion: AGL Wholesale Gas Limited v Origin Energy Limited [2009] 1 Qd R 305; [2008] QCA 366, [28] (Muir JA, Holmes JA and White AJA agreeing).
Even if the documents in question are of “apparent relevance” their limited probative value, their extent, their confidentiality and commercial sensitivity might nevertheless make it oppressive to require their production: AGL Wholesale Gas Limited v Origin Energy Limited [2009] 1 Qd R 305; [2008] QCA 366, [31] (Muir JA, Holmes JA and White AJA agreeing).
[417] Order for cost of complying with subpoena go to top
Under r 417 the Court may make an order for the payment of any loss or expense incurred in complying with a subpoena. However in circumstances where a solicitor sought advice from counsel about legal professional privilege of documents the subject of the subpoena, it was not open to him to claim for compliance costs under r 417 because that privilege belonged to the client not the solicitor: Parry v Kennedy [2014] QCA 239, pp. 4-5 (Fraser JA, Applegarth and Boddice JJ agreeing).
[418] Cost of complying with subpoena if not a party go to top
The costs in an application to have a subpoena set aside (which challenge the effect of the subpoena itself) do not form part of the costs of complying with the subpoena, but rather are costs incurred as a litigant: Xstrata Queensland Ltd v Santos Ltd; Santos Ltd v Xstrata Queensland Ltd [2005] QSC 358, [2] (McMurdo J).
Rule 418 is limited to a subpoena for production, and does not extend to cover costs incurred in complying with a subpoena for production and to give evidence: Harith and Kanuth v Beale [2004] QSC 16, [4] (Dutney J).
Where a party was ordered to pay to a firm of accountants who had been subpoenaed “all of the losses and expenses” incurred, this amount could properly be calculated by reference to the reasonable charge-out rates of the professional and administrative staff involved: Chee v CBC Properties (Qld) Pty Ltd [2017] QSC 328 (Lyons SJA) at [36]-[41].
[419] Conduct money go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[420] Production by non-party go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[421] Service go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[422] Repealed go to top
Repealed
Division 1 – Preliminary
[423] Purposes of pt 5 go to top
Chapter 11 Part 5 Division 3 of the UCPR is directed to the creation of a regime that encourages the use of single experts in litigation: Ritchie v Dallimore & Allianz Australia Insurance Ltd [2009] QSC 192, [23] (Douglas J).
If an expert is jointly appointed by the parties or if one is appointed by the Court, he or she will be the only expert on the issues on which he or she is instructed to report unless the Court orders otherwise. At the directions hearing contemplated by Practice Direction 2 of 2005, it will be necessary for the parties to identify the issues in the proceeding the expert evidence may help resolve, the identity of the expert, a timeframe for the reporting and liability for the expert's fees. If the expert is to be jointly appointed, there needs to be an agreed statement of facts in accordance with r 429H: Jamif Pty Ltd v Grant Torrens International Marine Pty Ltd [2006] QSC 229, [23] (Wilson J).
[424] Application of pt 5 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[425] Definitions for pt 5 go to top
Meaning of “expert”
If evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that:
- There is a field of “specialised knowledge”;
- There must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;
- The opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”;
- So far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way;
- It must be established that the facts on which the opinion is based form a proper foundation for it; and
- The opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded: Hobbs v Oildrive [2008] QSC 45, [49] (Daubney J), citing Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [743]–[744] (Heydon JA).
Division 2 – Evidence given by an expert
[426] Duty of expert go to top
An expert’s overriding duty to the court under r 426 does not mean that an expert may not seek to be persuasive about his or her opinion. However, there is a distinction between appropriate persuasiveness and inappropriate polemic: Hobbs v Oildrive [2008] QSC 45 [53], Daubney J.
[427] Expert evidence go to top
The purpose of r 427 is to prevent an expert from advancing a new opinion at trial. It does not prevent counsel from leading an expert through an explanation of his opinion and how it was arrived at: Adrian v Ronim Pty Ltd [2007] QSC 73, [77] (Chesterman J).
Rule 427(4) refers to the situation on its face where oral evidence is to be given or is proposed to be given by an expert who has furnished a report. Practical experience teaches that almost invariably expert evidence is given by way of a report, simply because that is the way to make it most comprehensible to the Court: Holdway v Arcuri Lawyers; Holdway v Virgona [2007] QSC 355, pp.3-4 (Fryberg J).
Leave to adduce further expert evidence at trial
That in determining an application for leave to adduce further expert evidence at trial, where there was an explanation given for the change in the appellant’s case, the significance of such change only dawned directly on the eve of trial, there was little doubt about the importance to the appellant of the new evidence, and the costs of an adjournment would not be an adequate panacea for the inconvenience to the respondent, the trial judge ought to have allowed the adjournment: Birla Mt Gordon Pty Ltd v Miccon Hire Pty Ltd [2013] QCA 363, [89]–[92], (Morrison JA, Holmes JA and Boddice J agreeing).
In determining an application for leave to adduce further expert evidence at trial, a fundamental question is whether the unfairness to the appellant in refusing it the chance to go to trial with new evidence, was outweighed by the unfairness to the respondent in allowing it in with an appropriate adjournment, protected by an order for costs: Birla Mt Gordon Pty Ltd v Miccon Hire Pty Ltd [2013] QCA 363, [93] (Morrison JA, Holmes JA and Boddice J agreeing).
Given the legitimate interests of the respondent could have been protected in the circumstances by an adjournment for a period sufficient for it to respond properly to the new evidence, and a costs order, it was an error to insist on the trial proceeding on the basis of the appellant’s being prevented from adducing the evidence it wished, albeit produced late and in the face of the pre-trial orders: Birla Mt Gordon Pty Ltd v Miccon Hire Pty Ltd [2013] QCA 363 [94], (Morrison JA, Holmes JA and Boddice J agreeing).
[428] Requirements for report go to top
A report may be determined to be inadmissible in evidence, if it fails to comply with r 428: Witham v Hough [2009] QSC 101, [28] (Douglas J).
[429] Disclosure of report go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[429A] Supplementary report go to top
Consistent with the philosophy of r 429A, in principle, it is incumbent on an expert who changes an opinion given to the Court to make the change known: Stevenson v Nunn [2011] QPELR 718; [2011] QPEC 74, [19] (Robin QC DCJ).
[429B] Court may direct experts to meet go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[429C] Immunity go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[429D] Costs 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 – Experts appointed after proceeding started
[429E] 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.
[429F] Definition 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.
[429G] Appointment of experts go to top
Rule 429G does not cease to operate after a certificate of readiness for trial is signed by the respondent as required by s 25 of the Personal Injuries Proceedings Act 2002 (Qld). Accordingly, in such a case the Court retains its discretion to order the plaintiff to submit to a medical examination: Luck v Lusty EMS Pty Ltd [2008] 2 Qd R 522; [2008] QSC 146, [20]-[22] (Byrne SJA).
The evident purpose of r 429G and Chapter 11 Part 5 of the UCPR was to put in place a regime controlling the calling of expert evidence. Parties who choose to ignore the Rules do so at the risk that the evidence may be rejected when it comes to the attention of the Court that the intent behind the rules and practice direction has been ignored. In any case the Court retains its inherent jurisdiction to control its own processes and the rules contained in Chapter 11 Part 5 of the UCPR provide guidance as to how that inherent jurisdiction should be exercised: Stewart v Fehlberg [2008] QSC 203, [18]-[19] (McMeekin J).
[429H] Expert appointed by parties go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[429I] Expert appointed by Court on application go to top
Whether the parties have complied with the rules is a relevant consideration for the Court in determining whether to admit expert evidence sought to be adduced by a party: Stewart v Fehlberg [2008] QSC 203, [39] (McMeekin J).
[429J] Expert appointed by Court on Court initiative go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[429K] Considerations for Court when appointing an expert go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[429L] Report by Court appointed expert given to registrar etc. go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[429M] Orders and directions for Court appointed experts go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[429N] Consequences of Court appointment go to top
The onus of demonstrating that more than one expert is required
The rules of the UCPR plainly evince an intention that the Court should receive evidence from only one expert on an issue, and if there are to be multiple experts then the onus lies on the party seeking to call the evidence to demonstrate that it is in the interests of justice that multiple experts be allowed. The nature of such a determination of course permits a review of the decision should different circumstances be demonstrated: Stewart v Fehlberg [2008] QSC 203, [38] (McMeekin J).
Differences of opinion
Rule 429N(3) empowers the Court to appoint an additional expert in certain circumstances. One such ground is if the Court is satisfied that there is expert opinion, different from the first expert’s opinion, that is or may be material to deciding the issue. That, though, simply enlivens the discretion to appoint a further expert. The mere existence of a different opinion would ordinarily not be sufficient, particularly in the area of valuation. The Court should only grant leave to adduce further evidence in the circumstances stated in the rule and if the interests of justice require it: Conias Hotels Pty Ltd v Murphy [2012] QSC 297, [4], [10] (Applegarth J).
[429O] Court may direct access to information go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[429P] Expert may apply for directions go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 4 – Experts appointed before proceeding started
[429Q] Definition for div 4 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[429R] Expert appointed by disputants go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[429S] Expert appointed by Court on application go to top
The power to appoint an expert in r 429S authorises the appointment of two experts to act jointly. The purpose of the rule is to enable anyone who apprehends there may be litigation to obtain an expert report at an early stage which may be useful in litigation should any happen: Corporation of the trustees of the Order of the Sisters of Mercy in Queensland v Baulderstone Hornibrook Pty Ltd [2006] QSC 305, p. 2 (Robin AJ).
No requirement to seek leave to call witnesses
Rules 429S and 429G of UCPR are not couched in mandatory terms so as to require parties to seek leave of the court before a witness may be called. Furthermore, the decision of Stewart v Fehlberg [2008] QSC 203 did not determine that compliance with these rules is mandatory nor does the decision contain ratio decidendi that “may” means “must” in those rules. To interpret the rules as such would be an incorrect interpretation as the rules are designed to provide an expeditious manner of resolving cases: Thomson v Mount Isa City Council [2010] QSC 148, p.4 (Fryberg J).
Practice Direction 2 of 2005 serves to provide the court with an opportunity to check up whether the parties have paid proper attention to rr 429S and 429G and, if necessary, to give directions limiting the witnesses to be called or directing that proceedings be taken under either of those two rules. Unless such an order is made there is no restriction on whom a party may call: Thomson v Mount Isa City Council [2010] QSC 148, pp.4-5 (Fryberg J).
Repealed go to top
Repealed
[430] Contents of affidavit go to top
Rule 430(2) focuses on the nature of relief sought in an application, rather than upon the nature of the application itself. Accordingly, hearsay evidence is not made admissible by r 430(2) if the grant of the relief claimed in the application would finally dispose of the rights of the parties as to the ultimate dispute between the parties, rather than merely as to the subject matter of the application itself: Gallagher v Boylan [2013] 1 Qd R 204, [15] (Fraser JA, Muir JA and Philippides J agreeing).
An application to “correct” final orders under r 388 by substituting orders which resolve the underlying dispute in a different way is necessarily an application for “final relief” for the purposes of r 430(2): Gallagher v Boylan [2013] 1 Qd R 204; [2012] QCA 159, [15] (Fraser JA, Muir JA and Philippides J agreeing).
A determination as to whether the Court has jurisdiction is capable of being characterised as an application for interlocutory relief: Australian International Islamic College Board Inc IA 30976 v Kingdom of Saudi Arabia [2014] 2 Qd R 1; [2013] QCA 129, [23] (Holmes JA, White JA and Atkinson J agreeing).
[431] Form of affidavit go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[432] Swearing or affirming affidavit go to top
Failure to sign an affidavit on every page in accordance with r 432(1) should be treated as an irregularity as does not render the affidavit as being without effect: LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134, [14], [18] (Holmes J).
[433] Certificate of reading or signature for person making affidavit go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[434] Alterations go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[435] Exhibits go to top
Rule 435 does not require that exhibits be served with an affidavit. It only requires that the exhibits be filed with the affidavit: JD Enterprises (Qld) Pty Ltd v Staedtler (Pacific) Pty Ltd [2014] QSC 237, [55] (McMeekin J).
[436] Irregularity go to top
Failure to sign an affidavit on every page in accordance with r 432(1) should be treated as an irregularity and does not render the affidavit as being without effect: LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134, [14], [18] (Holmes J).
[437] Filing go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[438] Service go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[439] Examination of person making affidavit go to top
Even though r 439 provides for the giving of notice to a deponent for cross-examination, the fact that notice has not been given does not mean a party cannot cross-examine the deponent: MBL v JP [2011] QCA 220, [23] (Boddice J, McMurdo J and Fraser JA agreeing).
It is a matter of discretion as to whether the Court acting under r 439(5)(b) will direct that a deponent whose affidavit is to be relied on need not attend or may not be cross-examined. Both the general approach in r 439 and the content of subrule (5) tend to indicate that it is the exception that a deponent will not be subject to cross-examination if it is sought by an opposite party. That is, it is for the party seeking to have a direction that an affidavit may be used without the deponent being made available for cross-examination, to make out the case: Cummins v Chief Executive, Department of Corrective Services [2005] QSC 202, [4] (White J).
A denial of a right to cross-examine as intended by r 439, can constitute a denial of natural justice, in accordance with the principle that natural justice will be denied if a ruling denies to a litigant a right or privilege to which he or she would be entitled in the ordinary course of litigation: MBL v JP [2011] QCA 220, [2] (Fraser JA).
There is no necessary inconsistency between the requirements in ss 92 and 98 of the Evidence Act 1977 (Qld) that the maker of a statement contained in a document be called as a witness in the proceeding and the ability to reject that evidence under s 98, and the power in r 367(3) to require evidence to be given by affidavit and the power in r 439(5) in the Court to dispense with the attendance for cross-examination of a person making an affidavit or to direct that an affidavit be used without the person making the affidavit being cross-examined as to the affidavit: Australian Securities and Investments Commission v Managed Investments Pty Ltd (No 7) [2014] QSC 72, [18] (Douglas J).
[440] Scandal and oppression go to top
Statements within an affidavit that consist of irrelevant material, comment, self-serving statements and opinions given by someone not properly qualified to give them, are capable of being characterised as “scandalous” within the meaning of r 440: Bell v Bay-Jespersen [2004] 2 Qd R 235; [2004] QCA 68, [22] (McPherson JA, McMurdo P and White J agreeing).
[441] Affidavit taken before party go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[442] Definitions for pt 8 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[443] Application of pt 8 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[444] Applicant’s letter to respondent go to top
The requirements of r 444 serve the very useful purpose of alerting the respondent to the applicant’s complaints giving the respondent the opportunity to respond or remedy the problem. Good reason will have to be shown for a court to hear an application that does not comply with Part 8 of Chapter 11: Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645; [2000] QCA 113, [8] (McPherson and Thomas JJA, Atkinson J).
Experience (both of the Judges and legal practitioners) has shown that the r 444 procedure is useful on a much wider basis than is expressly contemplated by its provisions. In consequence, the procedure has been extensively used in situations outside the strict scope of operation of the Rule. That practice should be encouraged because in many instances it obviates the necessity of an application to the Court. However, where the application is not one which is expressly caught by r 444, it would be a wrong exercise of discretion to dismiss the application because that procedure was not followed: BTU Group v Noble Promotions Pty Ltd [2002] QCA 505, [5] (McMurdo P, Williams JA and Dutney J).
Rule 444 is designed to facilitate the resolution of interlocutory disputes without the need for an application by providing for the ventilation of issues in correspondence before an application is filed. However a Court can proceed to hear an application where the procedure is not followed if it so directs under r 448 or in the exercise of its wide powers (both under the rules or inherently): Hogan v Almavale Bloodstock Pty Ltd [2003] QCA 462, p.4 (Wilson J).
If r 444 is not technically applicable (because, for example, an application is made to the Court in its inherent jurisdiction, instead of under a rule of court which is expressly referred to in the rule but would otherwise cover the nature of the relief sought by the application) it might be appropriate to apply r 444 by analogy to the exercise of the Court’s discretion: Robertson v Dogz Online Pty Ltd [2010] QCA 295, [51] (Muir JA, de Jersey CJ and Cullinane J agreeing).
[445] Respondent’s reply go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[446] Additional correspondence go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[447] Application to Court go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[448] Hearing of application go to top
The requirements of r 444 serve the very useful purpose of alerting the respondent to the applicant’s complaints giving the respondent the opportunity to respond or remedy the problem. Good reason will have to be shown for a court to hear an application that does not comply with Part 8 of Chapter 11: Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645; [2000] QCA 113, [8] (McPherson and Thomas JJA, Atkinson J).
One good reason might be where it becomes clear, from a course of correspondence, that an issue between the parties will not be resolved other than by application to the Court, even where the correspondence does not specifically comply with rr 444 and 445: Millhouse IAG Pty Ltd v Environautics Pty Ltd [2000] QDC 196, [6] (McGill DCJ).
The Court has power, under r 448, to hear an application notwithstanding non-compliance with Chapter 10 Part 8 of the Rules. If the court does so, it can take into account a party’s failure to comply with the rule on the question of costs: Arkaroola Pty Ltd v Niugini Mining (Australia) Pty Ltd [2001] QSC 410 pp.11-12 (Fryberg J).