Case Law

Question 1

Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2008] QSC 302

Answer 1

Cannot have bare denials / non-admissions

Airplane crash and insurance dispute regarding adequacy of pleading (ambiguity about whether a valid denial or not). Plaintiff sought r 171 strike out on basis

1. Rule 166 UCPR (denials and non-admissions)
   (a) Elements in rule 166(4) should be read disjunctively:

(i) A denial of a fact can only be pleaded if the party believes it to be untrue.
(ii) A non-admission of a fact can only be pleaded if a party is uncertain as to the truth or falsity of the allegation of fact being responded to.

(b) Both pleadings (166(4)) require a “direct” explanation (either why they believe it is untrue, or why they are uncertain). A direct explanation goes to a party’s rationale for its belief, and is not therefore a “material fact” for the purposes of r 149.

2. Daubney J held the defence did not comply with r 166 as it did not provide a direct explanation for the denial of the allegation – it merely stated the allegations P had undertaken that were alleged to constitute corrosion.
   (a) As P argued, the defence failed to distinguish facts which may be an explanation of D’s belief with the effect of merely putting P to proof and facts which may be raised as an affirmative defence by D as trial.
   (b) The direct explanation had to be a subjective exposition of belief.
   (c) D’s direct explanation for a denial was that the matter simply did not occur, then the evidence D might lead would be limited to controverting P’s evidence. If the explanation was not limited to a controversion of the fact involved advancedment of an alternative case, one would expect that to be apparent on the pleadings.
3. A direct explanation has two objectives:
   (a) Compels respondent to expose, early in matter, rationale for a joinder of issue on a particular allegation
   (b) Compels responding party to formulate rationale – why are we denying this
4. Per rule 5, this rule is designed to ensure avoidance of undue delay, expense, and technicality etc.

Question 2

Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] QSC 42

Answer 2

Principles relating to exercise of discretion for inspection order
Rule 250 UCPR (Inspection, detention, custody, and preservation of property)

Compare decision with Wilsons Ceramics v Pantaenius

1. Inspection of machines built by former employee – implicit theft of company secrets
2. Rule 250 (Inspection, detention, custody and preservation of property), seeking order for inspection of machines built by defendants
3. From [19]:
   (a) Discretion conferred by r 250 is wide and should not be limited by the superimposition of conditions not found in the rule itself.
   (b) Order should not be made unless it is proper to do so
   (c) Noting rule 5, if the result of the inspection could tend to bring about efficient / economical conduct of litigation, ordinarily order for inspection should be made.
4. In this case: inspection would provide firmer framework for the dispute than would exist without it (and would likely be required at final trial anyway) supporting an order being made.

** P must show sufficient grounds. There must be a substantial / genuine dispute and evidence that P’s rights are being infringed.
Order must only be made if proper to do so. If the inspection would speed up the process of litigation, the discretion should be exercised. **

UCPR 250 provides that: 15 ‘‘(1) The court may make an order for the inspection … of property if – (a) the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or (b) inspection of the property is necessary for deciding an issue 20 in a proceeding. (2) Subrule (1) applies whether or not the property is in the possession, custody or power of a party. (3) … (4) In the order, the court may impose the conditions it considers 25 appropriate … (5) The court may set aside or vary the order.’’

Question 3

GE Automotive Financial Services Pty Ltd v Laverty [2008] QDC 313

Answer 3

Orders for preservation of property cannot be too wide / infringe on bona fide 3rd parties (rule 250)

1. Custody and detention of motor vehicle following default by defendant
2. Rule 250 (Inspection, detention, custody and preservation of property), seeking order for custody of vehicle pending the bringing of the full claim.
3. Judge agreed to make orders but not in the terms sought by plaintiff:
   (a) Draft orders sought authority to enter any premises (P) reasonably believes vehicle located in. This would include non-contemplated premises. Judge refused to make orders so broad it could include properties not expressly identified in the orders themselves (risk of police holding yards, third party purchasers, being impacted etc).
   (b) Draft orders required delivery of vehicle to defendant at any particular place. Ordinarily if defendant required to ‘deliver up’ property it means to hand over, but not necessarily at a particular place other than where the property is. No obligation or power to deliver property to a particular location.
   (c) Made order requiring property to be “preserved” pending trial. Whole point of r 250 is to ensure property is not dealt with until end of trial.

RULE 250
Inspection, detention, custody and preservation of property

(1)The court may make an order for the inspection, detention, custody or preservation of property if—
(a)the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or
(b)inspection of the property is necessary for deciding an issue in a proceeding.

(2)Subrule (1) applies whether or not the property is in the possession, custody or power of a party.

(3)The order may authorise a person to do any of the following—
(a)enter a place or do another thing to obtain access to the property;
(b)take samples of the property;
(c)make observations and take photographs of the property;
(d)conduct an experiment on or with the property;
(e)observe a process;
(f)observe or read images or information contained in the property including, for example, by playing or screening a tape, film or disk;
(g)photograph or otherwise copy the property or information contained in the property.

(4)In the order, the court may impose the conditions it considers appropriate, including, for example, a condition about—
(a)payment of the costs of a person who is not a party and who must comply with the order; or
(b)giving security for the costs of a person or party who must comply with the order.

(5)The court may set aside or vary the order.

Question 4

Shaw v DCT; Rablin v DCT [2016] QCA 275

Answer 4

Requirements for summary judgment without hearing (no real prospect of success, not merely fanciful, and no need for trial). Real means ‘certain and concluded belief that a proceeding would necessarily fail’.

1. Summary judgment by DCT against plaintiffs under rule 292 on basis no reasonable defence available.
2. Directors had relied upon affidavit evidence to demonstrate efforts taken to arrange payment plan with ATO; trial judge formed view about the merits of that evidence.
3. Discretion to give summary judgment under 292 is dependent upon both (2)(a) and (2)(b) being satisfied (that defendant has ‘no real prospect’ of defending the claim, and that there is no need for a trial)
4. “No real prospect” to be distinguished from a fanciful prospect of success. Question to ask is: “is there a realistic as opposed to fanciful prospect of success”? [High degree of certainty; real not fanciful; only in the clearest of cases]

4.5 - No need for trial. Trial will ordinarily be needed if difficult issue of law, or complex.

5. Court must exercise great caution to ensure party not deprived of opportunity for the trial of their case under guide of ‘achieving expeditious finality’.
6. In this case, whether there was a defence was to be answered by reference to the constellation of primary facts relevant to them. In response to an application for summary judgment, it was not necessary for the appellants to have adduced evidence, as they might at trial, which comprehensively addressed all such facts. A possible defence was available (albeit unlikely) and should have been heard at trial.
7. Compare decision with Spencer v The Cth (no reasonable prospect vs no real prospect)

–> High Court in Spencer stated that “real” required a “certain and conduced belief that a proceeding would necessarily fail”.

292 Summary judgment for plaintiff
(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.
(2)If the court is satisfied that—
(a)the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
(b)there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.

Question 5

Tyler v Custom Credit Corp Ltd [2000] QCA 178

Answer 5

12 factors court may take into account when determining whether interests of justice require a case to be dismissed/continue after delay. Rule 389: continuation of proceeding after delay

1. Litigation plagued by extensive delays, requiring court discretion to allow for leave to proceed under r 389 UCPR.
2. Both parties contributed to significant delays including ignoring court orders, going into VA, and other problems.
3. Factors the court will take into account when deciding whether to (1) dismiss action for want of prosecution or (2) give leave to proceed under r 389:

(1) how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
(2) how long ago the litigation was commenced or causes of action were added;
(3) what prospects the plaintiff has of success in the action;
(4) whether or not there has been disobedience of Court orders or directions;
(5) whether or not the litigation has been characterised by periods of delay;
(6) whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
(7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
(8) whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
(9) how far the litigation has progressed;
(10) whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
(11) whether there is a satisfactory explanation for the delay; and
(12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

4. However - court’s discretion not fettered by rules and should take into account particular circumstances of the case.
5. Here, delay caused by both parties, and both parties likely to suffer prejudice as a result of elapsed time. No reason to interfere with trial judge’s grant of allowing to proceed.

NOTE - if factors above are not met, and court wishes to dismiss the matter for want of prosecution, technically could use court’s inherent power OR r 280 UCPR (Default by plaintiff or applicant) OR r 371 (Effect of failure to comply with rules)

Question 6

Vaughan v Bongiorno [2007] NSWSC 1398

Answer 6

MINI LIST

Application for Mareva injunction and exercise of court’s discretion (see also rule 260A) (PD 1 of 2007 - Freezing Orders)

1. Solicitor and student relationship where (P) transferred significant sums to (D) and then claimed after the fact it was a loan and repayable on demand. Sought a Mareva injunction.
2. Granting of Mareva relief is discretionary requiring:
   (i) Prima facie cause of action against the defendant; and
   (ii) Danger that if plaintiff succeeds they will not have their judgment satisfied (as a result of defendant absconding, or assets being removed out of jurisdiction for example).
3. Prima facie cause of action means
   (a) “good arguable case”
   (b) “a serious question to be tried”
   (c) Beecham v Bristol: “if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief” [‘probability’ doesn’t mean a ‘50% chance’]
   (d) If evidence is contested, unlikely to be satisfactory for interlocutory relief

• If damages sufficient unlikely to be an injunction

4. Here: Very weak evidence to support (P)’s claim so insufficient to warrant granting of injunction. No evidence at all, and his statements were “utterly inadmissible”. Prima facie case requires chance that plaintiff may obtain success at trial. On current case, almost impossible

Also need undertaking as to damages

1. Inconvein

Question 7

Wilsons Ceramics Pty Ltd v Pantaenius Australia Pty Ltd [2021] QDC 74

Answer 7

1. Application for inspection under r 250. Whether court has the power to make an order and, if so, whether it should exercise its discretion.
2. Boat struck by lighting. Defendant seeking inspection to undertake semi-destructive sampling of hull to assess extent of damage.
3. First: Plaintiff argued 250(1) requires both that property be subject of proceeding, and that inspection be necessary for deciding an issue, contrary to ordinary meaning of words.
4. Court denied this. 250(1)(a) relates to property which is central to and the subject of the proceeding (IE the yacht in this case). 250(1)(b) relates to a broader class of evidence, including property which may only be of evidentiary value. As this property was captured by (a), the court had the POWER to make an order
5. Second: Although court had power, it is still a discretion. Court cited Evans Deakin v Orekinetics re the width of the discretion, which should not be limited by superimposition of conditions not found in the rule itself.
6. Court found that although necessity is not a pre-requisite for the power, whether the inspection is necessary is a relevant consideration. Here, there was (1) no guarantee it wouldn’t cause permanent damage (2) there was a dispute about the testing methodologies themselves; and (3) non-invasive techniques could be utilised first. Therefore not necessary and court did not exercise its discretion.

Orders must have utility, not cause unacceptable interference with the property. Potential effects on property should be considered

Compare with Evans Deakins v Orekinetics

Question 8

AON Risk Services Australia Ltd v ANU (2009) 239 CLR 175

Answer 8

Case management principles
Consider rule 37M FCA; and rule 5 UCPR

1. ANU discontinued proceeds against three insurers on day 3 of 4-week trial then sought leave to amend to add a substantially new claim against Aon Risk. This was permitted at first instance, albeit with costs orders made against ANU (to remedy prejudice to Aon Risk).
2. High Court found that:

(a) Application for adjournment and amendment should not be considered solely by reference to whether any prejudice could be compensated by costs. Modern view is that costs may not always undo prejudice a party suffers as a result of a late amendment and “justice cannot always be measured in money”. Even corporations can suffer prejudice as a result of ongoing litigation delay.

(b) Contrary to JL Holdings, proper use of court resources / principles of case management should not be given little weight: conduct of litigation is not just a matter for parties but also for prejudice to other litigants and the community.

(c) Parties should have proper opportunity to amend their cases, but speed and efficiency are also essential to resolution of proceedings.

(d) Parties do not have a “right” to amend their pleadings; they have only a right to invoke the court’s jurisdiction and powers to seek a resolution of their dispute.

(e) Generally speaking: where discretion sought to be exercised in favour of one party, to the disadvantage of another, an explanation will be called for (which was not done, or inadequately done, in this case). Application must also be brought in good faith.

Question 9

Spencer v The Commonwealth (2010) 241 CLR 118

Answer 9

What test is applied to the “no reasonable prospect of success” for summary judgment

r 26.01FCR / s 31A FCA / rr 292/3 UCPR

Owner of farm brought proceeding against Cth saying that restrictions on clearing of vegetation constituted a form of acquisition of property on other than just terms. Proceeding was summarily dismissed at first instance and on appeal.

1. Section 31A(2) for dismissal of proceeding brought by plaintiff requires that there be “no reasonable prospect of success”. This formulation does not require a “certain and conclusive determination that a proceeding will necessarily fail”; to be distinguished from earlier designation and state equivalents (including Qld) which require “no real prospect of success”.
2. “No reasonable prospect of success” to be distinguished from “no real prospect of success” (as used in Qld)

(a) Real requires an “inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail”.

(i) Earlier commentary stated for ‘real’ that a “case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury”.
(ii) This requires a test demonstrating the outcome of the litigation, not an assessment of the prospects of its success.

(b) 31A does not require demonstrating a case has certainty of failure (hopefully, or ‘bound to fail’).

(c) Full weight should be given to expression as a whole. Instead focus on whether it would be ‘just and equitable’. Power to dismiss summarily should not be exercised lightly