Ballesteros v Chidlow and Anor No 2 - [2005] QSC 285

SUPREME COURT OF QUEENSLAND

CITATION:

Ballesteros v Chidlow & Anor No 2 [2005] QSC 285

PARTIES:

MICHELLE THERESE BALLESTEROS
(plaintiff)
v
HERBERT HUGH CHIDLOW
(first defendant)
RACQ INSURANCE LIMITED ACN 009 704 152
(second defendant)

FILE NO/S:

BS No 10080 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2005

JUDGE:

White J

ORDER:

Leave to amend defence

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTERCLAIM – where application to amend defence at the commencement of the trial pursuant to rule 375 of the Uniform Civil Procedure Rules 1999 – whether prejudice to the plaintiff

Uniform Civil Procedure Rules 1999 (Qld), r 149, r 151,
r 155, r 162, r 165, r 166, r 214, r 375
Motor Accident Insurance Act 1994 (Qld), s 48, s 51B
Motor Accident Insurance Regulations 2004 (Qld), s 10

Anderson v AON Risk Services Australia Ltd [2004] QSC 049, cited

Doelle v Watson [2002] QSC, unreported decision of Helman J, 26 June 2002, cited
Foreman v Lee and Transport Accident Commission [2005] QSC 086, distinguished

Gould v Mt Oxide Mines Ltd (In Liq) (1916) 22 CLR 490, cited
Groves v Australian Liquor Hospitality and Miscellaneous Workers’ Union [2004] QSC 142, cited

Turner v Bulletin Newspaper Pty Ltd (1974) 131 CLR 69, applied

COUNSEL:

Mr M Grant-Taylor SC with him Mr P Feeley for the plaintiff
Mr R J Douglas SC for the defendants

SOLICITORS:

McInnes Wilson for the plaintiff
Hunt & Hunt for the defendants

At the commencement of the trial the defendants applied to amend the defence pursuant to r 375 of the Uniform Civil Procedure Rules (“UCPR”). The amendment was opposed, not on the basis of prejudice to the plaintiff – Mr Grant-Taylor expressly stated that there was none – but rather, it seems, although it is not entirely clear, to gain whatever advantage there might be from deemed admissions. I gave the defendants leave to file a further amended defence with reasons to be published subsequently. Judgment in the proceedings was given on 10 October 2005 and I now give my reasons for allowing the amendments. The facts can be supplemented by the details set out in the substantive judgment.

The plaintiff sustained a musculo-ligamentous strain to her spine from a flexion-extension injury sustained as a seat-belt restrained back seat passenger in a motor vehicle collision on 18 February 2003 at the age of 35. The plaintiff’s claim proceeded as a claim under the Motor Accident Insurance Act 1994 (“MAI Act”). She maintained that ongoing disabling symptoms particularly in her neck/shoulder area and lumbar spine were so severe that she was compelled to resign her employment in the Queensland Public Service after attempting work for 6 months post-accident. The plaintiff further contended that by virtue of her injuries and consequent symptoms she was unable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] QSC 285
Decision Date: 12 October 2005

CaseChat Overview and Summary

The case of Ballesteros v Chidlow and Anor No 2 was heard by the Supreme Court of Queensland. The plaintiff, Ballesteros, was pursuing a claim against the defendants, Chidlow and another, relating to an issue under contract law. The primary dispute centred on whether the defendants breached a contractual agreement and, subsequently, the extent of any damages owed to the plaintiff. The case required the court to consider the procedural aspect of allowing amendments to the defence at the beginning of the trial, specifically under rule 375 of the Uniform Civil Procedure Rules 1999.

The court was tasked with determining whether permitting an amendment to the defence at the trial's commencement would cause undue prejudice to the plaintiff. This involved a careful consideration of the timing of the amendment application, the nature of the proposed changes, and the potential impact on the fairness of the trial process. The plaintiff argued that the proposed amendments would prejudice their ability to effectively respond to the new defences, while the defendants contended that the amendments were necessary to address new evidence and arguments that had surfaced during the proceedings.

In assessing these arguments, the court examined the specific circumstances of the case, including the reasons for the delay in filing the amendment and the potential impact on the trial's fairness and efficiency. The court held that the proposed amendments were not prejudicial to the plaintiff and granted leave for the defence to be amended accordingly. This decision was based on the court's finding that the plaintiff had sufficient time to prepare a response to the new defences and that the overall fairness of the trial process would not be compromised.

As a result of this decision, the court granted leave for the defence to be amended. This ruling ensures that the trial can proceed with all relevant issues properly addressed, maintaining the integrity of the judicial process. The court's decision underscored the importance of balancing the need for procedural flexibility with the necessity to avoid unfair prejudice to any party.

Orders

Orders of the court

Leave to amend defence

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ballesteros v Chidlow & Anor No 2 [2005] QSC 285
PARTIES:	MICHELLE THERESE BALLESTEROS (plaintiff) v HERBERT HUGH CHIDLOW (first defendant) RACQ INSURANCE LIMITED ACN 009 704 152 (second defendant)
FILE NO/S:	BS No 10080 of 2004
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	19 May 2005
JUDGE:	White J
ORDER:	Leave to amend defence
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTERCLAIM – where application to amend defence at the commencement of the trial pursuant to rule 375 of the Uniform Civil Procedure Rules 1999 – whether prejudice to the plaintiff Uniform Civil Procedure Rules 1999 (Qld), r 149, r 151, r 155, r 162, r 165, r 166, r 214, r 375 Motor Accident Insurance Act 1994 (Qld), s 48, s 51B Motor Accident Insurance Regulations 2004 (Qld), s 10 Anderson v AON Risk Services Australia Ltd [2004] QSC 049, cited Doelle v Watson [2002] QSC, unreported decision of Helman J, 26 June 2002, cited Foreman v Lee and Transport Accident Commission [2005] QSC 086, distinguished Gould v Mt Oxide Mines Ltd (In Liq) (1916) 22 CLR 490, cited Groves v Australian Liquor Hospitality and Miscellaneous Workers’ Union [2004] QSC 142, cited Turner v Bulletin Newspaper Pty Ltd (1974) 131 CLR 69, applied
COUNSEL:	Mr M Grant-Taylor SC with him Mr P Feeley for the plaintiff Mr R J Douglas SC for the defendants
SOLICITORS:	McInnes Wilson for the plaintiff Hunt & Hunt for the defendants