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Berg v Sunshine Coast Regional Council

Berg v Sunshine Coast Regional Council

Case [2025] QMC 28 6 November 2025

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MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Berg v Sunshine Coast Regional Council [2025] QMC 28

PARTIES:

KAREN LEE BERG

(Applicant/defendant)

v

SUNSHINE COAST REGIONAL COUNCIL

(Respondent/plaintiff)

FILE NO/S:

M84296/24

DIVISION:

Civil

PROCEEDING:

Claim filed 22 November 2024

APPLICATION:

Interlocutory Application filed 12 August 2025

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

6 November 2025

DELIVERED AT:

Maroochydore

HEARING DATE:

1 October 2025

MAGISTRATE:

Acting Magistrate Janelle (Payne) Boegheim

ORDER:

1.   THE INTERLOCUTORY APPLICATION FILED 12 AUGUST 2025 IS DISMISSED.

2.   THE APPLICANT/DEFENDANT (MS KAREN LEE BERG) IS TO PAY THE COSTS OF THE RESPONDENT/PLAINTIFF (SUNSHINE COAST REGIONAL COUNCIL) OF AND INCIDENTAL TO THE APPLICATION, ASSESSED AND FIXED IN THE SUM OF $940.55 PURSUANT TO THE SCALE IN UNIFORM CIVIL PROCEDURE RULES, SCHEDULE 2, PART D (UNDER $2,500) AS FOLLOWS:

(A) APPLICATIONS TO COURT (ITEM 12) - $220.05;

(B) HEARING WITH COUNSEL (ITEM 11(A)) - $320.20;

(C) ATTENDANCE OF SOLICITOR WITH COUNSEL (ITEM 10(A)) -   $400.30.

3.   THE COURT CERTIFIES THAT THE ATTENDANCE OF BOTH COUNSEL AND SOLICITOR WAS NECESSARY.

CATCHWORDS:

PRACTICE AND PROCEDURE - NOTICE TO ADMIT – Where no Defence filed – where no trial date set - whether a fact ‘is proved in the proceeding’ for the purposes of rule 189 Uniform Civil Procedure Rules 1999 (Qld) before there has been any trial of the proceeding simply because the applicant has filed an affidavit asserting the facts - has the applicant (who is not a lawyer) incurred costs of proof which it is entitled to recover under r 189(4) – whether it is otherwise appropriate to order the plaintiff to pay the costs of proof

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), rr 189

Cachia v Hanes (1994) 179 CLR 403
Bell Lawyers Pty Ltd v Pentelow (2019) 268 CLR 447
Cormie v Orchard [2001] QSC 021
Green v Pearson [2014] QCA 110
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455; [2000] QCA 292

COUNSEL:

Dr C Moschoudis of Counsel for the plaintiff/respondent

SOLICITORS:

Recoveries & Reconstruction Legal for the plaintiff/respondent.

Issue for determination – r 189 UCPR

The issue for determination is the proper construction of the phrase “proved in the proceeding” appearing in rule 189(4) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). Specifically, whether a fact may be regarded as “proved in the proceeding” upon the mere filing of an affidavit, or only when accepted by the tribunal of fact in accordance with the ordinary rules of evidence and procedure.

The following questions arise:

(a) whether a fact ‘is proved in the proceeding’ for the purposes of rule 189 UCPR before there has been any trial of the proceeding simply because the applicant has filed an affidavit asserting the facts?

(b) has the applicant (who is not a lawyer) incurred costs of proof which it is entitled to recover under r 189(4)?

(c) if the answer to (1) and (2) are yes, is it appropriate to order the plaintiff…

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.

Continue reading Berg v Sunshine Coast Regional Council

Details

AGLC: Berg v Sunshine Coast Regional Council [2025] QMC 28
Case: [2025] QMC 28
Decision Date: 6 November 2025

CaseChat Overview and Summary

The case of Berg v Sunshine Coast Regional Council concerns an application by the defendant, Ms Karen Lee Berg, for an order that certain facts be admitted. Ms Berg, who is not legally represented, sought an order under rule 189 of the Uniform Civil Procedure Rules 1999 (Qld) that specified facts be admitted as proved, claiming she incurred costs of proof. The plaintiff, Sunshine Coast Regional Council, did not oppose the application but argued that the costs sought were excessive and not justified. The court had to determine whether the facts could be deemed proved under the rules and, if so, whether Ms Berg was entitled to recover the costs of proof she claimed to have incurred.

The primary legal issue before the court was whether the facts could be considered proved for the purposes of rule 189 before any trial had occurred, simply because Ms Berg had filed an affidavit asserting those facts. Additionally, the court needed to assess whether Ms Berg, as a non-lawyer party, was entitled to recover costs of proof under rule 189(4). The court also had to consider whether it was appropriate to order the plaintiff to pay the costs of proof, given the circumstances of the case.

The court dismissed Ms Berg's application, holding that the facts she sought to have admitted as proved were not established before any trial had occurred. The court found that Ms Berg had not incurred any costs of proof that warranted recovery under rule 189(4). Consequently, the court held that it was not appropriate to order the plaintiff to pay the costs of proof. The court assessed the costs of the application and ordered Ms Berg to pay the plaintiff's costs, which were itemised according to the scale in Uniform Civil Procedure Rules, Schedule 2, Part D.

Orders

Orders of the court

1. THE INTERLOCUTORY APPLICATION FILED 12 AUGUST 2025 IS DISMISSED.

2. THE APPLICANT/DEFENDANT (MS KAREN LEE BERG) IS TO PAY THE COSTS OF THE RESPONDENT/PLAINTIFF (SUNSHINE COAST REGIONAL COUNCIL) OF AND INCIDENTAL TO THE APPLICATION, ASSESSED AND FIXED IN THE SUM OF $940.55 PURSUANT TO THE SCALE IN UNIFORM CIVIL PROCEDURE RULES, SCHEDULE 2, PART D (UNDER $2,500) AS FOLLOWS:

(A) APPLICATIONS TO COURT (ITEM 12) - $220.05;

(B) HEARING WITH COUNSEL (ITEM 11(A)) - $320.20;

3. THE COURT CERTIFIES THAT THE ATTENDANCE OF BOTH COUNSEL AND SOLICITOR WAS NECESSARY.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Berg v Sunshine Coast Regional Council [2025] QMC 28

Cases Citing This Decision

No citing cases yet.

Cases Cited

Peter Carter Transport Pty Ltd v Swansway No. 2 Pty Ltd [2021] QDC 109
Citation 1 (Para 1)

…oldings (UK) Ltd v Minories Finance Ltd (No 2) [1992] 4 All ER 588 (at 607) cited in Peter Carter Transport Pty Ltd and Anor v Swansway No. 2 Pty Ltd [2021] QDC 109.…
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29
Citation 2 (Para 1)

…ir own behalf, now matter how time-consuming. This principle was settled by the High Court in Cachia v Hanes (1994) 179 CLR 403 and reaffirmed in Bell Lawyers Pty Ltd v Pentelow (2019) 268 CLR 447.…
SAS Trustee Corporation v Miles [2018] HCA 55
Citation 3 (Para 1)

…y construction begins with the text of the provision, which must be interpreted in light of its context and purpose. [5] [5] SAS Trustee Corp v Miles (2018) 265 CLR 137 at [20]; see also Talacko v Bennett (2017) 260 CLR 124 at [65]; Comcare v Martin (2016) 258 CLR 467 at [42].…
Talacko v Bennett [2017] HCA 15
Citation 4 (Para 1)

…hich must be interpreted in light of its context and purpose. [5] [5] SAS Trustee Corp v Miles (2018) 265 CLR 137 at [20]; see also Talacko v Bennett (2017) 260 CLR 124 at [65]; Comcare v Martin (2016) 258 CLR 467 at [42].…
Edwards v The State of New South Wales [2017] NSWSC 459
Citation 5 (Para 1)

…mie v Orchard [2001] QCA 546. In a similar vein paragraph 13 of Matthew Edwards v New South Wales [2017] NSWSC 459, relied upon by the plaintiff: “[13] The principal purpose of a Notice to Admit Facts and a Notice to Admit Authenticity of Documents is to facilitate proof. In particular, it is to facilitate proof of…
Comcare v Martin [2016] HCA 43
Citation 6 (Para 1)

…ext and purpose. [5] [5] SAS Trustee Corp v Miles (2018) 265 CLR 137 at [20]; see also Talacko v Bennett (2017) 260 CLR 124 at [65]; Comcare v Martin (2016) 258 CLR 467 at [42].…
Green v Pearson [2014] QCA 110
Citation 7 (Para 1)

…td v Ridolfi ([2001] 2 Qd R 455; [2000] QCA 292, [21] per de Jersey CJ. Similarly, in Green v Pearson [2014] QCA 110, the Court reaffirmed that withdrawal of admissions is exceptional and dependent upon verified evidence explaining the failure to respond and the basis for the proposed withdrawal. In Cormie v Orch…
Pollock v Thiess Pty Ltd and Ors [2014] QSC 22
Citation 8 (Para 1)

…beyond r 189, which pertains to facts or documents.[14] [14] See Pollock v Thiess Pty Ltd [2014] QSC 22 at [15], per McMeekin J.f Rule 390(a) UCPR supports this, as it mandates oral evidence at trial unless directed otherwise. Proof arises from the evidentiary process, not unilateral affidavit assertions. In con…
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
Citation 9

…[6] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39],…
McGuirk v University of New South Wales [2010] NSWCA 104
Citation 10 (Para 1)

…disapproved on appeal although the appeal was allowed: McGuirk v University of New South Wales [2010] NSWCA 104 at [130].” (emphasis added) Whilst I am not presently concerned with an application to strike out a notice to admit facts, these authorities are consistent with the applicant’s defendant’s application be…
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Citation 11 (Para 47)

…citing Alcan (NT) Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47].…
Gerard Michael McGuirk v The University of New South Wales [2009] NSWSC 253
Citation 12 (Para 1)

…until the pleadings are completed : Gerard Michael McGuirk v The University of New South Wales [2009] NSWSC 253 at [98]. That holding was apparently not disapproved on appeal although the appeal was allowed: McGuirk v University of New South Wales [2010] NSWCA 104 at [130].” (emphasis added) Whilst I am not presen…
Cormie v Orchard [2001] QCA 546
Citation 13 (Para 1)

…ading .” (emphasis added) [13]This decision was not the subject of the appeal in Cormie v Orchard [2001] QCA 546. In a similar vein paragraph 13 of Matthew Edwards v New South Wales [2017] NSWSC 459, relied upon by the plaintiff: “[13] The principal purpose of a Notice to Admit Facts and a Notice to Admit Authent…
Ridolfi v Rigato Farms Pty Ltd [2000] QCA 292
Citation 14 (Para 1)

…peditious resolution of proceedings at minimum expense. In Rigato Farms Pty Ltd v Ridolfi ([2001] 2 Qd R 455; [2000] QCA 292) (“ Rigato Farms ”), the Court of Appeal confirmed the seriousness of the admissions regime under r 189 UCPR. In that case (as opposed to the present case) the defendant had not filed a Not…
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 53
Citation 15

…Hanes (1994) 179 CLR 403 Bell Lawyers Pty Ltd v Pentelow (2019) 268 CLR 447 Cormie v Orchard [2001] QSC 021 Green v Pearson [2014] QCA 110 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455; [2000] QCA 292 COUNSEL: Dr C Moschoudis of Counsel for the plaintiff/respondent SOLICITORS: Recov…
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2
Citation 16 (Para 1)

…interpretation that does not correspond with the literal or grammatical meaning of the words.[7] [7] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [78].…
Cachia v Hanes [1994] HCA 14
Citation 17 (Para 1)

…egally qualified person acting on their own behalf, now matter how time-consuming. This principle was settled by the High Court in Cachia v Hanes (1994) 179 CLR 403 and reaffirmed in Bell Lawyers Pty Ltd v Pentelow (2019) 268 CLR 447.…
Cormie v Orchard [2001] QSC 021
Citation 18 (Para 1)

…ence explaining the failure to respond and the basis for the proposed withdrawal. In Cormie v Orchard [2001] QSC 021 at [6], [13] concerning an application to strike out a notice to admit facts or documents, her Honour Justice Margaret Wilson referred to Rigato Farms and stated: “The purpose of the notice to admi…
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255
Citation 19 (Para 1)

…ot correspond with the literal or grammatical meaning of the words.[7] [7] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [78].…

Legislation Cited

Uniform Civil Procedure Rules 1999 (Qld) 189
2 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld)
1 mention (from Para 1)
Evidence Act 1995 (Cth)
1 mention (from Para 1)
Supreme Court of Queensland Act 1991 (Qld)
1 mention (from Para 1)

CITATION:	Berg v Sunshine Coast Regional Council [2025] QMC 28
PARTIES:	KAREN LEE BERG (Applicant/defendant) v SUNSHINE COAST REGIONAL COUNCIL (Respondent/plaintiff)
FILE NO/S:	M84296/24
DIVISION:	Civil
PROCEEDING:	Claim filed 22 November 2024
APPLICATION:	Interlocutory Application filed 12 August 2025
ORIGINATING COURT:	Maroochydore
DELIVERED ON:	6 November 2025
DELIVERED AT:	Maroochydore
HEARING DATE:	1 October 2025
MAGISTRATE:	Acting Magistrate Janelle (Payne) Boegheim
ORDER:	1. THE INTERLOCUTORY APPLICATION FILED 12 AUGUST 2025 IS DISMISSED. 2. THE APPLICANT/DEFENDANT (MS KAREN LEE BERG) IS TO PAY THE COSTS OF THE RESPONDENT/PLAINTIFF (SUNSHINE COAST REGIONAL COUNCIL) OF AND INCIDENTAL TO THE APPLICATION, ASSESSED AND FIXED IN THE SUM OF $940.55 PURSUANT TO THE SCALE IN UNIFORM CIVIL PROCEDURE RULES, SCHEDULE 2, PART D (UNDER $2,500) AS FOLLOWS: (A) APPLICATIONS TO COURT (ITEM 12) - $220.05; (B) HEARING WITH COUNSEL (ITEM 11(A)) - $320.20; (C) ATTENDANCE OF SOLICITOR WITH COUNSEL (ITEM 10(A)) - $400.30. 3. THE COURT CERTIFIES THAT THE ATTENDANCE OF BOTH COUNSEL AND SOLICITOR WAS NECESSARY.
CATCHWORDS:	PRACTICE AND PROCEDURE - NOTICE TO ADMIT – Where no Defence filed – where no trial date set - whether a fact ‘is proved in the proceeding’ for the purposes of rule 189 Uniform Civil Procedure Rules 1999 (Qld) before there has been any trial of the proceeding simply because the applicant has filed an affidavit asserting the facts - has the applicant (who is not a lawyer) incurred costs of proof which it is entitled to recover under r 189(4) – whether it is otherwise appropriate to order the plaintiff to pay the costs of proof
LEGISLATION:	Uniform Civil Procedure Rules 1999 (Qld), rr 189 Cachia v Hanes (1994) 179 CLR 403 Bell Lawyers Pty Ltd v Pentelow (2019) 268 CLR 447 Cormie v Orchard [2001] QSC 021 Green v Pearson [2014] QCA 110 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455; [2000] QCA 292
COUNSEL:	Dr C Moschoudis of Counsel for the plaintiff/respondent
SOLICITORS:	Recoveries & Reconstruction Legal for the plaintiff/respondent.