DISTRICT COURT OF QUEENSLAND
CITATION:
Burger v Hickling [2021] QDC 41
PARTIES:
ANDREW BURGER
(Plaintiff)
v
MELISSA HICKLING
(Defendant)
FILE NO/S:
D130/20
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
1 April 2021
DELIVERED AT:
Southport
HEARING DATE:
5 February 2021
JUDGES:
Dann DCJ
ORDERS:
The Court orders that:
1. Leave is granted to withdraw the deemed admissions of the plaintiff arising from the reply to paragraphs 10, 11(a), 11(b)(iv) and 11(c) of the defendant’s amended defence.
2. Paragraphs 6(b)(ii) and 6(c) of the amended reply are struck out.
3. Leave is granted to the plaintiff to re-plead paragraphs 6(b)(ii) and 6(c) of the amended reply in conformity with the UCPR within 28 days of the date of these reasons.
4. Paragraphs 1, 2 and 3 of the plaintiff’s amended application are dismissed.
5. The plaintiff pay the defendant’s costs of and incidental to each of the plaintiff’s amended application and the defendant’s application on the standard basis, to be taxed in lieu of agreement.
6. The parties confer and provide the court with a form of order which reflects these orders together with directions, if any, for the future conduct of this matter that they agree are appropriate to progress it towards trial.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ADMISSIONS – WITHDRAWAL – Where interlocutory applications are brought by each party within defamation proceedings – Where the plaintiff claims that there are no deemed admissions – Where the defendant submits that there are deemed admissions because the reply did not respond to relevant paragraphs of the defence – Whether the plaintiff should be given leave to withdraw any deemed admissions
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – Where particular pleadings do not comply with r 166(3) of the UCPR and therefore fall within the vice of sub-rule 171(1)(b) of the UCPR
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TRIAL – TIME AND PLACE –Whether the defendant’s signature on the request for trial date should be dispensed with and the matter set down for trial – Where parties have obligations not to sign a request for trial date until they are truly ready
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – GENERALLY – Where the plaintiff explicitly referred to damage of the plaintiff’s professional reputation in the statement of claim – Where the defendant denies damage to the plaintiff’s professional reputation – Whether the defendant received inadequate disclosure regarding the damage and was unable to sign a request for trial date – Whether the plaintiff has an obligation to make disclosure that adequately addresses allegations in the amended statement of claim
LEGISLATION:
Defamation Act 2005, ss 22, 33
Civil Proceedings Act 2011, s 58Uniform Civil Procedure Rules 1999, rr 5, 150, 151, 166, 171, 188, 190, 378, 465, 466, 469
CASES:
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- AGLC
- Burger v Hickling [2021] QDC 41
- Case
- [2021] QDC 41
- Decision Date
CaseChat Overview and Summary
The court considered the plaintiff’s obligation to make disclosure and the adequacy of the plaintiff's disclosure in the context of the deemed admissions. It noted that the plaintiff's reply did not address certain paragraphs of the defendant's amended defence, leading to the argument that these constituted deemed admissions. The court also examined the compliance of the plaintiff’s amended reply with the UCPR, particularly whether it fell within the vice of sub-rule 171(1)(b). Furthermore, the court assessed whether the parties' obligations to not sign a request for trial date until truly ready should be dispensed with to set a trial date.
The court granted leave to the plaintiff to withdraw the deemed admissions arising from the reply to specific paragraphs of the defendant’s amended defence. It struck out certain paragraphs of the plaintiff’s amended reply for non-compliance with the UCPR and allowed the plaintiff to re-plead these paragraphs within 28 days. The court dismissed other parts of the plaintiff's amended application and ordered the plaintiff to pay the defendant’s costs on the standard basis. Finally, the court directed the parties to confer and provide a form of order for future conduct of the matter, reflecting the court’s orders and any agreed directions towards trial.
Orders
Orders of the court
The Court orders that:
1. Leave is granted to withdraw the deemed admissions of the plaintiff arising from the reply to paragraphs 10, 11(a), 11(b)(iv) and 11(c) of the defendant’s amended defence.
2. Paragraphs 6(b)(ii) and 6(c) of the amended reply are struck out.
3. Leave is granted to the plaintiff to re-plead paragraphs 6(b)(ii) and 6(c) of the amended reply in conformity with the UCPR within 28 days of the date of these reasons.
4. Paragraphs 1, 2 and 3 of the plaintiff’s amended application are dismissed.
5. The plaintiff pay the defendant’s costs of and incidental to each of the plaintiff’s amended application and the defendant’s application on the standard basis, to be taxed in lieu of agreement.
6. The parties confer and provide the court with a form of order which reflects these orders together with directions, if any, for the future conduct of this matter that they agree are appropriate to progress it towards trial.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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