Burger v Hickling - [2021] QDC 41

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 58

Uniform Civil Procedure Rules 1999, rr 5, 150, 151, 166, 171, 188, 190, 378, 465, 466, 469

CASES:

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 Burger v Hickling

Details

AGLC: Burger v Hickling [2021] QDC 41
Case: [2021] QDC 41
Decision Date: 1 April 2021

CaseChat Overview and Summary

In the matter of Burger v Hickling, the plaintiff brought defamation proceedings against the defendant. The case reached the court on various interlocutory applications, including the withdrawal of deemed admissions, striking out of certain pleadings, and setting a trial date. The plaintiff sought to withdraw certain deemed admissions made in the reply, while the defendant argued that the reply did not respond to relevant paragraphs of the defence. Additionally, the plaintiff's amended reply did not comply with the relevant rules of the Uniform Civil Procedure Rules (UCPR). The court was required to determine whether the plaintiff should be granted leave to withdraw the deemed admissions and whether the defendant’s signature on the request for trial date should be dispensed with to set the matter down for trial.

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

Before the court, the parties’ representatives agreed that the two real issues for decision were:1.Whether the plaintiff should be given leave to withdraw any deemed admissions; and 2.Whether the defendant’s signature on the request for trial date should be dispensed with and the matter set down for trial. In this context, the plaintiff’s obligation to make disclosure, and, ultimately, the adequacy of the plaintiff’s disclosure, were agitated. Issue 1 – Withdrawal of the deemed admissions/ judgment pursuant to rule 190 of the UCPR The amended defence was filed on 11 August 2020. It contained the following paragraphs:“Defence of Triviality[10]Further and alternatively, if it is found that the first matter complained of by the plaintiff was, by any alleged imputation (in paragraph five of the statement of claim), defamatory of the plaintiff, the circumstances of the first matter complained of were such that the plaintiff was unlikely to sustain any harm.[11]The circumstances referred to in the preceding paragraph, which made it unlikely that the plaintiff would sustain any harm, were that:(a)The first matter complained of, was limited to dialogue between only Treya Burger and the defendant; (b)The nature of the relationship of the recipient of the publication, Treya Burger, with the plaintiff, being that:(i) they were married for approximately 20 years;(ii) they have lived together as a couple for the duration of that time; (iii) they have raised three children together; and(iv) the recipient, Treya Burger, knew, or because of the preceding sub paragraphs it can be inferred that she knew, or that she ought to have known, that the imputations alleged by the plaintiff in paragraph five of his statement of claim were untrue; (c)The nature of the first matter complained of, in the context of the circumstances of the publication, was a response by the defendant to vile abuse and death threats made by the recipient, Treya Burger, to the defendant as identified in Schedule A to this defence, and in comparison to the words uttered by the recipient, Treya Burger, the alleged defamatory publication by the defendant was either:(i) so trivial, it could not have reasonably caused the recipient to think less of the plaintiff; or(ii) in the further alternative, obviously an insult aimed at Treya Burger to the effect that she was married to an unsociable and unpopular person.[12]In the premises of paragraphs 10 and 11 above, the claim made with respect to the first matter complained of in the statement of claim is unable to be maintained under s 33 of the Defamation Act 2005 (Qld).” The reply filed 15 September 2020 provided relevantly as follows:“1.Save as expressly pleaded in this reply, the plaintiff:(a)joins issue with the matters pleaded in the Defence and rely [sic] upon the matters pleaded in their statement of claim; and (b)does not plead in response to the defendant’s explanations for denials because there is no requirement to do so.” The reply did not address paragraphs 10 and 11 of the amended defence.

Ratio Decidendi

Legal Principle Established

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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 58 Uniform Civil Procedure Rules 1999, rr 5, 150, 151, 166, 171, 188, 190, 378, 465, 466, 469
CASES: