Chardon v Bradley

Case [2017] QCA 314

SUPREME COURT OF QUEENSLAND

CITATION:

Chardon v Bradley [2017] QCA 314

PARTIES:

JOHN WILLIAM CHARDON
(applicant)
v
JILLIAN KATHLEEN BRADLEY
(respondent)

FILE NO/S:

Appeal No 7385 of 2017
DC No 713 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – Unreported, 20 June 2017 (Clare SC DCJ)

DELIVERED ON:

19 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2017

JUDGES:

Fraser and Morrison and McMurdo JJA

ORDERS:

1.   That the applicant be granted leave to appeal.

2.   The orders made on 20 June 2017 be set aside.

3.   The appellant be directed to file and serve an amended Defence that complies with the pleading requirements under the Uniform Civil Procedure Rules 1999 (Qld) within 28 days, subject to orders 4 and 5 below.

4.   In respect of paragraphs 3 and 5 of the Statement of Claim, the appellant be relieved from the pleading requirements under the Uniform Civil Procedure Rules 1999 (Qld) to the extent that the appellant:

(a)   state with respect to each allegation of fact whether the allegation is admitted, not admitted or denied;

(b)   gives notice of the appellant’s intention to rely upon any relevant statutory defence or ground of dispensation; and

(c)    is otherwise relieved from complying with rr 149(1)(b), 149(1)(c), 150, 157, 165 and 166 of the Uniform Civil Procedure Rules 1999 (Qld).

5. That paragraph 3A of the proposed Amended Defence include a direct explanation for the belief that the allegation in paragraphs 5.1 to 5.6 of the Statement of Claim are, by including the words “on the basis that the incidents alleged in paragraphs 5.1 to 5.6 did not occur”.

6.   The respondent pay the appellant’s costs of and incidental to the application and appeal.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – DEFENCE AND COUNTERCLAIM – where the appellant was convicted of six sexual offences against the respondent – where two other counts of indecent treatment of a child were the subject of a nolle prosequi – where the offending was historical – where the respondent subsequently commenced civil proceedings claiming damages for intentional and unlawful assault and trespass to her person – where the defendant admitted his convictions but denied that the acts were intentional or unlawful and denied parts of the statement of claim and intended to raise a positive defence case – where the appellant claimed the privilege against self-incrimination and sought to be relieved from the Uniform Civil Procedure Rules (UCPR) – where the appellant’s counsel submitted that in order to raise a positive case, the pleading may raise material facts about the appellant’s involvement with an underage girl – where the appellant’s case was that to do so would raise the real prospect of incrimination – where the learned primary judge dismissed the appellant’s application – whether a positive case could be pleaded in compliance with the UCPR without a risk of…

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Chardon v Bradley [2017] QCA 314
Case
[2017] QCA 314
Decision Date

CaseChat Overview and Summary

In the matter of Chardon v Bradley, the appellant, Chardon, was convicted of six sexual offences against the respondent, Bradley. The respondent subsequently initiated civil proceedings against Chardon, seeking damages for intentional and unlawful assault and trespass to her person. Chardon admitted his convictions but denied that the acts were intentional or unlawful and denied parts of the statement of claim, intending to raise a positive defence case. The appellant claimed the privilege against self-incrimination and sought to be relieved from the Uniform Civil Procedure Rules (UCPR). Chardon’s counsel submitted that in order to raise a positive case, the pleading may raise material facts about the appellant’s involvement with an underage girl, and that to do so would raise the real prospect of incrimination. The learned primary judge dismissed the appellant’s application.

The court was required to determine whether a positive case could be pleaded in compliance with the UCPR without a risk of self-incrimination. The court found that the primary judge erred in his consideration of the appellant’s application to be relieved from certain pleading requirements. The court held that the appellant was entitled to be relieved from the pleading requirements under the UCPR to the extent that the appellant states with respect to each allegation of fact whether the allegation is admitted, not admitted or denied, gives notice of the appellant’s intention to rely upon any relevant statutory defence or ground of dispensation, and is otherwise relieved from complying with rr 149(1)(b), 149(1)(c), 150, 157, 165 and 166 of the UCPR. The court also held that the appellant’s proposed Amended Defence should include a direct explanation for the belief that the allegation in paragraphs 5.1 to 5.6 of the Statement of Claim are, by including the words “on the basis that the incidents alleged in paragraphs 5.1 to 5.6 did not occur”.

The court allowed the appeal, set aside the orders made on 20 June 2017, and directed the appellant to file and serve an amended Defence that complies with the pleading requirements under the UCPR within 28 days. The court also granted the appellant leave to appeal, and ordered that the respondent pay the appellant’s costs of and incidental to the application and appeal.

Orders

Orders of the court

1. That the applicant be granted leave to appeal.

2. The orders made on 20 June 2017 be set aside.

3. The appellant be directed to file and serve an amended Defence that complies with the pleading requirements under the Uniform Civil Procedure Rules 1999 (Qld) within 28 days, subject to orders 4 and 5 below.

4. In respect of paragraphs 3 and 5 of the Statement of Claim, the appellant be relieved from the pleading requirements under the Uniform Civil Procedure Rules 1999 (Qld) to the extent that the appellant:

(a) state with respect to each allegation of fact whether the allegation is admitted, not admitted or denied;

(b) gives notice of the appellant’s intention to rely upon any relevant statutory defence or ground of dispensation; and

(c) is otherwise relieved from complying with rr 149(1)(b), 149(1)(c), 150, 157, 165 and 166 of the Uniform Civil Procedure Rules 1999 (Qld).

5. That paragraph 3A of the proposed Amended Defence include a direct explanation for the belief that the allegation in paragraphs 5.1 to 5.6 of the Statement of Claim are, by including the words “on the basis that the incidents alleged in paragraphs 5.1 to 5.6 did not occur”.

6. The respondent pay the appellant’s costs of and incidental to the application and appeal.

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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