Collie v Edmunds - [2006] QSC 343

SUPREME COURT OF QUEENSLAND

CITATION:

Collie v Edmunds [2006] QSC 343

PARTIES:

IAN DAVID STAFFORD COLLIE
(plaintiff)
v
RODNEY EDMUNDS
(first defendant)
IAIN ROBERTSON CALDER YOUNG
(second defendant)
MALCOLM MCGREGOR MCKAY
(third defendant)
COLIN DENIS HUNT
(fourth defendant)

FILE NO:

BS4225 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

20 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2006

JUDGE:

Mackenzie J

ORDER:

1. The application is dismissed.

2. The applicant pay the respondents’ costs of and incidental to the application to be assessed.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – AMENDMENT – where plaintiff seeks declaration pursuant to r 371(2) of the Uniform Civil Procedure Rules 1999 (Qld) that the defendants’ amended defence is ineffectual – whether the amended defence substantially repleads the defence resulting in withdrawal of admissions – whether the court’s leave was required pursuant to r 188 of the Rules –– whether non-compliance with the Rules renders a document or step ineffective

Uniform Civil Procedure Rules 1999 (Qld) r 188, r 371(1)(2), r 372, r 378

Bates v Queensland Newspapers Pty Ltd [2001] QSC 83, applied
New Asian Shipping Co Ltd v Omar Farooq Sultan [2005] QSC 228, applied

COUNSEL:

L J Nevison for the applicant
T J Bradley for the respondent

SOLICITORS:

Damien Bourke & Associates Solicitors for the plaintiff
Minter Ellison Lawyers for the defendants

MACKENZIE J: This is an application in which the plaintiff seeks, primarily, a declaration pursuant to r 371(2) UCPR that the amended defence filed on 5 September 2006 is ineffectual due to the failure of the defendants to seek the court’s leave to withdraw admissions made in the defence filed on 14 July 2005. The defendants’ position is that the application cannot succeed because:

(a)A declaration cannot be made because the amended defence is not “ineffectual” within the meaning of r 371(1);
(b)The applicant has not complied with r 372 which is a prerequisite to relief under r 371(2); and
(c)There has been compliance with r 378 relating to amending pleadings before the filing of a request for trial date.

Rule 188 provides that a party may withdraw admissions made in a pleading only with the court’s leave. If there is an amendment of the defence, and leave of the court has not been obtained, r 378 does not assist the defendants, because it applies only where leave of the court is not required. The tenor of the respondents’ argument in relation to proposition (c) is really directed to establishing that what was done did not involve withdrawal of admissions. The essential argument was that no admissions had been withdrawn in the process of substantially repleading the defence, even though the result was that the defence had been significantly recast.

The applicant does not articulate with any precision or descent to detail why it is said admissions were withdrawn, except to the extent that particular paragraphs of the pleadings are identified as ones where admissions were allegedly…

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 Collie v Edmunds

Details

AGLC: Collie v Edmunds [2006] QSC 343
Case: [2006] QSC 343
Decision Date: 20 November 2006

CaseChat Overview and Summary

The case of Collie v Edmunds involved a legal dispute in the Supreme Court of Queensland, where the plaintiff sought a declaration under rule 371(2) of the Uniform Civil Procedure Rules 1999 (Qld) that the defendant’s amended defence was ineffectual. The plaintiff argued that the amendment substantially repleaded the defence, effectively withdrawing admissions made in the original defence, and that the court’s leave was required under rule 188 of the Rules. The central issue was whether non-compliance with the rules rendered a document or procedural step ineffective.

The court examined the nature of the amendment and its impact on the original defence. It considered whether the amended defence substantially repleaded the original defence and if the amendment effectively withdrew the admissions made in the initial defence. Additionally, the court assessed whether the requirement for leave under rule 188 applied and if the failure to obtain leave rendered the amendment ineffective. The court also deliberated on the broader implications of the non-compliance with the rules on the procedural integrity of the case.

In ruling on the matter, the court found that the amendment did not substantially replead the original defence nor withdraw the admissions. It held that the court’s leave was not necessary for the amendment to be valid. Consequently, the application for a declaration was dismissed. The court also ordered that the applicant pay the respondents' costs of and incidental to the application, to be assessed.

This decision underscores the importance of adhering to procedural rules and the consequences of non-compliance. It highlights the court's approach to amendments and the requirement for leave under the specific rules of the jurisdiction.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant pay the respondents’ costs of and incidental to the application to be assessed.

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:	Collie v Edmunds [2006] QSC 343
PARTIES:	IAN DAVID STAFFORD COLLIE (plaintiff) v RODNEY EDMUNDS (first defendant) IAIN ROBERTSON CALDER YOUNG (second defendant) MALCOLM MCGREGOR MCKAY (third defendant) COLIN DENIS HUNT (fourth defendant)
FILE NO:	BS4225 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	20 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	9 November 2006
JUDGE:	Mackenzie J
ORDER:	1. The application is dismissed. 2. The applicant pay the respondents’ costs of and incidental to the application to be assessed.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – AMENDMENT – where plaintiff seeks declaration pursuant to r 371(2) of the Uniform Civil Procedure Rules 1999 (Qld) that the defendants’ amended defence is ineffectual – whether the amended defence substantially repleads the defence resulting in withdrawal of admissions – whether the court’s leave was required pursuant to r 188 of the Rules –– whether non-compliance with the Rules renders a document or step ineffective Uniform Civil Procedure Rules 1999 (Qld) r 188, r 371(1)(2), r 372, r 378 Bates v Queensland Newspapers Pty Ltd [2001] QSC 83, applied New Asian Shipping Co Ltd v Omar Farooq Sultan [2005] QSC 228, applied
COUNSEL:	L J Nevison for the applicant T J Bradley for the respondent
SOLICITORS:	Damien Bourke & Associates Solicitors for the plaintiff Minter Ellison Lawyers for the defendants