Colston v McMullen - [2011] QSC 60

SUPREME COURT OF QUEENSLAND

CITATION:

Colston v McMullen [2011] QSC 60

PARTIES:

DOUGLAS BENJAMIN COLSTON
(plaintiff)

v

BRIAN McMULLEN
(defendant)

FILE NO/S:

12108 and 12109 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

31 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2011

JUDGE:

McMurdo J

ORDER:

In proceeding BS 12108/10, paragraphs 6 through 13, 15 through 18, 36 through 41, 52 through 57 and 104 through 109 of the statement of claim filed 8 November 2010 be struck out.

In proceeding BS 12109/10, paragraphs 8, 10 through 18, 22, 24, 27 and 28, 32 and 33, 42 and 43, 49 through 54, 58, 61, 63(ii), 63(iii), 64 through 82, 85, 86, 88 through 120, 122, 125 through 131, 134 through 150, 152 through 178, 180 through 186, 191 through 195, 206 through 210, 212 through 216 and 222 through 231 of the statement of claim filed 8 November 2010 be struck out.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADINGS – STATEMENT OF CLAIM – where there is an application to strike out parts of the statement of claim – whether parts of the statement of claim are irrelevant – whether parts of the statement of claim contain evidence by which material facts are to be proved

Uniform Civil Procedure Rules 1999 (Qld), r 149, r 171

COUNSEL:

The plaintiff appeared on his own behalf

RT Whiteford for the defendant

SOLICITORS:

The plaintiff appeared on his own behalf

McCowans Solicitors for the defendant

In each of these proceedings, there is an application to strike out parts of the statement of claim. For the most part, the defendant’s argument is that those parts are irrelevant and that whilst they remain they will affect the expeditious determination of the case.[1] They are also said to offend the requirement that a pleading be as brief as the nature of the case permits and contain a statement of the material facts upon which the plaintiff relies but not the evidence by which those facts are to be proved.[2]
[1]Uniform Civil Procedure Rules 1999 (Qld), r 171.
[2]Uniform Civil Procedure Rules 1999 (Qld), r 149.

Background

The plaintiff is the son of Malcolm Colston, who died in 2003, and Dawn Colston, who died in 2004. Malcolm Colston made a will appointing Dawn Colston as his executor and trustee and leaving all his property to her. She was quite ill by the time of his death and did not apply for probate. Malcolm Colston’s estate remains unadministered.

Dawn Colston made a will appointing her brother, the defendant, as executor. Probate was granted of this will on 15 November 2004.

Dawn Colston’s will gave $25,000 to each of four nominated grandchildren, provided they turned 25. She gave the rest of her estate to be held on a discretionary trust called the Dawn Colston Estate Trust (“the Trust”). The defendant is the trustee of the Trust.…

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 Colston v McMullen

Details

AGLC: Colston v McMullen [2011] QSC 60
Case: [2011] QSC 60
Decision Date: 31 March 2011

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Colston v McMullen was heard, focusing on the procedure under the Uniform Civil Procedure Rules and predecessors, specifically concerning an application to strike out parts of a statement of claim. The defendant, McMullen, sought to have certain parts of the plaintiff, Colston's, statement of claim removed on the grounds that they were either irrelevant or contained evidence that should not be included in the pleadings. The dispute centred on whether these parts of the statement of claim were extraneous to the issues in contention and whether they improperly included evidence.

The legal issues before the court were whether specific paragraphs of the statement of claim were irrelevant and whether they contained evidence that should have been excluded from the pleadings. The court was required to determine if the content of these paragraphs fell outside the scope of what is permissible in a statement of claim under the rules of civil procedure. Additionally, the court needed to assess if these paragraphs, by including evidential material, violated the standard practice of keeping pleadings distinct from evidence.

The court found that several paragraphs of the statement of claim were indeed irrelevant to the issues being contested and contained material that should not have been included in the pleadings. Consequently, the court ordered the striking out of specified paragraphs from the statement of claim in both proceedings BS 12108/10 and BS 12109/10. The decision underscored the importance of maintaining the clarity and focus of pleadings, ensuring they only contain material directly relevant to the facts and issues in dispute, without including evidentiary details that should be reserved for later stages of the proceedings.

Orders

Orders of the court

In proceeding BS 12108/10, paragraphs 6 through 13, 15 through 18, 36 through 41, 52 through 57 and 104 through 109 of the statement of claim filed 8 November 2010 be struck out.

In proceeding BS 12109/10, paragraphs 8, 10 through 18, 22, 24, 27 and 28, 32 and 33, 42 and 43, 49 through 54, 58, 61, 63(ii), 63(iii), 64 through 82, 85, 86, 88 through 120, 122, 125 through 131, 134 through 150, 152 through 178, 180 through 186, 191 through 195, 206 through 210, 212 through 216 and 222 through 231 of the statement of claim filed 8 November 2010 be struck out.

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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CITATION:	Colston v McMullen [2011] QSC 60
PARTIES:	DOUGLAS BENJAMIN COLSTON (plaintiff) v BRIAN McMULLEN (defendant)
FILE NO/S:	12108 and 12109 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	31 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	10 March 2011
JUDGE:	McMurdo J
ORDER:	In proceeding BS 12108/10, paragraphs 6 through 13, 15 through 18, 36 through 41, 52 through 57 and 104 through 109 of the statement of claim filed 8 November 2010 be struck out. In proceeding BS 12109/10, paragraphs 8, 10 through 18, 22, 24, 27 and 28, 32 and 33, 42 and 43, 49 through 54, 58, 61, 63(ii), 63(iii), 64 through 82, 85, 86, 88 through 120, 122, 125 through 131, 134 through 150, 152 through 178, 180 through 186, 191 through 195, 206 through 210, 212 through 216 and 222 through 231 of the statement of claim filed 8 November 2010 be struck out.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADINGS – STATEMENT OF CLAIM – where there is an application to strike out parts of the statement of claim – whether parts of the statement of claim are irrelevant – whether parts of the statement of claim contain evidence by which material facts are to be proved Uniform Civil Procedure Rules 1999 (Qld), r 149, r 171
COUNSEL:	The plaintiff appeared on his own behalf RT Whiteford for the defendant
SOLICITORS:	The plaintiff appeared on his own behalf McCowans Solicitors for the defendant