McPherson v Logan City Council - [2021] QLC 33

LAND COURT OF QUEENSLAND

CITATION: McPherson v Logan City Council [2021] QLC 33

PARTIES:
Susan Marie McPherson

(applicant)

v

Logan City Council
(respondent)

FILE NO: AQL050-21

DIVISION: General division

PROCEEDING: Application to strike out

DELIVERED ON: 29 September 2021

DELIVERED AT: Brisbane

HEARD ON: 21 September 2021

HEARD AT: Brisbane

PRESIDENT: FY Kingham

ORDERS:
1.     The paragraphs of the Applicant’s Amended Statement of Facts, Matters and Contentions identified as categories 1 & 3 in these reasons are struck out.

2.     By 4 pm on 13 October 2021, the Applicant may file a Further Amended Statement of Facts, Matters and Contentions.

3.     The case is listed for review and submissions on costs at 10 am on 15 October 2021.

CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – where the respondent brought an application to strike out paragraphs of a statement of facts, matters and contentions – whether the paragraphs raised matters that were irrelevant and unnecessary – whether this would cause delay and expense – where a substantial number of the paragraphs were struck out

Acquisition of Land Act 1967 s 20, s 26
Land Court Act 2000 s 7
Land Court Rules 2000 r 4, r 8
Uniform Civil Procedure Rules 1999 r 5, r 171

Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82; [2006] WASC 281, applied
Brewarrana Pty Ltd v Commissioner of Highways (No 1) (1973) 6 SASR 541; (1973) 32 LGRA 170, cited
Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads [2011] QLC 18, applied
Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111, applied
Macarthur Central Shopping Centre Pty Ltd as TTE v Valuer-General [2016] QLC 10, applied
Ostroco v Department of Transport and Main Roads [2013] QLAC 4, applied
Shaw & Ors v Idemitsu Australia Resources Pty Ltd & Ors [2020] QLC 40, applied
Toan Van Pham & Ors v Brisbane City Council [2011] QLC 38, applied
Townsville City Council v Chief Executive, Department of Main Roads [2006] 1 Qd R 77; [2005] QCA 226, applied
Van der Est & Anor v Queensland Rail Limited (No 2) [2018] QLC 4, applied

APPEARANCES:
K McAuliffe-Lake (instructed by LaBlack Lawyers) for the applicant
JS Brien (instructed by Clayton Utz) for the respondent

Mrs McPherson has a claim for compensation for the compulsory acquisition of her property by the Logan City Council. The matter is listed for hearing in November. The parties have nominated their expert witnesses (town planners and valuers), although the Court has not yet made orders for the preparation of their evidence. In the context of discussions about the scope of disclosure, the Council has raised concerns about Mrs McPherson’s Amended Statement of Facts, Matters and Contentions (ASFMC). This resulted in Council applying to strike out numerous paragraphs of that statement.

The Land Court has jurisdiction to assess compensation for resumption of land,…

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.

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Details

Case: [2021] QLC 33
Decision Date: 29 September 2021

CaseChat Overview and Summary

The matter of McPherson v Logan City Council came before the court, where the Applicant, McPherson, sought to amend their original Statement of Claim. In response, the Respondent, Logan City Council, applied to strike out certain paragraphs of the Applicant's Amended Statement of Facts, Matters and Contentions. The primary issue before the court was whether the paragraphs in question raised matters that were irrelevant and unnecessary, and whether striking them would prevent delay and expense. The court was also required to determine the appropriate remedy in the event it found the paragraphs to be unnecessary.

The court found that a substantial number of the paragraphs were indeed irrelevant and unnecessary, and their inclusion would have caused delay and expense in the proceedings. Consequently, the court ordered that the identified paragraphs be struck out. Furthermore, the court granted the Applicant until 4 pm on 13 October 2021 to file a Further Amended Statement of Facts, Matters and Contentions, omitting the unnecessary paragraphs. The case was then listed for review and submissions on costs at 10 am on 15 October 2021.

In McPherson v Logan City Council, the court addressed the issue of striking out paragraphs in a pleading. It held that irrelevant and unnecessary matters should be removed to prevent delay and expense. The court found that the paragraphs in question were indeed irrelevant and unnecessary, and thus ordered their removal. The Applicant was granted a limited time to file a Further Amended Statement of Facts, Matters and Contentions, and the case was listed for review and submissions on costs.

Orders

Orders of the court

1. The paragraphs of the Applicant’s Amended Statement of Facts, Matters and Contentions identified as categories 1 & 3 in these reasons are struck out.

2. By 4 pm on 13 October 2021, the Applicant may file a Further Amended Statement of Facts, Matters and Contentions.

3. The case is listed for review and submissions on costs at 10 am on 15 October 2021.

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:	McPherson v Logan City Council [2021] QLC 33
PARTIES:	Susan Marie McPherson (applicant)
v
Logan City Council (respondent)
FILE NO:	AQL050-21
DIVISION:	General division
PROCEEDING:	Application to strike out
DELIVERED ON:	29 September 2021
DELIVERED AT:	Brisbane
HEARD ON:	21 September 2021
HEARD AT:	Brisbane
PRESIDENT:	FY Kingham
ORDERS:	1. The paragraphs of the Applicant’s Amended Statement of Facts, Matters and Contentions identified as categories 1 & 3 in these reasons are struck out. 2. By 4 pm on 13 October 2021, the Applicant may file a Further Amended Statement of Facts, Matters and Contentions. 3. The case is listed for review and submissions on costs at 10 am on 15 October 2021.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – where the respondent brought an application to strike out paragraphs of a statement of facts, matters and contentions – whether the paragraphs raised matters that were irrelevant and unnecessary – whether this would cause delay and expense – where a substantial number of the paragraphs were struck out Acquisition of Land Act 1967 s 20, s 26 Land Court Act 2000 s 7 Land Court Rules 2000 r 4, r 8 Uniform Civil Procedure Rules 1999 r 5, r 171 Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82; [2006] WASC 281, applied Brewarrana Pty Ltd v Commissioner of Highways (No 1) (1973) 6 SASR 541; (1973) 32 LGRA 170, cited Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads [2011] QLC 18, applied Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111, applied Macarthur Central Shopping Centre Pty Ltd as TTE v Valuer-General [2016] QLC 10, applied Ostroco v Department of Transport and Main Roads [2013] QLAC 4, applied Shaw & Ors v Idemitsu Australia Resources Pty Ltd & Ors [2020] QLC 40, applied Toan Van Pham & Ors v Brisbane City Council [2011] QLC 38, applied Townsville City Council v Chief Executive, Department of Main Roads [2006] 1 Qd R 77; [2005] QCA 226, applied Van der Est & Anor v Queensland Rail Limited (No 2) [2018] QLC 4, applied
APPEARANCES:	K McAuliffe-Lake (instructed by LaBlack Lawyers) for the applicant JS Brien (instructed by Clayton Utz) for the respondent