Toan Van Pham v Brisbane City Council
[2011] QLC 38
•23 June 2011
LAND COURT OF QUEENSLAND
CITATION: Toan Van Pham & Ors v Brisbane City Council [2011] QLC 38
PARTIES:Toan Van Pham, Hoang Van Pham, Huang Van Pham Tay Thi Pham as TTE of Pham Family Superannuation Fund and Tetra & Associates Pty Ltd
(Applicants)
v.
Brisbane City Council
(Respondent)
FILE NO:AQL455-10
DIVISION:General Division
PROCEEDING: • General Application filed on 13 May 2011 on behalf of the Applicants seeking directions for the efficient and timely conduct of the Applicants’ claim by Originating Application filed on 9 September 2010 seeking compensation for resumption of land. Costs are also sought.
•General Application filed on 30 May 2011 on behalf of the Respondent seeking that pursuant to Rule 171 of the Uniform Civil Procedure Rules paragraph 1 of the Applicants’ Statement of Facts, Issues and Contentions be struck out. Also sought are further and better particulars of certain matters, directions to progress the claim for compensation and costs.
DELIVERED ON: 23 June 2011
DELIVERED AT: Brisbane
HEARD ON: 2 June 2011
HEARD AT:Brisbane
MEMBER:His Honour WA Isdale
ORDER/S:1. Paragraph 1 of the applicants’ statement of facts, issues and contentions filed on 20 December 2010 be struck out.
2.The applicants pay on the standard basis the respondent’s costs of and incidental to this application.
CATCHWORDS: PLEADING - STRIKING OUT
Land Court Act 2000, ss 7(b), 9
Uniform Civil Procedure Rules 1999, R5, R149, R171
CH4 Pty Ltd v The Minister for Natural Resources, Mines and Energy and Minister for Trade [2010] QLC 0037
Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads [2011] QLC 0018
Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248, 257
APPEARANCES: Mr E Morzone of Counsel, instructed by Emanate Legal for the applicants
Mr DA Quayle of Counsel, instructed by the Brisbane City Legal Practice for the respondent
The background
The applicants filed an originating application on 9 September 2010 seeking compensation for the resumption of land. Pursuant to Court orders made to progress the matter the applicants filed a statement of facts, issues and contentions on 20 December 2010. It commences with the following:
“The Claimants are unable to fully formulate or particularise their Statement of Facts, Issues and Contentions until after receipt of agreed and disputed facts, issues and contentions identified by the joint experts meeting process and of its own experts’ opinions.
But, by way of a preliminary Statement, the Claimants identify the following facts, issues and contentions:
1. The Claimants continue to rely upon the facts, issues and contentions detailed in the Amended Claim for Compensation delivered to the Respondent on 25 May 2010, including Schedule 1 to Schedule 14 (inclusive).”
The respondent’s general application filed on 30 May 2011 seeks an order under Rule 171 of the Uniform Civil Procedure Rules 1999 that paragraph 1 be struck out.
The “Amended Claim for Compensation” took the form of a 32 page letter with 14 schedules containing 132 further pages. Much of the material is evidentiary or of the nature of legal argument.
The respondent (the Council) complains that as a statement of facts, issues and contentions it is oppressive and places it in the position of having to respond in correspondingly minute and in many ways irrelevant detail or risk being said to have made deemed admissions if it fails to do so. The Council points to Rule 149 of the UCPR which contains a requirement that pleadings must be as brief as the nature of the case permits.[1]
[1] UCPR R149(1)(a).
This Court recently considered an application to strike out an applicant’s statement of facts and contentions in Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads.[2] In his judgment His Honour, Mr WL Cochrane said:
“[21]It has been observed by this Court on a number of occasions that documents such as the Statements of Facts and Contentions do not constitute formal pleadings, indeed, there is no provision in the Land CourtAct 2000 or the Land Court Rules for the exchange of pleadings notwithstanding that s.4(1) of the Land Court Rules provide that where those Rules do not provide for a matter and the Uniform Civil Procedure Rules 1999 (UCPR) would provide for the matter, the UCPR apply with necessary changes.
[22]The decision in CH4 Pty Ltd v The Minister for Natural Resources, Mines and Energy and Minister for Trade1 held that those rules apply to Land Court proceedings where pleadings have been exchanged.
[23]Such an argument about whether the Statement of Facts and Contentions constitutes a pleading is in any event, an arid one because, in my view, a proper consideration of the Land Court Rules, Land Court Act and the Uniform Civil Procedure Rules leads to the view that this Court is entitled to direct that, whether there are formal pleadings or not, a party may be required to provide particulars of its claim, if only to ensure that the hearing of the matter proceeds with expedition and efficiency. Such a statement informs not only the appearing party but also the Court.
1 [2010] QLC 0037 at [21].”
[2] [2011] QLC 0018.
I respectfully agree with and adopt His Honour’s comments. In the present case, as in Cidneo this Court is concerned to ensure that its process enhances expedition and efficiency in dealing with the matter before it.
The UCPR “are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose” of the rules.[3] A party to proceedings impliedly undertakes to the court and to the other party to proceed in an expeditious way.[4] A court may impose sanctions if a party does not comply with the UCPR or an order of the court.[5]
[3] UCPR Rule 5(2).
[4] UCPR Rule 5(3).
[5] UCPR Rule 5(4).
The Land Court Act 2000 provides, in s.7(b) that in the exercise of its jurisdiction the Land Court:
“(b)must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.”
This Court ordered on 11 November 2010 by consent of the parties that, inter alia, the “applicants file and serve a statement of facts, issues and contentions upon which they propose to rely by 10 December 2010”. The document in question was in fact filed on 20 December 2010 without explanation for the delay.
The Land Court Act provides for sanctions for failure to comply with court orders. Section 9(1)(a), for example, provides that:
“9 Contempt and contravention of orders
(1) A person is in contempt of the Land Court if the person—
(a)without lawful excuse, fails to comply with an order of the court, (other than an order mentioned in paragraph (e)) or an undertaking given to the court; “
In the present case Order 1 made on 11 November 2010 was made after the letter dated 25 May 2010 and its annexure had been provided to the Council. Providing it all again, by the device of incorporating it by reference, does not serve to inform the Council of anything more particular than what was contained in the earlier letter. Indeed, the statement sets out that the claimants “are unable” to fully formulate or particularise their statement of facts, issues and contentions until the occurrence of specified future events, namely experts’ opinions and what may be identified by a joint experts meeting process. Paragraph 1, which is sought to be struck out, is prefaced by a notation that what follows is a “preliminary Statement”.
The relevant part of the orders made by consent on 11 November 2010 is as follows:
“Statement of Facts, Issues and Contentions
1. The applicants file and serve a statement of facts, issues and contentions upon which they propose to rely by 10 December 2010.”
This was the order to which the applicants consented. It refers to that on which they propose to rely and says nothing of being preliminary, partial or contingent upon anything else. Were it necessary to seek variation of that order due to some difficulty in making compliance with it then one needed to look no further than the liberty to apply contained in Order 9 made on that day.
I am satisfied that paragraph 1 of the applicants’ statement filed on 20 December 2010 is not in compliance with Order 1 made on 1 November 2010, that much is clear from its terms as compared to the Order requiring it. In addition, I am satisfied that incorporating by reference the material already provided “as an amended claim for compensation”[6] is not provision of the statement as required by Order 1 made on 11 November 2010.
[6] Letter dated 25 May 2010 from Emanate Legal to Brisbane City Council at page 4.
I am satisfied that paragraph 1 of what is expressed to be the “Claimants’ Statement of Facts, Issues and Contentions in accordance with Order 1 of Orders made on 11 November, 2010” does have a tendency to delay the fair trial of the proceeding within the meaning of Rule 171(1)(b) UCPR and also that it simply is not compliant with Order 1. On both bases the court orders that it be struck out. I am not satisfied that it is either oppressive or vexatious as it fails to impose a burden on the Council other than to bring the present application and there is no suggestion of any intention to provide annoyance.
UCPR rule 171(2) allows the court to order costs on an indemnity basis. As I am satisfied that the applicants have not complied with this Court’s order and so necessitated the Council’s bringing the matter to the Court I am satisfied that the applicants should pay the Council’s costs of and incidental to the application. In view of the absence of oppression or vexatiousness I am not satisfied that indemnity costs are appropriate and order costs on the standard basis.[7]
[7] Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248 at 257. I note that R171(2), making specific provision for costs on the indemnity basis, will however make it more likely that a court will make such an order.
Particulars and further progress of the matter
The parties agreed to await the Court’s decision on the strike-out application before proceeding further so it is not necessary at present to consider the other matters raised in each party’s general application.
Orders
1. Paragraph 1 of the applicants’ statement of facts, issues and contentions filed on 20 December 2010 be struck out.
2. The applicants pay on the standard basis the respondent’s costs of and incidental to this application.
WA ISDALE
MEMBER OF THE LAND COURT
1
0