Welsh v Biggin Pty Ltd - [2023] QSC 34

SUPREME COURT OF QUEENSLAND

CITATION:

Welsh v Biggin Pty Ltd [2023] QSC 34

PARTIES:

PAUL STANLEY WELSH

(Plaintiff/Respondent)

v

BIGGIN PTY LTD ACN 154 574 526

(Defendant/Applicant)

FILE NO:

286 of 2021

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:
Supreme Court of Queensland at Cairns

DELIVERED ON:

2 March 2023

DELIVERED AT:

Cairns

HEARING DATE:

6 December 2022

JUDGE:

Henry J

ORDER:

1.   It is declared the defendant is not deemed to have admitted para 1(cd) of the amended statement of claim.

2. It is declared the defendant is deemed to have admitted para 7(c) of the amended statement of claim, per r 166(5) Uniform Civil Procedure Rules and leave to withdraw it is refused.

3. Leave is granted to the defendant, pursuant to r 188 Uniform Civil Procedure Rules, to withdraw its deemed admissions to paras 10A(d)(ii), 10B, 10C, 10D, 10E, 11B(a)-(e), 11C and 11D of the amended statement of claim, by filing a further further amended defence which properly pleads to those paragraphs within 14 days hereof.

4.   The plaintiff shall file any further further amended reply within 14 days of service of the further further amended defence.

5.   The parties will be heard as to costs, if costs are not agreed in the meantime, at 9.15am 22 March 2023 (out of town parties having leave to appear by videolink or telephone).

6.   Liberty to apply on the giving of two business days’ notice in writing.

CATCHWORDS:

PROCEDURE – PLEADINGS – ALTERNATIVE OR INCONSISTENT PLEADINGS – ANSWERING PLEADINGS – DENIALS AND NON-ADMISSIONS – where adequacy of the defendant’s pleadings is in question – whether defendant’s pleaded denials were accompanied by the requisite direct explanation per r 166(4) Uniform Civil Procedure Rules 1999 and should be taken to be admissions per r 166(6) – whether leave should be given per r 188 Uniform Civil Procedure Rules 1999 to withdraw deemed admissions

Uniform Civil Procedure Rules 1999, r 149 , r 166, r 188

Barter v Linklater [2008] 1 Qd R 405

Brambles Holdings Ltd v Carey (1976) 15 SASR 270

Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd [2009] Qd R 116, 123
Christian Youth Camp Ltd v Cobaw Community Health Services Ltd (2014) 308 ALR 615
Groves v Australian, Liquor Hospitality, and Miscellaneous Workers’ Union & Anor [2004] QSC 142
Harbour Radio Pty Ltd v Australian Communications and Media Authority (2015) 231 FCR 329
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563
Pinehurst Nominees Pty Ltd v Coer de Lion Investments Pty Ltd [2012] QSC 314

COUNSEL:
P F Mylne for Plaintiff/Respondent

C J Ryall for Defendant/Applicant

SOLICITORS:
O’Shea Dyer Solicitors for Plaintiff/Respondent

BT Lawyers for Defendant/Applicant

A dispute has arisen in connection with the adequacy of the defendant’s pleadings. The defendant says they are adequate. They are not. Some are so non-compliant with the rules of pleading they unintentionally constitute deemed admissions. These reasons explain why and what should be done about it.
Genesis of the Application
The plaintiff claims damages for personal injuries…

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.

Keep reading for free

Create a free CaseChat account to read Welsh v Biggin Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] QSC 34
Decision Date: 2 March 2023

CaseChat Overview and Summary

In the matter of Welsh v Biggin Pty Ltd, the plaintiff, represented by their legal counsel, brought an action against the defendant, who is a company, in the Federal Circuit and Family Court of Australia. The dispute centres on the adequacy of the defendant's pleadings, specifically whether their denials were accompanied by the requisite direct explanation as required under rule 166(4) of the Uniform Civil Procedure Rules 1999 (UCPR). This in turn led to the question of whether the defendant's denials should be taken as admissions under rule 166(6) UCPR and whether leave should be granted under rule 188 UCPR for the defendant to withdraw any deemed admissions.

The central legal issues before the court were whether the defendant's pleadings complied with the procedural requirements outlined in the UCPR and, if not, what consequences should follow. The plaintiff argued that the defendant's pleadings were deficient as they did not provide the necessary direct explanation for their denials, leading to the conclusion that these denials should be treated as admissions. Conversely, the defendant contended that their pleadings were adequate and, in any event, sought leave to amend their pleadings to address any perceived deficiencies.

The court found that the defendant's pleadings in relation to certain paragraphs of the amended statement of claim were indeed deficient, resulting in those matters being deemed admitted. However, regarding other paragraphs, the court found that the defendant's pleadings were sufficient and thus not deemed admitted. The court declined to grant leave for the defendant to withdraw the deemed admissions in relation to one specific paragraph but granted leave for the defendant to withdraw deemed admissions in relation to several other paragraphs, allowing them to file a further amended defence within 14 days. The court also set a timeline for the plaintiff to respond to this further amended defence and scheduled a hearing to address any outstanding costs issues.

The final orders of the court declared that the defendant was not deemed to have admitted certain paragraphs of the amended statement of claim, while deeming the defendant to have admitted another paragraph. The court refused leave for the defendant to withdraw the deemed admission of the latter paragraph but granted leave to withdraw deemed admissions in relation to several other paragraphs. The court also directed the plaintiff to file an amended reply within 14 days of service of the defendant's further amended defence and scheduled a hearing for the parties to address costs. The court allowed out-of-town parties to appear by videolink or telephone and granted liberty to apply on short notice.

Orders

Orders of the court

1. It is declared the defendant is not deemed to have admitted para 1(cd) of the amended statement of claim.

2. It is declared the defendant is deemed to have admitted para 7(c) of the amended statement of claim, per r 166(5) Uniform Civil Procedure Rules and leave to withdraw it is refused.

3. Leave is granted to the defendant, pursuant to r 188 Uniform Civil Procedure Rules, to withdraw its deemed admissions to paras 10A(d)(ii), 10B, 10C, 10D, 10E, 11B(a)-(e), 11C and 11D of the amended statement of claim, by filing a further further amended defence which properly pleads to those paragraphs within 14 days hereof.

4. The plaintiff shall file any further further amended reply within 14 days of service of the further further amended defence.

5. The parties will be heard as to costs, if costs are not agreed in the meantime, at 9.15am 22 March 2023 (out of town parties having leave to appear by videolink or telephone).

6. Liberty to apply on the giving of two business days’ notice in writing.

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:	Welsh v Biggin Pty Ltd [2023] QSC 34
PARTIES:	PAUL STANLEY WELSH (Plaintiff/Respondent) v BIGGIN PTY LTD ACN 154 574 526 (Defendant/Applicant)
FILE NO:	286 of 2021
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Cairns
DELIVERED ON:	2 March 2023
DELIVERED AT:	Cairns
HEARING DATE:	6 December 2022
JUDGE:	Henry J
ORDER:	1. It is declared the defendant is not deemed to have admitted para 1(cd) of the amended statement of claim. 2. It is declared the defendant is deemed to have admitted para 7(c) of the amended statement of claim, per r 166(5) *Uniform Civil Procedure Rules* and leave to withdraw it is refused. 3. Leave is granted to the defendant, pursuant to r 188 *Uniform Civil Procedure Rules, to withdraw its deemed admissions to paras 10A(d)(ii), 10B, 10C, 10D, 10E, 11B(a)-(e), 11C and 11D of the amended statement of claim, by filing a further further amended defence which properly pleads to those paragraphs within 14 days hereof. 4. The plaintiff shall file any further further amended reply within 14 days of service of the further further amended defence.* 5. The parties will be heard as to costs, if costs are not agreed in the meantime, at 9.15am 22 March 2023 (out of town parties having leave to appear by videolink or telephone). 6. Liberty to apply on the giving of two business days’ notice in writing.
CATCHWORDS:	PROCEDURE – PLEADINGS – ALTERNATIVE OR INCONSISTENT PLEADINGS – ANSWERING PLEADINGS – DENIALS AND NON-ADMISSIONS – where adequacy of the defendant’s pleadings is in question – whether defendant’s pleaded denials were accompanied by the requisite direct explanation per r 166(4) Uniform Civil Procedure Rules 1999 and should be taken to be admissions per r 166(6) – whether leave should be given per r 188 Uniform Civil Procedure Rules 1999 to withdraw deemed admissions Uniform Civil Procedure Rules 1999, r 149 , r 166, r 188 Barter v Linklater [2008] 1 Qd R 405 Brambles Holdings Ltd v Carey (1976) 15 SASR 270 Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd [2009] Qd R 116, 123 Christian Youth Camp Ltd v Cobaw Community Health Services Ltd (2014) 308 ALR 615 Groves v Australian, Liquor Hospitality, and Miscellaneous Workers’ Union & Anor [2004] QSC 142 Harbour Radio Pty Ltd v Australian Communications and Media Authority (2015) 231 FCR 329 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 Pinehurst Nominees Pty Ltd v Coer de Lion Investments Pty Ltd [2012] QSC 314
COUNSEL:	P F Mylne for Plaintiff/Respondent C J Ryall for Defendant/Applicant
SOLICITORS:	O’Shea Dyer Solicitors for Plaintiff/Respondent BT Lawyers for Defendant/Applicant