Woolnough v Isaac Regional Council (No 2)
[2017] QSC 204
•13 September 2017
SUPREME COURT OF QUEENSLAND
CITATION:
Woolnough & Anor v Isaac Regional Council (No 2) [2017] QSC 204
PARTIES:
TIMOTHY EARL WOOLNOUGH
(First Plaintiff)And
CHRISTEEN WOOLNOUGH
(Second Plaintiff)
v
ISSAC REGIONAL COUNCIL
(Defendant)
FILE NO/S:
S 12/16
DIVISION:
Trial Division
PROCEEDING:
Directions Hearing
ORIGINATING COURT:
Supreme Court Mackay
DELIVERED ON:
13 September 2017
DELIVERED AT:
Mackay
HEARING DATE:
11 September 2017
JUDGE:
McMeekin J
ORDERS:
1. The further amended Statement of Claim filed 11 September 2017 is struck out;
2. The parties are directed:
a. That by 4 pm on 11 October 2017 the plaintiffs file and serve upon the defendant such amended list of proposed lay witnesses, as the plaintiffs might be advised, together with a summary of the evidence in chief of each such witness to be called at trial.
b. That by 4 pm on 25 October 2017 the defendant file and serve upon the plaintiff such amended list of the proposed lay witnesses, as the defendant might be advised, together with the summary of the evidence in chief of each such witness to be called at trial.
c. That by 4 pm on 13 November 2017 the plaintiffs file and serve upon the defendant a list of all documents they intend to tender at trial (save any document consisting of a statement or report of an expert).
d. That by 4 pm 27 November 2017 the defendant file and serve upon the plaintiffs a list of documents they intend to tender at trial (save any document consisting of a statement or report of an expert).
e. It is directed that save with the leave of the trial Judge, no lay evidence be given at trial by any lay witness unless such evidence is fairly raised by the summary provided in accordance with the above directions.
3. The costs of the hearing of 11 September 2017 are reserved.
4. The parties have liberty to apply on the giving of three days’ notice.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PRE-TRIAL PROCEDURE – where the matter was brought before the Supreme Court for a directions hearing – where a previous order had been made directing the parties to file a list of the names of the witnesses they intended to call at trial with a summary of their evidence in chief – where a previous order has been made directing the parties to file a list of documents they intended to tender at the trial by certain dates – where the defendant has complied with the order regarding witnesses – where the defendant is awaiting the plaintiffs’ list of documents before providing their list – where the plaintiffs have filed their list of witnesses – where the plaintiffs have not complied with the order requiring them to provide a summary of the evidence in chief – whether further directions were required.
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADINGS – where the on the morning of the hearing the plaintiffs purported to file a further amended statement of claim – where an earlier order had been made directing that the plaintiffs not be permitted to file or serve a further amended statement of claim without the leave of the court – whether the plaintiffs were entitled to file an amended statement of claim without leave.
COUNSEL:
The plaintiffs appeared in person
S Byrne for the defendant
SOLICITORS:
Barry Nilsson for the defendant
McMeekin J: This matter came before me on a directions hearing, pursuant to an order made by Henry J on 17 July last.
It is relevant to note that the plaintiffs appear unrepresented.
On 31 May 2017 Burns J made orders, inter alia, directing the parties to file a list of the names of the witnesses they intended to call at trial with a summary of their evidence in chief, and to file a list of documents they intended to tender at the trial, by certain dates. The defendant has complied with the order regarding witnesses, albeit a little late. The defendant says that it awaits the plaintiffs’ list of documents before providing their list.
The plaintiffs have filed their list of witnesses. There are 30 names on the list. They have to a large extent not complied with that part of the order which requires them to provide a summary of the evidence in chief. This seems to be motivated in part by a desire not to reveal their hand and perhaps in part by ignorance of what the order requires. I say “perhaps” as Henry J went to some trouble to explain matters to them, and made it clear that they could not hide their hand.
To an extent it seems unlikely that many of the persons nominated as witnesses by the plaintiffs could have anything admissible to say about the causes of action pleaded. For example, many of those named were lawyers retained to act for the defendant and the plaintiffs seem interested in the instructions they held from the defendant which, as both Henry J and I have explained, would very likely be the subject of legal professional privilege. But that is a matter for the plaintiffs. They are entitled to nominate whoever it is that they wish to call but they must provide a summary of their expected evidence in chief. I note that I have explained the concept of evidence in chief to them, they protesting that the concept was not clear to them.
As to the list of documents the plaintiffs maintained that they had provided such a list years ago, but that is plainly wrong. They confuse a list of documents that they might have in their possession with a list of documents that they might intend to tender. They are not necessarily the same thing.
I took some time to explain to the plaintiffs what the orders meant and what the consequences might be if they fail to comply with those orders. I note that Henry J covered much the same ground on 17 July last.
In the course of the hearing I gave the parties further time in which to comply with the orders made by Burns J. The new timetable is as follows:
1. That by 4 pm on 11 October 2017 the plaintiffs file and serve upon the defendant such amended list of proposed lay witnesses, as the plaintiffs might be advised, together with a summary of the evidence in chief of each such witness to be called at trial.
2. That by 4 pm on 25 October 2017 the defendant file and serve upon the plaintiff such amended list of the proposed lay witnesses, as the defendant might be advised, together with the summary of the evidence in chief of each such witness to be called at trial.
3. That by 4 pm on 13 November 2017 the plaintiffs file and serve upon the defendant a list of all documents they intend to tender at trial (save any document consisting of a statement or report of an expert).
4. That by 4 pm 27 November 2017 the defendant file and serve upon the plaintiffs a list of documents they intend to tender at trial (save any document consisting of a statement or report of an expert).
5. It is directed that save with the leave of the trial Judge, no lay evidence be given at trial by any lay witness unless such evidence is fairly raised by the summary provided in accordance with the above directions.
I note that the defendant indicated through its counsel that it may not wish to amend the list already provided. The plaintiffs indicated that they would wish to have such an opportunity.
Before turning to the reserved question I note that the plaintiffs indicated that they anticipated a jury trial. I record that I drew to their attention that they had not sought a jury trial in their Statement of Claim. I also drew to their attention r 472 of the Uniform Civil Procedure Rules.
Turning then to the question that I reserved. On the morning of the hearing the plaintiffs purported to file a further amended statement of claim. The question is whether they were entitled to do so without leave.
On 25 November 2016 North J ordered:
“1A. Pursuant to rules 171, 155, 157 and 158 Uniform Civil Procedure Rules (1999), the following parts of the Amended Statement of Claim be struck out
a. Sub-paragraphs 1, 2 and 6 of paragraph 17 (commencing with the words “1. Acquisition of Land Act (Qld) 1967” and up to and including the words “Plaintiff’s seek the penalty of $2,000,000.00 from 2007 to present day (9) years for continued trespass”);
b. Paragraphs 27 to 38 inclusive;
c. Paragraphs 42, 43 and subparagraphs “A”, “B” and “D” of paragraph 43 (where that paragraph appears for the second time under the heading “RELIEF”);
d. The three paragraphs which appear immediately under the heading “CONCLUSION”;
2. That the plaintiffs be refused leave to file or serve a further amended statement of claim without the leave of the court or a judge first being attained.”
No leave has been sought as those orders require. The amended pleading to a large extent seeks to re-plead matters struck out by North J.
I reserved the issue in order to check claims made by the plaintiffs that the order taken out did not in fact represent the order made by North J i.e. his Honour did not strike out any part of their claim; that in any case on 17 July 2017 Henry J had given the plaintiffs leave to file an amended pleading, effectively vacating the order of North J; and finally that that they had appealed the orders made by North J including the orders mentioned above.
I have confirmed with the Registrar that the order taken out (which read “orders in terms of paragraph one of the application of 17 November 2016”) does in fact accurately record the intent of the orders made by North J. The plaintiffs queried why an amended order was taken out 74 days after the hearing. I am advised by the Registrar that an amended order was required to be taken out by North J as the original order taken out, while accurately reflecting what his Honour intended, was not self-contained and explicable on its face, as orders of the Court must be.
I have read the transcript of the hearing before Henry J on 17 July 2017. No order was made by his Honour vacating the orders made by North J or giving the plaintiffs leave to file a further amended statement of claim. What the plaintiffs may have in mind is a remark by his Honour when he declined to make an order sought by the defendant that the plaintiffs not be permitted to file any further application without the leave of the Court. His Honour declined to make that order saying that the parties were so close to trial that there was no need for that order.
The appeal, as best I can work out, was in relation to the orders made by North J refusing to strike out the defence or give summary judgment to the plaintiffs. The decision of the Court of Appeal remains outstanding. Until received the orders of North J stand.
In short the plaintiffs require the leave of the court to file any further amended statement of claim. They have not sought that leave. The pleading that was accepted by the Registry on 11 September is, I suspect, a nullity but in any case to make matters clear I strike that pleading out. While not deciding the issue I note that if the pleading simply repeats matters already struck out pursuant to the orders of North J then there is little point to seeking leave to re-plead in those terms. The plaintiffs’ remedy is to appeal North J’s order.
The defendant obtained leave from Burns J to withdraw an admission. The effect was to alter the date upon which the defendant maintains the entry onto the land occurred. If accurate then the works were placed on the land prior to the plaintiffs coming into possession. So, and again if accurate, it is not then a question of whether the sewerage works were initially placed on the land with the plaintiffs’ consent, which has been a significant issue to date. It is a matter for the plaintiffs if they wish to re-plead to meet this changed case. They would obviously be entitled to.
Finally, things may change upon receipt of the decision of the Court of Appeal.
The orders of Burns J were made pursuant to an application filed 18 May 2017. Henry J effectively directed that the matter come back before me to enable a review of the parties’ compliance with those orders to try and keep the matter on track for trial. In case there are further difficulties I give the parties liberty to apply on the giving of three days’ notice.
I indicated during the hearing that costs of this hearing would be reserved.
The orders will be:
1. The further amended Statement of Claim filed 11 September 2017 is struck out;
2. The parties are directed:
a. That by 4 pm on 11 October 2017 the plaintiffs file and serve upon the defendant such amended list of proposed lay witnesses, as the plaintiffs might be advised, together with a summary of the evidence in chief of each such witness to be called at trial.
b. That by 4 pm on 25 October 2017 the defendant file and serve upon the plaintiff such amended list of the proposed lay witnesses, as the defendant might be advised, together with the summary of the evidence in chief of each such witness to be called at trial.
c. That by 4 pm on 13 November 2017 the plaintiffs file and serve upon the defendant a list of all documents they intend to tender at trial (save any document consisting of a statement or report of an expert).
d. That by 4 pm 27 November 2017 the defendant file and serve upon the plaintiffs a list of documents they intend to tender at trial (save any document consisting of a statement or report of an expert).
e. That save with the leave of the trial Judge, no lay evidence be given at trial by any lay witness unless such evidence is fairly raised by the summary provided in accordance with the above directions.
3. The costs of the hearing of 11 September 2017 are reserved.
4. The parties have liberty to apply on the giving of three days’ notice.
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