Court of Appeal

Green & Ors v Pearson [2014] QCA 110 ; [2014] 20 QLR (13/10710) Fraser and Morrison JJA and Jackson J 16 May 2014

Full-text: QCA14-110.pdf

Catchwords

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – DEFENCE AND COUNTERCLAIM – ADMISSIONS – where the primary judge gave the respondent leave to withdraw admissions in his defence – where the proposed defence is potentially defective – whether the primary judge’s decision was erroneous

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – DEFENCE AND COUNTERCLAIM – ADMISSIONS – where the appellants submitted there was no evidence to support the respondent’s denial of the admissions made – where the primary judge relied on an affidavit of the respondent verifying the proposed defence – where the respondent was the principal witness who might be expected to know the relevant facts – whether the primary judge made an error of principle or failed to take a material consideration into account in relying on the respondent’s affidavit

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – DEFENCE AND COUNTERCLAIM –ADMISSIONS – where the primary judge gave the respondent leave to withdraw admissions in his defence – where the admissions were deemed pursuant to r 166(5) of the Uniform Civil Procedure Rules 1999 (Qld) – where the respondent had sought summary judgment of the claim in lieu of providing a detailed defence – where the appellant argued that the respondent’s admissions were made formally and deliberately – whether there was an error by the primary judge in giving less weight to the way in which the admissions were made

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – COSTS – where the primary judge held that costs should be “in the cause” – where the primary judge took into account the respondent’s conduct in bringing a summary judgment application without preparing a proper defence and that the appellants had failed to raise certain criticisms with the respondent prior to the hearing of the application – whether those matters were irrelevant or extraneous to the exercise of the primary judge’s discretion

Summary Notes

General Civil Appeal – where the primary judge gave the respondent leave to withdraw admissions in his defence – where the claims against the respondent are for breach of his employment contracts or fiduciary obligations as an employee – where r 188 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) provides that a party may withdraw an admission made in a pleading only with the court’s leave – where this appeal is accordingly an appeal against the exercise of a discretion on a matter of practice and procedure under the UCPR – where the statutory right of appeal to the Court of Appeal from an interlocutory order of a judge of the Supreme Court engages principles applied in similar contexts in appellate courts in this country, including this Court – where the philosophy of the UCPR is important in considering an appeal from the exercise of a power conferred by those rules – where the decision of the primary judge, made under r 188, to give leave to the respondent to amend the defence, must be viewed against the background of r 5 and r 367, when this Court asks the question whether it should interfere with his Honour’s exercise of discretion – where there are more than one hundred alleged transactions comprising payments of varying amounts to many different payees, extending over the period beginning in September 2001 and ending in April 2006, that are collectively the subject of these claims – where from that summary, it can readily be seen that the proceeding involves a serious degree of factual and legal complexity – where given the lapse of time between the events in question and the date on which the proceeding was started, the respondent cannot be expected to have a detailed recollection of many of the facts – where it must be observed that even if the appellants were not aware of a potential claim against the respondent until 7 May 2007, they started the proceeding only one day short of six years after that – where before the primary judge, the appellants opposed the order sought on the basis that the proposed amended defence did not respond or respond adequately to all of the allegations in the statement of claim – where his Honour considered with some care the appellants’ submissions as to the continuing inadequacies of the proposed pleading – where the complaints do not amount to a basis for interference with the exercise of discretion – where the appellants submitted there was no evidence to support the respondent’s denial of the admissions made – where the primary judge relied on an affidavit of the respondent verifying the proposed defence – where the respondent was the principal witness who might be expected to know the relevant facts – where in exercising the discretion to give leave to withdraw an admission, there is no a priori rule as to what evidence is required in every case – where it was therefore open to the primary judge to act upon an affidavit generally verifying the contents of the draft defence dealing with facts within his knowledge – where the primary judge held that costs should be “in the cause” – where the primary judge took into account the respondent’s conduct in bringing a summary judgment application without preparing a proper defence and that the appellants had failed to raise certain criticisms with the respondent prior to the hearing of the application – where the processes of the UCPR are not an end in themselves – where although there is force in the appellants’ criticism that the respondent’s manner of proceeding was not authorised by the rules the characterisation of that conduct as reasonable did not amount to the primary judge’s discretion being affected by an irrelevant or extraneous matter. Appeal dismissed with costs.