Berg v Sunshine Coast Regional Council [2025] QMC 28

MAGISTRATES COURTS OF QUEENSLAND CITATION: Berg v Sunshine Coast Regional Council [2025] QMC 28 PARTIES: KAREN LEE BERG (Applicant/defendant) v SUNSHINE COAST REGIONAL COUNCIL (Respondent/plaintiff) FILE NO/S: M84296/24 DIVISION: Civil PROCEEDING: Claim filed 22 November 2024 APPLICATION: Interlocutory Application filed 12 August 2025 ORIGINATING COURT: Maroochydore DELIVERED ON: 6 November 2025 DELIVERED AT: Maroochydore HEARING DATE: 1 October 2025 MAGISTRATE: Acting Magistrate Janelle (Payne) Boegheim ORDER: 1. The interlocutory Application filed 12 August 2025 is dismissed. 2. The applicant/defendant (Ms Karen Lee Berg) is to pay the costs of the respondent/plaintiff (Sunshine Coast Regional Council) of and incidental to the application, assessed and fixed in the sum of $940.55 pursuant to the scale in Uniform Civil Procedure Rules, Schedule 2, Part D (under $2,500) as follows: (a) applications to court (Item 12) - $220.05; (b) hearing with counsel (Item 11(a)) - $320.20; (c) attendance of solicitor with counsel (Item 10(a)) - $400.30. 3. The court certifies that the attendance of both counsel and solicitor was necessary. -- 1 of 9 -- 2 CATCHWORDS: PRACTICE AND PROCEDURE - NOTICE TO ADMIT – Where no Defence filed – where no trial date set - whether a fact ‘is proved in the proceeding’ for the purposes of rule 189 Uniform Civil Procedure Rules 1999 (Qld) before there has been any trial of the proceeding simply because the applicant has filed an affidavit asserting the facts - has the applicant (who is not a lawyer) incurred costs of proof which it is entitled to recover under r 189(4) – whether it is otherwise appropriate to order the plaintiff to pay the costs of proof LEGISLATION: Uniform Civil Procedure Rules 1999 (Qld), rr 189 Cachia v Hanes (1994) 179 CLR 403 Bell Lawyers Pty Ltd v Pentelow (2019) 268 CLR 447 Cormie v Orchard [2001] QSC 021 Green v Pearson [2014] QCA 110 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455; [2000] QCA 292 COUNSEL: Dr C Moschoudis of Counsel for the plaintiff/respondent SOLICITORS: Recoveries & Reconstruction Legal for the plaintiff/respondent. Issue for determination – r 189 UCPR [1] The issue for determination is the proper construction of the phrase “proved in the proceeding” appearing in rule 189(4) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). Specifically, whether a fact may be regarded as “proved in the proceeding” upon the mere filing of an affidavit, or only when accepted by the tribunal of fact in accordance with the ordinary rules of evidence and procedure. [2] The following questions arise: (a) whether a fact ‘is proved in the proceeding’ for the purposes of rule 189 UCPR before there has been any trial of the proceeding simply because the applicant has filed an affidavit asserting the facts? (b) has the applicant (who is not a lawyer) incurred costs of proof which it is entitled to recover under r 189(4)? (c) if the answer to (1) and (2) are yes, is it appropriate to order the plaintiff to pay the costs of proof? [3] For the reasons below, the answer to each of these questions is ‘no’. For each of those reasons, the application fails and is dismissed. Nature and history of the claim [4] By Claim and Statement of Claim filed 22 November 2024 in the Nambour Magistrates Court, the plaintiff (for convenience referred to as “the Council”) seeks to recover rates in the sum of $1,802.21 -- 2 of 9 -- 3 [5] On 20 December 2024, the applicant/defendant filed a Conditional Notice of Intention to Defend, some 16 pages in length, with challenging the validity of the Council and the applicant/defendant’s status as a natural person. Parts of the Conditional Notice of Intention to Defend are extracted below: [6] On 20 January 2025, the applicant/defendant filed an Application under Rule 16 UCPR. The opening words of the application were “Karen Berg, authorised representative of KAREN BERG ESTATE, NOT THE TRUSTEE”. [7] The applicant/defendant is hereinafter referred to as Ms Berg, for convenience of reference. [8] On 14 February 2025, the proceedings were transferred to the Maroochydore Magistrates Court, with directions in relation to the application filed 20 January 2025. [9] On 11 March 2025, Ms Berg filed a Notice to Admit Facts. [10] On 26 March 2025, the Council filed a Notice Disputing Facts. [11] On 27 March 2025, the Court dismissed the Application filed 20 January 2025. On 19 September 2025, an appeal from that decision was dismissed, with costs. By bringing this application, the applicant/defendant is engaging with the Court to seek relief and, in doing so, acknowledges the Court’s jurisdiction and its processes. [12] Pursuant to s 144(5) UCPR, the Conditional Notice of Intention to Defend filed 20 December 2024 became an unconditional notice of intention to defend. Further, by Rule 144(6) UCPR, the applicant/defendant was required to file a defence within 7 days, that is by 3 April 2025. The Applicant did not do so. [13] By r 281(2) UCPR, the proceedings would therefore be taken to be undefended since 3 April 2025, entitling the plaintiff to apply for judgment in default as there are no issues in dispute on any pleading. Rule 149 UCPR requires a party to plead all material facts on which the party relies. -- 3 of 9 -- 4 [14] Had a Defence been filed, the matter would have progressed in accordance with the UCPR, including the filing of a Reply (the close of pleadings), disclosure and the filing of a Request for trial date. [15] At the trial, unless a contrary direction was made, pursuant to rule 390(a) UCPR, evidence would only be given orally, unless the court directs otherwise. Objections would likely be taken to evidence, witnesses would be cross-examined and ultimately the tribunal of fact would need to decide, on the balance of probabilities, assessing the evidence, whether the plaintiff was entitled to the relief claimed. [16] Despite having raised no issues in dispute on any pleading, on 12 August 2025, Ms Berg filed the subject application and a 166 page Affidavit.1 Hearing of the application [17] The application, filed on 12 August 2025, was heard on 1 October 2025. The applicant/defendant sought and was granted leave to be assisted at the bar table by her McKenzie friend, to which no objection was raised and was allowed, to provide support to the applicant/defendant. Ms Berg asked me to speak up as she was hard of hearing. [18] During the hearing, I had and raised concerns regarding the level of involvement of her McKenzie friend. It appeared that Ms Berg relied significantly on materials prepared by her McKenzie friend, who demonstrated familiarity with court processes and appeared to guide her responses and submissions, potentially with a vested or emotional interest in the outcome. Should this matter proceed to trial or further hearings, I encourage Ms Berg to consider engaging an alternative support person whose role is limited to note-taking and providing moral support. Any future leave for such assistance will be at the discretion of the relevant court. [19] Ms Berg relied on r 189, the definition of ‘proceeding’, the Acts Interpretation Act, the Evidence Act 1995 (Cth) and definitions in the Blacks Law Dictionary, amongst other submissions. [20] During the hearing, timeframs for the exchange of oral submissions was sent. Ms Berg complained that Counsel for the respondent/plaintiff spoke for longer than the allocated time. I enquired whether there was anything else that Ms Berg wished to add, in response to which she quoted Scripture. After to the hearing of the Application, Ms Berg has sent voluminous correspondence and further documents to the registry, which have been duly considered. 2 1 The Application is date stamped 12 August 2025 but processed electronically in QCase on 13 August 2025. 2 Amongst other things there were challenges to my impartiality, though I have had no previous involvement concerning any matter involving these parties, my appointment as an Acting Magistrate (acting under a valid Direction Notice); Ms Berg also contests the use of electronic communication generally. -- 4 of 9 -- 5 Relevant statutory framework [21] Rule 189 UCPR provides: “189 Notice to admit facts or documents “(1) A party to a proceeding (the "first party") may, by notice served on another party ask the other party to admit, for the proceeding only, the facts or documents specified in the notice. (2) If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document specified in the notice. (3) The other party may, with the court’s leave, withdraw an admission taken to have been made by the party under subrule (2). (4) If the other party serves a notice under subrule (2) disputing a fact or the authenticity of a document and afterwards the fact or the authenticity of the document is proved in the proceeding, the party must pay the costs of proof, unless the court otherwise orders.” (emphasis added) [22] Rule 189 UCPR governs notices to admit facts or documents. Under r 189(4), where a party disputes a fact or the authenticity of a document and it is afterwards proved in the proceeding, that party must pay the costs of proof unless the court orders otherwise. [23] Rule 390(a) UCPR provides that evidence at the trial of a proceeding commenced by claim may only be given orally, unless the court directs otherwise. Principles of statutory construction [24] The principles of statutory interpretation are well established. [25] The modern purposive approach, as stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, requires the text to be read in its context and in light of its legislative purpose, giving the words the meaning Parliament is taken to have intended. 3 As the High Court stated: “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.4 [26] Section 14A of the Acts Interpretation Act 1954 (Qld) requires an interpretation that will best achieves the purpose of the Act. [27] The process of statutory construction begins with the text of the provision, which must be interpreted in light of its context and purpose. 5 3 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]; see also CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. 4 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]; see also CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. 5 SAS Trustee Corp v Miles (2018) 265 CLR 137 at [20]; see also Talacko v Bennett (2017) 260 CLR 124 at [65]; Comcare v Martin (2016) 258 CLR 467 at [42]. -- 5 of 9 -- 6 [28] As the High Court has held: “[T]he task of statutory construction must begin with a consideration of the text itself.” So must the task of statutory construction end. The statutory text must be considered in its context … Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. [Contextual] materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.6 [29] The literal rule requires that clear and unambiguous words be given their ordinary meaning. [30] The golden rule allows modification of the literal meaning only where its application would lead to absurdity or inconsistency and only to the extent necessary to avoid the absurdity or inconsistency. [31] Section 14B of the Acts Interpretation Act only permits use of extrinsic materials: (a) if the provision is ambiguous or obscure – to provide an interpretation of it; (b) or if the ordinary meaning of the provisions leads to a result that is manifestly absurd or is unreasonable – to provide an interpretation that avoids such a result; (c) or in any other case – to confirm the interpretation conveyed by the ordinary meaning of the provision. [32] Extrinsic materials while relevant, cannot override the clear meaning of statutory text. Their purpose is to assist in determining the meaning of the text, not to displace it or serve as an independent basis for interpretation, unless consideration of context and purpose favour an interpretation that does not correspond with the literal or grammatical meaning of the words.7 Text and context of rule 189 [33] The phrases “is proved in the proceeding” and “the costs of proof” appear in r 189(4). Neither “proved in” nor “of proof” is defined in the UCPR. [34] The ordinary meaning of ‘proved’ or ‘proven’ is ‘to establish the existence, truth, or validity of (as by evidence or logic)’8 or ‘to show that something is true’, 9 ‘or to establish the truth or genuineness of, as by evidence or argument: to prove one’s contention’.10 The Macquarie Dictionary gives the example “Law to establish the authenticity or validity of (a will or testament).11 [35] The ordinary meaning of the words support the interpretation that nothing is proved in the proceeding’ for the purposes of rule 189 UCPR before there has been any trial of the proceeding. For the reasons below, the context and purpose of the UCPR supports this interpretation also. [36] The UCPR are made under s 85 of the Supreme Court of Queensland Act 1991 (Qld) and govern civil practice and procedure across all Queensland courts. 6 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39], citing Alcan (NT) Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]. 7 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]. 8 Merriam-Webster Dictionary. 9 Cambridge Dictionary. 10 Macquarie Dictionary (Macquarie Dictionary Publishers, Pan Macmillan Australia, 2025), https://www.macquariedictionary.com.au/dictionary/). -- 6 of 9 -- 7 [37] The UCPR provides the rigorous procedural framework for how contentious civil litigation is tried and decided, including the mechanisms for how civil proceedings start, how they end and the steps in between. [38] The term proceeding is defined in r 352 only for the limited purposes of Ch 9 Pt 5 (offers to settle). Rule 8 sets out how proceedings start: “Starting proceedings (1) A proceeding starts when the originating process is issued by the court. (2) These rules provide for the following types of originating process— • claim • application • notice of appeal • notice of appeal subject to leave. (3) An application in, about or pending the trial, hearing or outcome of a proceeding is not an originating process. Note— This is commonly called an interlocutory application [39] It was not in issue that the proceeding was commenced by way of a claim. [40] Their purpose of the UCPR, is set out in r 5, including the just and expeditious resolution of proceedings at minimum expense. [41] In Rigato Farms Pty Ltd v Ridolfi ([2001] 2 Qd R 455; [2000] QCA 292) (“Rigato Farms”), the Court of Appeal confirmed the seriousness of the admissions regime under r 189 UCPR. In that case (as opposed to the present case) the defendant had not filed a Notice Disputing Facts. The Court of Appeal held that that admissions, including deemed admissions under r 189, cannot be withdrawn simply “for the asking,” and that charter of procedure in the UCPR cannot be ignored.12 [42] Similarly, in Green v Pearson [2014] QCA 110, the Court reaffirmed that withdrawal of admissions is exceptional and dependent upon verified evidence explaining the failure to respond and the basis for the proposed withdrawal. [43] In Cormie v Orchard [2001] QSC 021 at [6],13 concerning an application to strike out a notice to admit facts or documents, her Honour Justice Margaret Wilson referred to Rigato Farms and stated: “The purpose of the notice to admit procedure is to ensure that the Court is called upon to determine only questions bona fide in dispute. See Rigato Farms Pty Ltd v Ridolfi, [2000] QCA 292, Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738. Where, as in the present case, some facts have already been admitted on the pleadings (some subject to qualifications), and others not admitted because the opposite party is uncertain as to their truth or still making relevant inquiries, it is not a legitimate use of the procedure to call for admission of all the paragraphs in the pleading.” (emphasis added) [44] In a similar vein paragraph 13 of Matthew Edwards v New South Wales [2017] NSWSC 459, relied upon by the plaintiff: “[13] The principal purpose of a Notice to Admit Facts and a Notice to Admit Authenticity of Documents is to facilitate proof. In particular, it is to facilitate proof of incidental matters or matters of some precondition which may not be in issue. However, until issue is joined on the pleadings what will and will not be contested will not be apparent. Although there may be some cases where it may be appropriate to seek an admission at a very early stage (and r 12 Rigato Farms Pty Ltd v Ridolfi ([2001] 2 Qd R 455; [2000] QCA 292, [21] per de Jersey CJ. 13 This decision was not the subject of the appeal in Cormie v Orchard [2001] QCA 546. -- 7 of 9 -- 8 17.3 UCPR contains no time stipulation) ordinarily it would be inappropriate to serve a Notice to Admit Facts until the pleadings are completed: Gerard Michael McGuirk v The University of New South Wales [2009] NSWSC 253 at [98]. That holding was apparently not disapproved on appeal although the appeal was allowed: McGuirk v University of New South Wales [2010] NSWCA 104 at [130].” (emphasis added) [45] Whilst I am not presently concerned with an application to strike out a notice to admit facts, these authorities are consistent with the applicant’s defendant’s application being premature and bound to fail. There are no issues in dispute on any pleading and the defendant has responded to the Notice to Admit. The appropriate course was to await determination at trial. [46] Additionally, what Ms Berg seeks are determinations of law, including as to the Constitutional status of the council. That is beyond r 189, which pertains to facts or documents.14 [47] Rule 390(a) UCPR supports this, as it mandates oral evidence at trial unless directed otherwise. Proof arises from the evidentiary process, not unilateral affidavit assertions. [48] In contrast, the construction contended for by the applicant/defendant would create an absurdity if a fact could be taken as ‘proved’ by the filing of an affidavit by one party. Were that the case, the plaintiff here could simply file an affidavit stating that the amount was owed by the defendant and that would be the end of the matter. [49] The applicant/defendant’s interpretation would undermine the trial process and rules of evidence, enabling claims to succeed solely on untested affidavit assertions. Such an outcome contradicts r 5 UCPR, which aims for just and expeditious resolution of proceedings. Allowing Ms Berg to behold the plaintiff to matters she asserts in an affidavit, without allowing the plaintiff to object to or test that evidence, especially without putting any facts in issue by filing a Defence, would be unjust. Costs of proof [50] Ms Berg provided a document headed ‘costs itemisation’15 quantifying her alleged ‘costs’, predominantly being her own labour (or that of non-legally qualified persons) “Time 56 hours $1,400” plus another $500 for research.. [51] The concept of “costs” under the UCPR is confined to professional legal charges and necessary disbursements properly incurred in the conduct of litigation. It does not extend to the personal time, labour, research or opportunity-cost of a non- legally qualified person acting on their own behalf, now matter how time-consuming. This principle was settled by the High Court in Cachia v Hanes (1994) 179 CLR 403 and reaffirmed in Bell Lawyers Pty Ltd v Pentelow (2019) 268 CLR 447. [52] The phrase “costs of proof” in r 189(4) of the Uniform Civil Procedure Rules 1999 (Qld) must also be confined to the reasonable legal costs incurred by a party, in a solicitor-client relationship, proving a fact or the authenticity of a document, consistent with the established meaning of “costs” in civil litigation. [53] The application fails on the additional ground that Ms Berg has not incurred any legal costs. 14 See Pollock v Thiess Pty Ltd [2014] QSC 22 at [15], per McMeekin J.f 15 Exhibit 1 on the Application. -- 8 of 9 -- 9 [54] Even if it were established that a fact had been proved in the proceeding and Ms Berg had incurred "costs of proof," s 189 grants the court discretion to order otherwise. An order for the payment of costs of proceedings by one party to another is always a discretionary order.16 [55] In the exercise of that discretion, I would order that Ms Berg bear her own costs of proof. Conclusion [56] Rule 189 UCPR must be applied according to its ordinary meaning and purpose: a fact is “proved in the proceeding” only when it is accepted by the court, as the trier of fact, to the requisite standard of proof, by admissible evidence evaluated by the trier of fact. [57] Until then, there is no ‘proof’ of anything and no ‘costs of proof’ to be claimed. [58] Further, a lay litigant is not entitled to costs under the UCPR. Costs [59] Unless there is correspondence, effective offers or something else that I should take into account, the general rule about costs is set out in Rule 681 UCPR (1), namely that costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise. [60] Pending further submissions or identification of an effective offer to settle, I observe: (a) the applicant/defendant has not succeeded in her application; (b) it was misconceived and always bound to fail; (c) the applicant/defendant has claimed costs in her application and, having previously been ordered to pay costs, is familiar with the cost consequences that may follow. [61] Under Rule 683 UCPR costs of the proceedings in the Magistrate Court should be either fixed; or assessed if the matter is complex. Under Schedule 2, the relevant scale is Part 2, Column A. Under that scale, the following costs appear relevant.  applications to court (Item 12) - $220.05  hearing with counsel (Item 11(a) - $320.20  attendance of solicitor with counsel (Item 10(a) - $400.30 [62] Due to the complexity of the issues raised by Ms Berg, I certify the attendance of Counsel as necessary. [63] I will hear from the parties in relation to costs at the time of publication of this judgment, including if the plaintiff seeks costs on an alternative basis or from an alternative party or person, or if effective offers to settle the application filed 12 August 2025 have been exchanged. 16 Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1992] 4 All ER 588 (at 607) cited in Peter Carter Transport Pty Ltd and Anor v Swansway No. 2 Pty Ltd [2021] QDC 109. -- 9 of 9 --