Burger v Hickling [2021] QDC 41

DISTRICT COURT OF QUEENSLAND CITATION: Burger v Hickling [2021] QDC 41 PARTIES: ANDREW BURGER (Plaintiff) v MELISSA HICKLING (Defendant) FILE NO/S: D130/20 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court of Queensland DELIVERED ON: 1 April 2021 DELIVERED AT: Southport HEARING DATE: 5 February 2021 JUDGES: Dann DCJ ORDERS: The Court orders that: 1. Leave is granted to withdraw the deemed admissions of the plaintiff arising from the reply to paragraphs 10, 11(a), 11(b)(iv) and 11(c) of the defendant’s amended defence. 2. Paragraphs 6(b)(ii) and 6(c) of the amended reply are struck out. 3. Leave is granted to the plaintiff to re-plead paragraphs 6(b)(ii) and 6(c) of the amended reply in conformity with the UCPR within 28 days of the date of these reasons. 4. Paragraphs 1, 2 and 3 of the plaintiff’s amended application are dismissed. 5. The plaintiff pay the defendant’s costs of and incidental to each of the plaintiff’s amended application and the defendant’s application on the standard basis, to be taxed in lieu of agreement. 6. The parties confer and provide the court with a form of order which reflects these orders together with directions, if any, for the future conduct of this matter that they agree are appropriate to progress it towards trial. -- 1 of 16 -- 2 CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ADMISSIONS – WITHDRAWAL – Where interlocutory applications are brought by each party within defamation proceedings – Where the plaintiff claims that there are no deemed admissions – Where the defendant submits that there are deemed admissions because the reply did not respond to relevant paragraphs of the defence – Whether the plaintiff should be given leave to withdraw any deemed admissions PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – Where particular pleadings do not comply with r 166(3) of the UCPR and therefore fall within the vice of sub-rule 171(1)(b) of the UCPR PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TRIAL – TIME AND PLACE – Whether the defendant’s signature on the request for trial date should be dispensed with and the matter set down for trial – Where parties have obligations not to sign a request for trial date until they are truly ready PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – GENERALLY – Where the plaintiff explicitly referred to damage of the plaintiff’s professional reputation in the statement of claim – Where the defendant denies damage to the plaintiff’s professional reputation – Whether the defendant received inadequate disclosure regarding the damage and was unable to sign a request for trial date – Whether the plaintiff has an obligation to make disclosure that adequately addresses allegations in the amended statement of claim LEGISLATION: Defamation Act 2005, ss 22, 33 Civil Proceedings Act 2011, s 58 Uniform Civil Procedure Rules 1999, rr 5, 150, 151, 166, 171, 188, 190, 378, 465, 466, 469 CASES: ASIC v ACN 101 634 146 (In Liq) & Ors (No.4) [2013] QSC 15 Campbell v Jones (2003) 1 Qd R 630 Cape York Airlines Pty Ltd (ACN 000 627 010) v QBE Insurance (Australia) Limited (ACN 003 191 035) [2008] QSC 302 Crawley v Crawley Land Pty Ltd and Ors [2012] QSC 294 Gregory v Johnson [2017] QDC 224 Hanson Construction Materials Pty Ltd v Norlis Pty Ltd and Ors (2010) 79 ACSR 668 -- 2 of 16 -- 3 Hartmann v Pilkington [2012] QSC 254 Melco Engineering Pty Ltd v Eriez Magnetics Pty Ltd [2007] QSC 198 Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455 Smith v Lucht [2017] 2 Qd R 489 Taylor David Pty Ltd v Walker [2020] QDC 334 COUNSEL: H Clift for the plaintiff L Amerena for the defendant SOLICITORS Stone Group Lawyers for the plaintiff Laneway Legal for the defendant [1] In the underlying proceeding the plaintiff claims damages, including aggravated damages, for defamation arising from two complained of matters. [2] The first is of words sent in a text message to the plaintiff’s wife on 8 September 2019. The defendant admits sending a text message in the terms alleged. At issue between the parties in the underlying proceeding is whether the words of that text message were defamatory in the circumstances. The defence of triviality in s 33 of the Defamation Act 2005 is pleaded in response to this matter, as is, in the alternative, the defence of contextual truth.1 [3] The second matter complained of is the publication of the words “he’s a pedo” at a social event. The defendant admits speaking and publishing those words as alleged but denies that they referred to the plaintiff and further, that they were defamatory as alleged. [4] The plaintiff claims general compensatory damages of $250,000.00, aggravated compensatory damages of $50,000.00, interest pursuant to s 58 of the Civil Proceedings Act 2011, an injunction to restrain further or continuing publication and costs on an indemnity basis. The defendant has elected a jury trial. [5] Before the court are interlocutory applications brought by each party. [6] The plaintiff, by an amended application, seeks orders: 1. Pursuant to Rule 469 of the Uniform Civil Procedure Rules 1999 (“UCPR”), the signature of the defendant on the request for trial date in these proceedings be dispensed with; 2. Pursuant to Rule 465 and 466 of the UCPR the court set a trial date for these proceedings; 3. The defendant pays the plaintiff’s costs of and incidental to this application; and 4. Relevantly pursuant to Rule 188 of the UCPR, and to the extent necessary, the plaintiff is given leave to withdraw deemed admissions to paragraphs 10, 11 and 12 of the defence filed 10 June and his reply filed 15 September 2020. [7] The plaintiff’s original application was dated 22 December 2020, however the amendment to include the relief pursuant to Rule 188 was dated 2 February 2021 and filed on 3 February 2021. Given the short service of the application, an issue arises 1 See paragraphs 9C and 9D of the amended defence. -- 3 of 16 -- 2 as to whether leave should be granted to rely on the amended application. Whilst the defendant took the point in writing, the parties argued the substance of the application. Given the reasons that follow, I grant leave for the late filing of the amended application. [8] The defendant cross-applies for the following relief: 1. That by operation of the UCPR Rule 166(1)(5), a declaration that the plaintiff has admitted paragraphs 10 and 11, and further and alternatively, paragraph 12 (Admissions), of the defendant’s defence filed 10 June 2020, by the plaintiff omitting to plead in response to those paragraphs in the plaintiff’s reply filed 15 September 2020; 2. Pursuant to Rule 190(1) and (2) of the UCPR, that the part of the plaintiff’s cause of action comprised in the publication known as the “first matter complained of” in paragraphs three to five of the plaintiff’s amended statement of claim be dismissed in consideration of the Admissions giving rise to the defendant’s defence of triviality; 3. Further and alternatively, pursuant to UCPR Rule 171(1)(a), (b), (c) and (e), that paragraphs 5 and 6 of the plaintiff’s amended reply be struck out; 4. Costs of the application; and 5. Directions. [9] Counsel for the defendant properly accepted in oral argument that paragraph 12 of the amended defence contained an allegation of law.2 As such, it could not be the subject of a deemed admission. [10] Before the court, the parties’ representatives agreed that the two real issues for decision were: 1. Whether the plaintiff should be given leave to withdraw any deemed admissions; and 2. Whether the defendant’s signature on the request for trial date should be dispensed with and the matter set down for trial. In this context, the plaintiff’s obligation to make disclosure, and, ultimately, the adequacy of the plaintiff’s disclosure, were agitated. Issue 1 – Withdrawal of the deemed admissions/ judgment pursuant to rule 190 of the UCPR [11] The amended defence was filed on 11 August 2020. It contained the following paragraphs: “Defence of Triviality [10] Further and alternatively, if it is found that the first matter complained of by the plaintiff was, by any alleged imputation (in paragraph five of the statement of claim), defamatory of the plaintiff, the circumstances of the first matter complained of were such that the plaintiff was unlikely to sustain any harm. 2 Transcript 1-35, lines 2-5. Plaintiff’s submissions at [11], defendant’s submissions at [40]. -- 4 of 16 -- 3 [11] The circumstances referred to in the preceding paragraph, which made it unlikely that the plaintiff would sustain any harm, were that: (a) The first matter complained of, was limited to dialogue between only Treya Burger and the defendant; (b) The nature of the relationship of the recipient of the publication, Treya Burger, with the plaintiff, being that: (i) they were married for approximately 20 years; (ii) they have lived together as a couple for the duration of that time; (iii) they have raised three children together; and (iv) the recipient, Treya Burger, knew, or because of the preceding sub paragraphs it can be inferred that she knew, or that she ought to have known, that the imputations alleged by the plaintiff in paragraph five of his statement of claim were untrue; (c) The nature of the first matter complained of, in the context of the circumstances of the publication, was a response by the defendant to vile abuse and death threats made by the recipient, Treya Burger, to the defendant as identified in Schedule A to this defence, and in comparison to the words uttered by the recipient, Treya Burger, the alleged defamatory publication by the defendant was either: (i) so trivial, it could not have reasonably caused the recipient to think less of the plaintiff; or (ii) in the further alternative, obviously an insult aimed at Treya Burger to the effect that she was married to an unsociable and unpopular person. [12] In the premises of paragraphs 10 and 11 above, the claim made with respect to the first matter complained of in the statement of claim is unable to be maintained under s 33 of the Defamation Act 2005 (Qld).” [12] The reply filed 15 September 2020 provided relevantly as follows: “1. Save as expressly pleaded in this reply, the plaintiff: (a) joins issue with the matters pleaded in the Defence and rely [sic] upon the matters pleaded in their statement of claim; and (b) does not plead in response to the defendant’s explanations for denials because there is no requirement to do so.” -- 5 of 16 -- 4 [13] The reply did not address paragraphs 10 and 11 of the amended defence. [14] After the defendant’s solicitors raised in correspondence, amongst other things, the issue of deemed admissions arising from the reply on 29 October 2020, the plaintiff filed an amended reply endorsed as filed pursuant to Rule 378 of the UCPR.3 No leave was sought to file that document before it was filed and provided to the defendant. [15] The amended reply contains an unchanged paragraph 1. It contains further pleadings specifically in respect of paragraphs 10 and 11 of the amended defence as follows: “5. As to paragraph 10 of the defence, for the reasons pleaded in paragraph 6 the plaintiff denies that the circumstances of the first matter complained of were such that the plaintiff was unlikely to sustain any harm. 6 As to paragraph 11 of the defence, the plaintiff: (a) in response to sub-paragraph 11(a), says that the first matter complained of comprised a text message between the plaintiff’s wife and the defendant and therefore denies that the said matter was ‘dialogue’; (b) in response to sub-paragraph 11(b): (i) admits sub-paragraphs (i) to (iii); (ii) does not admit that the plaintiff’s wife knew, or ought to have known that the imputations were untrue because the plaintiff is unaware of what his wife thought at the time the defendant published the first matter complained of; (c) in response to sub-paragraph 11(c), does not admit that the first matter complained of was a response to vile abuse and death threats because the allegations are outside the plaintiff’s knowledge and: (i) denies that the first matter complained was so trivial it could not reasonably have caused the recipient to think less of the plaintiff because the imputations conveyed by the first matter complained are extremely serious and equally so if communicated, as they were, to a person’s spouse; and (ii) denies that the first matter complained of was ‘obviously an insult at [the plaintiff’s wife] to the effect that she is married to an unsociable and unpopular person’ because an imputation to the effect that person is a paedophile is amongst the 3 Permitting, before the filing of the request for trial date, as often as necessary, amendment for which leave from the court is not required under the rules. -- 6 of 16 -- 5 most serious imputations capable of being conveyed’.” The rules and applicable principles [16] Rule 166 of the UCPR provides relevantly: “(3) A party may plead a nonadmission only if— (a) the party has made inquiries to find out whether the allegation is true or untrue; and (b) the inquiries for an allegation are reasonable having regard to the time limited for filing and serving the defence or other pleading in which the denial or nonadmission of the allegation is contained; and (c) the party remains uncertain as to the truth or falsity of the allegation. (4) A party’s denial or nonadmission of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegation is untrue or can not be admitted. (5) If a party’s denial or nonadmission of an allegation does not comply with subrule (4), the party is taken to have admitted the allegation. (6) A party making a nonadmission remains obliged to make any further inquiries that may become reasonable and, if the results of the inquiries make possible the admission or denial of an allegation, to amend the pleading appropriately.” [17] The first issue between the parties is whether there are deemed admissions. The plaintiff submits that there are no deemed admissions, because the nature of the triviality defence, coupled with the fact of the issue of the claim in the first place, and the joinder of issue in the reply make it plain that whether the first matter was trivial is in issue between the parties.4 The defendant’s submission is that there are deemed admissions because the reply did not respond to, relevantly, paragraphs 10 – 11 of the defence.5 [18] A difficulty with the plaintiff’s submission, in my view, is that the triviality defence has, as its focus, whether the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.6 This focuses the pleader on the factual allegations of what are the circumstances of publication. The circumstances alleged by the defendant are set out in paragraph 11 of the amended defence and contain material facts. This paragraph was not responded to in the reply and the allegation of publication in the statement of claim is contained in the particulars and is, relevantly, that publication was by the defendant sending the text message to the plaintiff’s wife. There is nothing which otherwise deals with the circumstances of publication. In my view, deemed admissions arise in respect of paragraph 11 of the amended defence. This includes paragraph 11(b)(iv) at least in so far as the allegation pleaded is an 4 Plaintiff’s submissions [7]. 5 Defendant’s submissions [19]. 6 Section 33 Defamation Act 2005 (Qld). -- 7 of 16 -- 6 allegation of fact as to what Ms Treya Burger knew concerning particular pleaded matters. [19] The same considerations arise in respect of paragraph 10 of the amended defence which, effectively, pleaded the words of the defence in section 33 of the Defamation Act. I accept the defendant’s submission7 that this paragraph of the pleading is one of an allegation of fact which, in this case is a question for the jury8, the defendant having elected a trial by jury. In my view, a deemed admission arises in respect of paragraph 10 of the amended defence by the failure to respond to it in the reply. [20] Should the plaintiff be permitted to withdraw those admissions? [21] Whether leave should be granted to withdraw an admission made in a pleading requires consideration of: (a) how and why the admission came to be made? (b) the evidence surrounding the issues the subject of the admission. Is there likely to be a real genuine dispute about this evidence? (c) is there delay in making the application for leave to withdraw the admission? and (d) has the respondent suffered any prejudice? [22] Whether to grant leave is a discretionary decision which is broad and unfettered but there is no principle that admissions may always be withdrawn “for the asking”, subject to payment of costs.9 Each case falls to be considered on its own facts.10 [23] Whether the applicant for leave to withdraw the admission has provided an explanation of the failure to comply with the rule on admissions is relevant.11 If an explanation for an admission is called for on the hearing of an application to withdraw it, failure to give a satisfactory explanation for it will be a relevant consideration, even in the case of deemed admissions.12 In that regard, Muir JA observed that: “ … a deemed admission may come about in a variety of ways and that, where an explanation for the admission is called for on the hearing of an application to withdraw it, failure to give a satisfactory explanation will be a relevant consideration.”13 [24] As to the tenor of that explanation, Chesterman JA stated: “A detailed and clear explanation as to how an admission came to be made may not be necessary where an admission is deemed by the rules. How the admission came to be made will be obvious enough. An explanation of the failure to comply with the rule should be given so 7 Defendant’s submissions [37]-[40]. 8 Section 22(2) Defamation Act 2005. 9 Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455 (Ridolfi) at [11], [20] per de Jersey CJ. 10 Ridolfi at [32] per Williams JA. 11 Hanson Construction Materials Pty Ltd v Norlis Pty Ltd and Ors (2010) 79 ACSR 668 (Hanson Constructions) at [14] per Chesterman JA, Muir JA concurring. 12 Hanson Constructions at [1] per Muir JA and [60] per Applegarth J. 13 Hanson Constructions at [1] per Muir JA. -- 8 of 16 -- 7 as to establish that it was not deliberate … the rules do not operate so as to prevent the trial of issues that are genuinely in dispute …”14 [25] Hartmann v Pilkington15 involved a claim for damages arising from a sale of property, where the purchaser alleged certain structures and buildings on the land did not have proper approvals. Relevantly, the plaintiffs filed a reply to the first defendant’s defence in which they pleaded to certain specific paragraphs in the defence and concluded with a paragraph otherwise joining issue with each and every allegation contained in the defence. The first defendant’s solicitors promptly wrote asserting a number of deemed admissions had been made. The plaintiffs swore evidence they were unaware of the necessity to respond to the defence by filing a reply and the court accepted the failure to comply with the requirements of r 166 was consequent upon the inadvertence of a solicitor in the employ of the solicitors for the plaintiffs at the time the reply was filed. [26] Wilson J stated at [18] and [20]: “There may be facts solely within the knowledge of the party who pleads them. Where, however, a party (‘A’) pleads a conversation between him or her and a third party (‘X’), the opposing party (‘B’) will seldom be entitled to plead a non-admission simply on the basis that he or she was not a party to the conversation and its contents are within the knowledge of A. In most cases it would be reasonable to expect B to make inquiries of X to ascertain the truth or untruth of what has been pleaded. I consider that where a party wishes to withdraw an admission and instead to plead a non-admission he or she should not usually be given leave to do so in the absence of sworn evidence of inquiries made to find out whether the allegation is true or untrue and the court’s being satisfied that those inquiries were reasonable in all the circumstances.” [27] Wilson J gave the plaintiff leave to withdraw some deemed admissions but not others. In particular, Wilson J refused leave to withdraw a deemed admission where the plaintiffs deposed to having no knowledge of the matters pleaded in the relevant paragraph of the defence but they did not swear to inquiries they had made.16 [28] In this case, the first pleaded non-admission in the amended reply is on the basis the plaintiff is unaware of what his wife thought at the time of the text message, but there is no pleading that the plaintiff had made any inquiries about this issue. [29] The second pleaded non-admission again is on the basis that the relevant allegations are outside the plaintiff’s knowledge; again there is no pleading that the plaintiff has made any inquiries. [30] In each case given the allegations in the amended defence, the inquiries which the plaintiff would need to make would be enquiries of his wife. There is no material to suggest that the plaintiff cannot make those inquiries. 14 Hanson Constructions at [14]-[15] per Chesterman JA. 15 [2012] QSC 254. 16 At [24]-[27]. -- 9 of 16 -- 8 [31] In Melco Engineering Pty Ltd v Eriez Magnetics Pty Ltd17 the plaintiff alleged a contract to perform certain work and the defendant alleged the contract was to perform different and additional work. Dutney J observed that a reply is necessary only where the defence raises new matters by reason of which the claim of the other party is said not be maintainable or where facts are alleged which otherwise fall within sub rule 151(4).18 Where something had already been pleaded he could see no reason why it could not be adopted into a subsequent pleading by reference19 and whether there is a deemed admission under sub-rule 166(5) depends on whether the facts pleaded in the statement of claim constitute a sufficient traverse of the contrary facts in the defence. It would be necessary to plead further only if the defence raised some issue other than a contradiction of the fact alleged by the plaintiff.20 In that case it appears that in the reply the plaintiff had denied the defendant’s construction of the contract and reasserted that the terms were as pleaded in the statement of claim21 which left Justice Dutney unpersuaded there had been, in the circumstances there, a failure to properly plead or that there was any deemed admission.22 [32] This matter is different from Melco in that there are new factual matters pleaded to support the defence of triviality. The issue, therefore, is whether the initial reply contained a sufficient traverse of the contrary facts raised in the defence. [33] Ultimately, as I understood it, the plaintiff accepted in oral argument, that some parts of paragraph 11 contained allegations of fact thereby conceding, at least in respect of those matters, that deemed admissions arose and the need for the amended application.23 As the dispute was argued, the argument crystallized around paragraph 11(b)(iv) of the amended defence [34] The plaintiff did not file any affidavit material to explain the failure to plead to the allegations of fact in paragraph 11 of the defence, because, the submission went, the plaintiff did not accept there were deemed admissions so no such thing was required.24 The plaintiff maintained the exchange between the parties in the solicitors’ correspondence was sufficient to demonstrate the plaintiff’s position. The difficulty with that submission can be seen from the following chronology. [35] The reply was filed on 15 September 2020. [36] Consequent upon it, on 1 October 2020 the defendant’s solicitors wrote raising the issue of deemed admissions in respect of the positive allegations giving rise to the triviality defence. In doing so, they intertwined their request for the plaintiff’s position with their ongoing assertions of the need for the plaintiff to make disclosure.25 [37] There was no correspondence in reply to that letter. 17 [2007] QSC 198. 18 At [17]. 19 At [17]. 20 At [21]. 21 At [23]. 22 At [24]. 23 Transcript 1-13, lines 23-25. 24 Transcript 1-14, lines 15-23. 25 KB-8 (pp 21-22) to the affidavit of Karl Brandon affirmed 27 January 2021 at [14]-[22]. The course of correspondence is deposed to by both parties. I am referring to Mr Brandon’s affidavit because the documents have page numbers. -- 10 of 16 -- 9 [38] Rather, the next thing that occurred was the filing and service of an amended reply by the plaintiff on 2 November 2020.26 That document specifically responded to paragraphs 10 and 11 of the amended defence in the terms set out at [15] above. Thus it was apparent from that document what position the plaintiff sought to put forward, although no explanation accompanied it. [39] The next letter from the plaintiff’s solicitors, dated 18 November 2020 asserted that: “Your letter dated 1 October 2020 raises concerns about our client’s lack of disclosure and deemed admissions, of which you contend is the basis your client is not willing to sign the Request for Trial Date. We have articulated our client’s position in that regard (of which remains unchanged) on multiple occasions and do not consider engaging any further on the matter.”27 Perhaps that reference to multiple occasions was because of the ongoing dispute between the parties in the correspondence as to whether the plaintiff should give disclosure. Whilst the correspondence did not explain of the plaintiff’s position in respect of the deemed admissions issue, the amended reply contained the pleading in response to paragraphs 10 and 11 of the amended defence on which the plaintiff seeks now to proceed. [40] The defendant, in correspondence dated 24 November 2020 then specifically raised, in respect of paragraph 11(b)(iv) of the amended defence the adequacy of the plaintiff’s pleading in the amended reply, on the basis that whilst the plaintiff had pleaded a non-admission, the pleading did not comply with Rule 166(3) of the UCPR because it did not contain any statement as to inquiries made or the reasonableness of those inquiries or the plaintiff’s position concerning those inquiries. It referred to the requirement in the authorities for an explanation for the plaintiff’s position. The defendant put the plaintiff on notice that any application to withdraw the deemed admissions would be opposed.28 It should be borne in mind that the person of whom inquiries would need to be made is the plaintiff’s wife. [41] The plaintiff’s solicitors did not respond to the letter. Then in mid-January 2021, the plaintiff’s solicitors emailed the defendant’s solicitors the plaintiff’s application and supporting material seeking to dispense with the defendant’s signature on the request for trial date together with the plaintiff’s list of documents. That application did not include any application to withdraw the deemed admissions. [42] After the defendant filed her foreshadowed application, the plaintiff’s amended application was filed seeking the relief, “so far as was required”, in respect of any deemed admissions. [43] It can be seen from the above chronology that the plaintiff has not explained in the correspondence the failure to plead in accordance with the rules. Whilst it may be inferred from the arguments put by the plaintiff on the application that the approach is one which was determined by the legal advisors, there is no affidavit material to that effect.29 26 KB-9 (p 24) to the affidavit of Karl Brandon affirmed 27 January 2021 at [1]. 27 KB-9 (p 24) to the affidavit of Karl Brandon affirmed 27 January 2021. 28 KB-10 (p 27) to the affidavit of Karl Brandon affirmed 27 January 2021 at [10]-[15]. 29 Cf: Hartman v Pilkington and Ors [2012] QSC 254 at [10] per M Wilson J. -- 11 of 16 -- 10 [44] The first consideration is whether the subject matter of the admission is truly contested. A mere assertion that a dispute exists is not sufficient.30 In that regard, it is apparent from the amended reply that: (a) the matters in response to paragraph 10 of the amended defence rise or fall by reference to the outcome concerning the response to paragraph 11 of the amended defence; (b) there is no particular factual contest between the parties over the position in respect of paragraph 11(a) of the amended defence. The fact the defendant sent the alleged text message to the plaintiff’s wife is admitted, as is the fact that message was of and concerning the plaintiff.31 The amended reply takes issue with the word ‘dialogue’ which is used in the amended defence; and (c) the factual matters in paragraph 11(b)(i)-(iii) of the amended defence are admitted by the amended reply. Thus, nothing practically turns on whether leave to withdraw deemed admissions is granted in respect of those subparagraphs. [45] The matters in each of paragraphs 11(b)(iv) and 11(c) are not admitted in the amended reply. [46] As to paragraph 11(b)(iv), this is on the basis that the plaintiff is unaware of what the recipient of the text message (his wife) thought at the time of the publication by the text message. So much, factually, is unsurprising. How could the plaintiff know what another person was feeling at a particular time? However, it is not apparent that the plaintiff has made any inquiries of his wife, or whether those inquiries are reasonable, which rule 166(3) requires. There is no explanation why this has not been done. [47] As to paragraph 11(c), the relevant non-admission of context is because it is outside the plaintiff’s knowledge. Again, in respect of the non-admission, there is no compliance with rule 166(3) concerning inquiries made by the plaintiff to support the non-admission in the pleading or in affidavit material. [48] Thus neither response in the amended reply in its current form complies with the requirements of rule 166(3) of the UCPR. [49] In Hartmann, one of the pleading issues was the plaintiff’s lack of knowledge of matters said to be within the knowledge of the first defendants, where the plaintiffs had deposed to having no knowledge of the pleaded matters but had not sworn to what, if any inquiries they had made to ascertain the truth or untruth of the facts pleaded in the relevant paragraph of the defence. Wilson J refused leave to withdraw the deemed admission of fact.32 [50] That reasoning seems apposite in this matter where: (a) a deemed admission of paragraph 11(b)(iv) arises because of the joining of issue in the reply, without more; (b) the amended pleading contains a non-admission, which does not comply with rule 166(3); and 30 Hanson Construction Materials Pty Ltd v Norlis Pty Ltd and Ors (2010) 79 ACSR 668 (Hanson Constructions) at [16] per Chesterman JA, Muir JA concurring. 31 Paragraphs 3 and 4 of the amended defence. 32 Hartmann v Pilkington [2012] QSC 254 at [25]-[26]. -- 12 of 16 -- 11 (c) there is no explanation from the plaintiff for the failure to plead in the first instance; there is no allegation that inquiries have been made and there is no explanation as to whether inquiries have been made of the plaintiff’s wife before the non-admission was pleaded in the amended reply. [51] However, unlike Hartmann, there is a total lack of any material from the plaintiff. [52] Turning to delay, I accept the plaintiff’s submission that there has been no significant delay in making the application, although I note the application was only made after the defendant had filed her cross application. The amended reply put the defendant on notice, when it was filed, of the way the plaintiff proposed to put his case, although the plaintiff’s solicitor’s correspondence was unhelpful in seeking to explain the plaintiff’s position in the face of the correspondence from the defendant’s solicitors and the noncompliance with the UCPR. [53] The defendant’s submission on prejudice was that the prejudice lay in the failure of the plaintiff to explain why the admissions arose.33 It is correct, as the plaintiff submits, that the defendant’s position has not changed over time, but the plaintiff’s failure to make the application to withdraw the deemed admissions necessitated the defendant’s application to ‘flush out’ the plaintiff. I accept this submission however, in my view this can be addressed through an award of costs. [54] On this application the plaintiff submitted that calling someone a paedophile is extremely serious34 and sought to support that submission by reference to authority. The plaintiff submitted the litigation should be seen overall, in that context. [55] Rule 5 of the UCPR require the Court to apply the rules with the objective of avoiding undue delay, expense and technicality35, with the aim to be the just and expeditious resolution of the real issues with a minimum of expense36. In the particular circumstances of this proceeding, the claim of defamation is made specifically in respect of the text message. Whilst joining issue in the reply may be inadequate in a pleading sense, and then failing to plead in compliance with the UCPR is similarly inadequate in a pleading sense, the approach adopted by the plaintiff has consistently rendered whether the first matter complained of is trivial a live issue between the parties. [56] In seeking to further the resolution of the issues in dispute in this proceeding, I am prepared to exercise my discretion to grant leave to withdraw the deemed admissions to paragraphs 10, 11(a), 11(b)(iv) and 11(c) of the amended defence contained in paragraphs 5 and 6(b)(ii) and 6(c) of the amended reply. [57] On the defendant’s application for judgment pursuant to rule 190 of the UCPR the plaintiff relied on the statement of Justice Atkinson in Crawley v Crawley Land Pty Ltd and Ors37 at [61] that: 33 Transcript 1-36, lines 17-19. 34 Gregory v Johnson [2017] QDC 224 at [53] per Muir DCJ. The factual matrix in that case is different from that pleaded in this case in a number of respects including that defamatory publications were made in that plaintiff’s work environment and to a family friend of his mother in addition to a woman who was his fiancée. Further, the claim was undefended. 35 Rule 5(2). 36 Rule 5(1). 37 [2012] QSC 294. -- 13 of 16 -- 12 “In order for the court to act on an admission in the way contemplated by rule 190(1), the admission must be sufficiently clear and settled, and not subject to application for amendment or withdrawal...” [58] I note also that Justice Atkinson referred to some observations of Kiefel J (as her Honour the Chief Justice then was) that the purpose of the rule is to save time and costs where a party can be seen, by unambiguous admissions of fact howsoever made, to have a clear entitlement to relief claimed and that the power is discretionary and is exercised with great caution.38 [59] Judgment under rule 190 of the UCPR is discretionary.39 As the plaintiff has applied to withdraw the admissions on which the defendant relies for her application for judgment, and as I am granting leave to withdraw those admissions, it is not appropriate that judgment be given. [60] Consequently, I propose to make an order granting leave to withdraw the deemed admissions arising in the plaintiff’s reply in the terms of paragraph 5 of the plaintiff’s application in respect of paragraphs 10, 11(a), 11(b)(iv) and 11(c) of the amended defence. So far as is necessary, consequently, I dismiss paragraphs 1 and 2 of the defendant’s application. [61] That leaves the defendant’s application to strike out paragraphs 5 and 6 of the plaintiff’s amended reply. Rule 150(4)(a) of the UCPR requires the plaintiff to specifically plead a matter that makes the defendant’s defence of triviality not maintainable. Consistent with the views of Dutney J in Melco set out in paragraphs [31] above, that requires the plaintiff to plead specifically matters in relation to the triviality defence which he says makes the defence not maintainable and which have not already been pleaded in the statement of claim. [62] Further, s 33 of the Defamation Act 2005 places the onus on a defendant to prove the circumstances of publication were such that there is an absence of a real possibility that the plaintiff would suffer any harm.40 [63] Rule 166(3) by its terms limits the circumstances in which a party may plead a non- admission. Rule 166(4) requires as a matter of form, that a non-admission of an allegation of fact ‘be accompanied by a direct explanation for the party’s belief that the allegation cannot be admitted. The party who pleads a non-admission remains under an ongoing obligation to make reasonable inquiries and, if possible, amend the pleading to admit or deny the allegation… a non-admission can only be made if a party is ‘uncertain of the truth or falsity of the allegation’.41 [64] The plaintiff’s pleading of paragraphs 6(b)(ii) and 6(c), in not complying with r 166(3) falls within the vice of sub-rule 171(1)(b) of the UCPR. It has a tendency to prejudice or delay a fair trial. The defendant is entitled to pleadings in these paragraphs which comply with the requirements of the rules. It may be that when the inquiries required by the UCPR are made of his wife, the plaintiff is in a position to plead more fulsomely to these paragraphs. 38 Ibid at [62]. 39 ASIC v ACN 101 634 146 (In Liq) & Ors (No.4) [2013] QSC 15 at [12] per Fryberg J. 40 Smith v Lucht [2017] 2 Qd R 489 at 516 [102] per Flanagan J, Philippides JA concurring. 41 Cape York Airlines Pty Ltd (ACN 000 627 010) v QBE Insurance (Australia) Limited (ACN 003 191 035) [2008] QSC 302 at [19]-[20] per Daubney J. -- 14 of 16 -- 13 [65] Given the non-conformity of paragraph 6(b)(ii) and the non-admission at the start of paragraph 6(c) of the amended reply with the requirements of rule 166(3) of the UCPR, I strike out these paragraphs of the amended reply. [66] I give leave to the plaintiff to re-plead those paragraphs within 28 days of the date of these reasons in conformity with the UCPR. Issue 2 - The plaintiff’s request for trial date and the defendant’s complaints about disclosure [67] The plaintiff’s submissions were that the defendant was using technical reasons to delay the proceeding, the nature of defamation proceedings is such that they should be dealt with expeditiously and there was no reason why the matter could not be ready for trial. [68] The defendant’s submissions were that parties have obligations to not sign a request for trial date until they are truly ready.42 Further, the plaintiff’s disclosure list and copies of its disclosed documents were only provided with the application on 12 January 202143 and, in any case, this disclosure was inadequate when reference was made to the sole document which had been provided to support the allegation in the amended statement of claim that the plaintiff was the owner and operator of the relevant building company together with his wife.44 [69] I understood the plaintiff’s counsel ultimately accepted in oral submissions that more may need to be done in relation to disclosure.45 [70] The defendant’s further argument was that the plaintiff’s allegations of damage to reputation included in paragraph 9 of the amended statement of claim explicitly referred to damage to the plaintiff’s professional reputation, which was denied in the amended defence. Consequently, the professional reputation of the plaintiff is a matter in issue at the trial. Whilst evidence may be led at the trial about this issue, it is properly one where the plaintiff should give disclosure of any documents relevant to it. [71] I accept the defendant’s submissions in this regard. To be pressing the defendant to sign the request for trial date before disclosure on this issue has occurred is precipitous. [72] I dismiss paragraphs 1, 2 and 3 of the plaintiff’s amended application. [73] I propose that the parties confer and provide the court with a form of order which reflects the reasons I have given together with directions, if any, for the future conduct of this matter that they agree are appropriate to progress it towards trial. [74] In view of the outcome of the applications, I order that the plaintiff pay the defendant’s costs of and incidental to each of the plaintiff’s amended application and the defendant’s application on the standard basis, to be taxed in lieu of agreement. Orders 42 Campbell v Jones (2003) 1 Qd R 630 at 647 per Mullin and Fryberg JJ. 43 Taylor David Pty Ltd v Walker [2020] QDC 334 at [25] per Barlow QC DCJ. 44 Transcript 1-23 lines 13-17. 45 Transcript 1-38, lines 1-8. -- 15 of 16 -- 14 [75] Leave is granted to withdraw the deemed admissions of the plaintiff arising from the reply to paragraphs 10, 11(a), 11(b)(iv) and 11(c) of the defendant’s amended defence. [76] Paragraphs 6(b)(ii) and 6(c) of the amended reply are struck out. [77] Leave is granted to the plaintiff to re-plead paragraphs 6(b)(ii) and 6(c) of the amended reply in conformity with the UCPR within 28 days of the date of these reasons. [78] Paragraphs 1, 2 and 3 of the plaintiff’s amended application are dismissed. [79] The plaintiff pay the defendant’s costs of and incidental to each of the plaintiff’s amended application and the defendant’s application on the standard basis, to be taxed in lieu of agreement. [80] The parties are to confer and provide the court with a form of order which reflects these orders together with directions, if any, for the future conduct of this matter that they agree are appropriate to progress it towards trial. -- 16 of 16 --