Craig v Paul & Anor [2001] QDC 287

DISTRICT COURT OF QUEENSLAND CITATION: Craig v. Paul [2001] QDC 287 PARTIES: NANCY CRAIG (Plaintiff) v. GAVIN ROY PAUL and JANETTE ELAINE PAUL (Defendants) FILE NO/S: D4530 OF 2001 DIVISION: PROCEEDING: Application without oral hearing ORIGINATING COURT: District Court Brisbane DELIVERED ON: 7 November 2001 DELIVERED AT: Brisbane HEARING DATE: - JUDGE: McGill DCJ ORDER: Order as per amended draft CATCHWORDS: PRACTICE – Pleading – reply – need for arisen only after commencement of UCPR – whether leave should be given – UCPR rr 165, 168. COUNSEL: - SOLICITORS: Finemore Waters and Story for the plaintiff Paul Watts and Co for the defendants [1] On 16 October 2001 the plaintiff filed an application seeking leave to deliver a reply, and an order that the matter be referred to mediation. That application was in the form appropriate where a party was seeking a decision without an oral hearing under r.489. On 6 November 2001, the plaintiff filed an affidavit of service deposing to the relevant documents having been served by post on the defendants’ solicitor on 17 October 2001. [2] The application and supporting material had however also been forwarded in draft under cover of a letter of 11 October, received the following day. On 17 October the defendants’solicitors responded, objecting to the application in its present form. A copy of that letter was exhibited to the affidavit of service. However, the -- 1 of 3 -- 2 defendants have not filed a response as required by r.492. Hence the affidavit for service was filed by the plaintiff, as required by r.492(3). The defendants have also not filed a notice requiring an oral hearing under r.494. The position is somewhat unsatisfactory; nevertheless I will take into account what is said by the defendants’ solicitors in their letters of 12 and 17 October 2001. [3] This matter was commenced by plaint filed in the court in Bundaberg on 18 August 1997. The plaintiff claimed a declaration that the defendants held certain real property as trustees for the plaintiff, and an order that they transfer that property to the plaintiff. It was alleged that certain land was acquired by the plaintiff and defendants under a contract made in June 1993, in respect of which the plaintiff provided the purchase price, and that subsequently a residence was constructed on the property at the expense of the plaintiff. Accordingly, it was alleged that the defendants held their interest on a resulting trust for the plaintiff. [4] An Entry of Appearance and Defence was filed on 16 October 1997. The defence revealed that the defendants are husband and wife, and the female defendant is the sister of the plaintiff’s husband. The defence disputed the proposition that the relevant costs were paid by the plaintiff, and alleged that certain sums were provided by the female defendant, that the relevant properties were the subject of an express agreement as to the disposition of the beneficial interest, and that there were other arrangements between the parties which are relevant to the issue of the disposition of the equitable interest in the subject land. [5] A request for trial date was filed on 16 May 2001, and the matter was set down for hearing at Bundaberg on 12 September 2001. In the course of preparation for trial counsel advised that a reply was necessary, and when the matter came on for trial, His Honour Judge Boulton ordered by consent that the trial date be vacated, the trial be adjourned to a date to be fixed, the matter be transferred to the Brisbane Registry, and the plaintiff pay the defendant’s costs thrown away by the adjournment to be assessed. He also gave the plaintiff leave to make application within four weeks for leave to file a reply. [6] A reply has now been drafted, which deals in some detail with the various allegations made in the defence. It is, I think, not necessary to go into the details, but it is apparent that there will be some dispute over a number of financial transactions which have taken place within this extended family over a period of some years. It is, in my opinion, plainly appropriate that the matters sought to be pleaded in the reply be exposed on the pleadings, and it is now necessary for the plaintiff to plead these matters in order to enable evidence from the plaintiff (and other witnesses on behalf of the plaintiff) as to the plaintiff’s explanation to be given of the various transactions pleaded in the defence: r.165(2), and see r.168(1). [7] This is a provision where the Uniform Civil Procedure Rules are different from the former District Court Rules, which contained no equivalent to r.165(2). Under the former rules, a reply was unnecessary if the plaintiff merely wished to put in issue the allegations in the defence: DCR r.98(2). The plaintiff was free under those -- 2 of 3 -- 3 rules to call evidence disputing those allegations. The position therefore is that at the time when pleadings initially closed in this matter under the District Court Rules, no reply was necessary. The plaintiff therefore cannot be criticised for a failure to deliver a reply at the time when any appropriate reply ought to have been delivered under the former District Court Rules. If r.165(2) applies to this matter, the effect is that upon the commencement of the Uniform Civil Procedure Rules a reply became necessary. In my opinion, where the need for a reply arises because of a change in the rules, the court should readily give leave to file and serve a reply late, so that the new rules can be complied with, and the matter proceed in accordance with the current regime. Accordingly, I give leave to the plaintiff to file and serve the reply. [8] In the letter of 17 October, the defendants’ solicitors sought an opportunity to plead in response to the reply. They referred to the allegations otherwise being taken to be admitted under the new rules, but under r.168 the position would be that there would be an implied non-admission and again r.165(2) would apply. Nevertheless, if the defendants wish to plead in response to the allegations in the reply they should be able to do so, and I give leave to the defendants to file and serve a pleading in response to the reply within 21 days of the date of service of the reply. [9] The defendants also take issue about the absence of an explanation for the failure to make the application within the period of four weeks allowed by His Honour Judge Boulton. That period was exceeded, although not by very much. There ought to have been some explanation for the delay, but in circumstances where it seems to me clearly appropriate that there be a reply, I am prepared to grant any necessary extension of time to enable the application which has been made to be dealt with. [10] The plaintiff also seeks mediation. The matter is a family dispute, and that is a particular reason why it is desirable to have the matter resolved without a trial, which may well lead to a severe and bitter division within the family. There is also the prospect that ill feelings from the dispute may serve to prolong the trial, thus increasing the costs which could be saved if a mediation were successful. Although the action was set down for trial for two days, in the light of the prospect of further pleading, it may well go longer than that. The defendants resist mediation because of a belief that alternative dispute resolution will not be fruitful, but there is no detail given as to why that is likely to be the situation, and there has been no affidavit material filed on behalf of the defendants in support of that position, and I am not prepared to place too much reliance on the mere assertion in the letter in the circumstances. In my opinion, therefore, it is appropriate for me to make an order for mediation, but I will nominate a mediator in the order, with provision for the parties to substitute by agreement a different mediator, otherwise the order may be ineffective in the absence of an agreement. [11] The plaintiff’s application has been successful, and I am therefore prepared to make the costs order sought by the plaintiff, which is that the costs of each party be that party’s costs in the cause. -- 3 of 3 --