In  Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4 (1 Feb 2023), a majority of the UK Supreme Court (Lord Leggatt, Lord Reed and Lord Lloyd-Jones agreeing) – reversing the decision of the Court of Appeal of England and Wales – found nuisance established, relying heavily on Australian and Canadian authorities concerning use of surveillance cameras:

1.

On the top floor of the Blavatnik Building, which is part of the Tate Modern art museum on Bankside in London, there is a public viewing gallery. It is a popular visitor attraction. From the viewing gallery visitors can enjoy 360-degree panoramic views of London. When the claim was brought, about 5½ million people were visiting the Tate Modern each year and, of them, several hundred thousand (between 500,000 and 600,000 on one estimate) visited the viewing gallery, with a limit of 300 people at any one time. Entry to the museum and the viewing gallery is free but the top floor of the Blavatnik Building is also available to hire for external events. Such events are very important financially to the Tate Modern because they bring in significant income.

2.

Unfortunately for the claimants in this case, visitors to the viewing gallery can see straight into the living areas of their flats. The flats in question are located on, respectively, the 13th, 18th, 19th and 21st floors of a block which is part of the nearby Neo Bankside residential and commercial development. The distance between the two buildings is about 34 metres and the flats on the 18th and 19th floors – which are the most affected – are at about the same height above ground level as the viewing gallery. The walls of the Neo Bankside flats are constructed mainly of glass. The trial judge found that, on the southern walkway of the viewing gallery, “[a] major part of what catches the eye is the apparently clear and uninterrupted view of how the claimants seek to conduct their lives in the flats. One can see them from practically every angle on the southern walkway”: [2019] Ch 369, para 203.

3.

The viewing gallery opens when the museum opens at 10am every day of the week. When it first opened in 2016, the viewing gallery closed when the museum closes, at 6pm on Sunday to Thursday and at 10pm on Fridays and Saturdays. In response to complaints about the viewing gallery, the closing time on Sunday to Thursday was later moved forward slightly to 5.30pm and on Fridays and Saturdays the south and west sides of the viewing gallery were closed at 7pm, with only the north and east sides staying open until 10pm. (An exception was made for one Friday each month when the whole viewing gallery stayed open until 10pm.) These were the opening hours at the time of the trial.

4.

In this action the claimants are seeking an injunction requiring the Board of Trustees of the Tate Gallery to prevent members of the public from viewing their flats from the relevant part of the viewing gallery walkway; or alternatively, an award of damages. Their claim is based on the common law of private nuisance.

…

E.

The Court of Appeal’s reasons: “mere overlooking”

89.

The Court of Appeal pointed out the errors in the judge’s reasoning, much more succinctly than I have done. In their joint judgment they also explained how, if the established common law principles are applied to the facts of this case, those principles lead to the conclusion that the Tate is liable in nuisance. The Court of Appeal nonetheless dismissed the appeal. They said, at para 99:

“There being no finding by the judge that the viewing gallery is ‘necessary’ for the common and ordinary use and occupation of the Tate within Bramwell B’s statement in Bamford 3 B & S 66 quoted above, once it is established that the use of the viewing balcony has caused material damage to the amenity value of the claimants’ flats and that the use of the flats is ordinary and reasonable, having regard to the locality, there would be a liability in nuisance if (contrary to our decision) the cause of action extended to overlooking. There would be no question in those circumstances of any particular sensitivity of the flats, nor of any need on the part of the claimants to take what the judge described (in para 214) as ‘remedial steps’…” (emphasis added)

The words I have italicised indicate the sole reason why the Court of Appeal did not find the Tate liable in nuisance: they decided that liability in nuisance does not extend to “overlooking”. I agree with that proposition. But where I believe the Court of Appeal went wrong was in supposing that this claim is about “overlooking”.

(1) The meaning of “overlooking”

90.

It is important to be clear about what “overlooking” means. In ordinary speech the word refers to a spatial relationship between two places such that one affords a view, from a greater height, of the other – as in a statement such as “your flat overlooks my back garden.” I agree with the Court of Appeal that the fact that a building or other structure erected on someone’s land overlooks neighbouring land cannot give rise to liability in nuisance. That follows from the general principle discussed above that at common law anyone is free to build on their land as they choose, with the corollary that the mere presence or construction or design of a building (other than perhaps in extreme circumstances) cannot be an actionable nuisance. Thus, in this case the claimants cannot object under the common law of nuisance to the fact that the Tate has built the Blavatnik Building with a walkway around the top floor which overlooks their flats.

91.

As well as using the word “overlooking” in its ordinary sense, the Court of Appeal in their judgment also use the term to mean looking at what is happening on land from a building which overlooks it. In this (I think unconventional) sense, the word “overlooking” refers to an action done by a person rather than a spatial relationship between two places. For example, the Court of Appeal’s judgment refers (at para 51) to “a deliberate act of overlooking” and (at para 53) to “overlooking by a neighbour”. If I say that I am overlooked by my neighbour, I would normally be understood to mean that my property is capable of being seen from my neighbour’s property – not that my neighbour is engaged in an act of looking at me. Adopting the Court of Appeal’s unconventional meaning of the term, however, I think that they are again right that in the ordinary course merely looking at what is happening on neighbouring land is not an actionable nuisance. It is hard to see how such an “act of overlooking” could by itself reasonably be regarded as anything more than a minor annoyance of a kind that neighbouring occupiers have to put up with under the rule of give and take, live and let live.

(2) The complaint in this case

92.

Neither of these forms of “overlooking”, however, is the subject of this claim. The claimants’ complaint is not that the top floor of the Blavatnik Building (or its southern walkway) overlooks their flats; nor is it that in the ordinary course people in that building look at the claimants’ flats and can see inside. In fact, the claimants made it expressly clear at the trial that they do not object to the fact that they are overlooked from the Blavatnik Building: see [2019] Ch 369, para 190. What they complain about is the particular use made by Tate of the top floor. They complain that the Tate actively invites members of the public to visit and look out from that location in every direction, including at the claimants’ flats situated only 30 odd metres away; that the Tate permits and invites this activity to continue without interruption for the best part of the day every day of the week; and that this has the predictable consequence that a very significant number of the roughly half a million people who visit the Tate’s viewing gallery each year peer into the claimants’ flats and take photographs of them. To argue that this use of the defendant’s land cannot be a nuisance because “overlooking” (in the Court of Appeal’s sense) cannot be a nuisance is like arguing that, because ordinary household noise caused by neighbours does not constitute a nuisance, inviting a brass band to practise all day every day in my back garden cannot be an actionable nuisance; or that because the smell of your neighbour’s cooking at mealtimes is something you have to put up with, noxious odours from industrial production cannot be an actionable nuisance. The conclusion simply does not follow from the premise.

93.

This, in short, is the error in the Court of Appeal’s reasoning. But I will also examine whether any of the reasons given by the Court of Appeal for the proposition that “overlooking” is not actionable as a nuisance provides any support for the contention that the activity complained of in this case is not actionable.

(3) The arguments concerning “overlooking”

94.

I do not understand the Court of Appeal’s judgment to suggest that there is any conceptual reason why visual intrusion cannot be an actionable nuisance. The judgment recognises that different categories of nuisance are merely examples and that no rigid categorisation of relevant factual situations is possible: see [2020] Ch 621, paras 32-33. Nor did the Court of Appeal adopt the theory that nuisance can only result from physical emanations from the defendant’s land or physical invasions of the claimant’s land – a theory which, for the reasons given at para 13 above, is not sustainable. Rather, their suggestion is that “overlooking” is one of a small number of specific types of interference with the use and enjoyment of land which are excluded from the scope of the law of private nuisance as a matter of legal precedent and policy.

(4) Precedent

…

The other judicial authority on which the Court of Appeal relied is the decision of the High Court of Australia in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479. In that case the owner of land next to a racecourse allowed an observation platform to be built on his land from which a radio broadcaster could see the races and give a running commentary. The owner of the racecourse complained that this activity resulted in loss of business because many people who would otherwise have paid to watch the races listened to the commentary instead. The majority of the High Court held that the claimant had no right of action for (among other things) nuisance. Again, however, this was not a case of nuisance caused by visual intrusion. It could not reasonably be said that a single person looking onto the claimant’s land while races were taking place caused even trifling annoyance. The real issue was whether the broadcasting of a commentary on the races was a nuisance. The claim failed because the majority of the court held that, as Dixon J put it at p 508, “the substance of the plaintiff’s complaint goes to interference, not with its enjoyment of the land, but with the profitable conduct of its business”. Again, this decision provides no support at all for the proposition that watching from a neighbouring property, however persistent and intrusive, can never amount to a nuisance.

100.

Much more in point is the later Australian case of Raciti v Hughes (1995) 7 BPR 14837. In that case the defendants had installed on their property floodlights and camera surveillance equipment aimed at the plaintiffs’ backyard. The floodlight system was activated automatically by a sensor in response to movement or noise on the plaintiffs’ land. The illumination from the floodlights then enabled the camera to film and record on videotape what was happening on the plaintiffs’ land. The judge granted an interim injunction, holding that both the bright light and the surveillance were capable in law of constituting an actionable nuisance.

101.

To similar effect, in Suzuki v Munroe 2009 BCSC 1403 a court in British Columbia held that positioning a surveillance camera so that it continuously observed the entrance areas to the claimants’ neighbouring property was an intolerable interference with the use and enjoyment of the claimants’ property and constituted a private nuisance. The court cited several other Canadian cases in which video surveillance of a neighbouring property was held to amount to a private nuisance. One of those cases, Wasserman v Hall 2009 BCSC 1318, was also cited by counsel for the claimants in their argument on this appeal.

102.

The Court of Appeal sought to distinguish such cases, saying that watching and spying of the kind that occurred in Raciti “is quite different from just overlooking and what takes place on the Tate’s viewing gallery” (para 72). I agree that it is quite different from just overlooking, but not that it is materially different from what takes place on the Tate’s viewing gallery. In each case the activity complained of is constant observation and photography. It is true that in Raciti (and the two Canadian cases mentioned above) the defendants were found to be deliberately spying on their neighbours and it is not suggested that the purpose of the Tate’s viewing gallery is to spy on the claimants’ activities. But it is a predictable consequence of operating such a viewing gallery that, of the thousands of people who visit it each day, a very significant number will take an interest (as the judge found that they do) in how the claimants seek to conduct their lives in their flats.

103.

It is unsurprising that there are only a few reported cases of nuisance resulting from visual intrusion. The circumstances in which land is used in an unusual way which gives rise to visual intrusion on a neighbouring property of sufficient duration and intensity to be actionable as a nuisance are likely to be rare. The potential for such claims has, however, been markedly increased by developments in technology. Being photographed or filmed from neighbouring property is a far greater interference with the ordinary use and enjoyment of land than simply being observed with the naked eye. In an article published in 1931 Sir Percy Winfield referred to an unreported case involving a family in Balham who by placing an arrangement of large mirrors in their garden were able to observe everything that happened in the study and operating room of a neighbouring dentist. Professor Winfield saw no reason why this activity should not have been actionable as a nuisance: see Winfield, “Privacy” (1931) 47 LQR 23, 27. Nor do I. But nowadays the ready availability of CCTV equipment means that no such ingenuity is required to place neighbouring land under constant observation. Similarly, the intensity of the interference in the present case is made possible by the fact that a large proportion of the population now carry a camera incorporated in their smartphone. And the sharing of images on social media adds a further dimension to the interference.

104.

I conclude that, as well as being contrary to principle, the notion that visual intrusion cannot constitute a nuisance is not supported by precedent and indeed that such direct authority as there is positively supports the opposite conclusion.

…

Reliance on planning law

109.

The second matter of policy raised by the Court of Appeal was a suggestion that planning laws and regulations would be a better medium for controlling “inappropriate overlooking” than the common law of nuisance (para 83). This seems to me to overlook (if I may use the term) the fact that, while both may sometimes be relevant, planning laws and the common law of nuisance have different functions. Unlike the common law of nuisance, the planning system does not have as its object preventing or compensating violations of private rights in the use of land. Its purpose is to control the development of land in the public interest. The objectives which a planning authority may take into account in formulating policy and in deciding whether to grant permission for building on land or for a material change of use are open-ended and include a broad range of environmental, social and economic considerations. While a planning authority is likely to consider the potential effect of a new building or use of land on the amenity value of neighbouring properties, there is no obligation to give this factor any particular weight in the assessment. Quite apart from this, as Lord Neuberger observed in Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822, para 95:

“when granting planning permission for a change of use, a planning authority would be entitled to assume that a neighbour whose private rights might be infringed by that use could enforce those rights in a nuisance action; it could not be expected to take on itself the role of deciding a neighbour’s common law rights.”

110.

For such reasons, the Supreme Court made it clear in Lawrence that planning laws are not a substitute or alternative for the protection provided by the common law of nuisance. As Carnwath LJ said in Biffa Waste, para 46(ii), in a passage quoted with approval by Lord Neuberger in Lawrence, at para 92:

“Short of express or implied statutory authority to commit a nuisance … there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights.”

The practical as well as legal irrelevance of planning permission in this case is apparent from the judge’s finding that no consideration was given to overlooking in the planning process for the Tate extension: [2019] Ch 369, paras 58-63.

….

 (emphasis added)

The NSW Equity Division decision, in 1995, in Raciti v Hughes (1995) 7 BPR 14,437,7 referred to and adopted above at [100] and [102], harbours a treasure trove of authority on nuisance by use of cameras, listening devices, telephones and lights. Young J (as his Honour then was) in Raciti at 14,840  wrote that “…a deliberate attempt to snoop on the privacy of a neighbour and to record that on videotape … is an actionable nuisance”. See also Au v Berlach [2022] NSWSC 81 per Kunc J, where Raciti was followed and applied.

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UK Supreme Court Judgment 1 February 2023: Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) (supremecourt.uk)

To view a video of the full hearing of argument before the UKSC, click on the following, and then click under the heading “Watch hearing”: Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) – The Supreme Court

Speech delivered on 24 February 2023 by Damien O’Brien KC, on behalf of the Bar Association of Queensland, at the Valedictory Ceremony in honour of the Honourable Justice David Jackson and the swearing-in ceremony for the Honourable Justice Tom Sullivan.

Introduction

As the world adjusts to the changes brought about by the COVID-19 pandemic, we have seen an increase in hybrid workplace arrangements, retaining flexibility while returning to the benefits of in-person interaction. In legal practice this has been reflected by an increase in the use of video conferencing to attend court and tribunal hearings. Attendance by way of video conference has always been an option in Australian tribunals. However, prior to the interruption of Covid-19 this option had been used only infrequently.  Now, hearings by way of video conference have become quite routine, and the increased use of this format in practice makes it necessary for representatives to be more routinely aware of appropriate procedures and safeguards, particularly in circumstances where evidence is being taken via video conference from overseas.

The Attorney-General’s Department states that the reception of evidence from overseas for Australian court proceedings is to be determined by the relevant Australian state’s civil procedure rules and the laws of the relevant overseas jurisdiction in which the evidence is being taken. The Department refers to the Hague Convention on the taking of Evidence Abroad in Civil or Commercial Matters 1970 (‘Hague Evidence Convention’) as to contracting states and their specific requirements and procedures.[1] The Department is silent as to the extent to which these procedures apply to hearings before administrative tribunals. However, the practice of obtaining evidence from witnesses located abroad via video conferencing, without progression through slow and expensive diplomatic channels, has become commonplace.

This article addresses the requirements for taking evidence from overseas as set out in the Hague Evidence Convention. It then considers the issues raised in the recent decision of the UK’s Upper Tribunal in Agbabiaka v (evidence from abroad; Nare guidance) (‘Agbabiaka’)[2] in relation to the Hague Evidence Convention requirements. Finally, this article concludes that, even where diplomatic channels are utilised to secure evidence from unwilling overseas witnesses, the end result of that diplomacy may well involve video conferencing.

Procedure under the Hague Evidence Convention

The Hague Evidence Convention sets out a uniform framework to streamline the procedure for making a request to take evidence from overseas. Article 1 provides that “in civil or commercial matters, a judicial authority of a Contracting State may request the competent authority of another Contracting State, by means of a ‘letter of request’ to obtain evidence or to perform some other judicial act”.

Process for Letters of Request under the Hague Convention

A request made pursuant to the Hague Evidence Convention therefore requires:

1. the establishment of a central authority in each State to receive Letters of Request and transmit them to a competent authority to execute them;[3] and
2. the Letter of Request itself.

Pursuant to Article 3, a Letter of Request must:

• specify the name of the requesting judicial authority (the applicant);
• provide an email address, contact name and phone number for the Requesting Authority to facilitate communication;
• be addressed to the ‘Competent Authority of Australia’ (the receiving authority);
• state the nature of the proceeding for which the evidence is required; and
• set out the names and addresses of the parties to the proceeding, and their representatives;

Where relevant, the Letter of Request should also:

• set out the names and addresses of the witnesses or persons to be examined;
• include a list of questions to be put to the witness or a statement of the subject matter examined;
• include a description of the documents or other property to be inspected;
• identify any special method or procedure to be followed under Article 9.[4]

Per Article 1, the Hague Evidence Convention only applies to ‘civil or commercial matters’. While ‘civil and commercial matters’ is not defined, the Explanatory Report on the Convention states that “any potential disagreement on the meaning of these words is to be settled through diplomatic channels”[5]. 

It appears that relevant authorities may therefore take their own position as to the extension of the Convention to administrative proceedings.  As noted above, the Attorney-General’s Department does not clarify on this point.  Despite this ambiguity, the decision in Agbabiaka, heard on 13 October 2021,flags interesting considerations for parties to UK Tribunal proceedings where it becomes necessary to secure witness attendance through diplomatic channels.

The decision in Agbabiaka

In Agbabiaka, Mr Agbabiaka applied for entry clearance to the UK. His request was denied in the first instance by the Secretary of State and Mr Agbabiaka appealed to the first tier of the Tribunal (First Tier Tribunal). In the appeal hearing, after Mr Agbabiaka provided evidence by video link from Nigeria, the Home Office objected to the appeal because it had not been established that the Nigerian authorities had acquiesced to the taking of evidence from Nigeria. The First Tier Tribunal subsequently received communication indicating that Nigeria had no objection to the taking of evidence by video by a court in the United Kingdom in a civil or commercial matter. The First Tier Tribunal, therefore, concluded that this disposed of the Home Office’s objection and allowed the appeal. [6] The Home Office appealed to the Upper Tribunal on the basis that the information relied upon by the First Tier Tribunal did not meet the Home Office’s objection. As a result, the matter came before the Upper Tier Tribunal.[7]  

In considering the issue of evidence and submissions given from abroad,  the Upper Tribunal in Agbabiaka emphasised the diplomatic role that the Hague Evidence Convention plays, noting that “there has long been an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so” and “any breach of that understanding…risks damaging this country’s relations with other States”.[8]  Thus, even though the UK Secretary of State took the view that the Hague Evidence Convention did not apply to administrative proceedings, the Tribunal concluded that whenever the issue arises in a tribunal about the taking of evidence from overseas, the question of whether it would be lawful to do so is a question of law for that country, regardless of whether they are signatories to the Hague Evidence Convention. Therefore, even though the Hague Evidence Convention may not necessarily apply to proceedings before an administrative tribunal, it is important to consider and undertake the request process where relevant.[9]

The impact of Agbabiaka on UK Tribunals

In its decision, the Tribunal sets out a recommended process for the UK Tribunals.[10] Bearing this process in mind, the Agbabiaka decision (citing the guidance in Nare (evidence by electronic means) Zimbabwe)[11] provides several key takeaways applicable to the UK jurisdiction:

1. Although the Hague Evidence Convention process only applies to the taking of evidence, rather than the giving of submissions, the line between submissions and evidence is not always an easy one, particularly when the person is not a legal professional. As such, a tribunal may need to consider the request process where submissions are being given from overseas.[12]
2. The decision whether to grant an application to take evidence from overseas is a judicial one. Accordingly, the party seeking to call the evidence must notify all other parties and the Tribunal at the earliest possible stage, indicating the content of the proposed evidence
3. As in civil proceedings before the courts, it is the responsibility of the party making the request to take evidence from overseas to go through the necessary process. For example, under the proposed UK tribunal process, the relevant party would begin by sending a request to the Foreign, Commonwealth and Development Office (FCDO) to confirm whether the relevant country has any diplomatic or other objection to the provision of evidence by means of video-conference to a tribunal in the UK.
4. The party seeking to call the evidence from overseas must be in a position to inform the Tribunal that the relevant country raises no objection to evidence being given from within its jurisdiction to the tribunal.
5. Where there is a delay in the response from the other country, equal consideration may need to be given to the position of the appellant and the objective of avoiding undue delay in hearing matters against waiting to receive an unequivocal response from the other country, to avoid potential damage to diplomatic relationship and to ensure the best possible evidence is provided to the tribunal.
6. Requests made to a foreign country should proceed on a general basis, such that the individual appellant or witness is not identified in the request.
7. Since the onset of the COVID-19 pandemic and the increased use of video-conferencing in court and tribunal settings, it is no longer necessary that the location from which evidence is given be a court or tribunal hearing centre, or that the giving of evidence be subject to on-site supervision by court or tribunal staff. While this would certainly be the ‘gold standard’, it is for the tribunal to have regard to the risks to the quality and weight of evidence given from a location where this standard of supervision is not available.[13]

Practical considerations moving forward

Some scholars have taken the view that the Hague Evidence Convention was drafted at a point in time when “video conferencing was only a theoretical possibility,” and that advancements in audio-video technology now allow “countries to skip the slow and cumbersome process of sending formal letters through diplomatic channels to achieve the Hague Evidence Convention’s requirements”.[14]

Further, given the readily apparent benefits of video conferencing, it may be that the issues flagged in Agbabiaka will be reserved for only those cases where genuine diplomatic concerns are raised at an international relations level between countries. The continued elimination of logistical burdens in tribunal proceedings – such as the need for international witnesses to obtain visas for travel – is in the shared interests of the legal profession and individual litigants. Video conferencing reduces costs, and the reduction in international travel mitigates harm to the environment caused by flight-related carbon dioxide emissions.[15]

Arguably, allowing willing overseas witnesses to appear remotely also reduces forum shopping as litigants are less readily able to choose a jurisdiction that would be inconvenient to their opposing party, simply on the basis of witness location by means of invoking the doctrine of forum non conveniens.[16]

Finally, there is authority supporting the proposition that even where an overseas witness does not consent to appear, and diplomatic channels are followed to secure attendance, the end result may well be that the successfully subpoenaed witness is ordered to appear remotely.

The Trans-Tasman Proceedings Act 2010 (NZ) covers all New Zealand criminal court cases, and most civil court cases. It facilitates the process of asking a New Zealand court for permission to serve a subpoena in Australia to require a witness located in Australia to give evidence in New Zealand court proceedings. Although the New Zealand court may order that the Australian witness travel to New Zealand, it is also possible that the New Zealand court will give permission for the evidence to be taken remotely where it is satisfied that the facilities are available, it is more convenient for the evidence to be given from Australia, and it is appropriate in the circumstances of the matter.[17]

Conclusion

As the world becomes increasingly interconnected due to developments in technology and the need to adapt to the COVID-19 pandemic, the practice of securing evidence from witnesses overseas in Australian Tribunals has become less cumbersome. Practitioners have moved past the Hague Evidence Convention – silent on the issue of Tribunals – to embrace the benefits afforded by video conferencing.

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[1] Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (‘Hague Evidence Convention’).

[2] [2021] UKUT 00286 (IAC).

[3] Hague Evidence Convention, Article 2.

[4] Article 9 provides that the receiving authority executing the Letter of Request shall apply its own law as to the methods and procedures to be followed. However, it will also follow a request of the requesting authority that a special method or procedure be followed unless this is incompatible with the internal law of the State of the receiving authority or is otherwise impossible of performance.

[5] Explanatory Report to the Hague Evidentiary Convention at [22].

[6] Agbabiaka at [2] – [8].

[7] Although the Home Office subsequently withdrew its challenge to the decision of the First-Tier Tribunal and granted Mr Agbabiaka entry clearance to the UK, the Upper Tier refused the consent to the withdrawal as it provided an opportunity to consider the issue of evidence and submissions given from abroad.

[8] Agbabiaka at [12].

[9] Agbabiaka at [19] (citing Interdigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2021] EWHC 255 (Pat).

[10] This procedure is set out at [31] of the decision.

[11] [2011] UKUT 00443 (IAC) at [21]; Agbabiaka at [3].

[12] Agbabiaka at [24].

[13] Agbabiaka, [55].

[14] The Courts, the Remote Hearing and the Pandemic: From Action to Reflection, M. Legg and A. Song, [2021] UNSWLawJl 6; (2021) 44(1) UNSW Law Journal 126.

[15] Rule 43(A): Remote witness testimony and a judiciary resistant to change; C. Forbes, [2020] Vol.24:1 Lewis & Clark Law Review 299 at 317.

[16] Ibid.

[17] Make a person in Australia give evidence in certain New Zealand proceedings | New Zealand Ministry of Justice; accessed 25 January 2023.

The Hon Ian Callinan AC was born in Casino in New South Wales, but raised in Brisbane. He was admitted to the Bar in 1965 and took silk in 1978. He was President of the Bar Association of Queensland from 1984 and 1987, and President of the Australian Bar Association in 1984 and 1985.

Mr Callinan was widely regarded as one of the preeminent advocates at the Australian Bar.  In 1998 he was appointed a Justice of the High Court of Australia.  He sat until his retirement in 2007.

Mr Callinan is a prolific author, of novels and plays.

In the article below, Mr Callinan reflects – informatively and affectionately – upon his childhood in Brisbane during the dark days of the Second World War.  This article was published in the January-February 2023 issue of Quadrant, and is republished with the consent of – and with thanks to – the publisher of Quadrant, and  Mr Callinan.

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At the beginning of 1940 the population of Brisbane was about 300,000. My brother Jimmy, aged seventeen, the eldest of three sons, having raised his age by two years and forged our parents’ consent to his enlistment, was training to be a dispatch rider in the Australian Ninth Division. In July of that year, my father, aged thirty-nine, to the dismay of my mother, was improbably accepted for the Air Force. He was soon promoted. A photograph of him as a recruiting sergeant in Brisbane, seated at his desk surrounded by young women eager to volunteer for the Women’s Auxiliary Air Force (WAAF), remains annoyingly elusive.

Despite the 12,000 or so miles separating Brisbane from Europe, the progress of the war in Europe was a matter of continuing concern to most people. My real consciousness of the war began in early 1942. It must have been in February that I overheard my father whispering to my mother that the Prince of Wales and the Repulse had been sunk off Singapore, and that arrangements might need to be made for the family to be evacuated from Brisbane.

It was about then that I began my primary education at the local state school in a fine new building with two floors of reinforced steel concrete above, and a bomb-proof basement below. Every morning at eleven o’clock, an air raid siren sounded as a signal for an air raid drill consisting of a disorderly descent by the whole school to the basement to sit until the siren stopped.

A brown-out was imposed on the city. Some people covered their windows with criss-crossed tape as a precaution against the splintering of glass that never happened. Charcoal burners to power private cars appeared regularly on the streets.

With less skill, and much less enthusiasm than an Amish community building a barn, neighbours joined in making air raid shelters on each lot, usually trenches covered with semi-circular sheets of corrugated iron. They were mosquito hatcheries after rain, and were soon filled in by the residents. In public places the authorities built reinforced concrete bomb shelters (right), rectangular boxes which were later converted by removing the walls into shelters at bus and tram stops. My mother helped me to make a Victory Garden, a few lettuces and cabbages, beans and carrots. They did marginally better than the suburban shelters.

Jimmy’s pre-embarkation leave ended with a party at our house. I was allowed to stay up for the occasion. Jimmy, baby-faced, charming and wild, had no shortage of admirers. As proxy for him, I was kissed lightly on the lips by Grace of the flowing red hair. Even a child could sense lost chance, and danger. And there was more to come.

The great American general, Douglas MacArthur, came to town, making as impressive an entry to the Brisbane stage as Olivier made anywhere. And with him came the American military-industrial complex. Sealed roads, military encampments and military hospitals appeared almost overnight. He established his headquarters in a building appropriated from the AMP insurance company for the duration. The building now houses the MacArthur Museum.

The Americans came in their hundreds of thousands. It was not a case of “Yanks go home”. Rather it was “Yanks come hither.” As in the United Kingdom, the Yanks were better paid, better tailored, better equipped and better provisioned with access to their PX—an Aladdin’s Cave of cigarettes, nylons, candy (as they called it) and Coca-Cola—than the Australians.

They tended to be generous with their money and their largesse. My elder brother Peter and I gasped and spluttered on our first cigarette, a brutal Camel he extracted from a packet left lying around at a party at the house of my attractive cousins, three of whom were young women between sixteen and twenty-three. As we persevered with our Camel, Peter and I sipped on our first Coca-Cola, a gift from Oliver, an American soldier who was courting, and later married, cousin Rose.

Jimmy sailed for North Africa on the Queen Mary, its grand state-rooms converted into dormitories for other ranks. Consistent with his falsification of his application for enlistment. Jimmy’s premature twenty-first birthday was recorded in a certificate as having occurred on the voyage, complete with a watercolour miniature of him painted by an enterprising soldier for two-and-sixpence. That certificate, which I once possessed, like the photograph of my father also remains fugitive.

In 1942, my father successfully applied for officer training at Point Cook, the RAAF base near Melbourne. He was the oldest man of his intake and, very possibly, when commissioned, the oldest pilot officer in the Air Force.

In the meantime, Jimmy had survived the siege of Tobruk and the victorious second battle of El Alamein. It is an entrenched piece of Anzac apocrypha that Rommel said that if he had the choice, he would use Australian troops to take Tobruk and New Zealanders to hold it.

In 1943 my father, promoted to flying officer, was serving at Milne Bay in New Guinea, attached as meteorology officer to an Australia fighter squadron flying P-40 Kitty Hawks. This explains why throughout his life he maintained an intense interest in the weather. Even in the delirium of recurrent post-war bouts of malaria contracted in New Guinea, he never spoke of a climate crisis, a topic on which I would have preferred his opinion over that of the ill-mannered, uneducated child who berated an assembly of supine adults in the House of Commons.

Returned to Australia, and married to my favourite in-law Betty in Sydney, Jimmy was posted to the Atherton Tableland for jungle training. It is barely credible but well corroborated that he went AWOL, and talked his way onto General Kenny’s personal aircraft to fly from Cairns to Milne Bay, as he told it, to see how the old man was getting on. When the general, commander of all Allied air forces in the South Pacific, arrived at Milne Bay, both the US Air Force, which had by then established a major base there, and the Australians were lined up to welcome their commander.

My father was alarmed to notice Jimmy, after the general’s retinue disembarked, quietly and quickly descending from the rear of the aircraft and heading for the Australian encampment. My father was worried that he would be posted as a deserter. Jimmy stayed for a few days before my father was able to arrange for him to return on an RAAF transport. Asked later whether he saw the general on the aircraft, Jimmy said, “Yes, I was on the floor at the back and when he came down there, he said ‘Hello son’.”

Jimmy pleaded to the lesser charge of being AWOL, duly served his time, and was then deployed to Milne Bay where he had a second, less tense reunion with his father, before taking part in the amphibious invasion of Lae.

I remember the morning in Brisbane in September 1943 when a neighbour brought in the Courier-Mail, pointing to a story on page three. It is the only time I have ever seen a person faint, as my mother did with shock after reading only the first two paragraphs:

Buried by Jap Bomb

New Guinea, Tuesday.—A Queensland dispatch rider, Signaller Jimmie Callinan, had to be “dug out” by American rescuers after a Jap bomb had buried him under several feet of earth near Lae.

Callinan was riding his bicycle along the road near the beach-head when Jap bombs began to fall. He took refuge in a channel at the side of the road, but one of the bombs landed within a few feet of him, and he was buried in a shower of earth.

If she had read on she would have seen that although Jimmy’s motorcycle was destroyed, he had been rescued by some American soldiers on their second attempt, and was largely uninjured.

Forty-five years later, in Lae, briefed by an insurance company to defend a claim for business interruption arising out of the destruction by fire of a brewery, I asked in vain of the locals whether they were aware of any relics on or about the nearby foreshores of the allied amphibious operations there in 1943.

I had several reasons to recall these old wartime affairs a few weeks ago. I was reading Giles Milton’s Checkmate in Berlin, the climax of which is the Berlin Airlift from June 1948 to May 1949, when I came upon this passage:

The British ground staff at Gatow airfield had grown used to witnessing the unexpected, but everyone was taken aback when a lumbering Avro Tudor aircraft landed without warning one September morning, ten weeks into the siege. The plane itself raised eyebrows, for the Tudor was a noisy beast with a dubious safety record. The pilot was to cause an even greater stir. One of Gatow’s medical officers, Alf Johnson, did a double take when he saw the man jump down onto the tarmac, for he was dressed in pinstripe trousers and a homburg and was carrying a smart leather briefcase. He looked as if he was heading to a board meeting in the City of London.

It took less than a minute for his identity to become apparent. His name was Don Bennett and he had arrived in Berlin with a forceful personality and an illustrious wartime record. Bennett had been commander of the Pathfinder Force, the elite corps of the Royal Air Force that had been in the vanguard of every major bombing raid over Germany.

My father used to speak in awe of Don Bennett (above, arriving in Berlin). He was a Brisbane boy who had transferred from the RAAF to the RAF in 1931. A brilliant pilot and navigator, he had been shot down in the raid on the Tirpitz in a Norwegian fiord, bailed out, for several days evaded capture by the Nazi occupiers, and crossed the high snowy border to reach neutral Sweden where he was able to board a diplomatic flight to London. Later he would command the Pathfinders.

Bennett’s exploits in the Berlin Airlift were described in Checkmate in Berlin in this way:

Bennett worked around the clock, converting his second Avro Tudor into an air tanker that could carry nine tons of diesel oil into the city. He flew three nightly sorties into Berlin for two months without a break, a feat that earned him the lasting admiration of Edwin Whitfield. “An epic of human endeavour,” said Whitfield. “[It] can have few parallels in the history of aviation.”

I immediately obtained and read Bennett’s own matter-of-fact memoir, Pathfinder. It is almost possible to understand, but never to forgive, the British establishment for not conferring a knighthood upon this heroic, brilliant if sometimes difficult double DSO, the youngest air vice-marshal in the RAF. It is more than ironic that his elder brother, Arnold, who also served but only in Australia, was subsequently knighted for services to the law. He was Sir Joh Bjelke-Petersen’s favourite QC.

Another reason for recalling old events was a Brisbane launch I did, of The Tokyo War Crimes Tribunal: Law, History and Jurisprudence by Cohen and Totani, a valiant, able, but inevitably impossible attempt to analyse in strict legal terms the reasoning of the judges of the International Military Tribunal for the Far East, surgically excised from the geopolitics of the post-war world. The launch was fittingly at the MacArthur Museum. Another Brisbane connection was the appointment by MacArthur of the Chief Justice of Queensland, Sir William Webb, subsequently elevated to Justice of the High Court of Australia, as president of the tribunal. His successor as Queensland Chief Justice was to be Sir Alan Mansfield, who was a senior prosecutor at the trials.

The closest enemy hostilities ever came to Brisbane was the torpedoing, in blatant contravention of the Geneva Convention, by a Japanese submarine at four in the morning on May 14, 1943, of a fully illuminated, white Australian hospital ship, the Centaur, bearing green stripes and red crosses, about fifty miles north-east of the city. The captain of the submarine was later identified, tried and convicted for different war crimes.

There were never armed enemy hostilities in Brisbane, but there were hostilities between Australian and US servicemen in November 1942. They began, predictably, with an argument about a young woman, ascending to gunfire in which one Australian was killed and many US and Australian soldiers were injured. The “Battle of Brisbane”, which took place a couple of blocks away from MacArthur’s headquarters, was hushed up by the authorities, but widely discussed throughout the community.

In Brisbane the sense of war was omnipresent in those years. To emerge from a picture theatre at seven o’clock on a Friday evening onto Queen Street, the main street of the city, was to enter a sea of variegated uniforms and badges: US and Australian nurses, Australian soldiers, seamen and airmen, Women’s Auxiliary Service, US airmen, soldiers, sailors and marines, occasionally English officers, and Indian soldiers of the Dutch East Indian Army were all represented.

Film can be, and was then, a powerful medium especially for a child. Propaganda films succeeded in their purpose with me. I never doubted the courage and resolution, heedless of the recklessness of Noel Coward in In Which We Serve, playing a thinly disguised Louis Mountbatten as captain of the Kinross. I even swallowed whole the preposterous plot of We Dive at Dawn.

My brothers’ and my weekly treat was a session, late on Friday afternoon, first a newsreel, then a cartoon, a B grade and an A grade film, at a city picture theatre. Peter and I took it in turn to choose the films. Insensitive to the concerns of our mother, whose son and father were on active service, we always chose war films. Our favourites included This Above All and, of course, Casablanca. Stiff lips were the order of the day.

It was a time of excitement for a child. My mother kept open house for airmen and soldiers, friends of my father and Jimmy passing through Brisbane, as many of them did, some wounded and some lucky enough to have finished their deployment intact. We had much of the excitement, but none of the danger the children depicted in the 1986 film Hope and Glory faced during the London Blitz.

In Brisbane we collected old aluminium pots and pans, paper and used tyres for the war effort, and experienced mild rationing, but never went without a sufficient supply of anything we needed. Immediately after VP Day we lit a bonfire in a nearby park for which some of the boys had made cardboard effigies of Tojo to be consumed by the flames.

It was a film though, that defined the end of the war for me, a British film written by Anatole de Grunwald and Terence Rattigan after the latter was taken out of service as a rear gunner of a bomber and better employed in his metier as a playwright and screenwriter. The Way to the Stars is a beautiful, sentimental and uplifting film that begins on a now deserted English airfield, Halfpenny Field, on which a British and US bomber squadron had successively been based during the war. I well remember a seventeen-year-old Jean Simmons tripping on to the stage to sing at a concert in one of the climactic scenes:

Let him go, let him tarry, let him sink or let him swim
He doesn’t care for me and I don’t care for him
He can go and find another that I hope he will enjoy
For I’m going to marry a far nicer boy.

After the war, Oliver, unlike most of the US servicemen who married Australian women, chose to live in Australia. He and Rose had a long and happy marriage. A more distant cousin was less lucky. She married a Tennessee mountain boy, not quite Li’l Abner, but on his home ground a quite different man from the tidily uniformed young soldier who had courted her in Brisbane.

Jimmy, who once had a single stripe as an acting lance corporal for about a week, was proud of the distinction of leaving the Army after four and a half years of active service with the same rank as he had entered it: private.

Years afterwards, on a visit to Jimmy’s bedside as he was cheerfully fading—he was always cheerful—I asked him why he had been riding his motorbike on the beach at Lae.

“The Japs weren’t after me,” he said. “It was a grounded landing craft. They mustn’t have known it was disabled.”

I asked him what happened to the courageous Americans who dug him out under the bombing and the strafing that followed it. He looked thoughtful. “They had a good Jeep.” I waited. He added, “My mates and I took it.” It was not for nothing that the Ninth Division was called “General Morshead and his Twenty Thousand Thieves”.

Well, why were you near the landing craft? I persisted.

“I wanted the cornflakes. I’d seen a packet of them in the galley.”

Jimmy died about a week later.

Introduction

1. Litigation lawyers have a lot of experience with pleadings.
2. This leads us to believe that we know how to plead.
3. Sometimes something occurs to make us question that belief.       
4. In my case it was a passage in the 2008 article, Seven Deadly Sins of Pleading, by Tony Morris QC (as he then was, now KC).
5. The passage said:[1]

“One feels some sympathy with King Cnut in attempting to turn the tide against practices which have become entrenched. And one suspects that such an article as this is perhaps the least effective way of turning the tide, because the types of counsel who unthinkingly adopt such practices are often the types of counsel who don’t bother to read such articles.”

6. Having read that, then I had to read the rest of his article, lest I forever condemn myself to being one of those counsel who do pleadings in a mediocre way because they didn’t bother reading his article.
7. I am pleased I did. I encourage you all to do likewise.
8. The article identified a number of areas where I was guilty of repeating dubious yet common pleading practices, perhaps even out of “indolence or lassitude”, as that author kindly put it.
9. Another passage from Tony’s article on sins of pleading is salient:

“A good pleading is one which does not merely comply with the formal requirements of the rules of the relevant court. It is one which, in addition, takes full advantage of the forensic opportunities which the pleading process affords.”

10. In my experience many practitioners still plead as if it were a task to be ticked off, without applying their minds to the forensic advantages that may flow from a more careful pleading (and the forensic disadvantages from not doing so).

Pleading in Qld

11. Different jurisdictions adopt different practices with respect to pleading.
12. The focus on this paper is pleading under the Qld Uniform Civil Procedure Rules (‘UCPR’).
13. Qld pleading practice differs, in important respects, from that in most other jurisdictions.
14. This is a concern for interstate lawyers pleading, and responding to pleadings, in this jurisdiction.
15. My first tip is therefore, when pleading in an unfamiliar jurisdiction, always read, think about, and comply with the requirements of the local rules.
16. If in doubt, seek input from someone more familiar with that territory than you are.

Avoid Misconceptions

17. Plead in a way that clarifies issues in dispute.
18. If you believe your opponent misunderstands the basis of your pleading then clarify that misconception immediately.
19. In White v Overland [2001] FCA 1333 Allsop J (as he then was) said:

However, by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. …
…where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other side is not proceeding on a misconception or that the other side does appreciate some that has been said. Litigation is not a game. It is a costly and stressful, though necessary evil. … But no one’s interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false.

Ethical Obligations

Aspirational Pleading

20. If you don’t believe you can prove a particular material fact or cause of action, then you should not plead it.
21. That sounds obvious, but it is surprising how often practitioners still plead aspirations untethered by actual evidence.
22. This is not just bad practice, but it is also contrary to the requirements of the professional conduct rules.
23. I reproduce the relevant conduct rules below.

Barristers Conduct Rules

24. Rules 63 and 65 of the Barristers’ Conduct Rules made under the Legal Profession Act 2007 say:

“63.     A barrister must not allege any matter of fact in:

1. any court document settled by the barrister;
2. …etc;
   unless the barrister believes on reasonable grounds that the factual material already  available provides a proper basis to do so.

…

65. A barrister may regard the opinion of the instructing solicitor that material which is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which Rules 63 and 64 apply, as a reasonable ground for holding the belief required by those Rules (except in the case of a closing address or submission on the evidence).”

Solicitors Conduct Rules

25. The Solicitors’ Conduct Rules 2012 include:

“21.3   A solicitor must not allege any matter of fact in:

21.3.1        any court document settled by the solicitor;
21.3.2        any submission during any hearing;
21.3.3        the course of an opening address; or
21.3.4        the course of a closing address or submission on the evidence,

unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so.

21.4     A solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that:

21.4.1        available material by which the allegation could be supported provides a proper basis for it; and
21.4.2        the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.”

General Considerations

26. These are not the only ethical obligations that barristers and solicitors have with respect to pleadings.
27. In particular, always remember that we enjoy considerable privilege, and legal protections, in how we present cases to court.
28. That privilege comes with great responsibility.
29. A pleading is only a collection of untested allegations and, depending on their nature, these allegations may cause financial harm, unnecessary costs, and even reputational harm to one or more of the parties involved.
30. This is particularly so with respect to allegations of gross incompetence, criminality, fraud or other serious misconduct.
31. In short, if you do not reasonably believe you can prove it, then you must not plead it.
32. Pleadings must never be considered as a means of achieving an ulterior purpose for a client.[2]
33. Solicitors must also exercise their independent mind and judgment to pleadings settled by counsel.[3]
34. Sometimes counsel will make assumptions when drafting pleadings.
35. These assumptions must always be carefully checked.
36. If a solicitor believes a pleading settled by counsel alleges facts that are not reasonably provable then those parts of the pleading must be revised.

Purpose of Pleadings

37. Pleadings:

a. articulate the material facts;
b. facilitate procedural fairness;
c. define the issues for trial;
d. limit the scope for disclosure and interrogatories;
e. confine the evidence that is relevant and admissible;
f. elicit appropriate admissions;
g. may facilitate negotiations;
h. should avoid unnecessary costs.

38. UCPR 149 states:

“(1)  Each pleading must—

(a) be as brief as the nature of the case permits; and
(b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and
(c) state specifically any matter that if not stated specifically may take another party by surprise; and
(d) subject to rule 156, state specifically any relief the party claims; and
(e) if a claim or defence under an Act is relied on—identify the specific provision under the Act.

(2) In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.”

39. For a general description of the general scope and purpose of pleadings also see McGuirk v The University of New South Wales [2009] NSWSC 1424 per Johnson J at [21]-[29].

Basic Skills

40. The pleader must carefully identify:
    a. what causes of action or defence are available on the evidence; and
    b. how they will go about proving those claims or advancing that defence.
41. Good pleading requires:
    a. understanding of the available evidence;
    b. knowledge of the law;
    c. clarity of thought;
    d. precision in drafting.
    e. clear and parsimonious expression;
    f. understanding the rules of court relevant to pleadings.
42. A good pleading should be precisely:
    a. as long as necessary; but
    b. as short as possible.
43. A good pleading should contain only necessary allegations.

Material Facts & Particulars

44. Appreciate the difference between material facts and particulars.
45. Different requirements apply to each.

Material Facts

46. The pleading must set out the material facts that are sufficient and necessary for the claim or the defence.[4]
47. In Kirby v Sanderson Motors, Hodgson JA observed: [5]

1. “Material” means material to the claim, that is, to the cause or causes of action which are relied on;
2. The requirement of a statement of material facts does not exclude the allegation or legal categories, such as duty of care, fiduciary duty, trust and contract.
3. The general requirement to avoid surprise means the material facts must be stated in such a way that a defendant can understand the materiality of the facts, that is, how they are material to a cause of action.

48. Failure to plead the material facts necessary to make out a claim or defence may result in interlocutory applications, unnecessary delay, adverse costs, and even defeat at trial.

Particulars

49. Particulars are defined in the Butterworths Concise Australian Legal Dictionary as:

Details of the material facts alleged in pleadings, including details of any claim, defence, or other matter pleaded…

50. One way of conceptualising it is that material facts are the bones of the case, while particulars are flesh on the bones.

The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case.

51. The general difference between material facts, particulars and evidence is explained in Goldsmith v Sandilands (2002) 190 ALR 370 per Gleeson CJ at [2]:

The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but “to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial”. The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive .

52. The UCPR requires a pleading to contain (or be supplemented by) sufficient particulars necessary to:[6]
    (a) define the issues for, and prevent surprise at, the trial; and
    (b) enable the opposite party to plead; and
    (c) support a matter specifically pleaded under rule 150.

53. The UCPR also requires specific particulars to be delivered in certain circumstances.[7]
54. Particulars may be supplied in the pleading, or if more convenient, in a separate document.[8]
55. Particulars must be filed.[9]
56. In personal injury proceedings a statement of loss and damage complying with r 547 UCPR must be served within 28 days of close of pleadings and before any request for trial date is filed.
57. Remember that particulars are not material facts.[10]
58. For that reason:
    a. particulars will not cure the failure to plead material facts;
    b. it is not necessary to plead in response to particulars.
    c. particulars will narrow the focus of pleaded material facts, but they will not expand them.

Pleading Conclusions & Particulars

59. Beware the practice of pleading a conclusion of law (which is not a material fact) and then supplementing it with particulars (which are also not material facts).[11]
60. For example, the following is not really a competent pleading:
    (XX) The defendant was negligent in the way he managed and controlled his vehicle:
    Particulars:
    a. Failing to give way to the Plaintiff’s vehicle.
    b. Travelling at an excessive speed.
    c. Failing to keep a proper lookout.
    d. Failing to take any or any appropriate evasive action to avoid collision.

61. In many cases you will get away with this format (because this type of pleading has become ubiquitous, and also because its intent is tolerably clear).[12]
62. But the vice of this form of pleading is that neither the conclusion of law nor the particulars are actually material facts.
63. A party responding to a pleading is only required to plead to allegations that are material facts.
64. This form of pleading (in an appropriate case) might therefore invite objection, perhaps even interlocutory argument, and may ultimately serve no forensic advantage to the client.
65. It is better (in the above example), to reframe particulars as material facts, and followed by an allegation that in the premises of those facts, the collision was caused by the defendant’s negligence.[13]
66. The defendant is then required to either admit, deny, or not admit, each allegation, (validly stating the reasons for any denial or non-admission or risk a deemed admission arising under the Rules).[14]

Pleading Knowledge or Condition of Mind

67. The foregoing observations also apply in other contexts.
68. Two areas are particularly relevant here in negligence claims:
    a. pleading what a defendant knows or ought reasonably to know; and
    b. pleading the causative counter-factual.[15]
69. Rule 150(1)(k) of the UCPR requires that “motive, intention or other condition of mind, including knowledge or notice” be specifically pleaded.
70. Such “knowledge” would embrace actual knowledge (including that imputed through a natural person of a particular authorised status) and constructive (i.e. “…ought to know”) knowledge sought to be sheeted home to the opposing party.
71. Rule 150(2) goes on to provide that “any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded.” This rule, historically, however, seems honoured more in breach than observance.
72. In Quinlan v ERM Power Ltd [2021] QSC 35[16], Bowskill J (as Bowskill CJ then was) struck out numerous paragraphs of a further amended statement of claim on the basis that they did not satisfy the requirements for pleading a pleading of “motive, intention or other condition of mind, including knowledge”, having regard to rules 150(1)(k), 150(2) and 157(c) of the UCPR. Her Honour’s judgment provides useful consideration of what is required for such a pleading.
73. Her Honour said (at [65]-[66]):

“[65] It is not sufficient for a plaintiff simply to plead facts somewhere in the statement of claim; later to plead in a conclusory way that a party(ies) had a particular motive, intention or other state of mind; and contend that the other party(ies) are on notice, because of the general pleading, of what is to be alleged against them. It is incumbent on the plaintiff to be specific about the basis upon which they allege the motive, intent or other state of mind was held by each particular defendant. Contrary to the plaintiff’s submissions… what r150(1)(k) and (2) UCPR require is the “explicit linking” of facts to inferences; the drawing of an inference is not a matter of law for the court, but a matter of fact [See, for example, Edwards v Noble (1971) 125 CLR 296 at 304 per Barwick CJ; and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 (whether facts are capable of supporting a particular inference is a question of law, but the drawing of an inference from facts is a question of fact).]; and a party is required to “spell out in the statement of claim” the precise manner in which underlying facts are to be deployed so as to establish a matter alleged to be available as a matter of inference from those facts. That is the point of r150(2). It is not appropriate to plead a whole lot of facts, and leave it for the other parties to guess which are relied upon to support the pleaded inference, and for the court ultimately to “reach the correct decision”, irrespective of the parties’ arguments: it is for the party making the allegations to identify the case which it seeks to make and to do that clearly and distinctly”.[See Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 at [25]-[27]. This is all the more essential where the allegations are of fraudulent or serious misconduct, in respect of which more precision is required than in other cases. [Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583 at [70]].

[66] It is no answer to the defendants’ complaints in this regard to say, as the plaintiff does, that the failure to explicitly plead the underlying facts relied upon to support the inference of motive, intention or other state of mind does not matter because: (a) the natural person defendants intend to claim the privilege against self-incrimination – on the contrary, and as discussed further below, this underscores the need for specificity; and (b) the defendants are inherently aware whether they possessed the alleged state of mind or not – that proposition only has to be stated for its inaccuracy to be manifest. The pleading rules are designed to reflect the basic requirements of procedural fairness. If you make an allegation against a person, you are required to coherently articulate it, so that they are in a position to respond to it.”

74. This is salient when pleading a cause of action in negligence for doing or failing to do something contrary to what the defendant knew or ought reasonably to have known.
75. Some practitioners still fail to plead, or properly plead as to the defendant’s reasonable knowledge (or the absence or knowledge) when pleading a negligence claim.
76. Plead these matters carefully and specifically as material facts, not in a formalistic way followed by particulars.
77. Similarly, section 11(3) of the Civil Liability Act 2003 requires that objective material facts be pleaded to establish what a person would have done if a breach had not occurred.
78. The section states:

11 General principles

…

(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—

(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

79. Here it is important to carefully plead the “relevant circumstances” relied upon.
80. The common situation where this arises is where a failure to warn is asserted.
81. But the same difficulty also arises in other situations, such as cases where reliance on negligent advice is alleged.
82. There it is easy to show what a person has factually done in response to the advice, but you must also plead what would have occurred counter-factually but for the reliance.
83. Often pleading the counter-factual will involve pleading material facts about the plaintiff’s prior habit, practice, prior consistent behaviour, knowledge, or prior intent.

Pleading Causation

84. Some general observations about causation are apposite.
85. It is not sufficient to merely state something like: “but for the negligence the Plaintiff would not have suffered loss”.
86. That is a conclusion, not an articulation of material facts.
87. Material facts should be pleaded that demonstrate the causal relationship between the liability events and their linkage to the posited outcomes, both factual and particularly the counter-factual.
88. While this is clear wherever s 11(3) of the Civil Liability Act 2003 applies,[17] the observation also applies generally to all pleading of causation.
89. Pleading causation for the loss of a valuable commercial opportunity requires particular care and analysis.
90. For example, in Graham & Linda Hudday Nominees Pty Ltd & Anor v Byrne & Ors [2016] QSC 221, Jackson J noted (emphasis added):

“ [50]  First, it is necessary for a plaintiff who alleges loss of a valuable commercial opportunity to plead that the loss it has suffered is a loss of a valuable commercial opportunity, identifying the opportunity with some particularity. Second, it is also necessary that the plaintiff pleads what it would have done, where what the plaintiff would have done if the defendant had not been in breach of duty is a necessary causal condition to deciding factual causation. Third, it is necessary for a plaintiff who alleges such a loss to plead the percentage or proportion of the opportunity that was lost, in assessing value on the possibilities, in order to plead the amount of the damages claimed, as is specifically required. Fourth, where a plaintiff alleges a loss of a 100 per cent possibility or the certainty that they would have obtained the hoped for or expected benefit under a transaction which did not occur, it is to be expected that the plaintiff will allege with some particularity the facts by which that certain outcome would have been achieved.

[51]  There are two additional points. In a number of recent cases, courts have considered the extent of the proof and pleading required by way of causation and loss where a plaintiff alleges that as a result of the defendant’s breach of contract, negligence or misleading conduct the plaintiff would not have entered into the actual transaction that was entered into. Where the plaintiff alleges that they would have entered into no transaction on the one hand, or a different transaction on the other hand, the pleading should clearly allege the counterfactual scenario. In a similar vein, in my view, where a plaintiff alleges loss of a valuable commercial opportunity, the plaintiff should in most cases also allege the extent of the loss it says it suffered on the possibilities. It is not sufficient for a plaintiff simply to allege a 100 per cent possibility of obtaining the hoped for or expected benefit, leaving it open to contend that the issue to be decided by the court is the actual degree of likelihood anywhere between 100 per cent and 1 per cent. To require a plaintiff to formulate its case with all reasonable precision does not detract from the power of the court to grant relief generally other than that specified in the pleadings, subject to the application of rules of procedural fairness.

“The function of pleadings is to state with sufficient clarity the case that must be met” and thereby to “ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and … to define the issues for decision.”

91. In Berry v CCL Secure Pty Ltd (2020) 271 CLR 151 at [72], Gageler and Edelmann JJ observed (emphasis added):

“The function of pleadings is to state with sufficient clarity the case that must be met” and thereby to “ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and … to define the issues for decision”; Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286. A plaintiff should be expected to plead all material facts on which the plaintiff relies to constitute the [pleaded] cause of action, including any counterfactual on which that plaintiff relies to establish the requisite causal link between identified loss or damage and identified misleading or deceptive conduct. In the same way, a defendant resisting the [pleaded] action should be expected to plead any different counterfactual on which that party might rely to deny the causal link. Unless and to the extent that the parties choose to depart from the pleadings in the way they go on to conduct the trial (Banque Commerciale at 287), choice between the competing pleaded counterfactuals on the balance of probabilities should then exhaust the fact-finding that is required to be undertaken by the court on the issue of causation.”

Pleading Damages

92. Rule 150(1)(b) requires “every type of damage claimed including, but not limited to, special and exemplary damages” to be specifically pleaded.
93. Rule 155 UCPR states:
    (1) If damages are claimed in a pleading, the pleading must state the nature and amount of the damages claimed.
    (2) Without limiting rule 150(1)(b), a party claiming general damages must include the following particulars in the party’s pleading—
    (a) the nature of the loss or damage suffered;
    (b)  the exact circumstances in which the loss or damage was suffered;
    (c) the basis on which the amount claimed has been worked out or estimated.
    (3) If practicable, the party must also plead each type of general damages and state the nature of the damages claimed for each type.
    (4) In addition, a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise.

94. What is meant by “type of damage” in r 150(1)(b) and does it differ from “nature” of damages referred to in r 155(1)?
95. The reference to “special and exemplary damages“ in r 150(1)(b) indicates that these are examples of a type of damage referred to in the rule.
96. Rule 155(3) says for each type of general damages claimed you must state “state the nature of damages claimed for each type.”
97. In ordinary parlance the nature of something is a reference to its basic quality or character.
98. I suggest that will depend on the interest infringed (i.e. the basis on which the courts recognise an entitlement for that loss) that gives rise to the claim for damages.
99. Where the claim involves damages for personal injury or death the plaintiff must additionally, within  28 days of the close of pleadings, serve a Statement of loss & Damage (‘SL&D’).[18]
100. The SL&D must contain specified particulars about the damages claimed and identify specified documents relevant to those losses.
101. At first blush it appears otiose for r 150(1) and r 155 to require information that must later be duplicated in a SL&D.
102. However, this would misunderstand the different roles played by pleadings and the SL&D.
103. For example, in AAI Limited v Marinkovic [2017] Qd R 672 Morrison JA (with whom Fraser JA and Mullins J agreed) observed (emphasis added):

“[97] That review is sufficient to show that the purpose and utility of a Statement of Loss and Damage is directed to timely disclosure of information in a personal injuries case, so that parties can attempt to settle the case, have it brought on for trial, frame offers to settle on a more informed basis than might otherwise be the case, and have a framework within which to prepare for trial. However, it is not a pleading and should not be treated as one. Nor does it supplant a pleading. UCPR Ch 6 contains express rules dealing with pleadings, and they do not apply to a Statement of Loss and Damage.

[98] Williams v Partridge concerned a claim for expenses that were not referred to in the Statement of Loss and Damage, but the real vice was that the pleading simply referred the reader to the Statement of Loss and Damage. In other words, the pleader used the Statement of Loss and Damage as the particulars of the pleading, and as a consequence contravened UCPR r 151(1)(b) and r 155. So much is evident from what was said at paragraph [131] of the decision. The result was that the other party did not cross-examine on the topic (raised for the first time in a doctor’s report) as it appeared not to be relied upon.”

104. In Murphy v Turner-Jones [1922] QSC 40 (31 March 2022) Crow J at [66] considered r 155 requires a personal injury plaintiff to particularise how the different heads of damages are calculated.
105. In Quinlan v ERM Power [2021] QSC 35 (26 March 2021), a claim for pure economic loss against the auditor of the plaintiff corporations, Flanagan J found (emphasis added):

“[50] The second aspect is that the defendants allege that the plaintiffs have not complied with r 155 of the UCPR in that they have failed to properly claim and plead damages. I do not accept this submission. Paragraph 212 of the statement of claim pleads the nature of the losses suffered, the circumstances in which the plaintiffs suffered those losses and how those losses have been calculated. In each instance, the losses have been identified and quantified.  The defendants are, of course, at liberty to seek further and better particulars.”

“Rule 155 of the UCPR introduced a rule requiring much more specificity in pleading damages than had previously been the case.”

106. In NDC Investments (Aust) Pty Ltd v Sign Vision (Aust) Pty Ltd & Anor [2013] QSC 35, Atkinson J observed:

“Rule 155 of the UCPR introduced a rule requiring much more specificity in pleading damages than had previously been the case. This serves the purpose of defining the relief sought by the plaintiff with greater clarity so that the defendant knows what case it has to meet and the court what issues it has to decide with regard to that relief.”

107. The degree of specificity required in each case will depend on the nature of the damages claimed.
108. It would seem that a pleading must, at the minimum:
     a. identify each type of damage claimed; and
     b. the circumstances in which the losses are said to have been sustained; and
     c. the amount claimed for each type of damage; and
     d. the manner in which those amounts are calculated.
109. I suggest it is not necessary to set out voluminous tables identifying individual items of outlay or expenditure as these are strictly particulars, provided the pleading makes clear the matters identified in the preceding paragraph.
110. Rule 155(1) refers to the “amount” (singular) of damages claimed for each type, not details of each individual item totalling up to that amount.
111. But wherever practical to do so, err on the side of caution.

Special Rules of Pleading

Strict Pleading

112. Queensland adopts a strict pleading regime.
113. The UCPR is designed to prevent the practice (common prior to the UCPR) of filing a ‘holding defence’.
114. Failure to follow the requirements of the UCPR can result in:
     a. deemed admissions;
     b. inability to lead evidence.
115. This can have profound implications for the unwary pleader and their client.
116. This sometimes creates difficulty for interstate practitioners who are unused to this approach.
117. The time for delivery of a defence (28 days), or reply (14 days), is short.
118. Lawyers must gather their evidence early, lest they may face urgency and inconvenience in drawing any defence or reply.

Answering Pleadings

119. Take careful note of rule 165(2):

165    Answering pleadings

(1) A party may, in response to a pleading, plead a denial, a non-admission, an admission or another matter.

(2)  A party who pleads a non-admission may not give or call evidence in relation to a fact not admitted, unless the evidence relates to another part of the party’s pleading.

120. You cannot call evidence to refute any allegation of a material fact that is the subject of a non-admission.
121. This may place your client at a significant forensic disadvantage.
122. This applies also to plaintiffs and defendants alike, as factual allegations in a defence will often require reply.
123. This is discussed in more detail later in this paper.

Deemed Admissions, Denials & Non Admissions

124. Take particular note of rules 166 to 168 UCPR (extracted below).

166    Denials and non-admissions

(1) An allegation of fact made by a party in a pleading is taken to be admitted by an opposite party required to plead to the pleading unless—
(a) the allegation is denied or stated to be not admitted by the opposite party in a pleading; or
(b) rule 168 applies.

(2) However, there is no admission under subrule (1) because of a failure to plead by a party who is, or was at the time of the failure to plead, a person under a legal incapacity.

(3) A party may plead a non-admission 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 non-admission 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 non-admission of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegation is untrue or cannot be admitted.

(5) If a party’s denial or non-admission of an allegation does not comply with subrule (4), the party is taken to have admitted the allegation.

(6) A party making a non-admission 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.

(7) A denial contained in the same paragraph as other denials is sufficient if it is a specific denial of the allegation in response to which it is pleaded.

167    Unreasonable denials and non-admissions

If the court considers an allegation of fact denied or not admitted should have been admitted, the court may order the party who denied or did not admit the allegation to pay additional costs caused by the denial or non-admission.

168    Implied non-admission

(1) Every allegation of fact made in the last pleading filed and served before the pleadings close is taken to be the subject of a non-admission and rule 165(2) then applies.

(2) However, nothing in these rules prevents a party at any time admitting an allegation contained in a pleading.

125. These provisions have so far been raised in some 146 decisions resulting in 456 citations.^[19]
126. The majority of these decisions involve arguments over defences, though some do relate to replies.

Deemed Admissions

127. The default position under the UCPR is that every allegation is deemed to be admitted unless it is adequately denied or not-admitted.[20]
128. Further, any denial or non-admission that does strictly not comply with the formal requirements of 166(4) also results in a deemed admission.
129. Therefore any material fact that remains untraversed, or inadequately traversed, is admitted.

Form of Denials

130. The only basis for a denial is a belief that the allegation is untrue.[21]
131. I suggest that the belief must be reasonably held when regard is had to the factual material already  available to the party.
132. That is required by the professional conduct rules (discussed previously).
133. The UCPR requires that the pleading making the denial or non admission:
     a. specify precisely what is denied or not admitted (rule 166(1)(a) UCPR); and
     b. for each denial or non-admission, contain a “direct explanation” of the grounds on which the belief is based (rule 166(4) UCPR).
134. A common (though by no means universal) practice has developed where individual denials are followed by the incantation: “believing it to be untrue, because…”
135. There is no vice in that, other than repetitive verbiage.
136. Indeed, it may often be prudent to use that (or similar) form or words, as it makes clear to both the pleader and the opponent, that the pleader has understood their duty when deciding how to formulate the response.  
137. In Cape York Airlines Pty Ltd v QBE Insurance (Australia) [2009] 1 Qd R 116 at [27] Daubney J observed:

“[27]   A ‘direct explanation for a party’s belief that an allegation is untrue’ is precisely what it says – a direct explanation for the belief. At first blush, it might be thought curious that the rule requires such an exposition of an essentially subjective matter – a party’s belief as to matters is generally neither here nor there so far as the Court is concerned. There is a significant body of principle and statute devoted to the primary evidentiary rule that witnesses should state facts not opinions and the exceptions to that rule. But the requirement that a party provide a direct explanation for its belief that an allegation is untrue fulfils two important functions: 

1. it compels the responding party to expose, at an early stage of the proceeding, its rationale for a joinder of issue on a particular allegation; 

2. it necessarily compels the responding party to formulate that rationale. In other words, the party must ask itself, and be able to answer the question, ‘Why am I denying this fact?’” (emphasis in original).”

[28]   A party’s direct explanation may, depending on the nature of the allegation in question, be straightforward (e.g. “this event alleged by the plaintiff did not occur at all”). It may be that the party’s belief that the allegation is untrue is founded in a different factual matrix (e.g. “this event did not occur in the manner alleged by the plaintiff”). Or it may be that the party believes the allegation to be untrue because the allegation is inconsistent with other matters which the party would propound (e.g. “the alleged fact is so inconsistent with other matters that the defendant believes it to be untrue”). I should hasten to add that, in giving these examples, I do not purport to cover the field of possible direct explanations, nor should these examples be regarded as templates. I refer to them, however, to reinforce the proposition that what r 166(4) requires is exactly what it says – a direct explanation for the belief.

138. It appears impermissible to alternatively plead that a party either denies of does not admit an allegation.[22]
139. As a matter of logic, if something is denied it is because the party believes it to be untrue, whereas a non-admission involves uncertainty over whether it is true or false.
140. The pleader must have a view one way or another, not (at least after making reasonable inquiry) hold both views simultaneously.
141. That said, it is logically possible that a party has a belief that something is untrue based on belief about another fact or state of affairs, and if that second belief turns out to be incorrect, then the party may then be unsure whether the subject matter of the original plea is then true of false.
142. I caution against attempting conditional pleas like this, but if your client is tempted to plead in this manner, do so infrequently and with extreme care.
143. Where a denial goes merely to the existence of a contested event then the matter might simply be dealt with as: “The allegation is denied, believing it to be untrue, because the event alleged did not occur”.
144. This creates a simple joinder between the allegations of the plaintiff and the defendant, and to that extent it will not require a plaintiff to further reply.
145. But in many (probably most) cases more information is required from a defendant about the basis of any belief that an allegation is untrue.
146. In those situations the appropriate response is to say something like: “The allegation is denied, believing it to be untrue, for the reasons set out in the following subparagraphs: …”
147. This type of pleading, while tedious for the pleader, certainly serves to narrow the issues and minimises surprise at trial.
148. Further, in many cases, this form of pleading may require a plaintiff to reply to the new factual allegations made by the defendant, to avoid any risk of a non-admission arising under rule 168(1) UCPR.
149. This is discussed further later in this paper.
150. Recall, that a non-admission will prevent a party from leading evidence on that point (unless the evidence is relevant for allegations made in another portion of that party’s pleading).

Form of Non-Admissions

151. Rule 166(3) sets out the only ground for pleading a non-admission.
152. It requires three conditions to be met:
     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 non-admission of the allegation is contained; and
     c. the party remains uncertain as to the truth or falsity of the allegation.
153. The non-admission must (as it is with denials) also be accompanied by a “direct explanation” for the belief why the allegation cannot be admitted.[23]
154. Again, a practice has evolved where many lawyers repeat, for each non-admission: “Paragraph XX of the statement of claim is not admitted as, notwithstanding reasonable inquiries, the defendant remains uncertain as to the truth or falsity of the allegation because…”
155. Nothing in the rules requires these incantations to be made on each occasion, provided a fair construction of the pleading is that the truth of the matter is not within the means of knowledge of the pleader.^[24]
156. In such cases the matter will not be interpreted as a deemed admission.^[25]
157. This is consistent with the overriding philosophy of the UCPR includes, in sub-rule 5(2): “…these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.”^[26]
158. That said, it is prudent to express the pleader’s intent clearly, for the reasons discussed under the prior heading.
159. Occasionally practitioners will plead a non-admission followed by an explanation such as “…as it is a matter to be determined by the court”.
160. This most often occurs where a defence or reply traverses an allegation that is the subject of competing expert opinions, or something involving a matter of construction.
161. In Pollock v Thiess Ltd [2014] QSC 22 McMeekin J stated (emphasis added):

“[10]  In case the profession is in any doubt — and the explanation for the pleading was said to be the adoption of the firm’s usual practise — I should immediately observe that pleading that a matter that is the subject of dispute “is a matter to be determined by the court having regard to the entirety of the evidence and application of relevant legal principles” should never appear, at least in supposed compliance with the requirements of r 166(4). No doubt the observation is accurate — all issues in dispute are “to be determined by the court having regard to the entirety of the evidence and application of relevant legal principles” — but the pleading does not meet the test that the relevant rule lays down.”

162. The advantage of a non-admission is that the UCPR specifically contemplate that it may be a temporary plea, and specifically require the non-admission to be replaced if later inquiries so justify, with an admission or denial in an amended pleading.
163. In short, if later inquiries provide sufficient basis to replace non-admission with a denial, it is not attended by the same difficulty as attempting to withdraw an admission.

Reply to Defence

164. In most jurisdictions a reply is only required where some affirmative defence is asserted, such as:
     a. limitation;
     b. contributory negligence;
     c. comparative liability;
     d. voluntary assumption of risk;
     e. etc.
165. Otherwise an implied joinder of issue usually arises.
166. Under the UCPR the situation is quite different.
167. Here a formal reply is usually required (or at the least, prudent) even if no affirmative defence is asserted.
168. This is because of the combined effect of rules 166 and 168(1) UCPR.
169. Recall, that every defence will contain denials, and those denials will be accompanied by an explanation of the defendant’s reasons for the belief that the allegation is untrue.
170. There may be valid arguments about whether any or all of those reasons comprise ‘material facts’ (as if not, then there is no need to plead in reply).
171. A defendant’s statement of belief that an allegation is untrue is not itself a fact in issue in the proceedings, and the defendant’s reasons for that belief therefore will not acquire the status of material facts simply by being identified in the defence.
172. But sometimes they may be material facts regardless.
173. The answer will turn on the type of the reasons given for the defendant’s belief, and how those reasons are articulated in the defence.

“…if the direct explanation given by a defendant is that the alleged fact is so inconsistent with other matters that the defendant believes it to be untrue, the defendant should plead those other matters by way of response…”

174. In Cape York Airlines Pty Ltd v QBE Insurance (Australia) [2009] 1 Qd R 116, Daubney J observed:

“[29] The direct explanation itself, clearly enough, is not a statement of a material fact for the purposes of r 149. It may be, however, that the nature of the direct explanation of the party’s belief that an allegation is untrue necessarily compels the party to plead, in compliance with r 149, the material facts (not evidence) on which it will rely to controvert the allegation or other matters to prevent the opponent being taken by surprise. Thus, if the direct explanation given by a defendant is that the alleged fact is so inconsistent with other matters that the defendant believes it to be untrue, the defendant should plead those other matters by way of response, either as material facts under r 149(1)(b) or as matters required to be stated to prevent surprise under r 149(1)(c). On the other hand, if a party’s direct explanation is, for example, that it believes that a particular event simply did not occur, it may, depending on the case which it would seek to advance at trial, not be necessary to plead any other matters.”

175. His Honour further stated at [36]:

[35]  If anything, his Honour’s judgment reinforces the necessity for a defendant to observe the distinction between, on the one hand, the ‘direct explanation’ required under rule 166(4) and its obligation, under rule 149, to plead the material facts on which it will rely at trial and other matters necessary to prevent surprise to the opponent. The “direct explanation”, understood as a subjective exposition in the manner I have described above, will not of itself constitute a further issue for determination at trial. A denial in a defence puts in issue the fact alleged in the statement of claim to which the denial is a response. If a defendant, when putting on its defence, pleads further material facts or matters to prevent surprise, it is then for the plaintiff to respond in accordance with Chapter 6 Part 4 of the UCPR, and, to the extent that the plaintiff’s response to particular allegations by the defendant consists of denials or non-admissions, my observations above apply with equal force.

176. For this reason, in many instances (perhaps most) a prudent plaintiff is best advised to avoid the risk of inadvertent deemed admissions arising, and reply to the defendant’s allegations as if they are material facts.
177. Once a reply is filed then it (and not the defence) becomes the “last pleading filed and served before the pleadings close” under r 168(1). 
178. Accordingly, a plaintiff cannot then rely on rule 168(1) (deemed non-admission) applying to the defence.
179. This means that if a plaintiff files a reply, they must carefully respond to each new allegation of fact made in the defence, by either denying, or not-admitting that fact, to avoid the risk of a deemed admission arising under rules 166(1) or 166(4) UCPR.

Numbering, Headings, Table of Contents, Diagrams

180. Other formal requirements of pleadings are few.[27]
181. As to the internal content (that is, the parts containing the allegations of material facts and particulars) all that is required is that the pleading be:
     a. paginated; and
     b. divided into consecutively numbered paragraphs and, if necessary, sub paragraphs.
182. In simple cases that is sufficient.
183. In more complex cases it may assist to provide headings, a table of contents, and (rarely) even footnotes.
184. Headings may be used to identify or introduce the legal categories relevant to specific pleaded facts (such as duty, breach, causation, damages, etc.).[28]
185. It is permissible, indeed sometimes advantageous, to attach diagrams, photos, or even documents to pleadings.
186. A picture can be worth a thousand words.[29]
187. For example, the pleading in a clothing copyright infringement case may assisted by photographs of original and the infringing designs.
188. Similarly, a dispute between adjoining owners of land over access, or building infringement, etc, may be assisted by photos and survey diagrams.
189. Actions involving dangerous machinery or defective products are other instances where a properly pleaded diagram or photo can often assist.
190. Care must be taken to ensure the allegations go no further than to describe, as material facts, that the photo or diagram represents features that existed at the relevant date, to deprive the opponent of the opportunity to make a valid denial or non-admission.
191. For example, if your client is clear that a photo truly represents the condition of a thing at the relevant time, then it is appropriate to say, as a material fact: “The photo attached as annexure “A” depicts the condition of the XXXX at the time of the accident”.
192. Finally, always strive for simplicity when it comes to paragraph and subparagraph numbering.
193. It should rarely be necessary to go beyond two levels of subparagraphs, and at the most, try never to go beyond three.
194. It makes no sense to minimise the use of words (by excessive nested subparagraphs) if it is at the expense of meaning or clarity.
195. Overuse of nested sub-paragraphs can make a pleading difficult to follow.
196. Plead each material fact separately and simply.
197. Try not to use 1.1, 1.1.2 type sub-paragraph numbering (although I used this for many years).
198. I now consider it is irritating, wastes space (as it requires excessive indenting), and can be hard to follow.
199. Always test your pleading by asking “can I simplify this?”

“What is the problem, the doubter asks? The answer is that sometimes the pleader, to use a venerable idiomatic expression, “can’t see the wood for the trees”…”

Narrative Pleadings

200. In Graham & Linda Huddy Nominees Pty Ltd & Anor v Byrne & Ors [2016] QSC 221 Jackson J at noted (emphasis added):

“[2]  Any student of pleading will recognise that there is a tendency in modern pleadings to tell a long story, narrative style, with not enough regard for the fundamental rule that material facts, but not the evidence by which the facts are to be proved, should be pleaded, together with necessary particulars of those facts.

[3]  What is the problem, the doubter asks? The answer is that sometimes the pleader, to use a venerable idiomatic expression, “can’t see the wood for the trees”…”

201. Simplicity is a virtue in pleading.
202. For example, never plead something like this:

“On the 27 June 2023 the defendant, knowing that the plaintiff had not been warned of the material risks of injury to the sciatic nerve, operated on the plaintiff to replace his right hip, and in the process irretrievably damaged the plaintiff’s sciatic nerve … ”.

203. Each material fact should have its own paragraph (or if relevant, sub paragraph).[30]
204. Each allegation of fact should be expressed in a simple and concise way.
205. The rules require this.
206. But regardless, the use of composite allegations gives your opponent more scope to deny or not admit.
207. When you plead directly and simply you force your opponent to respond in a similar way.
208. Plead in a way that forces your opponent to make appropriate admissions.

Pleading Material Times

209. When pleading “at all material times” make sure you define what times are in fact material to each allegation.
210. Limit this sort of allegation to specific defined times and events.
211. Where there are a number of events giving rise to a claim, then it is often useful to plead them under a separate heading, such as for example “Liability Events”.
212. Then, when referring to the material times you can clearly say: “at all times material to the events described under the heading ‘liability Events’”.
213. Your opponent should never have to assume what times or events you are referring to.
214. It may be the case that the material times are different for different facts, so be specific with what events you refer to, and what times are material to that event.

Conflating Duty and Breach

215. Always plead the material facts going to both duty and breach separately.
216. This advice is especially important in a novel case.
217. A duty of care will always be defined at a higher and more general level of abstraction than the facts relevant to its breach.
218. See, in this context, comments by Hayne J in CAL No 14 Ltd v Scott (2009) 239 CLR 390 at 416:

Because the duty relied on in this Court was framed so specifically, it merged the separate inquiries about duty of care and breach of duty.  The merger that resulted carried with it the vice of retrospective over‑specificity of breach identified in Romeo v Conservation Commission (NT) and in the diving cases of Vairy v Wyong Shire Council, Mulligan v Coffs Harbour City Council, and Roads and Traffic Authority (NSW) v Dederer.  The duty alleged was framed by reference to the particular breach that was alleged and thus by reference to the course of the events that had happened.  Because the breach assigned was not framed prospectively the duty, too, was framed retrospectively, by too specific reference to what had happened.  These are reasons enough to reject the formulation of duty advanced in argument in this Court.

Avoid Hyperbole

219. Plead only the facts you need to establish your cause of action.
220. For example, avoid over-saucing allegations about a defendant’s acts or omissions to make them sound bigger, more consequential, or having some pejorative connotation that it is unnecessary for you to prove.
221. For example: “the defendant administered a dose grossly in excess of that prescribed…”
222. If it is sufficient to prove that the dose exceeded what was prescribed, but it is not necessary to prove that it was grossly in excess of that level, then why allege it?
223. Exaggerated allegations give your opponent wriggle room to deny or not admit in response.
224. Make allegations that put the opponent on the hook. Do not frame allegations in a way that will encourage your opponent quibble.
225. Your pleading is not the place for rhetoric.
226. Leave that for submissions (if then).

Never be Rude or Offensive

227. This should be obvious to everyone.
228. Do unto others as you would have them do unto you.
229. Always strive to be detached and professional, even in the face of provocation.

Respond Only to Facts Alleged

230. When pleading in response (for example, when defending or replying):
     a. analyse exactly what is alleged against your client; and
     b. plead only to that allegation.
231. In other words, never assume something that is not asserted as a material fact.
232. Otherwise you risk admitting to something that is not alleged, or not responding to the specific allegation that is actually made against your client.
233. The exception to this is if the opponent has inadvertently made an error of a typographical nature.
234. Do not be pedantic about typographical or numbering errors in an opponent’s pleading.
235. Everyone makes these mistakes, and they are meaningless in the overall scheme of things.

Repeats and Relies Upon

236. It is common for a plaintiff to reply to an allegation in a defence by saying: “the plaintiff repeats and relies on paragraphs XXX of the statement of claim”.
237. Once an allegation is made in the statement of claim then there should be little need to repeat it (unless it is clearly necessary as a reason for a particular denial or non-admission).
238. It is common in defences for earlier denials to be referred to in later paragraphs of the same document.
239. For example: “The defendant denies the facts alleged in paragraph XX of the statement of claim, believing them to be untrue, for the reasons referred to in paragraph YY above”.
240. This avoids the need to continually repeat the same facts on multiple occasions throughout the defence.
241. When replying, it is acceptable to reply once, and thereafter refer back to the earlier paragraphs when required.
242. For example, a suitable format is: “The Plaintiff denies the facts alleged in paragraph XX of the defence, believing it to be untrue, for the reasons already traversed at paragraph YY above”
243. That said, requires very careful proofing before filing as, not uncommonly, paragraphs are rearranged in the drafting process and numbering goes astray.
244. Also, continually referencing other paragraphs of the same document does impose some strain on the reader.
245. In each case it requires balancing brevity and clarity.

The Incomplete Traverse

246. It sometimes occurs that a party incompletely traverses an allegation in their defence or reply.
247. For example, suppose a statement of claim contains an allegation that the defendant breached a duty of care in a number of ways (either by doing something that the defendant ought reasonably not have done, or by omitting to do something that ought reasonably to have been done).
248. If the defendant disputes owing any duty of care, then it is a valid response to deny the existence of any breach on the basis that no duty also means no breach.
249. But if the defendant does not also respond to the specific allegations as to what the defendant is said to have done or omitted to be done, then (depending on the context) there may be an incomplete traverse.
250. That is, the defendant’s denial goes solely to the existence of the duty itself, but not to the facts alleged as to the breach of that duty.
251. If the court finds the defendant did owe a duty of care, then the condition for the defendant’s denial of breach dissipates, and deemed admissions will arise with respect to the allegations that were not traversed.
252. This appears to be a direct consequence of rule 166(4)-(5) UCPR.

253. This also appears consistent with the following observation Cape York Airlines Pty Ltd v QBE Insurance (Australia) [2009] 1 Qd R 116 per Daubney J:

“If, however, the explanation for the denial was not limited to a controversion of the fact but involved the advancement of an affirmative case, one would expect that to be apparent on the pleadings.“

“[36]  For completeness, I should also say that I would not accept in an unqualified way the submission made on behalf of the defendant that a denial of a fact alleged in the statement of claim puts the matter in issue and both sides may lead evidence about it. If, for example, a defendant’s direct explanation for a denial of an allegation of fact was that the matter simply did not occur, then the evidence which the defendant might lead on that issue would be limited to controverting the plaintiff’s evidence. If, however, the explanation for the denial was not limited to a controversion of the fact but involved the advancement of an affirmative case, one would expect that to be apparent on the pleadings.“

254. So beware the incomplete traverse.

Non-Pleading sans Particulars

255. A practice has developed where some lawyers try to avoid pleading to a particular allegation due to some real or imagined absence of particulars.
256. Rule 157 requires pleadings to contain particulars sufficient to define the issues, avoid surprise, enable a party to plead in response and support any matter specifically pleaded under rule 150 UCPR.
257. That stated, a party can usually plead to material facts without first requiring further particulars.
258. This is particularly so where the facts relate to matters about which the pleader already has personal knowledge.
259. My advice is to plead, not prevaricate.
260. Be very careful about invoking rule 157(b) as a basis for not pleading to a specific allegation.
261. The court may take a different view to you, and you will then be faced with a deemed admission that will be very difficult to retract (this is discussed below).
262. The appropriate course, in any dispute over particulars, is to apply for further and better particulars.

Beware Blanks in Draft ‘Settled’ Pleadings

263. Sometimes counsel will settle a pleading but leave blanks to be inserted by the briefing solicitor.
264. This is occasionally necessary, due to urgency, or perhaps simple absence of sufficient information.
265. For example, counsel may be asked to draw the liability parts of a statement of claim but leave it to the solicitor to insert particulars of damages.
266. Never allow an incomplete document to be filed and served.
267. It makes you look like a total idiot.
268. If you ‘settle’ incomplete documents then you can be certain that eventually one of them will be filed and served in that condition.
269. My advice to counsel is never allow your name to appear on the bottom of an incomplete document.

Withdrawing Admissions

270. An admission, including a deemed admission, may only be withdrawn by the leave of the court.[31]
271. Absent leave, the matter cannot be rectified simply by filing an amended pleading.
272. Any decision whether to permit the withdrawal of an admission is discretionary.[32]
273. The court will not permit an admission to be withdrawn without being satisfied that the subject matter of the admission is truly contested.[33]
274. That usually will require sworn evidence as to:[34]
     a. the circumstances in which the admission was made;
     b. proof that there is a real dispute about the subject matter of the admission.
275. Other factors relevant to the exercise of the court’s discretion are:[35]
     a. delay;
     b. prejudice to the parties (including other parties in the same proceeding).
276. Where a party wishes to withdraw an admission and substitute it with a non-admission, the sworn evidence should show:[36]
     a. what inquiries have been made to ascertain whether the allegation is true or untrue;
     b. that those inquiries were reasonable in the circumstances.

Conclusion

277. It is often said that pleading is an art not a science.
278. I am not sure that is correct.
279. But if pleading is an art form, then strive for to produce a Vermeer, not a Basquiat.
280. I believe pleading is a discipline that must be practised.
281. It requires clear logical analysis.
282. It assists, if you have time, to put your completed draft aside for the night before you do any final proofing.
283. That eliminates change blindness and permits your brain to process further.
284. I have never done a pleading that I did not want to change the next day.
285. Also, I often find it difficult to “settle” a pleading that has been drafted by someone else.
286. I find it difficult to unsee what was previously drafted.
287. While I read the prior draft, I will often then start again from scratch.
288. That is probably something unique to me.

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[1] Tony Morris QC, Seven Deadly Sins of Pleading, Hearsay, Issue 32, December 2008. Tony’s paper was reprinted again in Hearsay Issue 90, Dec 2022. It is available on the web. Also see the good paper by Justice Estcourt of the Supreme Court of Tasmania entitled Pleading Tips and Traps, which incidentally, references and reinforces many of the observations in Tony’s paper.

[2] While Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806, 156 ALR 169.

[3] While Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806, 156 ALR 169.

[4] Rule 149(1)(b) UCPR.

[5] See Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2001) 54 NSWLR 135, per Hodgson JA (with whom Mason P and Handley JA agreed) at [20].

[6] Rule 157 UCPR.

[7] Rules 155 and 158 (damages), 159 (interest),

[8] Rule 160 UCPR.

[9] Rule 160 UCPR.

[10] Although, admittedly, the distinction is often blurred.

[11] Tony Morris QC, Seven Deadly Sins of Pleading, Hearsay, Issue 32, December 2008.

[12] See, for example, Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 at [20]-[21].

[13] This is an abridged summary of an example referred to in Tony Morris’ paper. I refer the reader to his paper.

[14] See rules 165, 166 and 168 UCPR.

[15] Here refer to the prohibition in section 11(3) of the Civil Liability Act 2003 Qld.

[16] See also Haggarty v Wood [2013] QSC 327 at [36]-[38], Platt v Kollosche Enterprises [2015] QSC 23, and Hookey v Manthey (2020) 4 QR 371, [2020] QSC 125  at [126]-[136].

[17] See, for example, Graham & Linda Huddy Nominees Pty Ltd & Anor v Byrne & Ors [2016] QSC 221 per Jackson J at [28-29].

[18] Rule 457 UCPR.

[19] Jade Barnet citations report 16 January 2023.

[20] Rule 166(1) UCPR.

[21] Rule 166(4) UCPR.

[22] Green v Pearson [2014] QCA 110, per Jackson J at [19]. In the earlier case of Australian Securities & Investments Commission v Managed Investments Ltd & Ors No. 3 (27 March 2012) [2012] QSC 74; 88 ACSR 139, Fryberg J at [17] felt it probably was possible to alternatively deny and non-admit.

[23] Rule 166(4) UCPR.

[24] Baker v Linklater [2007] 1 Qd. R. 405, per Muir JA at 420 (with whom Jerrard JA and Douglas J agreed). See also Aimtek Pty Ltd v Flightship Ground Effect Pte Ltd [2014] QCA 294 at [7-9] per Fraser JA (with whom Holmes JA and Morrison JA agreed).

[25] Ibid.

[26] Ibid.

[27] Rule 146 UCPR.

[28] See for example comments in Kirby v Sanderson Motors Pty Limited [2002] NSWCA 44; (2001) 54 NSWLR 135, Hodgson JA (Mason P and Handley JA agreeing) at 142-143 [20]-[21].

[29] An expression is attributed to Frederic R Barnard, Printer’s Ink, 1921.

[30] Rule 146(1)(f) UCPR.

[31] Rule 188 UCPR.

[32] Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455 per de Jersey CJ at 457.

[33] Hanson Construction Materials Pty ltd v Davey (2010) 5 BFRA 59; 79 ACSR 668; [2010] 246 per Chesterman JA (with whom Muir JA and Applegarth J agreed).

[34] Hansen, per Chesterman JA at [15-16].

[35] Green v Pearson [2014] QCA 110 at [34].

[36] Hartmann v Pilkington [2012] QSC 254, per Margaret Wilson J at [20].

Even many of us who are avowed Republicans – like the writer – nonetheless revered Her Majesty Queen Elizabeth II for her intelligence, grace and steady hand as Head of State in Australia and other countries.  She was a strong supporter of the rule of law.

Whatever one’s political persuasion, none could gainsay that we are blessed to enjoy in Australia – among many other advantages – a democracy under which the rule of law prevails.

Such rule is embodied – in criminal and civil law spheres –  in court enforcement of statutory and common law obligations, by a state funded and independent judiciary, assisted by officers of the court (barristers and solicitors) also independent in the sense of being bound by an overarching duty to the interests of administration of justice under strictly enforced ethical rules.

In the United Kingdom, before 1701, judges held office at the Sovereign’s pleasure. There were then many examples of judges being removed from office for deciding cases in a manner not in accord with the wishes of the incumbent monarch.

Judicial independence commenced with the 1701 enactment of the Act of Settlement.  Security of judicial tenure – or, at least, the semblance of it – was thereby grounded. 

Act of Settlement Article 7, which is actually the 7th clause of the 3rd Article, relevantly, provided:

[J]udges’ commissions be made quamdiu se bene gesserint,¹ and their salaries ascertained and established but upon the address of both Houses of Parliament it may be lawful to remove them.

The outcome, however, was not plain sailing.  Judicial tenure was inchoate.  “Removals” continued.

Queen Anne, shortly after her accession in 1702, removed Sir John Turton (Court of Queen’s Bench) and Sir Henry Hatsell (Baron of the Exchequer). George I, upon his accession in 1714, removed  Lord Trevor (Chief Justice of the Court of Common Pleas), Sir Thomas Powys (Court of King’s Bench), and Sir William Bannisteer (Baron of the Exchequer) respectively. 

These ensued despite the patent of appointment of each being  quamdiu se bene gesserint (ie during good behaviour).  Each, it seems, was a victim of enmity directed towards perceived Jacobites and Tories.

Evan Haynes, in “Selection and Tenure of Judges”,² wrote of the uncertainty remaining after the Act of Settlement:

It was still assumed, however, that on the death of the king, their commissions ceased, and should be renewed or not at the pleasure of the new sovereign. In 1720 a statute was enacted providing that judges (and certain other officers) should continue in office for six months after the demise of the Crown.

Finally, in 1761, a further statute enacted provided that “commissions of the judges shall remain in full force and effect during good behaviour, notwithstanding the demise of His Majesty or any of his heirs or successors”.  The prospect of regal summary removal, thereby, was obviated.  Tenure was secured.

Thus, the perennial British monarchy – ergo “The Queen is dead, long live the King” – for the last circa 250 years at least, has championed the rule of law.

Such legal protocol was adopted in Australia.  While the tenure is no longer for life – rather, in most jurisdictions, being to age 70, short of earlier retirement – protections exist in the sphere of salary and pension guarantee.  So much underscores the independence enjoyed.

Finally, only admitted lawyers – and then, ordinarily, only if they have been so admitted for a particular duration – can be appointed as judges – by Cabinet of the Commonwealth, state or territory – and then (ordinarily) only upon recommendation and advice from an appointment panel.  This provides further checks and balances.

Likewise, barristers and solicitors are admitted by the court and can only lose their admission status upon order of the court adjudicated on the merits apropos of misconduct.

Queen Elizabeth II, in speeches given as Head of State, spoke underscoring the importance of the rule of law, and the maintenance of it by independent judges and lawyers engaged in its administration.

I will refer to two speeches only – delivered in the United Kingdom and Australia, respectively, 12 years apart³  – as they are representative. In each, the touchstone identified is that of the “inheritance” of the rule of law from the Regal Head of State.

Speaking in London on 10 October 1968 at the opening of the Queen’s Building Extension to the Royal Courts of Justice, Her Majesty said:

The judiciary is one of the oldest and most honourable branches of the service of The Crown. It is also one of the most vital because, as the yearbooks tell us, the law is the highest inheritance of the King, for both he and all his subjects are ruled by it. And if there were no law, there would be neither King, nor inheritance. That is as true today as it was five centuries ago. The attachment of our people to law is the foundation of our constitution and of our civilisation. As the independent custodians of the law, the judges bear a direct and personal burden of responsibility, which makes their office a lonely and difficult one. We are fortunate that our judges are worthy inheritors of the great traditions of their predecessors. As our world becomes more complex, so the task of doing justice between man and man, and man and the State becomes more difficult and even more important. Therefore, we must continue to be able to rely on the strong and peerless legal profession. The Bar’s independence is as much a safeguard to our liberties today as it has been in the past. I welcome the completion of the new court building. I am glad, my Lord Chancellor, [Lord Gardiner] to grant your request that it be called the Queen’s Building. I know that my judges, and all those who assist them so devotedly, will administer justice there in accordance with the finest traditions of their calling. ⁴  (emphasis added)

In a speech delivered on 26 May 1980 on the opening of the High Court Building in Canberra, Her Majesty said:

… the High Court of Australia is at the pinnacle of the judicial system in Australia. It has a special place under the Australian Constitution, serving both as a final court of appeal on matters of general law and as arbiter on constitutional issues. The court has a critical and sensitive role in the Federal compact that binds the Commonwealth of Australia, determining the law not only between citizen and citizen, and between citizen and executive Government, but also between the Governments that constitute the Commonwealth of Australia. We should remember today Chief Justice Griffith and Justices Barton and O’Connor, who constituted the High Court of Australia in 1903, and with their successors defined the role of the court, in accordance with the Constitution, and established for it a fundamental place in the national life.

I am pleased to pay tribute to the judiciary of Australia – including the judges present today and the justices of this court in particular – for the admirable way in which they discharge their onerous responsibilities. The law of the land is a priceless inheritance and it secures the liberties which, as individuals and as a nation, we prize. In times of social change and tensions in the world, great are the demands upon the courts and the challenges to them in reconciling competing interests and in accommodating traditional rules to new circumstances. The High Court of Australia has earned great, respect, both within Australia and beyond, and it is; recognised as a court of the highest eminence among the courts of the nations.⁵  (emphasis added)

The embolden portions of the above speeches are not pious platitudes. Rather they neatly encapsulate the importance of the roles performed by judges, barristers and solicitors.  Her Majesty – and her predecessors since the late eighteenth century – championed those legal tenets.

Finally, while we may now mourn Her Majesty, barristers were in regal mourning long before her demise.  Contrary to the “Queen Anne” theory, the barrister’s stuff gown was adopted as mourning dress, in 1685, by the royal court, including the bar, following the death of Charles II.  Thus, the Bar “went into mourning at the death [of Charles II] and have remained so ever since!”⁶

The Queen is dead – and we salute her memory – and long live the rule of law Her Majesty championed.

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¹  meaning ‘during good behaviour’.

²  National Conference of Judicial Councils, 1944, California.

³  I am indebted to Daniel Yazdani, of the New South Wales Bar, who identified the speeches and ALJ reference below in a paper he gave in the Summer 2022 Edition of “Bar News – the Journal of the NSW Bar Association”, for references to same.

⁴   ‘Royal Visit: Queen pays tribute to judiciary’ (Canberra Times, 27 May 1980, p 10) https://trove.nla.gov.au/newspaper/article/110959519.

⁵  ‘The Queen on Judges and the Rule of Law’ (Courts and Tribunals Judiciary, 2 June 2022) https://www.judiciary.uk/guidance-andresources/the-queen-on-judges-and-the-rule-of-law/.

⁶  ‘The Demise of the Crown’ (1936) 9 Australian Law Journal 353 at 354;  see generally, Prof JH Baker ‘History of Gowns worn at the English Bar’ (1975) 9 Costume 15.

Most chambers in Brisbane are 10 minute’s walk to the State Library of Queensland (SLQ).

Up North, you can use the electronic services, and order physical books delivered via your municipal library.

If you are a professional or student in Queensland, you should register, get your card number, and start using it. (See end for links.)

And join the National Library of Australia (NLA). The electronic services are different. The services are different. For example, NLA will scan you a chapter cheaply. You need both memberships.

I’m also an interstate member of SA and Victorian State libraries. (See “Bolt-hole”, below.)

Why join?

Borrow stuff the Council library does not hold

I’m currently reading a book that our (large & excellent) municipal library does not own. I’ve borrowed from the SLQ.

Yes, you can borrow from SLQ.

Not everything. And note that some State libraries, eg SLSA, don’t lend. So ask.

But I’m on a Hugh Trevor-Roper binge at the moment. 

Most of this historian’s more academic stuff is for loan at SLQ. Most is of no interest to the municipal library (with its different mandate).

Really surprising databases

During a recent trial, I needed a scientific journal paper about avian health.

It was available through an NLA subscription service, free.

Note it wasn’t a subscription service SLQ offered.

SLQ was actually my first port of call, as it has excellent access to these academic databases.

NLA was the only ready source for that journal.

You need membership of both SLQ & NLA to provide this kind of cover.

Strong service

Years ago, an expert witness disappeared. We had heard he had died, but it had evidently taken a toll on the next of kin who weren’t responding. I needed to check for a death/funeral notice in the (late, lamented) Bundaberg News-Mail.

I rang SLQ. The September bundle of papers was retrieved from archive to SLQ within the hour.

We ran our application to rely on a new expert witness based principally on that funeral notice.

More recently, when the Pandemic was but new, I got instructions from out-of-state to advise about privileges & immunities of an obscure international entity. 

This is important but finicky stuff. That’s why I fight to keep this stuff at the Queensland Bar.

But how to service such instructions, during a Pandemic?

The Supreme Court of Queensland Library (SCLQLD) and the NLA remained open to remote requests for most of the Pandemic. Their service was truly exceptional. These 2 great institutions just powered on, in ways that made colleagues in New Zealand and England marvel.

Most of the material I needed was available via SCLQLD requests.

But this was a truly obscure corner of public international law, given the kind of entity involved.

I wanted background to the history & treaties. A lot of public international law is grounded in custom, sometimes centuries old. You need to know your history.

I asked NLA for a chapter of a book they held.

The scanned chapter turned up the next day, for $18.

(Service standard at NLA is longer. But they had no walk-ins, since the front door was locked at that point of the Pandemic!)

Accuracy and authority of sources

One example.

Why rely on web searches for basic general knowledge?

Barristers practise across a lot of industries and topics.

For important, basic knowledge about an industry or theme – I have my SLQ access to Britannica bookmarked.

Bolt-hole

I am interstate enough for this topic to matter.

Between meetings, the State libraries are quiet bolt-holes, for silent work with good wifi.

A library membership greases the wheel.

I’m a member of SLV and SLSA. (In Sydney, I use my NSWBA interstate membership, and retreat to the excellent NSWBA library in the sub-basement in Phillip Street. But come fully charged, and do ask for help with the wifi.)

Which to join? How?

Obviously, join SLQ and NLA. If you live interstate, join your State’s library.

But first, dust off your municipal library card, or join now. The municipal libraries are fundamental, since they are your gateway, up North, to getting a physical loan from SLQ. The collections are good, just different, and you can indulge your recreational reading pleasurably.

Now, the point of my pitch —

SLQ and NLA application pages are linked. I’ve made the case.

What if you are reading this interstate? State library digital rights seem to be linked to State of residence. If you’re reading this interstate, join your own State library for digital rights.

As Molly Meldrum would say – “Do yourself a favour.” Join your State and National libraries today.

1. In tax appeals[1] the Commissioner of Taxation enjoys an evidential advantage. The taxpayer must show that the “assessment is excessive or otherwise incorrect and what the assessment should have been.”[2] There is much law on what this requires the taxpayer to demonstrate. Usually, the Commissioner will refrain from putting on any evidence and put the taxpayer to proof, relying on any deficiencies in proof.  The salient reason taxpayers fail in their challenges to an income tax assessment is misunderstanding what the onus requires. 
2. In Federal Commissioner of Taxation v Dalco[3] the taxpayer established that the Commissioner’s default assessment of his personal income included income properly attributable to other entities. Below, the Full Federal Court had concluded that the taxpayer had shown the assessment was “excessive”[4], but the taxpayer had neither established his actual income nor even that it was less than the Commissioner’s assessment. The High Court determined that “excessive” meant the taxpayer had to establish the amount of their taxable income.[5]  This was not a new idea.  Latham CJ in Trautwein v Federal Commissioner Taxation[6] considered that the assessment was prima facie right—and it remained right until the taxpayer demonstrated that it was wrong. The taxpayer must, as a general rule, not only negatively show that the assessment is wrong, but also positively what correction should be made in order to make it right or more nearly right.[7] 
3. The purpose of this note is to provide some broad practical tips on satisfying the onus.  There is a gap between the legal explanation of the burden and its satisfaction found in the authorities as against the hard reality of putting the evidence in support of a taxpayer’s case together to meet that legal explanation.
4. So, what does it mean to show that the “assessment is excessive or otherwise incorrect and what the assessment should have been”?  First, the taxpayer needs to show how they arrive at their taxable income.  Second, the taxpayer needs to explain the difference between the figure that they assert is taxable income and the amount of the Commissioner’s assessment.  Third, to be sure, the taxpayer will show that there is a high level of confidence in their calculation of the taxable income, by showing there are no other sources of income.
5. To demonstrate, let us assume that the Commissioner issues an assessment to a taxpayer based on an “assessable income” of $100,000.  The taxpayer disagrees with the assessment because their assessable income is only $10,000. 
6. To satisfy the onus, the taxpayer needs to show their “taxable income”.  It will be recalled that: Taxable Income equals Assessable Income less Allowable Deductions.  The taxpayer must then prove what they say is their “assessable income” and then prove their “allowable deductions”.  Assessable income basically has two possible sources – personal exertion (eg. wages) or property (eg rent). Allowable deductions are broadly expenses incurred in gaining or producing assessable income. Assessable income can be proved by showing the source and receipt of the income by the taxpayer. 
7. So, in our example, let us say that the taxpayer has assessable income derived from wages of $5,000 and rent of $5,000.  Let us also say that there are $1,000 in allowable deductions, which will give a taxable income of $9,000.
8. If the taxpayer stopped there, in terms of proof, they would likely fail.  This is because the taxpayer must also explain the difference between their figures and the Commissioner’s calculation. This means looking at any other receipts of money by the taxpayer and characterising those receipts as being from a “non-income” source.  So, for example, the Commissioner might have identified a payment of $90,000 to the taxpayer and included it in their assessable income. In truth, the receipt is the repayment of a loan or a gift.  The circumstances surrounding the transaction that gives rise to the receipt need to be proved to demonstrate its character as a loan or a gift. That exercise will explain the difference between the taxpayer’s figure and the Commissioner’s figure.
9. Again, if the taxpayer was to stop there, in terms of proof, there is still a risk of failure.  That is because, for one reason or another, the taxpayer has doubtful credibility and will not be believed when they say “I have no other sources of income”.  The cases recognised that there needs to be a “wide survey and an exact scrutiny of the taxpayer’s activities” to determine whether receipts are or are not assessable income.[8]  The “Rolls Royce” way to offer a Court or Tribunal confidence about the taxpayer’s calculations is to show that there are no other sources of income.  This is a demanding and expensive audit exercise, ideally performed by an expert.  One way this is done is by what is called an “asset betterment analysis.”  That is a process of showing that the taxpayer assets have, for example, increased year by year by reference to known sources of income.  There are no increases in the taxpayer’s assets that might have their provenance from unexplained income.

Do not rely on what the Commissioner has done in the past.

10. Against that background the exercise of discharging the onus should not proceed on any assumptions by the taxpayer as to what may be required by the Commissioner or what the Commissioner may concede. Do not rely on what the Commissioner has done in the past.
11. Absent an express concession by the Commissioner, the taxpayer must proceed on the basis that the Commissioner puts the taxpayer to proof of their assessable and taxable income.[9]  No reliance can be placed on the Commissioner’s reasons and findings of fact.  Bosanac makes clear that a concession by the Commissioner that a particular amount is not assessable income does not demonstrate excessiveness.
12. Whilst the taxpayer should always review the power under which the assessment is made, the circumstances where the Commissioner has no authority to issue an assessment will be rare.  Assuming authority to issue the assessment, when the taxpayer seeks to challenge an assessment, often from the outset taxpayers make a fundamental error in the way they seek to run their appeals.  That occurs because, by virtue of misunderstanding the onus, taxpayers put their efforts into identifying errors in the Commissioner’s “judgement”.[10]  That is often an expensive and wasted task because it draws the taxpayer away from the real task of demonstrating that the assessment exceeded the taxpayer’s actual liability.  Always run a positive case.
13. Whilst it is said that the Commissioner has no onus and sections 14ZZK and 14ZZO TAA make clear that the statutory onus never shifts from the taxpayer, little attention is given to the circumstances when the Commissioner must put on evidence to prove an allegation of fact that he wishes to advance. The Commissioner cannot allege a fact and then rely on the taxpayer’s failure to disprove that fact. Equally the Commissioner cannot wait until final submissions to make positive assertions aimed at the taxpayer’s failure of proof which are not apparent from the objection decision or the statement of facts issues and contentions. 

“… the taxpayer must put forward a positive case”

14. So for example, if the Commissioner intends to contend that a trust has ceased to exist then he must put on evidence to prove that point.[11] Absent evidence, the Commissioner’s allegation has no relevance or weight. Some earlier High Court authority[12] tantalised with the proposition that the Commissioner has the onus where he contends a sham.  However, the better view[13] is that the onus, in respect of that fact, shifts from the taxpayer to the Commissioner. In effect, the taxpayer must first demonstrate the fact (for example that a particular contract is legitimate) on the balance of probabilities. If that burden is discharged by the taxpayer and the Commissioner wishes to maintain the allegation that the contract is a sham, or is some other transaction, then the Commissioner must positively show that to be the case. It may be that the onus then shifts back and forth between Commissioner and the taxpayer.  If however, the taxpayer proves the fact then, absent evidence to the contrary from the Commissioner, any unsupported allegation from the Commissioner will fall away as irrelevant.
15. In summary, the taxpayer must put forward a positive case.  The taxpayer should identify the components of what they contend is their assessable income and their allowable deductions.  Each component needs to be proved by verifying the source and amount of the assessable income.  This process needs to be performed on an item by item basis to establish what the taxpayer says is the taxable income.  The taxpayer must then explain the difference between the assessment and the taxable income that has been verified.  That means the taxpayer must identify the components of the difference and explain why those amounts are not income.  This means leading evidence to show that the receipts are not of an income character.  Ideally and if possible, the taxpayer should also employ an objective means of verifying they have no other sources of income.

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[1] See s.14ZZ Taxation Administration Act 1953 (TAA).

[2] Section 14ZZK(b)(i) and 14ZZO(b)(i) TAA.

[3] (1990) 168 CLR 614.

[4] The onus provision was then contained in Income Tax Assessment Act 1936 (ITAA 1936) s 190(b).

[5] (1990) 168 CLR 614 at 625.

[6] (1936) 56 CLR 63 at 87 – 88.

[7] See also George v FCT (1952) 86 CLR 183 at 201 where the High Court said “the law has always been that in an appeal from an assessment the burden lies upon the taxpayer of establishing affirmatively that the amount of taxable income for which he has been assessed exceeds the actual taxable income which he has derived during the year of income”. 

[8] Federal Commissioner of Taxation v Stone (2005) 222 CLR 289 at [19]; Federal Commissioner of Taxation v Montgomery  (1999) 198 CLR 639 at 663 [69] citing Western Gold Mines NL v Commissioner of Taxation (WA) (1938) 59 CLR 729 at 740.  Bosanac v Commissioner of Taxation [2018] FCA 946.

[9] Bosanac v Commissioner of Taxation [2019] FCAFC 116 at [57].

[10] Bourne and Commissioner of Taxation [2020] AATA 190.

[11] Weyers v FCT (2006) 63 ATR 268 at 296.

[12] Danmark v FCT (1944) 7 ATD 333, 364.

[13] Richard Walter v FCT (1996) 67 FCR 243, 245–6.

It’s a common question and one normally reserved when considering how much to save for a comfortable retirement. The Federal Government has provided us with their answer.

The Government is proposing a limit of $3,000,000 per member, above which the tax rate on earnings will rise to 30%. This limit will not be indexed.

There are a few important things to remember:

• This does not impact the ability to contribute to super – which is already governed by other mechanisms.
• This does not limit the ability to commence a pension. We expect the Transfer Balance Cap to index to $1,900,000 in July, and the earnings on pension accounts remain tax-free.
• There is no requirement to withdraw amounts in excess of this from a super fund, it simply changes the effective tax rate on future earnings on monies in excess of $3,000,000.
• This aligns the tax on large super balances with corporate entities.

The devil is going to be in the detail, and it appears that there is still some detail to be ironed out through the planned consultation process.

• An additional 15% tax will be levied on ‘earnings’ in the same proportion that a member’s balance exceeds $3,000,000. 
• ‘Earnings’ will be calculated as the difference between a member’s Total Super Balance calculated at each 30 June, adjusted for contributions and withdrawals. This measure, by definition, includes unrealised capital gains.
• The measure will not apply to existing unrealised gains.
• Negative earnings will be able to be carried forward to future years.
• Without indexation, at some point, the Transfer Balance Cap will exceed this limit and pension earnings will likely become taxable.
• The Government has signalled commensurate treatment for defined benefit interests and pensions.

The substantial changes made to the superannuation system in 2017, including the introduction of lower Contribution Caps (limiting the level of annual contributions), a Total Super Balance (limiting further the rate of contributions) and a Transfer Balance Cap (limiting the amount that be invested into a tax-free pension account) largely limit the ability of future generations to disproportionately benefit from the tax concessions provided to super funds. As such, this is really legislation that is squarely aimed at ‘super earners’ (tech billionaires?) and the existing generation of investors who have accumulated large amounts within super funds.

The legislation is not proposed to be effective before 1 July 2025. Our advice to impacted clients is not to act with undue haste. There is a lot of detail to be worked through and the decision to retain or remove money from super will depend on an individual’s preservation status, family structure, health and other income. We need to see the final form of the legislation and understand exactly what will be implemented. There remains an ample window to review investors’ positions and develop a strategy.

Of course, we are happy to discuss the impact with affected or interested barristers.

Government Announcement – Better Targeted Super Concessions