Pleadings

The Uniform Civil Procedure Rules have brought significant changes to the rules of pleading. The rules place a heavy emphasis on 'truth in pleading', and early identification of the true issues between the parties. There are now a number of pleading rules dealing with specific issues. The changes in the rules are most significant with respect to the level of particulars required for pleading damages, and the facts that must be pleaded in defences. In this article the rules of pleading are examined and contrasted with the rules applicable before the commencement of the UCPR.

Counting the costs : assessments under the UCPR

In McCoombes v Curragh Queensland Mining Ltd [2001] QDC 142 the court considered a number of significant issues in relation to assessments of costs under the Uniform Civil Procedure Rules 1999 (Qld). The Court of Appeal subsequently declined an application for leave to appeal the decision under s118(3) of the District Court Act 1967 (McCoombes v Curragh Queensland Mining Ltd [2001] QCA 379. The judgment in the District Court, and on some matters the subsequent observations in the Court of Appeal, provide clarification in respect of many issues relating the assessment of costs under the UCPR.

Setting aside default judgment - whether applicant must file affidavit providing direct evidence of defence 'on the merits'

In Prus-Butwilowicz v Moxey [2002] QDC 166 the court examined the question whether an applicant for an order setting aside a default judgment was required to file an affidavit providing direct evidence of a defence 'on the merits' and whether the position had changed under the Uniform Civil Procedure Rules 1999 (Qld).

Should the court direct that costs ordered to be recovered on the indemnity basis be assessed by reference to a costs agreement between the successful party and their solicitors?

The decision in Hook v Boreham & QBE Insurance (Australia) Limited [2006] QDC 304 considered whether the court should go further than order that costs be assessed on the indemnity basis, but should also specify the basis by which those indemnity costs should be determined. The decision makes it clear that under r704(3) of the Uniform Civil Procedure Rules, questions of that nature are ordinarily preserved to the discretion of the Registrar.

Costs assessor selection: A question of timing, or cost?

In Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa [2014] QCA 63 the Queensland Court of Appeal dealt with significant questions of general application relating to the appointment of assessors to conduct an assessment of costs under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

The doctrine of necessity and the detention and restraint of people with intellectual impairment: Is there any justification?

In Australia, the legal basis for the detention and restraint of people with intellectual impairment is ad hoc and unclear. There is no comprehensive legal framework that authorises and regulates the detention of, for example, older people with dementia in locked wards or in residential aged care, people with disability in residential services or people with acquired brain injury in hospital and rehabilitation services. This paper focuses on whether the common law doctrine of necessity (or its statutory equivalents) should have a role in permitting the detention and restraint of people with disabilities. Traditionally, the defence of necessity has been recognised as an excuse, where the defendant, faced by a situation of imminent peril, is excused from the criminal or civil liability because of the extraordinary circumstances they find themselves in. In the United Kingdom, however, in In re F (Mental Patient: Sterilisation) and R v Bournewood Community and Mental Health NHS Trust, ex parte L, the House of Lords broadened the defence so that it operated as a justification for treatment, detention and restraint outside of the emergency context. This paper outlines the distinction between necessity as an excuse and as a defence, and identifies a number of concerns with the latter formulation: problems of democracy, integrity, obedience, objectivity and safeguards. Australian courts are urged to reject the United Kingdom approach and retain an excuse-based defence, as the risks of permitting the essentially utilitarian model of necessity as a justification are too great.

Costs assessment not an each-way bet: Radich v Kenway [2014] QDC 60

In Radich v Kenway [2014] QDC 60 McGinness DCJ considered issues relating to the assessment of costs under the Legal Profession Act 2007 (Qld). This recent costs assessment case from the District Court clearly illustrates the interplay between the relevant elements of the Legal Profession Act 2007 and Uniform Civil Procedure Rules 1999.

Evidence in view: Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256

Rule 478 of the Uniform Civil Procedure Rules 1999 (Qld)(view by court) is silent as to the manner in which a court might be expected to exercise the discretion to order an inspection or demonstration under the rule and also as to the use which may be made of any inspection or demonstration ordered. The decision in Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256 provides guidance on both matters. This case provides some guidance on the circumstances in which a court may exercise its discretion to order a view or demonstration

Obvious error in approach to default costs assessment

The decision of Henry J in Ginn & Anor v Ginn; ex parte Absolute Law Lawyers & Attorneys [2015] QSC 49 provides clarification of the approach to be taken on a default costs assessment under r708 of the Uniform Civil Procedure Rules 1999

Costs on review - what charges are appropriate?

In Picamore Pty Ltd v Challen [2015] QDC 067 McGill DCJ considered the nature of a review under r742 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) in the context of a review of a costs assessment conducted under the Legal Profession Act 2007 (Qld). His Honour increased the amount that had been allowed by the costs assessor for a number of items. The judgment includes observations about what may appropriately be charged for particular items of legal work.

Trial by jury election less of a trial

In Kencian v Watney [2015] QCA 212 the Queensland Court of Appeal allowed an appeal against the decision in Watney v Kencian & Wooley [2014] QSC 290 and ordered, pursuant to r475(1) of the Uniform Civil Procedure Rules 1999 (Qld) that the trial proceed as a trial by jury.

No variance for filed orders: Hayes v Westpac Banking Corporation [2015] QCA 260

In Hayes v Westpac Banking Corporation [2015] QCA 260 the Queensland Court of Appeal examined the relationship between rules 7 (extending and shortening time) and 667 (setting aside) of the Uniform Civil Procedure Rules 1999 (Qld), and held that r667(1) does not enable the court to set aside or vary an order after the order has been filed. The court found that, to the extent that this conclusion was contrary to the decision in McIntosh v Linke Nominees Pty Ltd [2010] 1 Qd R 152, the decision in McIntosh was wrong and should not be followed.

(Failed) voluntary euthanasia law reform in Australia: Two decades of trends, models and politics

Within Australia, there have been many attempts to pass voluntary euthanasia (VE) or physician-assisted suicide (PAS) legislation. From 16 June 1993 until the date of writing, 51 Bills have been introduced into Australian parliaments dealing with legalising VE or PAS. Despite these numerous attempts, the only successful Bill was the Rights of the Terminally Ill Act 1995 (NT), which was enacted in the Northern Territory, but a short time later overturned by the controversial Euthanasia Laws Act 1997 (Cth). Yet, in stark contrast to the significant political opposition, for decades Australian public opinion has overwhelmingly supported law reform legalising VE or PAS. While there is ongoing debate in Australia, both through public discourse and scholarly publications, about the merits and dangers of reform in this field, there has been remarkably little analysis of the numerous legislative attempts to reform the law, and the context in which those reform attempts occurred. The aim of this article is to better understand the reform landscape in Australia over the past two decades. The information provided in this article will better equip Australians, both politicians and the general public, to have a more nuanced understanding of the political context in which the euthanasia debate has been and is occurring. It will also facilitate a more informed debate in the future.

Accident, provocation and jury reforms

In 2008, there were a number of areas in the criminal law in Queensland in which there was law reform activity. These include jury reform, accident and provocation.

The Criminal Codes : Commentary and Materials

This edition has been substantially revised to increase overall clarity and to ensure a balanced examination of the criminal law in the 'Code' states, Queensland and Western Australia. The work has been brought up-to-date in all areas and provides valuable comment on the recent wide-reaching reforms to the law of homicide in Western Australia. Significant developments in both states discussed in this edition include: The abolition of wilful murder and infanticide, and the new definition of murder (WA); The introduction of the new offence of unlawful assault causing death (WA); The abolition of provocation to murder (WA), and whether this excuse still has a part to play (Qld); The reformulation of the excuse of self-defence, and the introduction of excessive self-defence (WA); The creation of offences for drink spiking (Qld and WA); and Current and proposed sentencing considerations (Qld and WA). Fundamental principles of the criminal law are illustrated throughout the book by selected extracts from the Codes and case law, while additional materials foster critical reflection on the law and the need for reform.