Pleading - self-incrimination and penalty privileges

In Anderson v Australian Securities and Investments Commission [2012] QCA 301 the Queensland Court of Appeal allowed an appeal from the decision of the primary judge (ASIC v Managed Investments Ltd No 3 [2012] QSC 74. The Court of Appeal was satisfied that the defendants’ non-compliance with the pleading rules in the Uniform Civil Procedure Rules 1999 (Qld) was justified by the claims to privilege against self-incrimination or exposure to a penalty.

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.

Pleading for privilege : Denials and non-admissions under the UCPR

The decision in ASIC v Managed Investments Ltd No 3 [2012] QSC 74 provides practitioners with useful guidance on the relationship between the privileges against self-incrimination and exposure to a penalty, and the UCPR requirements for denials and non-admissions.

Young, inexperienced and on the road: Do novice drivers comply with road rules?

Young novice drivers are at considerable risk of injury and fatality, particularly when they first drive independently. Graduated Driver Licensing (GDL) has been introduced in numerous jurisdictions to allow more driving experience in conditions of reduced risk and increasing driving privileges over a longer duration. Queensland, Australia, enhanced GDL July 2007. Learners must record 100 hours in a logbook (10 hours at night) over 1 year, no mobile handsfree/loudspeaker by driver or any passenger. Provisional 1 (P1) drivers must not carry 2 or more peer passengers 11pm - 5am, no mobile handsfree/loudspeaker by any passenger. Self-reported compliance with new GDL and general road rules has not been examined.

Plain facts about pleading : how to work with r 166

The decision of Durward SC DCJ in OSM Group Pty Ltd v Holden [2013] QDC 151 involves a useful consideration of the requirements relating to the pleading of denials and non-admissions under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). In particular, the decision examines the extent of the obligations when pleading in response to allegations of law, or of mixed fact and law.

Prediction of highway truck conveyance configuration under over-limit prohibition and conveyance equilibrium

Aiming at the shortage of prevailing prediction methods about highway truck conveyance configuration in over-limit freight research that transferring the goods attributed to over-limit portion to another fully loaded truck of the same configuration and developing the truck traffic volume synchronously, a new way to get accumulated probability function of truck power tonnage in basal year by highway truck classified by wheel and axle type load mass spectrum investigation was presented. Logit models were used to forecast overall highway freight diversion and single cargo tonnage diversion when the weight rules and strict of enforcement intensity of overload were changed in scheme year. Assumption that the probability distribution of single truck loadage should be consistent with the probability distribution of single goods freighted, the model describes the truck conveyance configuration in the future under strict over-limit prohibition. The model was used and tested in Highway Over-limit Research Project in Anhui by World Bank.

Comprehensive evaluation of driver gaze pattern using fuzzy rules for driver training

The over representation of novice drivers in crashes is alarming. Research indicates that one in five drivers’ crashes within their first year of driving. Driver training is one of the interventions aimed at decreasing the number of crashes that involve young drivers. Currently, there is a need to develop comprehensive driver evaluation system that benefits from the advances in Driver Assistance Systems. Since driving is dependent on fuzzy inputs from the driver (i.e. approximate distance calculation from the other vehicles, approximate assumption of the other vehicle speed), it is necessary that the evaluation system is based on criteria and rules that handles uncertain and fuzzy characteristics of the drive. This paper presents a system that evaluates the data stream acquired from multiple in-vehicle sensors (acquired from Driver Vehicle Environment-DVE) using fuzzy rules and classifies the driving manoeuvres (i.e. overtake, lane change and turn) as low risk or high risk. The fuzzy rules use parameters such as following distance, frequency of mirror checks, gaze depth and scan area, distance with respect to lanes and excessive acceleration or braking during the manoeuvre to assess risk. The fuzzy rules to estimate risk are designed after analysing the selected driving manoeuvres performed by driver trainers. This paper focuses mainly on the difference in gaze pattern for experienced and novice drivers during the selected manoeuvres. Using this system, trainers of novice drivers would be able to empirically evaluate and give feedback to the novice drivers regarding their driving behaviour.

A nod to consent : in step with the UCPR

This article considers the decision of Robin DCJ in CTP Manager Limited v Ascent Pty Ltd [2011] QDC 74 and the likely impact of the decision on the practice in the court registries in similar circumstances.

Non-party disclosure - UCPR r 242(2)

In TSPD Pty Ltd v Resortrez Pty Ltd [2008] QSC 001 Fryberg J made an order permitting the applicant to inspect and copy documents which had been produced to the court under a subpoena, but had remained in the registry. Though not essential to the decision the judgment contains some interesting discussion about the construction of r 242 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

UCPR rule 687 - exercise of discretion to fix costs - applicable principles

Although the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) have always included a power for the court to order a party to pay an amount for costs to be fixed by the court, until recently the power was rarely used in the higher courts. In light of recent practice directions, and the changes to the procedures for assessment of costs contained in the new Chapter 17A of the UCPR, this is no longer the case. The judgment of Mullins J in ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2008] QSC 9 provides some helpful guidance for practitioners about the principles which might be applied.

Uniform Civil Procedure Rules r150 : orders relating to "property" – whether sperm extracted and stored may be characterised as “property”

In Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118 an order was made under r 250 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) requiring the respondent to continue to hold and maintain straws of semen belonging to the applicant’s deceased husband. The decision includes a useful analysis of the development of the common law regarding property rights in human bodies and body parts.

Practice and Procedure : UCPR r 7 - power to extend time

In McIntosh & Anor as Trustees of the Estate of Camm (A Bankrupt) v Linke Nominees Pty Ltd & Anor [2008] QCA 410 the Queensland Court of Appeal considered the extent of the court’s power under r 7(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) to extend time, and in particular whether the rule applied so as to permit extension of the period specified under rule 667 for varying or setting aside an order. The case also provides an illustration of circumstances in which the court might be expected to depart from the general principle that a successful litigant is entitled to the costs of the litigation.

Costs - UCPR rr 681 and 684

In BHP Coal Pty Ltd v K Orenstein & Koppel AG (No 2) [2009] QSC 64 McMurdo J considered the circumstances in which the ordinary rule under r 681 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) that costs should follow the event should be departed from in favour of a party who was unsuccessful overall, but who succeeded on particular questions. When the court is satisfied that a departure from the usual order under r 681 of the UCPR is justified, it appears increasingly willing to exercise the power in r 684(2) to declare what percentage of costs was applicable to a particular issue

UCPR 229 - defamation proceedings – damages to be assessed – application to interrogate as to defendant’s motive - implications of Defamation ACT 2005 - application to interrogate before action - when in the interests of justice

In Hogan v Ellery [2009] QDC 154 McGill DCJ considered two applications for leave to deliver interrogatories under r 229 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). The judgment provides useful analysis of the circumstances in which a plaintiff may obtain leave to deliver interrogatories to a defendant in defamation proceedings, and also to a non-party before action.

Request for production of documents – UCPR r 222 – manner of compliance

In John Kallinicos Accountants Pty Ltd v Dundrenan Pty Ltd [2009] QDC 141 Irwin DCJ considered the nature of a party’s obligation under r 222 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to produce documents referred to in the parties’ pleadings, particulars or affidavits. The decision examined whether the approach in Belela Pty Ltd v Menzies Excavation Pty Ltd [2005] 2 QdR 230 in relation to disclosure of documents under UCPR r 214 also applied to production of documents under r 222.