Lawyers and the Australian Consumer Law

[gordonc]

There’s more of an art to it than a black and white approach. The key word is ’relevance’. And relevance may not appear at first to someone who isn’t trained to see it in the particular context. Each branch/discipline of law has both a common set of relevant issues that are shared (think rules of evidence for example) and may also have their own idiosyncrasies.

Really, to know you‘d need someone familiar with the area of law to look at the precise issues of the matter in question.

Thanks Rob,

The fact is that the (non particularised) defence pleading, only pleads that I didn't have a legal tenancy.

There is no pleading in the alternative to that.

The lawyer's submissions related to "Abandonment" and "Termination of the tenancy by abandonment" that have not been pleaded in the defence.

The non-pleaded submissions have found their way into the judgement:

“It is sufficient to deal with the application to refer to the defendant’s intention to defend on the basis of a serious question about whether the lease was terminated, and the determination of this issue involves contested questions of fact, and to some extent, contested questions of law.”

This was a finding resulting from an application for summary judgement.

 

[Rob Legat - SBPL]

Well I'm by no means an expert on this area, but I would think that the issue in question is whether 'you have a legal tenancy'. The purpose of a pleading is to put you on notice about the case that is to be answered or determined. Raising the issue may be sufficient. I don't think there is an obligation to give the exact reasoning in support of the issue raised, as I understand that is more of a thing for the submissions.

 

[gordonc]

Well I'm by no means an expert on this area, but I would think that the issue in question is whether 'you have a legal tenancy'. The purpose of a pleading is to put you on notice about the case that is to be answered or determined. Raising the issue may be sufficient. I don't think there is an obligation to give the exact reasoning in support of the issue raised, as I understand that is more of a thing for the submissions.

Yeah, thanks again Rob,

But if you also factor in that the defendants did not plead AT ALL to my allegations of trespass and unlawful eviction, and according to Queensland sub-rule 166(1) they are "taken to be admitted", as I had adopted in my Reply at the time of the hearing.

As they are admitting to trespass and unlawful eviction, they can hardly also say there was no tenancy.

I am just amazed that the QC Judge (who was in such a rush) did not pick this up, and to boot reckons that I didn't make a rational assessment in making the summary judgement application, when he couldn't know what assessment I made, because he didn't ask!

 

[Rob Legat - SBPL]

Not quite. I'd suggest going back and reading Rule 166 carefully. If they've pleaded that you didn't have a legal tenancy then that would probably infer that you don't have grounds to bring actions for trespass and unlawful eviction - i.e. bringing into effect Rule 166(1)(a).

Possibly Rule 168(1) applies to make it a non-admission if the defence was the last pleading filed. I'm not sure which takes precedence in practice.

 

[gordonc]

Not quite. I'd suggest going back and reading Rule 166 carefully. If they've pleaded that you didn't have a legal tenancy then that would probably infer that you don't have grounds to bring actions for trespass and unlawful eviction - i.e. bringing into effect Rule 166(1)(a).

Possibly Rule 168(1) applies to make it a non-admission if the defence was the last pleading filed. I'm not sure which takes precedence in practice.

Yeah OK,
The 166(1) sub-rule provides:
(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.

Rule 168 applies to "an allegation of fact". As there is no allegation of fact in a non-pleading, 168 cannot apply.

I am unable to see that an obscure inference can give rise to not pleading to the core issues in the proceedings.

"It is the function of pleadings to identify the issues, the resolution of which will determine the outcome of the proceedings."

Pleadings and particulars

www.judcom.nsw.gov.au

It appears to me, if you don't bother plead a denial or non-admission and don't plead at all, then you are deemed to admit.

 

[Rob Legat - SBPL]

My earlier comment is still relevant I think. Rule 166 applies to allegations of fact as well. Any fact raised is alleged until deemed accepted, or a finding is made about it. I would still think that a pleading that there was no legal tenancy is fundamentally inconsistent with the ability to maintain an action for trespass and unlawful eviction - as I think both of those are predicated on the basis of you have the legal right to possession and control of the property. While it might be sensible to please some alternates in the case there is a finding that you did have a legal right to possession and control, perhaps they were feeling very sure that couldn't be made out.

But, actually, I missed something in my earlier post:

Rule 166 is in respect to pleadings against allegations of fact. Your allegations of trespass and unlawful eviction are not pleadings of fact but rather pleadings of a conclusion of law. It is up to the court to find whether there was a trespass or unlawful eviction from the facts upon application of the law, and the other side doesn't need to plead to these allegations.

You'll probably find that Rule 149(2) applies given the disparity in facts between the pleadings.

 

[gordonc]

My earlier comment is still relevant I think. Rule 166 applies to allegations of fact as well. Any fact raised is alleged until deemed accepted, or a finding is made about it. I would still think that a pleading that there was no legal tenancy is fundamentally inconsistent with the ability to maintain an action for trespass and unlawful eviction - as I think both of those are predicated on the basis of you have the legal right to possession and control of the property. While it might be sensible to please some alternates in the case there is a finding that you did have a legal right to possession and control, perhaps they were feeling very sure that couldn't be made out.

But, actually, I missed something in my earlier post:

Rule 166 is in respect to pleadings against allegations of fact. Your allegations of trespass and unlawful eviction are not pleadings of fact but rather pleadings of a conclusion of law. It is up to the court to find whether there was a trespass or unlawful eviction from the facts upon application of the law, and the other side doesn't need to plead to these allegations.

You'll probably find that Rule 149(2) applies given the disparity in facts between the pleadings.

The Defendants had copies of the (current at the time) tenancy agreements.

I believe conclusions of law are acceptable if the facts leading to the conclusions are pleaded, which I have done.

https://foleys.com.au/resources/Drafting%20in%20Civil%20Litigation_01Sep2016.pdf

I have attached a sample of the pleading where the facts of "cutting a lock" "breaking a lock" "entering the house" have not been defended by the Defendants not pleading to it.

On checking the Statement of Claim, the word trespass has only been used in the context of the defendants ignoring the notices "Not to Trespass".

On taking possession of real property in QLD without consent of the tenant / owner / occupant / or tenant holding over, a warrant of possession is required. There was no warrant of possession.

 

[Rob Legat - SBPL]

Okay, I understand what you’re saying but I see I’m going to need to be a bit more precise in what I’m saying. So, I’ve picked things apart:

The Defendants had copies of the (current at the time) tenancy agreements.

Their stance is apparently that they consider those agreements defective in some manner. Their existence will be a matter for them to overcome in some way.

I believe conclusions of law are acceptable if the facts leading to the conclusions are pleaded, which I have done.

Yes, I didn’t say such pleadings were not acceptable. The point I made was that I believe they don’t need to be responded to in the same way that an allegation of fact does.

In simple terms, if they agreed they were trespassing and unlawfully evicting you then there wouldn’t be much need for a trial. So by proceeding with the matter it can be inferred that they’re denying the allegation. That’s very loose and broad, but hopefully the meaning is clear.

With respect to the quoted pleadings provided, and accepting personal styles, I think the drafting is reaching too far. For example:

• “without prior warning to them”: Potentially okay as an assertion of fact. However, if ‘prior warning’ wasn’t required legally, then it is of little use.
• “Illegally entered”: First you need to establish that entry was made. Then, providing it was, whether or not the entry was illegal is up to the court.

There’s also too much in those four lines. Making it factual and breaking it down could be seen as (please note, this is not properly pleaded and just off the cuff for example):

• On XX/XX/XX I was absent from the property.
• During my absence on that date the First Defendant and/or the Second Defendant, in person or by their agent, entered the property.
• I did not receive any notice from either the First Defendant or Second Defendant of their intended entry to the property on that date, or at all.
• Entry to the property was made via the south gate which is locked at all times with a chain and padlock. Particulars: Upon returning to the property on XX/XX/XX I discovered that the padlock had been broken with some sort of cutting implement. I further notice marks in the ground consistent with the gate being freshly opened.
• Posted at the south gate and clearly visible at all times is a sign measuring X by Y, affixed to the fence at a height of Z and stating “[contents of sign]”.
• Further on XX/XX/XX the First Defendant and/or Second Defendant, in person or by their agent, entered the premises on the property.
• I did not receive any notice from either the First Defendant or Second Defendant of their intended entry to the premises on that date, or at all.

…and so on.

 

[gordonc]

Okay, I understand what you’re saying but I see I’m going to need to be a bit more precise in what I’m saying. So, I’ve picked things apart:



Their stance is apparently that they consider those agreements defective in some manner. Their existence will be a matter for them to overcome in some way.



Yes, I didn’t say such pleadings were not acceptable. The point I made was that I believe they don’t need to be responded to in the same way that an allegation of fact does.

In simple terms, if they agreed they were trespassing and unlawfully evicting you then there wouldn’t be much need for a trial. So by proceeding with the matter it can be inferred that they’re denying the allegation. That’s very loose and broad, but hopefully the meaning is clear.

With respect to the quoted pleadings provided, and accepting personal styles, I think the drafting is reaching too far. For example:

• “without prior warning to them”: Potentially okay as an assertion of fact. However, if ‘prior warning’ wasn’t required legally, then it is of little use.
• “Illegally entered”: First you need to establish that entry was made. Then, providing it was, whether or not the entry was illegal is up to the court.

There’s also too much in those four lines. Making it factual and breaking it down could be seen as (please note, this is not properly pleaded and just off the cuff for example):

• On XX/XX/XX I was absent from the property.
• During my absence on that date the First Defendant and/or the Second Defendant, in person or by their agent, entered the property.
• I did not receive any notice from either the First Defendant or Second Defendant of their intended entry to the property on that date, or at all.
• Entry to the property was made via the south gate which is locked at all times with a chain and padlock. Particulars: Upon returning to the property on XX/XX/XX I discovered that the padlock had been broken with some sort of cutting implement. I further notice marks in the ground consistent with the gate being freshly opened.
• Posted at the south gate and clearly visible at all times is a sign measuring X by Y, affixed to the fence at a height of Z and stating “[contents of sign]”.
• Further on XX/XX/XX the First Defendant and/or Second Defendant, in person or by their agent, entered the premises on the property.
• I did not receive any notice from either the First Defendant or Second Defendant of their intended entry to the premises on that date, or at all.

…and so on.

Thank you very much for your assistance Rob.

Yes my pleadings are a bit sloppy, they were drafted in 2017. However they have done their job to get things to the current stage of things and the current defence, and given the stage things are at, I have no plans to amend.

The currents defence pleadings were drafted at the time by unrepresented defendants, who are now represented.

I offered their lawyers an opportunity to amend (what I consider to be a hopeless defence) before I launched into an application for summary judgement. They declined to amend, I believe mainly because the defendants are tight arse.

One again thank you Rob, you have greatly assisted my forward plan in dealing with this matter. I will let you know how it goes.

 

[gordonc]

OK, this matter has come before the Queensland Court of Appeal, with the decision being reserved.

What I have exposed to the Court (Justice Morrison) is a culture within the legal profession, further to misogyny and harassment being embedded, where so called Officers of the Court (Lawyers) can outright LIE to a Court with impunity.

I have come across this before, but the current example is the most outrageous and has hard evidence.

The lawyers among you may not like this exposure, however an up to date account, which also lists matters of public interest can be found at:
HUMAN RIGHTS REPORT on COURTS & LAWYERS below the Heydon Dyson exposure.