QLD Supreme Court Procedures - Responding to Other Party's Response?

[7and3]

Hi,

My mum is now self-representing and has been served a claim and statement of claim and she has filed her defence. The other side has replied to her defence and the question is, can we now respond to the other side's reply?

What is the next step for this prior to requesting a showing of particulars in the Supreme Court?

Thanks.

 

[Rod]

What type of matter is this?

Further and better particulars then
discovery, then maybe
interrogatories
then trial.

While all this is happening negotiation and dispute resolution should be attempted.

 

[7and3]

What type of matter is this?

Further and better particulars then
discovery, then maybe
interrogatories
then trial.

While all this is happening negotiation and dispute resolution should be attempted.

Thanks Rod.

It is a deceased estate matter.

My mum was gifted a unit from her elderly friend of 17 years. The deceased never got along with her own family and had nothing to do with them (three children) and the deceased family hated the deceased and were never in her life.

The usual old story took place, six weeks before her passing, the family all of a sudden decided to reconnect.

My mum is now being sued for unconscientious dealing, stating special disadvantage and so on. My mum has actual recordings of the deceased stating that she wanted to gift the unit to my mum and that she would definitely not give it to her own family. The family are well aware that their claim is based of false allegations, however this is the only avenue they have that they can make any sort of case with. Such is life.

I have since discovered that we are to prepare and pass over the disclosure documents and receive them from the other side.

This initially started with an affidavit and an originating application. The court also said we had to attend a mediation which has taken place. If mediation was unsuccessful then the other side was to lodge a claim and so on. Mediation was not successful so we are now going through the claim process.

Might I ask, since we have already had a mediation does the court still request a further attempt at settlement prior to trial (mediation of sorts) and can my mum refuse to sign a form 48 for a trial date if she feels that she is not ready for trial?

Much thanks.

 

[Rod]

does the court still request a further attempt at settlement prior to trial

It can, though I have no idea how often this occurs.

can my mum refuse to sign a form 48 for a trial date if she feels that she is not ready for trial

Not without a very good reason. She has 21 days to get the form in else the other side can say stuff it and submit the form anyway to the court. No advantage to your mother in refusing to sign, and a possibility of a disadvantage by not signing.

She can list a 'not before trial date' but should be reasonable about the date. Often unless there's evidence from 3rd parties that is going to take time to gather, it's better to get the matter dealt with sooner rather than later.

 

[7and3]

Hi Rod,

Might you shed some light on something that was recently pointed out to us.

My mums statement of claim reads as follows:

Applicants: XXXX and XXXX (as the Executors of the Will of XXXX , the deceased)
Respondent: my mum

The query is this, my mum was gifted and owned the property months prior to the final will which the applicants are Executors for and acting for therefore the property is not a part of the current will at all and should not be involved with the Grant of Probate as the deceased did not own the property at the time of making the final will.

Yet the statement of claim indicates that they are acting as executors for the will, which is fine, but does this mean they have no grounds with regards the property and that they can only act with what remains in the estate at the time of the will.

Much thanks.

 

[Rod]

I don't know the QLD laws around gifting before death.

In some states, gifts made within 12 months of death can be recoverable but only in certain predefined circumstances.

 

[7and3]

Hi Rod,

Since you are a little familiar with my mum's matter, I am wondering if you may have insight to a query.

Both sides are currently in the disclosure process. My mum has brought some evidence to the table which is something that the other side would not want revealed. Its source was photos taken of documents by instruction of the deceased. My mum has since passed all the documents, diaries and so on back to the deceased (whilst she was alive) and this remains in the hands of the other side to disclose as little or as much as they want.

Their lawyer is asking for original copies of the documents from which the photos were taken and of course my mum cannot provide these as she gave them all back.

Mum took photos of the two boxes of items she returned, but not of each item individually, although the photos do show a fair bit of stuff.

My query, does the fact that mum cannot produce the originals mean this evidence could by struck out.

Knowing what the evidence holds, its little wonder that the other side would not want it revealed. There is also no doubt at all of its authenticity.

Much thanks Rod.

 

[Rod]

does the fact that mum cannot produce the originals mean this evidence could by struck out.

It is possible, but unlikely.

Have the photos been submitted into evidence through an affidavit?

Your lawyer should be asking the other side to produce the originals.

 

[7and3]

Thanks Rod,

My mum is currently self-representing. With her defence that was filed two months ago, would you know if she can amend this at this stage to include a counterclaim? Knowledge of being able to do this was unknown at the time of filing or might my mum be able to do a complete new claim so she is not counterclaiming?

My mum was advised that the other party intended to request a date for trial next week.

Much thanks.

 

[Rod]

Should try to submit the counterclaim now, especially if it is related to the other party.