Cormie v Orchard & Ors [2001] QSC 21

()'-,_./ () () 0 4- l 0 ')_ 1 6~ ( 0 2- l S R . B A QueenslandGovernment tate e port I ng urea u ~ Oepartmentoflustlceand Attomey~eneral Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILSON J No S12033 of 1998 ANNETTE CHRISTINE CORMIE and MARK RAYMOND ORCHARD and EBSWORTH & EBSWORTH (a firm) BRISBANE .. DATE 30/01/2001 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date ~ I )-I o I Plaintiff First Defendant Second Defendant 4th Floor, The law Courts, George Street, Brisbane, 0. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 1 -- 1 of 8 -- 30012001 T1/MLM15 M/T 9050/2001 (Wilson J) HER HONOUR: This is an application by the first defendant to strike out a notice to admit dated 18 December 2000 and signed by the solicitors for the plaintiff. In the alternative, leave is sought to withdraw admissions deemed to have been made as the result of non-response to the notice. The plaintiff's action is for professional negligence against two firms of solicitors. She alleges she sustained a back injury in the course of her employment on 2 July 1985 in New South Wales. She retained the first defendant to act for her in recovering damages from her employer. The first defendant engaged a firm of New South Wales solicitors (Cole and Butler) who issued proceedings out of the Moree District Court on 15 July 1991. The plaintiff alleges that by then her action was statute barred and that as a result she compromised her claim for less than she would have recovered had her action been commenced in time. In paragraphs 4 and 8 of her third further amended statement of claim the plaintiff alleges: "4. In or about September 1990, the first defendant interviewed the plaintiff at his premises in Toowoomba, where the plaintiff advised the first defendant: 4.1 the circumstances surrounding the fall; 4.2 that she was not sure of the precise date of the fall but she believed it was within the first two weeks of starting work; 4. 3 that the date may have been 16 July 1.985 but she was not sure; 4.4 that she had written the date and time in her work diary as the day on which the injury 2 JUDGMENT l 10 () 30 () 50 60 -- 2 of 8 -- C) CJ ()-~ C)\.~ 30012001 T1/MLM15 M/T 9050/2001 (Wilson J) occurred was an open day at the proclaimed place and it would be recorded in their documentation. 8. The first defendant failed to advise Cole and Butler: 8.1 that the plaintiff was unsure of the specific date of the injury; 8.2 that they should check with ihe plaintiff's employer to determine the precise date of injury; 8.3 that the plaintiff had sustained the injury about two weeks after commencing work; . 8.4 the plaintiff commenced work in or about late June of 1985." It is the first defendant's case that she instructed him that the injury was sustained on 16 July 1985. In paragraphs 4 and 8 of his amended defence he pleads: "4. As to paragraph 4 of the Statement of Claim, the first defendant: (a) (b) (c) (d) Admits that in or about September 1990 he interviewed the plaintiff at his office; Says that she gave him instructions as to: (i) The circumstances of the fall; (ii) The date of the accident being 16 July 1985; Denies that there was any uncertainty as to the date; and . Denies that any reference was made by the plaintiff to any other documentation or work diary. 8. The first defendant admits that Cole & Butler issued proceedings in the Moree District Court for damages on 15 July 1991, but does not admit and wishes to investigate further whether the plaintiff's claim for damages as that time was statute barred by virtue of the-effluxion of time." 3 JUDGMENT 1 10 20 30 40 50 60 -- 3 of 8 -- 30012001 T1/MLM15 M/T 9050/2001 (Wilson J) The plaintiff has sued the second defendant, another firm of solicitors, in the alternative. She alleges that she consulted the second defendant about suing the first defendant for professional negligence. She alleges that she was given negligent advice about the applicable limitation period and that she lost her rights against the first defendant in consequence. Paragraphs 16 to 20 of her pleading relate solely to her claim against the second defendant. The plaintiff contends that the proceeding is ready for trial. A request for trial date has been signed by the solicitors for the plaintiff and the solicitors for the second defendant, but the solicitors for the first defendant have refused to sign it, contending that disclosure is not complete. On 20 December 2000 the solicitors for the first defendant received from the solicitors for the plaintiff a letter inquiring about the request for trial date and enclosing a notice to admit, calling on their client to admit "paragraphs 1 to 21.4 inclusive of the plaintiff 1 s third further amended statement of claim dated 3 November 2000". A similar notice was sent to the solicitors for the second defendant who responded by disputing "the facts specified 11 in the notice. 4 JUDGMENT 1 10 20() 30 ..· \ ( ) ' . 40(J 50 60 -- 4 of 8 -- 30012001 T1/MLM15 M/T 9050/2001 (Wilson J) The first defendant did not respond to the notice within 14 days, i.e. by 3 January 2001. Rule 189 subrules (2) and (3) of the Uniform Civil Procedure Rules provide: ( 2) -If the other party does not, within 14 days, serve ~ notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document specified in the notice. (3) The other party may, with the court's leave, withdraw an admission taken to have been made by the party under subrule (2) . 11 l 10 () 20 The ·offices of the solicitors for the first defendant were () closed between 22 December 2000 and 2 January 2001 and '-~ Brockwell John Miller, a member of the firm, has sworn that it was through oversight that no response was made to the notice to admit. 30 By letter dated 4 January 2001 the solicitors for the plaintiff called for the return of the signed request for trial date. On 11 January 2001 the solicitorg for the first 0 defendant wrote to the solicitors for the plaintiff advising 40 of their oversight in not responding to the notice to admit and foreshadowing an application for leave to withdraw the admissions. The application was filed that day. It was subsequently amended to include an application to strike out the notice to admit. 50 It is within the Court's inherent powers to strike out the notice to admit if it is oppressive or an-abuse of process. 60 5 JUDGMENT -- 5 of 8 -- 30012001 T1/MLM15 M/T 9050/2001 (Wilson J) By rule 189 subrule (1), a party may serve on another party a notice to admit "facts or documents specified in the notice". Counsel for the first defendant submitted that 11 specified" means set out in detail on the face of the notice. While I accept that some precision is required in order to "specify" a fact, I consider that in an appropriate case the facts can be 11 specified 11 by reference to paragraphs in a pleading. However, this will not be appropriate where, for example, more than one fact is alleged in a single par~graph of a pleading or where there are mixed allegations of fact and law. The purpose of the notice to admit procedure is to ensure that the Court is called upon to determine only questions bona fide in dispute. See Rigato Farms Pty Ltd v. Ridolfi, [2000] QCA 292, Coopers Brewery Ltd v. Panfida Foods Ltd (1992) 26 NSWLR 738. Where, as in the present case, some facts have already been admitted on the pleadings (some subject to q:ualifications), and others not admitted because the opposite party is uncertain as to their truth or still making relevant inquiries, it is not a legitimate use of the procedure to call for admission of all the paragraphs in the pleading. I reject the submission of counsel for the plaintiff that it was open to the first defendant to refuse to answer mixed questions of fact and law and that matters of fact already admitted were of no effect and severable from the notice. 6 JUDGMENT 1 10 () 30 () "-·' 50 60 -- 6 of 8 -- 30012001 T1/MLM15 M/T 9050/2001 (Wilson J) Rule 189 does not contemplate the use of the procedure in this manner. In my view what was done was an abuse of process, and the notice ought to be struck out. Had I not come to that conclusion I would nevertheless have given the first defendant leave to withdraw the admissions. The first defendant moved promptly to seek leave to set aside the admissions before the plaintiff could suffer () prejudice by relying on them. Mr Miller has given an explanation why the facts were not challenged within the requisite 14 days. Counsel for the plaintiff pointed out (J that the defendant was first delivered in October 1999 and that there has been no change in the non-admissions and reasons therefor since then. However, I take it from paragraphs 2 and 3 of Mr Miller's second affidavit that the first defendant has recently confirmed that those reasons still hold true. Some of the facts alleged against him are outside his knowledge; investigations may not be enable him to admit or deny them; they may have to be determined by the 0 Court. I am mindful of what Justice Williams said in Rigato Farms at paragraph 32. " [32] Certainly an admission flowing from the operation 1 J..O 20 30 40 of r 189 should not be withdrawn merely for the asking. 50 In my view a clear explanation on oath should be given as to how and why the admission came to be made and then detailed particulars given of the issue or issues which the party would raise at trial if the admission was withdrawn. Such a requirement is generally in accordance with the reasons of Roger.CJ in Coopers and of Mackenzie J in Equuscorp Pty Ltd v Orazio (unreported, S9208/96, judgment 30 November 1999). That ought not be taken to be an exhaustive statement of what is required. Each case should be considered in 7 JUDGMENT 60 -- 7 of 8 -- 30012001 T2/NK19 M/T 9050/2001 (Wilson J) the light of its own facts and the circumstances may well require even more extensive material in order to obtain leave to withdraw the admission." See also the judgment of Chief Justice de Jersey at 19 and that of Mr Justice McPherson at paragraph 27. Nevertheless, I am satisfied that in the circumstances of this case it would be right to allow the first defendant to withdraw the admissions. I order that the notice be struck out. HER HONOUR: Having regard to my finding that the notice to admit was itself an abuse of process, I think this is a case where the costs ought to follow the event. I order the respondent plaintiff to pay the applicant first defendant's costs of and incidental to the application, to be assessed on the standard basis. 8 JUDGMENT 1 10 2o() () 30 () so 60 -- 8 of 8 --