//
[2019] QSC 63
General information, not legal advice.
Supreme Court of Queensland
2019-03-19
Burns J
Original judgment source is linked above.
53 This should be taken to be a reference to paragraph 6A.
he defendant also filed an application. That occurred on 31 January 2018 and, by it, the defendant sought leave pursuant to r 188 UCPR to file and serve a further version of its defence. Subsequently, a draft of the proposed pleading was exhibited to the material filed in support of the defendant's application. It is described as the "fourth further amended defence".57
s to that draft, the view apparently taken by those representing the defendant was to provide it in the form of an entirely new pleading. This was said to have been done pursuant to r 382(4) UCPR,58 a provision that permits the filing of a revised document where "writing an amendment on the document is inconvenient or makes the document difficult to read". But, even then, the party making the amendment "must file a revised document incorporating and distinguishing the amendment". That has not been done and, although junior counsel for the defendant agreed to provide a marked up version to the court,59 nothing was forthcoming. It should however be recorded that, as the application evolved through argument and adjournments, the focus in the end was not on what the defendant hoped to plead; it was on whether the defendant should be relieved of the consequences of what it had already pleaded.
hen both applications eventually came on for hearing on 12 March 2018, the defendant sought leave to file and serve the proposed fourth further amended defence and, to that end, leave to withdraw admissions made in the further amended defence. Because reliance appeared to no longer be placed on the second further amended defence or the third further amended defence, the plaintiff asked that its amended application be put to one side pending the outcome of the defendant's application.60
he focus of the defendant's application, at least initially, was on the admissions made to paragraphs 5.2 and 10.1 of the statement of claim. The admissions in these respects can be found in paragraphs 3 and 6 of the further amended defence. There was, the defendant submitted, also a category involving "allegations of a consequential nature" which arguably arise where the defendant responded to allegations in paragraphs 6 and 17 of the statement of claim where the descriptors, 'First Incident" or Second Incident", were used. These, the defendant argued, were not admissions when properly construed but, if they were, leave was sought to withdraw them. Another category was also submitted to be "consequential in nature" and arose in the pleading of the response to allegations in paragraphs 2.6, 3.2, 4 and 15 of the statement of claim concerning breach of duty. Again, whilst it was not accepted that the responses to these allegations in the further amended defence amounted to admissions, leave to withdraw them was sought if that position proved to be wrong. The final category concerned the response to allegations in paragraphs 13 and 15 of the statement of claim that contained a proposition of law. The defendant submitted that the paragraphs of the further amended defence where those
57 Exhibit JBF-1 to the affidavit of Julien Fraccaro field on 26 February 2018.
59 Transcript (12 March 2018), 1-31, 32, 36 and 38.
responses are to be found ( 9 and 11) could not constitute an admission of a material fact but, that notwithstanding, sought to make its position clear in the proposed fourth further amended defence.
fter some argument, Mr Fraccaro was cross-examined on his affidavits and then the defendant's application was adjourned to allow the defendant to put on some evidence from the barrister who drew and settled the further amended defence, Mr Cormack. The hearing resumed on 24 May 2018, by which time an affidavit from Mr Cormack had been obtained and was read on behalf of the defendant. He was cross-examined on his affidavit by Mr Grant-Taylor QC for the plaintiff. Then, because it emerged that the plaintiff was also relying on a number of deemed admissions that it was submitted were made in the original defence as well as the amended defence, Mr Telford appearing for the defendant made an instanter application for leave to withdraw any such admissions.61 The hearing was then adjourned to afford the defendant an opportunity to investigate the circumstances surrounding the preparation of those earlier pleadings. The hearing resumed for the third and final time on 26 June 2018. At that time, leave was granted for the defendant to file an affidavit affirmed by Mr Fraccaro regarding his investigation of those circumstances. At the conclusion of the addresses, the parties were given leave to supplement their oral submissions in certain respects and written submissions were subsequently advanced on 27 July 2018 (plaintiff) and 1 August 2018 (defendant).
y r 166(1) UCPR, 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 the allegation is denied or stated to be not admitted by the opposite party in that party's pleading.62 A party may plead a nonadmission only if: (1) the party has made inquiries to find out whether the allegation is true; (2) those inquiries are reasonable having regard to the time limited for filing and serving the defence or other pleading in which the denial or nonadmission is contained; and (3) the party remains uncertain as to the truth or falsity of the allegation: r 166(3). Even then, a party making a nonadmission remains obliged to make any further inquiries that may become reasonable and, if the results of the inquiries make possible the admission or denial of an allegation, to amend the pleading appropriately: r 166(6). A party's denial or nonadmission of an allegation of fact must be accompanied by a direct explanation for the party's belief that the allegation is untrue or cannot be admitted: r 166(4). If a party's denial or nonadmission of an allegation does not comply with r 166(4), the party is taken to have admitted the allegation: r 166(5). It is however important to keep in mind that r 166 is concerned with allegations of fact, and not conclusions of law.63
ule 188 UCPR provides that a party may withdraw an admission in a pleading only with the court's leave. Whilst the discretion conferred on the court by that rule is unfettered, it must be exercised judicially. In that regard, the decided cases are revealing of a range of factors that may need to be weighed by the court. They include the following:
he evidence surrounding the issue the subject of the admission;
hether there is likely to be a real dispute about the evidence;
hether there is delay in making the application for leave;
hether any such delay is satisfactorily explained; and
hether the other party will be prejudiced if leave is granted.64
he court will ordinarily require sworn verification of the circumstances under which the admission came to be made.65 Although it is clear that r 188 UCPR would serve to ground an application for leave to withdraw both express and deemed admissions,66 I respectfully agree with what was said by McMeekin J in _Pollock v Thiess Pty Ltd & Ors_67 to the effect that a "deemed admission under r 166 is potentially in a different category of case to an admission that comes about from a failure to respond to a Notice to Admit Facts."68 There is also a valid distinction between an express admission in a pleading and one that is deemed because of a pleading default.
return to the pleadings, and commence with the original defence.
aragraph 3 of the defence admits that the plaintiff was working on premises controlled by the third party at the time of the first incident and then purports to deny the balance of the allegations contained in paragraph 5 of the statement of claim (as to the manner in which the first incident occurred and the fact that the plaintiff suffered personal injuries, loss and damage) "on the grounds that they relate to issues of fact which are to be proven in evidence at the trial". On no view was that a "direct explanation for the party's belief that the allegation is untrue" as r 166(4) UCPR requires and, because of that, the purported denial is as evasive as it is ineffectual.69 It follows that the defendant is to be taken to have admitted those allegations: r 166(5).
he same conclusion may be reached, and for much the same reason, in relation to the defendant's response to paragraph 4 to the allegations contained in paragraphs 6 and 7 of the statement of claim (that the plaintiff required surgery for the injuries sustained in the first incident and returned to work on 26 January 2004 and that, as at that date, the defendant knew that the plaintiff had suffered a significant injury to his back and placed the plaintiff on light duties for two weeks). In paragraph 4, the defendant admitted that the plaintiff required medical treatment for injuries sustained in the first incident and that
65 Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455, [19].
66 See Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209.
the plaintiff returned to duties of employment pursuant to a rehabilitation program provided to the plaintiff. There was no denial at all of the balance of the allegations in paragraphs 6 and 7 and, by force of r 166(1) UCPR, those allegations are taken to be admitted.
aragraph 8 of the statement of claim (that, from on or about April 2004, the defendant directed the plaintiff to perform his employment duties with D & J Harrison Electrical and more particularly with Mr Harrison) was expressly admitted by paragraph 5 of the defence.
aragraph 9 of the statement of claim pleaded that the defendant knew or ought to have known that, at that time, Mr Harrison was recovering from a hernia operation and paragraph 10 pleaded the duties that the plaintiff was required to carry out with Mr Harrison (above at [5]). Paragraph 6 of the defence purported to respond to these allegations (above at [10]) but, although it contains an awkwardly pleaded admission that the plaintiff undertook duties of employment as directed by Mr Harrison as the host employer of the plaintiff "at the time of the period referred to" together with an assertion that all "the duties undertaken by the plaintiff were solely directed to the plaintiff by [Mr] Harrison as the host employer", there is no denial of the balance of the allegations in paragraphs 9 and 10 of the statement of claim and, again by force of r 166(1) UCPR, those allegations are taken to be admitted.
he allegation in paragraph 11 of the statement of claim (that, as a result of the requirement of the defendant for the plaintiff to perform the duties set out in paragraph 10, the plaintiff suffered injury, loss and damage in the second incident) was met in paragraph 7 of the defence with a partial admission - "the defendant is prepared to admit that as a result of the second incident, the plaintiff suffered injury, loss and damage, but not to the extent as alleged in the statement of claim" - but the balance of the allegations in paragraph 11 were not denied and, by reason of r 166(1) UCPR, are taken to be admitted.
aragraph 9 of the defence (above at [12]) contains a denial of paragraph 13 of the statement of claim (by which negligence in connection with the first incident is alleged) but goes on to allege that, if the plaintiff suffered any injury, loss and damage, then it was due to the negligence of the third party.
aragraph 10 of the defence (above at [13]) purports to respond to paragraph 14 of the statement of claim (by which negligence in connection with the second incident is alleged) by pleading that the plaintiff returned to work based upon the medical opinions of the plaintiff's treating medical experts and that the defendant "discharged its obligations and duties in law" in accordance with those opinions.
astly, by paragraph 13 of the defence, the defendant expressly admitted the personal injuries suffered by the plaintiff as a result of both incidents that were pleaded in paragraph 17 of the statement of claim and, by paragraph 14, the defendant admitted that the plaintiff suffered pain and suffering, required medical treatment, suffered a loss of income in the past and may do so in the future and incurred special damages as a result of his personal injuries.
t may be observed that, regardless of what consequences flow from r 166 UCPR due to the manner in which the defence is pleaded, it appears plainly enough that the defendant's case when that pleading was filed was to admit that the plaintiff was working for the host employer at the time of each of the alleged incidents, to admit that he was injured in both incidents, to admit that he suffered loss and damage in consequence of both incidents although not to the extent alleged, to deny that it had been negligent but to assert that any injury, loss or damage occasioned by the first incident was caused by the negligence of the third party and that the plaintiff worked under the direction of Mr Harrison at the time of the second incident.
urning to the amended defence, paragraph 3 (above at [16](a)) still fails to provide a "direct explanation for the party's belief that the allegation is untrue" as r 166(4) UCPR requires. Even if it is accepted that the word, "objections", was mistakenly used instead of the word, "allegations", a plea of ignorance of the facts will not support a denial but may, of course, support a non-admission provided the requirements of r 166(3) are also made out, but that is by no means established. Either way, the deemed admission arising on the face of paragraph 3 of the original defence stands unless leave is given to withdraw it.
he alteration of paragraph 4 (to add a reservation about the extent to which the plaintiff was injured in the first incident) did nothing to address the fundamental problem with that paragraph - the absence of any denial of the balance of the allegations in paragraphs 6 and 7 of the statement of claim which, by reason of r 166(1) UCPR, are taken to be admitted. Similarly, the reformulation of paragraph 6 in paragraphs 6 and 6A of the amended defence (above at [16](b) and (c)) still failed to deny the balance of the allegations in paragraphs 9 and 10 of the statement of claim so, by force of r 166(1) UCPR, those allegations are taken to be admitted. In both cases, the deemed admissions arising on the face of paragraphs 4 and 6 of the original defence stand unless leave is given to withdraw them.
he amendments made in the amended defence to paragraphs 9 and 10 (above at [16](d) and (e)), if anything, plead a firmer denial of negligence on the part of the defendant with the plea maintained that any loss or damage arising out of the first incident was caused by the third party.
hus, it will be seen that the defendant's case at the time the amended defence was filed remained essentially unchanged from that which is summarised above at [57]. It is also broadly consistent with the contents of the third party statement of claim filed on the same day and the letter its solicitors forwarded to the solicitors for the plaintiff on 17 August 2010 (extracted above at [19]). Furthermore, it should be noted that such a case was maintained by the defendant despite the contents of the third party defence that was filed on 4 January 2010 wherein the third party denied that "there was any 'first incident' or any incident at all involving the plaintiff on 7 July 2003".
he further amended defence was filed over six years later and, as earlier discussed (at [23]), that occurred over the objection of the plaintiff.
aragraph 3 of the further amended defence (above at [25](a)) constitutes an attempt to
plead a non-admission in response to paragraph 5 of the statement of claim, but not before expressly admitting paragraphs 5.1 and 5.2. Of course, the deemed admission arising on the face of paragraph 3 of the original defence cannot be overcome unless the defendant is granted leave to withdraw it.
aragraph 4 was substantially amended. It purported to limit the extent to which it had previously been admitted that the plaintiff required medical treatment for injuries sustained in the first incident and that the plaintiff returned to duties of employment pursuant to a rehabilitation program provided to him. It also purported to plead a non- admission of the allegations contained in paragraph 7 (that, as at 26 January 2004, the defendant knew that the plaintiff had suffered a significant injury to his back and placed the plaintiff on light duties for two weeks). None of that can overcome the deemed admission of the allegations in paragraphs 6 and 7 arising on the face of the original defence, but it is noteworthy that, even on this version of the defence, the defendant expressly admits that the plaintiff required a right-sided lumbosacral discectomy "for the injury sustained in the first incident".
aragraphs 6 and 6A (above at [25](b) and (c)) contain a number of changes. The reference to paragraph 9 of the statement of claim (that the defendant knew or ought to have known that, at the time of the second incident, Mr Harrison was recovering from a hernia operation) was removed but those allegations were then admitted without reservation in paragraph 1 of the further amended defence. The balance of the changes are cosmetic and still fail to deny the balance of the allegations in paragraph 10 of the statement of claim with the consequence discussed above (at [59]).
aragraph 7 contains minor changes that do not affect the previous partial admission that, as a result of the second incident, the plaintiff suffered injury, loss and damage, although not to the extent as alleged in the statement of claim, but the balance of the allegations in paragraph 11 were still not denied and, as before, are taken to be admitted.
aragraph 9 of the further amended defence (above at [25](d)) maintains the previous plea that any loss or damage was caused by the third party but goes on to supply particulars of the third party's negligence.
aragraph 10 of the further amended defence (above at [25](e)) also maintains the previous plea that the plaintiff returned to work based upon the medical opinions of the plaintiff's treating medical experts and that the defendant "discharged its obligations and duties in law" in accordance with those opinions, but goes on to expressly deny several of the particulars of negligence alleged against the defendant in paragraph 14 of the statement of claim. Then, in the amendments made to paragraph 11 (above at [25](f)), the defendant alleged that the "further injury sustained in the second incident" was a "direct and inevitable consequence of the third party's negligence in causing the plaintiff's injury sustained in the first incident", that "had the plaintiff not been injured by the negligence of the third party in the first incident, the further injury would not have been sustained" and that "the plaintiff 's damage for" both incidents was "caused by the negligence of the third party".
t is therefore the position that, at the time when the further amended defence was filed
on 31 March 2016, the defendant's case remained to the effect summarised above at [57] save that the case against the third party was broadened to allege that the plaintiff's loss arising from both incidents was a product of the third party's negligence. But, within six months, the defendant would attempt to advance a radically different case when it filed, but did not serve, the second further amended statement of claim on 1 September 2016 and then followed that up with the filing and service of the third further amended defence on 16 November 2017.
t is unnecessary to examine in great detail the differences between what is pleaded in those defences and what had gone before, and especially given the approach taken by the defendant to the prosecution of its application (discussed above at [40] - [42]), but the critical differences seem to be these:
o longer was the defendant alleging that any loss or damage arising from the first incident was caused by the negligence of the third party. Instead it alleged in paragraph 3 of the second further amended defence (above at [29](a)) that the first incident "did not happen" and in no less than 24 new sub-paragraphs incorporated in the third further amended defence (above at [29](a)) seeks to make out a case that the first incident could not have happened;
n addition, in the new paragraph 3A of the third further amended defence (above at [29](b)), the defendant alleged for the first time that the plaintiff suffered from a latent congenital defect in the lower back which predisposed him to a disc herniation, that this defect was "most likely caused by movement of the spine during daily activities", that the plaintiff's work activities with the third party on site would not cause a disc herniation in a healthy 17-year-old male and that his work activities with the third party on site "were not the cause of the disc herniation";
n paragraph 4 of the second further amended defence, the defendant attempts to dissolve the admission made in the same paragraph of the further amended defence to the effect that the plaintiff required surgery "for the injury sustained in the first incident" by pleading that the plaintiff required the surgery "for the injury alleged to be sustainedI in the first incident" before adding in parenthesis, "(but for the reasons pleaded in paragraph 3 hereof the defendant denies the plaintiff suffered any injury as alleged)". Put another way, no longer was the defendant prepared to admit that the plaintiff was injured in the first incident because, it alleged, there was no such incident;
lthough paragraph 9 of the second further amended defence (above at [29](c)) maintained a plea that any injury, loss and damage suffered by the plaintiff in consequence of the first incident was caused by the negligence of the third party, that was qualified by a new denial that there was no injury, loss and damage for "the reasons pleaded in paragraphs 3 hereof". Then, when the third further amended defence was filed, the plea was entirely abandoned and the particulars of the third party's negligence that previously appeared were struck through (above at [29](d)); and
lthough untouched in the second further amended defence, the unqualified allegations in paragraph 11 of the further amended defence (above at [25](f)) that
the "further injury sustained in the second incident" was a "direct and inevitable consequence of the third party's negligence in causing the plaintiff's injury sustained in the first incident", that "had the plaintiff not been injured by the negligence of the third party in the first incident, the further injury would not have been sustained" and that "the plaintiff's damage for" both incidents was "caused by the negligence of the third party" were qualified. This was attempted by the insertion in paragraph 11 of the third further amended defence (above at [37](f)) of the words, "if, contrary to the matters pleaded above, the first incident was caused by the negligence of the third party" before the allegations.
s to this change of tack on the part of the defendant, the plaintiff's solicitor, Mr Tisdall, has sworn this:
he plaintiff's instructions have always been that, throughout his employment with the defendant, he only knew the first names of his workmates, he did not socialise with them or know where any of them lived and did not maintain contact with any of them after he left that employment;70
he defendant has not at any time prior to the filing of "its most recent pleadings" sought "to advance a positive case in respect of liability and/or causation by way of its defence";71
ecause "readiness of the principal proceeding" for trial was a factor in the determination of the Court of Appeal in favour of a continuation of the third party proceedings, the plaintiff "should not be required to face a defence which the defendant seeks to enlarge by its most recent pleading, after the passage of some 13 years";72
he plaintiff would be prejudiced "through the passage of time" if he is required "to undertake a search for witnesses at this late stage, when the likely outcome has been clearly demonstrated by the unsuccessful attempts by the third party (recorded in its material put before the Court of Appeal) to locate witnesses with any reliable memory of the incident, the subject of the plaintiff's claim";73
he plaintiff elected to only proceed against the defendant (as opposed to proceeding against both the defendant and the third party) because the defendant has "always claimed that the personal injury loss and damage suffered by the plaintiff was caused by a breach by [the third party] of its duty to the plaintiff";74
rom the commencement of the proceeding, the defendant has conducted its case on the basis that liability for the plaintiff's claim was not seriously in dispute. Had it not done so, the plaintiff would have taken steps to identify witnesses employed by the defendant and officers employed by the insurer for the defendant who signed and witnessed various documents, including the Employer's Report. The plaintiff would have also engaged an expert witness to consider the details and the
70 Affidavit of Peter Tisdall filed on 16 January 2018, par 49.
74 Affidavit of Peter Tisdall filed on 6 March 2018, par 14.
mechanism of the incident which led to the plaintiff's injuries. The plaintiff's position "will be prejudiced to an impossible extent if the defendant is permitted to adopt a new case at this late stage of the proceedings".75
s to the preparation of the pleadings, very little is known about the original defence and the amended defence in that regard other than that they were filed when Gadens were acting for the defendant. When the solicitor who had carriage of the matter on behalf of the defendant at Gadens was contacted in June 2018, he had no recollection of the claim. Nor did the barrister who was engaged to draw and settle the amended defence. Furthermore, there are "no memoranda, aide-memoire, or any other document" on the solicitors' file "giving reasons or explanation for the pleadings contained in the defence and amended defence".76
n the other hand, the preparation of the further amended defence was the subject of much evidence.
he defendant's solicitor, Mr Fraccaro, affirmed two affidavits regarding the successive versions of his clients' defence.77 The latter in time was filed in support of the defendant's application and the former was the subject of a number of questions that were put when Mr Fraccaro was cross-examined by the plaintiff's counsel at the 12 March hearing. Both affidavits form part of the bundle of material on which the court is asked to decide these applications.78 Mr Fraccaro's affidavit and oral evidence may be summarised as follows:
e has no recollection of, and his file contains no record of, any discussions with Mr Cormack regarding the drafting of the further amended defence, let alone any recollection or record regarding the pleading in response to paragraphs 5.2, 9 and 10 of the statement of claim;
s to paragraph 5.2, at the time when the further amended defence was filed, he "had not been able to speak with employees engaged by the third party who were directly involved in the supervision of plaintiff, including the site foreman, Mr Matthew Kirk";
e was therefore not in a position to "plead positively" in response to the plaintiff's allegations concerning the work he was carrying out on 7 July 2003 save to say that the plaintiff was engaged in host employment with the third party at a construction site located at Charlotte Street and that the third party's "scope of works" required it to install communications cabling;
t was never his intention to admit that, at the time alleged for the first incident, the plaintiff was performing for his host employer the specific tasks pleaded in paragraphs 5.2 to 5.7 of the statement of claim, and that is why paragraphs 5.3 to
5.7 of the statement of claim have been "consistently denied" since the original defence was filed in June 2009;
76 Affidavit of Julian Fraccaro filed by leave on 26 June 2018, par 12.
78 Described as a "Combined index of materials read by all parties": Exhibit 4.
t no time did he hold instructions from the defendant's insurer or the defendant to admit paragraph 5.2 of the statement of claim. The admission of that paragraph was "done erroneously". It was intended to be "limited to the allegation that, at the relevant time, the third party was involved in the installation of cabling on site, and not that the plaintiff was performing the precise tasks which he particularises in paragraphs 5.2 - 5.7, namely standing on scaffolding to affix cable trays to the concrete floors above";
"more accurate and complete statement of the defendant's position" is contained in the third further amended defence and the proposed fourth further amended defence where it is alleged that the plaintiff could not have been injured in the first incident in the manner he has alleged and negligence is denied. That pleading is based on evidence which he obtained from Mr Kirk and is supported by "the contemporaneous documents including the site diary maintained by Mr Kirk". As such, there is a "genuine dispute as to the factual circumstances" of the first incident;
n the course of preparing for the appeal from the decision of Martin J, he was able to locate and speak with Mr Kirk. In August 2016, he took two statements from Mr Kirk which were then exhibited to an affidavit affirmed by him and filed in the Court of Appeal;
ikewise, at the time the further amended defence was filed, it was never his intention to admit that, in April 2004, the plaintiff was performing for his host employer the specific task detailed in paragraph 10.1 of the statement of claim (lifting scaffolding) and nor did he hold instructions from the defendant or the defendant's insurer to admit that allegation. Rather, it had been intended to limit the admission of paragraph 10 to the allegation that, at the relevant time, the plaintiff was "generally undertaking duties of employment as directed by his host employer Mr Harrison" and not that he was injured in the specific manner alleged (while lifting scaffolding);
r Harrison provided a statement to loss adjusters engaged by the defendant's previous solicitors in which he stated, "There was no scaffolding involved in my work during the time the [plaintiff ] worked with me", and a copy of that statement was disclosed to the plaintiff's solicitors in early 2007;
y the proposed fourth amended defence, the defendant wishes to plead that the plaintiff could not have been injured in the manner in which he alleges the second incident took place, and that allegation is supported by the statement of Mr Harrison;
s to paragraphs 6, 13 and 17 of the statement of claim, it was never his intention to admit that either the first incident or the second incident occurred in the manner alleged and at no time did he hold instructions from the defendant's insurer or the defendant to make such admissions;
e instructed Mr Cormack to "review the pleadings and ... draft a defence in light of the material contained on the brief";
hen he received the settled defence from Mr Cormack, he failed to "pick up" the making of the admissions in question or their potential significance. He did not gain an understanding of their potential significance until new counsel was briefed;
e relied on "counsel's expertise" in the "framing" of the pleading.
r Cormack also gave evidence on affidavit and was cross-examined. His evidence may be summarised as follows:
e was first retained by Mr Fraccaro on 21 September 2015. He was briefed with an indexed bundle of material to draw and settle the further amended defence in accordance with that material;
mongst that material was a statement from Mr Patrick Stabback, a copy of which was exhibited to his affidavit, and in which Mr Stabback stated that he was not aware of the plaintiff's "specific duties on a daily basis whilst working at the Charlotte Street site" but that, "more generally his duties would have included laying cable trays, running data cable along the trays, and drilling holes in concrete to place fixing bolts to affix the trays to". His work was supervised by a person by the name of Smithers;
he only other relevant material in his brief concerning the duties performed by the plaintiff was a copy of extracts from the Daily Site Diary for the Charlotte Street site and a statement from Mr Harrison dated 2 February 2007;
pon closer examination of the Daily Site Diary extracts, he accepts that it suggests that, on 7 July 2003, the plaintiff was in fact working on power outlets, and not performing the task he alleges in paragraph 5.2 of the statement of claim. He "inadvertently overlooked that detail" when he drafted the further amended defence;
is brief contained "no evidence which corroborated" the allegation made in paragraph 5.2 of the statement of claim. Instead, his understanding of the evidence at the time was that the plaintiff 's host employer was "generally involved in those tasks pursuant to the terms of its sub-contract" although he accepts that the Daily Site Diary extracts "suggested the plaintiff was working on outlets on 7 July 2003, and not working from the scaffold as he alleges". As such, "a denial or a non- admission should have been pleaded in response to paragraph 5.2";
is decision to plead an admission to paragraph 5.2 of the statement of claim "did not coincide with the evidence in [his] brief or [his] instructions and was an error by [him]. He did not have instructions from Mr Fraccaro or any other person on behalf of the defendant to plead an admission in response to paragraph 5.2;
s to paragraph 10, he took the view that paragraphs 10.1, 10.2 and 10.3 of the statement of claim "did not plead material facts but instead were particulars". Accordingly, when drawing the further amended defence, he "considered that the only material fact alleged was that the plaintiff was required to carry out duties as directed by Harrison" and "not the particular duties alleged in 10.1, 10.2 and 10.3". That is the reason why he did not respond to the "particulars". If he is incorrect in that view then, based on the contents of the statement in his brief from Mr Harrison, a denial should have been pleaded. If what was pleaded amounts to an admission of the allegations, then it was an error;
t was not his intention when drafting the further amended defence to admit paragraph 10.1 of the statement of claim and, at the time of drafting, there was no evidence in his brief or instructions provided to him which would have supported
or was it his intention when drafting the further amended defence to admit in any other part of the pleading that the first incident or the second incident occurred in the manner alleged by the plaintiff, or to admit negligence on the part of the defendant. The approach he had intended to take was to admit that a non-delegable duty of care was owed, but not to admit the standard of care owed at law or in contract because that was a question of law, or to admit whether any duty of care had in fact been breached;
t was not his intention when drafting the further amended defence to admit negligence on the part of the defendant by reference to the conduct of the third party, and nor did he have instructions to do so.
or the defendant, it was submitted that the admissions contained in the further amended defence were inadvertent and have been satisfactorily explained. That there was a genuine dispute about the allegations admitted was emphasised. It was also contended that the plaintiff would not be prejudiced if leave was granted. It was also submitted on behalf of the defendant that "courts do not promulgate fictions" and that admissions "cannot confound the principled application of the relevant facts to the relevant law to produce a decision according to law". It was otherwise submitted that the deemed admissions were "technical" in nature and ought be seen as such.
accept that, in drafting an admission to paragraph 5.2 of the statement of claim, Mr Cormack misconstrued the material on his brief and, further, that he proceeded under a misconception so far as the response to paragraph 10 of the statement of claim is concerned. I also accept that Mr Fraccaro failed through inadvertence to notice these errors or appreciate their significance. In the context of the claim as a whole, the delay applying for leave to withdraw these admissions was not significant and it was in any event not of such a magnitude as to deny relief on that ground alone. It is also to be accepted that there is now a genuine dispute about the circumstances of both of the pleaded incidents and that some, if not all, of the deemed admissions arise through defective pleading. In that second respect, although no sworn explanation has been forthcoming for the manner in which the defence and amended defence were pleaded, enough can be inferred from the contents of those pleadings as a whole to come to that view.
he purpose of the UCPR "is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense": r 5(1). They "are to be applied ... with the objective of avoiding undue delay, expense and technicality": r 5(2). Plainly, the rules are to be applied "with a view to facilitating the conduct of litigation and not so as to obscure the real issues and impede the progress of a trial".79 But that does not mean that non-compliance with the rules will in every case be excused, and certainly not where to do so will cause injustice to another party.
79 Barker v Linklater [2007] QCA 363; [2008] 1 Qd R 405, [53]-[55].
n Ridolfi v Rigato Farms Pty Ltd,80 de Jersey CJ said this:
"There is no principle that admissions made, or deemed to have been made, may always be withdrawn 'for the asking', subject to payment of costs. The discretion is broad and unfettered, as exemplified by Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 and Equuscorp Pty Ltd v Orazio [1999] QSC 354.
The charter of procedure contained in the Uniform Civil Procedure Rules cannot be approached on the basis that if important provisions are ignored, even if inadvertently (and that is not established here), the court may be expected to act indulgently and rectify the omission. Fulfilling procedural requirements will often contribute significantly to securing an ultimate result which may be considered just. Allowing the appellant to withdraw these deemed admissions would substantially erode the beneficial worth of a very important procedural mechanism directed, through expediting cases and reducing costs, to promoting the interests of justice.
Parties do not have an inalienable right to a hearing of all issues on the merits. Rule 5(3), for example, confirms each party's obligation to proceed expeditiously, or risk sanctions (rule 5(4)) which may include dismissal."81
"Counsel for the appellant referred to the well known passage in the judgment of Bowen L J in Cropper v Smith (1884) 26 Ch D 700 at 710 where he said that the court ought to correct errors or mistakes in procedure made by the parties so that the matter was determined in accordance with the rights of the parties. That statement, although made over 100 years ago, is still relevant, and it encapsulates a principle which a judge must always take into consideration in determining whether or not it is appropriate, for example, to allow a party to withdraw an admission. Essentially it is no more than a recognition that courts will, so far as possible, ensure that a party has a fair trial. But, for example, where detriment or prejudice is self-induced, the party may not be entitled to relief."82
ere, the defendant asks to be relieved of errors made by its legal representatives in the defence, the amended defence and the further amended defence. But that is only part of the story. It is also a case where, if leave to withdraw the various express and deemed admissions is granted, irremediable prejudice will be visited on the plaintiff.
he defendant was content until September 2016 to advance the case summarised earlier (at [57], [61] and [69]) and it did so in full knowledge of the contents of the site diary as well as the statement obtained from Mr Harrison in 2007. It was also unmoved by what was pleaded in the third party defence. It did not contest the manner in which the plaintiff suffered his injuries or the fact that the plaintiff was injured in the two incidents the subject of his claim. The position it took was to deny that it had been negligent but to assert that any injury, loss or damage occasioned by the first incident was caused by the negligence of the third party and, in the further amended defence, to seek to sheet home responsibility to the third party for the second incident as well. That all changed when Mr Kirk was located, but no explanation at all has been offered for the apparent failure to do
so on the defendant's behalf at any earlier point in the litigation. Nor, for that matter, is the failure to approach the court at any earlier point in time to address the deemed admissions that so obviously arise on the face of the defence and the amended defence explained.
s Mr Tisdall has sworn, the plaintiff has relied on the admissions that have been made in the way he has conducted his case, and he was entitled to do so. If the relief sought is granted, the plaintiff will be faced with the impossible task of attempting to investigate two workplace incidents that occurred over 15 years ago. It cannot seriously be suggested after such a passage of time that the plaintiff will have any realistic chance of locating co- workers or others to corroborate what work he was performing for the host employers. As it is, Mr Kirk has no independent recollection as to precisely what work was being performed by the plaintiff on 7 July 2003 but, instead, relies on the site diary to say that the plaintiff must have been doing different work to that which he has alleged. If it turns out that expert evidence is required because of the type of scaffolding being used at the time, that task is made all the more difficult, if not impossible.
iven such significant prejudice to the plaintiff if relief is granted, the defendant must be kept to the case it pleaded prior to such a dramatic change in its position, including most of the consequences that flow to it by operation of r 166 UCPR. The exception to the strict operation of that rule will arise where it is necessary to make clear that, while the defendant admits that the plaintiff was injured in both incidents, it denies that he suffered loss and damage to the extent alleged and, further, to make clear that the defendant denies that it was negligent but alleges, if it still wishes to do so, that any injury, loss or damage was caused by the negligence of the third party. The parties will be required to confer with a view to agreeing on a form of pleading that has this effect and, failing agreement, the application will be re-listed for determination. If agreement is reached so that it is not necessary for the application to be re-listed, the parties have leave to make brief written submissions on the question of costs as well as disposal of the plaintiff's application.
or completeness, mention must be made of one particular submission made on behalf the plaintiff. It was that the filing of the third further amended defence ran counter to the advice given by Mr Douglas QC to the Court of Appeal to the effect that the principal proceeding and the third party proceeding were both ready to proceed to trial and breached the condition imposed by that Court on the grant of leave to proceed. It was also submitted that the filing of the third further amended defence amounted to an abuse of process. I have placed no weight on these submissions because it is not clear to me whether Mr Douglas QC had in mind the contents of the second further amended defence when conveying that advice. If, as I suspect that was the case, a positive case is advanced by that pleading to the effect that the first incident did not occur: see paragraph 3 (above at [29](a)). Of course, that was the pleading which was not served until 13 February 2018, well after the appeal was heard and determined. Furthermore, the condition imposed by the Court of Appeal on the grant of leave constrained the future conduct of the third party proceeding; it did not constrain the conduct of the principal proceeding.
The parties will be directed to bring in minutes of order to reflect these reasons.
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Medina
Electro Industry Group Queensland Limited [2019] QSC 63
Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100, cited
Ballesteros v Chidlow & Anor (No 2) [2005] QSC 285, cited
Barker v Linklater [2007] QCA 363; [2008] 1 Qd R 405, cited
[2008] QSC 302; [2009] 1 Qd R 116, cited
Carswell v KBRV Resort Operations Pty Ltd [2017] QSC 239, cited Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738, cited
[2017] QCA 24, cited
Hanson Construction Materials P/L v Norlis & Ors [2010] QSC 34, cited
Hanson Construction Materials Pty Ltd v Davey & Anor [2010] QCA 246; (2010) 79 ACSR 668, cited
In Roma Pty Ltd v Adams & Anor [2012] QCA 347, cited
Medina v Electro Industry Group Queensland Ltd and Anor [2016] QSC 143, cited
Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2012] QSC 314, cited
Pollock v Thiess Pty Ltd & Ors [2014] QSC 22, cited
Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209, cited
Tyler v Custom Credit Corporation Ltd & Ors [2000] QCA 178, cited
(1992) 26 NSWLR 738