APPEAL - application for leave to appeal - no issue of principle
Source
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Catchwords
APPEAL - application for leave to appeal - no issue of principle
Judgment (10 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: The applicant seeks leave to appeal from a decision of Mahony DCJ delivered on 13 April 2017 refusing to grant the applicant leave to withdraw a deemed admission.
The applicant for leave is the third defendant in pending proceedings in the District Court of NSW at Taree. In the proceedings the plaintiff, Mr Wynbergen, seeks damages for personal injury suffered by him in the course of his employment with the second defendant, Suburban Towing & Equipment Pty Ltd trading as Taree Truck Centre ("Suburban Towing"). The injury was allegedly sustained while performing work on a truck owned by the first defendant, Kneeward Pty Ltd ("Kneeward"). The plaintiff alleges that Suburban Towing and/or the third defendant, Taree Truck Centre Pty Ltd ("Taree Truck Centre"), were engaged by Kneeward to maintain and service the vehicle. There is apparently a live issue in the proceedings about the relationship between Taree Truck Centre and Suburban Towing which curiously trades under the business name Taree Truck Centre.
On 20 December 2010, the plaintiff was performing mechanical work on a truck owned by Kneeward in the course of his employment with Suburban Towing. He was injured by the movement of the truck. He ultimately sued Kneeward, Suburban Towing and Taree Truck Centre in relation to those injuries. Kneeward also cross-claimed against Taree Truck Centre alleging that it had earlier retained Taree Truck Centre to inspect, service, maintain and repair the truck as necessary and that Taree Truck Centre carried out regular inspections, servicing and repair of the vehicle.
On or about 22 September 2015, Kneeward served a Notice to Admit Facts on Taree Truck Centre under r 17.3 of the Uniform Civil Procedure Rules 2005.
The applicant did not dispute this notice within time. The applicant was thus deemed by r 17.3(2) to have admitted in favour of the respondent that:
"On a date prior to 20 December 2010 [Taree Truck Centre] was engaged by [Kneeward] to inspect, service, maintain and repair (the truck) as necessary and Taree carried out regular inspections, servicing and repair of the vehicle."
The effect of an admitted fact is restricted by r 17.6 which provides that such admission:
1. may not be used in those proceedings except in favour of the party in whose favour it was made; and
2. is taken to have been made for the purposes of those proceedings only.
The party making the deemed admission may, with the leave of the Court, withdraw any such admission: r 17.3(3).
On 13 April 2017 Mahony DCJ heard and determined an application by the applicant seeking leave to withdraw this admission pursuant to r 17.3(3) UCPR. Leave was refused. His Honour's reasons were in essence that the accident occurred in 2010, the proceedings were commenced in 2013 and the Notice to Admit Facts was served in September 2015. The application to withdraw the admission was only made in December 2016.
Despite voluminous evidence being filed, no sensible explanation was proffered by Taree Truck Centre about why it had not responded to the Notice to Admit Facts in September 2015. The primary judge found that having regard to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings leave should not be granted to withdraw the admission.
[3]
Consideration of submissions of the parties
The applicant submitted five bases on which it was contended the primary judge erred:
1. He mistook the factual position regarding legal representation (Ground 1);
2. He imposed the wrong test in relation to the potential for conflicting factual findings within the same proceedings (Ground 2);
3. He identified and relied on an irrelevant "prejudice" to the respondent (Ground 3);
4. The apportionment of responsibility becomes an even more vexed proposition (Ground 4);
5. Elevating case management principles to primary importance notwithstanding the absence of evidence suggesting that any object of case management would be defeated (Ground 5).
[4]
Ground 1
The primary judge found that the failure to respond the respondent's Notice to Admit Facts was an error, but not necessarily an oversight on the part of the "solicitors [Turks Legal] then acting for the second [Suburban Towing] and third defendants [Taree Truck Centre] and now acting for the third defendant"
The applicant submitted that his Honour erred because at the time the Notice to Admit Facts was served, Turks Legal was acting for Taree Truck Centre only and not Suburban Towing.
The respondent correctly submitted that the error, if it be an error, was completely irrelevant. Taree Truck Centre is the applicant here. It led no evidence to explain what appeared to be a decision not to respond to the Notice to Admit. In any event, the Notice to Admit was served on both Taree Truck Centre and their former solicitors, Turks Legal . Any error by the primary judge about whether Turks Legal was acting for Suburban Towing at the same time was irrelevant to the determination of this matter.
[5]
Ground 2
The primary judge did not accept that requiring the plaintiff to prove facts, with respect to his claim against the defendants, while permitting Kneeward to rely on the deemed admission in relation to its cross-claim against Taree Truck Centre "would necessarily lead to a perverse outcome".
The applicant submitted that the standard implied by the phrase "would necessarily" is higher than the correct standard for the exercise of his Honour's discretion, namely whether there was a real possibility of conflicting findings of fact. In support of this the applicant cited Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142 at [36]; Benton v QBE Workers Compensation (NSW) Ltd [2015] NSWCA 101.
The possibility of inconsistent findings of fact is remote. No error has been shown in the primary judge's rejection of the proposition that requiring the plaintiff to prove facts while permitting Kneeward to rely on the deemed admission in relation to its cross-claim "would necessarily lead to a perverse outcome". The respondent also correctly draws attention to the pleadings. Without descending into the detail of those pleadings, it is tolerably clear that the plaintiff's pleadings against do not raise the precise issue which the deemed admission addresses.
Further, correspondence on behalf of Taree Truck Centre in September 2016 asserted that Kneeward contracted with Taree Truck Centre to provide repair services. Accordingly, the suggestion of potentially inconsistent findings of fact based on the existence of a contract between Kneeward and Taree Truck Centre should be rejected for this additional reason.
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142 at [36] and Benton v QBE Workers Compensation [2015] NSWCA 101 in the passages relied upon address a different issue, being inconsistent verdicts which may arise in separate and later proceedings. We do not accept that by using the phrase "would necessarily" the primary judge was applying an incorrect test in determining whether leave to withdraw an admission should be granted here.
[6]
Ground 3
The primary judge accepted the respondent's submission that if the admission was withdrawn, the respondent "could fall between the cracks" and thereby suffer prejudice.
The applicant submitted that the prejudice relied upon was the prejudice involved in the respondent no longer having the benefit of an admission. This prejudice is irrelevant. It was submitted that the result that the party having the benefit of an admission is to be exposed to a risk of a failure to prove the admitted fact is the inevitable consequence of any grant of leave in this context.
The applicant also submitted that this prejudice can no longer arise because Suburban Towing has now filed a defence to the respondent's second cross-claim which relevantly admits that there was default in the carrying out of work by Suburban Towing. This means that the respondent now has the formal admission from Suburban Towing to which it sought to hold the applicant.
We do not think that any House v The King (1936) 55 CLR 499; [1936] HCA 40 error has been demonstrated. The applicant's submission that leave to withdraw an admission always results in the party with the benefit of the admission having to prove that matter and thus it is always the case that no prejudice is suffered should be rejected. Whether a person with the benefit of a deemed admission suffers prejudice by the withdrawal of that admission requires a consideration of all of the circumstances. The applicant has not identified any injustice in the sense of being more than merely arguable.
Insofar as the applicant pointed to what is said now to be an admission by Suburban Towing the primary judge cannot have erred by failing to take into account a matter occurring after his decision.
[7]
Ground 4
It was submitted that the primary judge erred in failing to address the issue of apportionment. The respondent seeks contribution and indemnity, in addition to damages. Under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) a prerequisite to success for contribution and indemnity involves both the respondent and the applicant being liable to the plaintiff. The applicant submitted that difficulties may arise with respect to the facts available to prove the claim for contribution, compared to the facts which the plaintiff must prove against the defendants.
This is a false issue. First, as we have already noted, there are some differences between the facts which the plaintiff relies upon to prove his case and the facts the subject of the deemed admission. Second, if the plaintiff does not prove his case against both the applicant and the respondent, then there will be no issue of apportionment as between them under the 1946 Act.
The respondent correctly submitted that if the plaintiff proves his case against the defendants, the assessment of damages as against each of the Taree Trucks and Suburban Towing would be under different regimes, the Civil Liability Act and Workers Compensation legislation respectively.
The issue of the role of apportionment between defendants, if any, in the discretionary decision whether to permit an admission to be withdrawn is quintessentially a question of practice and procedure. No error has been shown in the failure of the primary judge to address this issue in making his discretionary decision. A decision of this nature is not the place for a detailed excursus about the different compensation regimes that may apply on various scenarios in the conduct of the ultimate trial.
[8]
Ground 5
The primary judge found that it was not in the interests of justice having regard to the overriding purpose of s 57 of the Civil Procedure Act 2005 (NSW), which identifies the objects of case management, to grant the relief sought.
The applicant submitted that his Honour erred because the refusal of relief does not promote the object of "just determination" referred to in s 57(a) . Further, the applicant submitted that there was no evidence that the efficient disposal of the proceedings would be prejudiced by the grant of relief (s 57(b)), there was no evidence to show that granting the relief would mean that judicial or administrative resources would be less efficiently used (s 57(c)), and there was no threat posed to the timely disposal of the proceedings (s 57(d)).
The applicant further submitted that the case raises an issue of principle, namely "the extent to which an innocent client will be held to an error made by a lawyer in failing to respond to a Notice to Admit."
We discern no error of principle in the decision of the primary judge. There is no evidence justifying an assertion that Taree Truck Centre is an "innocent client". Indeed, this case is significant in that the voluminous evidence led did not address the central question of why Taree Truck Centre did not respond to the Notice to Admit Facts: Maile v Rafiq [2005] NSWCA 410 at [75]-[76].
The primary judge did not err in taking into account s 57 Civil Procedure Act, which identifies the objects of case management. The plaintiff was injured in 2010. This case cannot now be heard until 2018. This state of affairs is most unsatisfactory. This application involves significant additional delay. His Honour was correct to take that into account.
[9]
Conclusion
This application relates to a discretionary decision. The applicant must demonstrate that the primary judge erred in the proper exercise of his discretion: House v The King (1936) 55 CLR 499.
Leave to appeal involving matters of practice and procedure is rarely granted: Cavar v Commonwealth of Australia as represented by and acting through the Department of Human Services [2016] NSWCA 312 at [13] (per Payne JA, Sackville AJA); In the Will of Gilbert (1946) 46 SR (NSW) 318 at 323 (per Jordan CJ).
The applicant must raise an issue of principle or demonstrate that significant injustice is likely to result if leave is not granted: Toppro Pty Ltd v Yoo [2016] NSWCA 119 at [19] (per Macfarlan Leeming JJA and Sackville AJA); Battaglia v ING Bank (Australia) Limited [2014] NSWCA 387 at [5] (per Barrett and Gleeson JJA). And the injustice must be reasonably clear in the sense of being more than merely arguable: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [114] per (Gleeson and Payne JJA).
This case fails at every hurdle. This is a discretionary decision about a matter of practice and procedure. It is not one of those rare cases where leave to appeal in such a case should be granted. No House v The King error has been shown. There is no issue of principle or significant injustice that is likely to result if leave is not granted. No injustice has been shown, let alone one that is reasonably clear.
The summons seeking leave to appeal should be dismissed with costs.
[10]
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Decision last updated: 15 February 2018