Piatek v Piatek and Another; Piatek v Piatek [2010] QSC 122

His Honour Daubney J in an extempore judgment dismissed the application to withdraw or have the Notices to Admit dismissed.

It is a reminder of the importance of considering Notices to Admit carefully. His Honour applied the seminal decisions of Rigato Farms Pty Ltd v. Ridolfi [2000] QCA 292 and Coopers Brewery Ltd v. Panfida Foods Ltd (1992) 26 NSWLR 738.

Page 15 of the judgment and following:

Having perused the notices and the pleadings to which they relate, I am quite satisfied that they are neither incomprehensible (in the sense contended for by the defendant) nor do they fail to sufficiently specify the facts of which admissions were sought. This case is quite different from the one considered by Margaret Wilson J in Cormie v Orchard and Another. The plaintiff in that case had sued solicitors for professional negligence arising out of an allegedly missed limitation date in personal injuries proceedings. The proceeding was defended.

The plaintiff’s solicitors sent the defendant solicitors a notice to admit which simply called on the defendant to admit, “Paragraphs 1 to 21.4 inclusive of the plaintiff’s third further amended statement of claim”. The defendant in that case submitted that a notice in that form was an abuse of process. Her Honour said: “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 ‘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 ‘specified’ 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 paragraph 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 qualifications), and others not admitted because the opposite party is uncertain as to their truth or still making relevant enquiries, 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.

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.”

In the present case the notices were directed – and specifically directed – only to those allegations on which issue was joined or which were the subject of non admissions on the pleadings.

The notices did not traverse facts already admitted. Properly read, as I have said, the notices sufficiently identified the facts of which admissions were sought. Her Honour’s judgment does not, in my view, assist the defendant in this case.

The applications to set aside the notices to admit will, therefore, be dismissed.

 

Page 25 and following:

The appropriate approach to applications to withdraw admissions was examined by the Court of Appeal in Ridolfi v. Rigato Farms Pty Ltd [2001] 2 Qd R 455.

De Jersey CJ said:

“[18] But that aside, the submission ignores the potentially important role of procedure, as reflected in r. 5(1) especially: “The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.” It also overlooks injustice to the respondent were the appellant allowed to withdraw admissions on which for months the respondent – to the knowledge of the appellant – relied in preparing his case.

[19] Asked to exercise the discretion under r. 189(3), a court would ordinarily expect sworn verification of the circumstances justifying a grant of leave. Those circumstances may include why no response to the notice was made as required, the response the party would belatedly seek to make, and confirmation that the response would accord with evidence available to be led at a trial. Here none of those matters was so verified. Issues of prejudice may also fall for consideration upon the hearing of such an application.

[20] 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 N.S.W.L.R. 738 and Equuscorp Pty Ltd v. Orazio [1999] QSC 354.

[21] 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. 

[22] 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 (r. 5(4)) which may include dismissal.” (underlining added)

See also the following observations of Williams J (as he then was) at paragraph 32:

“[32] Certainly an admission flowing from the operation of r. 189 should not be withdrawn merely for the asking. 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 Rogers 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 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.” (underlining added) Notwithstanding the absence of any, let alone any sensible explanation for these applications being brought well after the defendant had consented to the matter being set down for trial, even if I were to accept that the defendant has explained why no responses were given to the notices, and has explained the delay in bringing this application, the material relied on by the defendant neither deposes to the responses which the defendant would seek to make, nor confirms that those responses would accord with the evidence to be led at trial (as per de Jersey CJ at [19]), nor are there detailed particulars of the issue or issues which the defendant would raise at trial if the admissions were withdrawn (as per Williams J at [32]).

In view of my conclusions on this aspect, it is unnecessary for me to canvass matters of prejudice, save to observe that it is clear that at this late stage the plaintiff would undoubtedly be prejudiced by the withdrawal of admissions, particularly in the absence of the defendant nominating the issues he will seek to agitate at trial.

Since the observations by the Court of Appeal in Rigato Farms about the need to apply Rule 189 in light of the operation of UCPR Rule 5, the High Court in Aon Risk Services Australia Ltd. v. Australian National University [2009] 239 CLR 175 said at paragraph 112:

“A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to the parties having a sufficient opportunity to identify the issues they seek to agitate.”

The defendant in the present case has had choices about the way in which he would defend the claims, and still potentially had those choices available to him when he consented to have the matter set down for trial.

To make these applications, as he has done, only a month out from that trial, and to fail even to indicate what issues he would seek to ventilate at trial if the deemed admissions were withdrawn, is simply too little too late.

The applications will be dismissed.

Brisbane Barrister – David Cormack

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