Pollock v Thiess Pty Ltd & Ors [2014] QSC 22

 

[1] McMeekin J: There are two applications before the Court. They each concern a defendant’s desire to withdraw admissions, alleged deemed admissions resulting from a very poorly drawn pleading in the case of the second defendant, and admissions following on from a failure to make a timely response to a Notice to Admit Facts in the case of the third defendant.

 

[2] The proceedings involve a claim for damages for negligence, the plaintiff having been injured at his place of employment when a very large weight (a tub plate) fell crushing his foot. The plaintiff’s employer was a labour hire company, now in liquidation. WorkCover Queensland, the third defendant, stands in its shoes. The plaintiff’s labour was hired to the second defendant, Australian Bearings Pty Ltd. That company had apparently agreed to perform work for the first defendant, Thiess Pty Ltd, the owner of the mine where the relevant work was being performed. There is a debate between the defendants as to who, if any of them, should shoulder responsibility for the accident. All deny that they are liable to the plaintiff.

[6] Rule 188 of the Uniform Civil Procedure Rules 1999 “(UCPR”) is relevant – the Court has a discretion to permit the withdrawal of admissions made in a pleading.

 

Paragraph 3c

[7] By paragraph 5 of his pleadings the plaintiff asserts:

 

“By a series of e-mails passing between the first defendant and the second defendant in the period from 29 March 2010 until and including 31 March 2010 the first defendant agreed with the second defendant that the second defendant would carry out certain work at the mine, namely repairs to the tub plates on draglines at the mine (hereinafter called “the tub plate work”).

 

[8] The second defendant responded by paragraph 3 of its defence in these terms:

 

“a. admits that e-mails were sent to and from the first defendant (Thiess) and ABC [a reference to the second defendant] between 29 March 2010 and 31 March 2010;

 

b. denies the remainder of the allegations because the above e-mails dealt with, inter alia, the supply of labour by ABC to Thiess to assist with boiler making work as directed by Thiess, which in this instance, was repairs to tub plates on draglines;

 

and

 

c. alternatively to b., does not admit the remainder of the allegations because the terms of any agreement evidenced by the above e-mails is a matter to be determined by the court having regard to the entirety of the evidence and application of relevant legal principles.”

 

[9] I observe that it is obvious from the pleadings that the scope of the dispute is somewhat limited. It is agreed that an unidentified number of e-mails in unidentified terms, were sent between the relevant parties between the relevant dates. It is agreed that the e-mails concerned repairs to the tub plates on draglines. It is admitted by the second defendant that e-mails concerned the supply of labour by it to Thiess to carry out that work. All that remains in issue is whether the emails resulted in an agreement with the first defendant “that the second defendant would carry out certain work at the mine”, as the plaintiff alleged, or whether the emails did not amount to an agreement but merely “dealt with”, whatever that might mean, “the supply of labour by ABC to Thiess to assist with boiler making work as directed by Thiess”, as the second defendant alleged, without, presumably, any agreement coming about.

 

[10] In case the profession is in any doubt – and the explanation for the pleading was said to be the adoption of the firm’s usual practise – I should immediately observe that pleading that a matter that is the subject of dispute “is a matter to be determined by the court having regard to the entirety of the evidence and application of relevant legal principles” should never appear, at least in supposed compliance with the requirements of r166(4). No doubt the observation is accurate – all issues in dispute are “to be determined by the court having regard to the entirety of the evidence and application of relevant legal principles” – but the pleading does not meet the test that the relevant rule lays down.

[12] Rule 166 introduced a change to pleading practise. Previously it was commonplace for a defendant to simply deny or not admit the various matters alleged in the plaintiff’s pleading regardless of whether the facts were truly in issue. Rule 166 was introduced in the, possibly vain, hope of putting a stop to specious denials and non admissions. The second defendant’s pleading in paragraph 3(c) reintroduces the specious denial or non admission approach. It does not pretend to set out “a direct explanation for the party’s belief that the allegation is untrue or can not be admitted”. Absent that explanation r166(5) deems the fact in issue to be admitted.

 

[13] No doubt appreciating that the pleading offended this basic principle Mr Deaves of counsel who appeared for the second defendant sought to amend paragraph 3 (c) to read:

 

“c. to the extent that it is alleged that the e-mails constitute an agreement, does not admit the allegations because the terms of any agreement evidenced by the above e-mails is a matter of law”.

[17] But the explanation now advanced is far from satisfactory. It effectively says that if the emails do constitute an agreement (as you assert) then we will not tell you what we say are the terms agreed because that is a question of law. That is the most obvious meaning of the claim that “the terms of any agreement evidenced by the above e-mails is a matter of law”.

 

[18] There are two complaints about that. First, it is no explanation for a nonadmission to say, well, maybe you are right, which is the effect of the explanation proffered. Second, the claim is simply wrong. The terms of an agreement are not matters of law but matters of fact. If material to the issues the terms are required to be pleaded in order to ensure that the other party is not taken by surprise (see r149(1)(c) and r150(4)(c)).

[22] In my view, restricted to a conclusion of law, the proposed amended pleading does avoid any deemed admission as the rules do not extend so far. Given the lack of any prejudice and the evident fact that the state of the pleading is the fault of the lawyers, not the party, it is appropriate that the second defendant be relieved of the effect of the lawyers’ errors.

 

[23] As I have said, I have previously ordered that the matter be set for trial next May despite no request for trial date being signed by the defendants. As no request for trial date has been signed strictly no leave is required to amend the pleading (r378) but the second defendant nonetheless has sought leave to amend, Mr Deaves considering that was the appropriate course. While I am prepared to give leave to amend the pleading I will not do so in terms of leave to plead in accordance with the amended draft as sought. The explanation proffered in paragraph 3c of the pleading is not needed and, as I have said, simply confuses the issue.

[34] The plaintiff submits that the second defendant has failed to comply with the pre-conditions necessary to justify the withdrawal of admissions. The judgment of the Chief Justice in Ridolfi v Rigato Farms Pty Ltd[5] was cited:

 

“Asked to exercise the discretion under rule 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.”

 

[35] It is true that the explanation offered for the failure to properly plead earlier is not greatly enlightening – further instructions have now been obtained – from whom and to what effect are not explained. And there is no hint that any evidence might be available to support the new stance.

 

[36] But there is an important distinction between the situation here and that which pertained in Ridolfi. Rule 189(3) has no application here. 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. The distinction was made in Hanson Construction Materials Pty Ltd v Davey & Anor[6] and Hartmann v Pilkington & Ors[7]and is relevant here. That is not to say that somewhat similar considerations may not need to be addressed – all depends on the facts.

 

[37] In my judgment it is plain enough what has happened here. A relatively inexperienced solicitor has drawn the pleading and avoided confronting the issues with what she thought was a satisfactory response, a belief engendered by the success of others at the firm who had used this form of pleading in other cases.

 

[38] As well, I also observe that what might “ordinarily” be expected, which the Chief Justice discussed in Ridolfi,[8] is not the same as an assertion of what must be shown in all cases. So much is clear from the use by the Chief Justice of the word “may” and from the next paragraph of the judgment:

 

“[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 NSWLR 738 and Equuscorp Pty Ltd v Orazio [1999] QSC 354.” (My emphasis)

 

[39] The relevant matters in Ridolfi included that the attempted withdrawal was on the day of trial, the admission had been in place for months, the plaintiff had relied on the admission for the purpose of preparation for trial and the defendant was claiming an intention to positively assert a case. The circumstances cried out for explanation and evidence to satisfy the court that there was in fact a true issue to be joined.

 

[40] The proposed amended pleading here largely admits the matters of fact alleged by the plaintiff. The nonadmission of the facts alleged in paragraphs 11(h), (i), (j) and (k) is explained. It makes no sense to demand the demonstration of evidence that supports that nonadmission: see the reasoning of Wilson J in Hartmann.[9]

 

[41] The allegation in paragraph 11(b) is denied. There the plaintiff alleges that the authors of the relevant “Job Safety and Environment Analysis” “should have identified all reasonably foreseeable hazards to health and safety”. What the defendant’s employees “should” have done is arguably a question of law. The second defendant’s denial that they were seeking to identify reasonably foreseeable hazards but only “obvious” ones rather suits the plaintiff’s case. It is certainly a sufficient explanation for the denial.

 

[42] The allegation in paragraph 11(e) is denied. But the reason for the denial is explained. Complaint was made that the pleading was not responsive. It is true that paragraph 8c.iii, in pleading that a telehandler was present at the site, does not explain the response but rather pleads the evidence that might tend to support the denial. The addition of a non relevant reason for a denial does not detract from the presence of relevant ones. The test seems to be whether the explanation proffered is so specious as not to be an explanation at all: Commix Communications Pty Ltd v Cammeray Investments Pty Ltd.[10] The explanation here is simply that the men did identify the risk in question, contrary to the plaintiff’s pleading. It is satisfactory. And when the explanation is read with the following paragraph, 8d, it is clear what is being alleged – the risk of the tub plate falling arose only when all welds were gouged out and not before. The implication seems to be that the need to attend to the risk arose only immediately prior to the tub plate toppling. Again that tends to suit the plaintiff’s case.

 

[43] Leave should be given to withdraw the deemed admissions and to allow the second defendant to amend its pleading as it might be advised in light of these reasons.

[50] The plaintiff points out that the admissions resulting from the failure to respond to the Notice in Ridolfi[11] were described, without adverse comment, by the Chief Justice as involving “the factual matters founding the allegations of negligence and breach of duty and that the alleged negligence and breach of duty had in fact occurred”.[12] But there is no indication there that the point was argued. And admissions of the factual matters underpinning the conclusion of breach might well have rendered otiose any complaint about the inclusion of matters of law.

 

[51] The third defendant argued that the delivery of a Notice which merely repeated the allegations in the pleading was an abuse of process citing Cormie v Orchard.[13] The plaintiff complained that the argument was raised on the morning of the hearing for the first time. A belated recognition of a good point of law is none the worse for its tardy recognition. The only relevant prejudice from the late notice is that the plaintiff could have withdrawn his opposition to the leave sought if he agreed with the point, which he did not.

 

[52] Cormie is a particularly egregious example of an abuse of the r189 procedure. There the plaintiff called on the defendant to admit “paragraphs 1 to 21.4” of the plaintiff’s pleading. The defendant had by its defence in fact admitted various matters contained within those paragraphs of the pleading and pleaded non admissions accompanied by relevant explanations in relation to other allegations. The defendant drew attention to r189(1) and its requirements that facts be “specified” in the Notice and submitted that no such specification had occurred. Margaret Wilson J determined that while an admission could be sought of a fact specified by reference to a paragraph in a pleading that procedure would not be appropriate where “more than one fact is alleged in a single paragraph or where there are mixed allegations of fact and law”. Her Honour’s analysis and reasoning were approved by Daubney J in Piatek v Piatek & Anor.[14]

 

[53] The third defendant points out that there is a precise repetition of the pleading here and so the same result as in Cormie should follow. But the repetition of the pleading is not the problem. It was the catch all nature of the Notice in Cormie, without any pretence of identifying the relevant matters genuinely in issue and in respect of which admission was sought, and the bundling up of allegations of fact and law rendering meaningful response impossible, that resulted in the abuse of process. There is greater specification here than in Cormie, and there is not present the vice of a multiplicity of facts (assuming the device of “and/or” is acceptable or comprehensible in any pleading) alleged in the paragraphs specified in the Notice. Putting to one side the point made earlier of the inherent unintelligibility of the Notice the third defendant’s capacity to respond meaningfully is greater.

 

[54] But the admissions that are sought remain admissions on matters of law, or mixed fact and law.

 

[55] In my view r189(2) does not have the effect, assuming no response, of deeming admitted a matter of law or mixed fact and law set out in a Notice to Admit Facts.

 

Brisbane Barrister – David Cormack

Related Posts

Recent Comments

    Categories