Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Medina v Electro Industry Group Queensland Ltd

 

[2019] QSC 63

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Medina v Electro Industry Group Queensland Limited [2019] QSC 63

PARTIES:

STEVE JULIAN CLAUDE MEDINA

(applicant)

v

ELECTRO INDUSTRY GROUP QUEENSLAND LIMITED

(respondent)

O’DONNELL GRIFFIN T/A DIVERSE DATA COMMUNICATIONS, ALSO T/A DDC COMMUNICATIONS

(third party)

FILE NO/S:

BS No 4825 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

26 June 2018; further written submissions received from the plaintiff on 27 July 2018; further written submissions received from the defendant on 1 August 2018

JUDGE:

Burns J

ORDER:

The parties are directed to bring in minutes of order to reflect these reasons within 14 days

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – LEAVE TO WITHDRAW ADMISSIONS – where the plaintiff commenced a proceeding against the defendant for damages for personal injuries and consequential loss – where the defendant made application for leave to withdraw express admissions where the defendant also made an instanter application for leave to withdraw deemed admissions – whether there is a genuine dispute about matters expressly admitted or deemed to be admitted – whether leave to withdraw admissions pursuant to r 188 of the Uniform Civil Procedure Rules (Qld) 1999 should be granted in all of the circumstances

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 166, r 188, r 382,r 389

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 292

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 [2008] 1 Qd R 405, cited

Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited[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

Electro Industry Group Queensland Ltd v O’Donnell Griffin Pty Ltd[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) 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

Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455, followed

Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209, cited

Tyler v Custom Credit Corporation Ltd & Ors [2000] QCA 178, cited

COUNSEL:

P Dunning QC, with P Telford, for the applicant defendant

M Grant-Taylor QC, with D Kelly, for the respondent plaintiff

S Sullivan (sol) for the third party

SOLICITORS:

DWF (Australia) Lawyers for the applicant defendant

Hall & Willcox for the third party

Ehrich Monahan & Tisdall for the respondent plaintiff

  1. [1]
    The applicant defendant seeks leave pursuant to r 188 of the Uniform Civil Procedure Rules 1999 (Qld) to withdraw a number of admissions, some of which are express and the balance of which are, at least on the plaintiff’s contention, deemed by operation of r 166.
  1. [2]
    The plaintiff’s claim is for damages for personal injuries and consequential loss arising out of two workplace incidents that are alleged to have occurred in 2003 and 2004. The plaintiff was employed by the defendant, a labour hire company, as an electrical apprentice and, during the course of his employment, he was directed to work for different host employers under a labour hire arrangement. At the time of the first alleged incident, he was placed with the third party (trading as Diverse Data) and, at the time of the second alleged incident, he was placed with a Mr Harrison who carried on business as D & J Harrison Electrical.
  1. [3]
    The Workers’ Compensation and Rehabilitation Act 2003 (Qld) applies to the plaintiff’s claim. After the holding of a compulsory settlement conference on 11 March 2009 pursuant to s 292 of that statute, the subject proceeding was commenced by the filing of a claim and statement of claim on 8 May 2009.
  1. [4]
    As to the first alleged incident, it is alleged that the plaintiff had been directed by the defendant to perform his employment duties with the third party at a construction site located at Charlotte Street, Brisbane when he sustained injuries to his back and right leg while standing on mobile scaffolding in order to affix overhead cable trays to the underside of concrete flooring. The following is pleaded regarding the circumstances of this alleged injury:

“5. At approximately 11.00am on or about 7 July, 2003:-

  1. 5.1 the Plaintiff was directed by the Defendant to perform his employment duties with Diverse Data at premises located at 33 Charlotte Street, Brisbane in the State of Queensland;
     
  2. 5.2 the Plaintiff was required, as part of his employment duties, to lay cable trays, run data cable along the trays and drill holes in concrete to place fixing bolts to affix the trays to;
  3. 5.3 the Plaintiff had to use 2m high mobile scaffolding to install overhead cable trays to the concrete floor above;
  4. 5.4 the trays were about 3m long and made of tin and weighed about 15kg;
  5. 5.5 the Plaintiff had to stand on top of the scaffold and balance the tray and secure it whilst the scaffolding was swaying;
  6. 5.6 as the Plaintiff was performing this task, he experienced pain starting in his right leg and a shock running from his buttock down the back of his leg to his heel (“the First Incident”);
  7. 5.7 as a result of the first incident, the Plaintiff suffered personal injuries, loss and damage.”
  1. [5]
    According to the statement of claim, the plaintiff required surgery but returned to work on 26 January 2004.[1]He was placed on light duties for two weeks.[2]Then, in reference to what is described in the pleading as the “second incident”, it is pleaded that “from on or about April 2004”[3]the defendant directed the plaintiff to work with D & J Harrison Electrical and “more particularly with” Mr Harrison and that, during the course of that work, he further injured his back. By paragraph 9 it is alleged that the defendant “knew or ought to have known that at that time, [Mr] Harrison was recovering from a hernia operation”.
  1. [6]
    Paragraph 10 is in these terms:

“10. The duties that the Plaintiff was required to carry out with Harrison included:

  1. 10.1 Lifting scaffolding;
  2. 10.2Lifting ladders;
  3. 10.3Lifting toolboxes.”
  1. [7]
    The plaintiff alleged that the injuries sustained by him as a result of the two incidents were the result of negligence on the part of the defendant.[4]Although amendments were later made to the statement of claim,[5]no change has been made to the initial pleading regarding the case advanced against the defendant in negligence.
  1. [8]
    A notice of intention to defend and defence was filed on behalf of the defendant on 11 June 2009. At that time, Gadens Lawyers were acting for the defendant.
  1. [9]
    As to the first incident, the following was pleaded:

“3.In relation to paragraphs 5.1 to 5.7 inclusive, the Defendant  admits  the Plaintiff was working on premises controlled by Diverse Data, but denies any further allegations made against the Defendant on the grounds that they relate to issues of fact which are to be proven in evidence at the trial.”[6]

  1. [10]
    It is then 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 that was provided to the plaintiff”.[7]
  1. [11]
    As to the second incident, the defendant admitted that, from on or about April 2004, it directed the plaintiff to perform his employment duties with D & J Harrison Electrical.[8]The following was then pleaded:

“6.In relation to paragraphs 9 and 10 of the statement of claim, the Defendant is prepared to admit that the Plaintiff undertook duties of employment as directed by Harrison, who was the host employer of the Plaintiff at the time of the period referred to. The Defendant is a labour hire company and the duties undertaken by the Plaintiff were solely directed to the Plaintiff by Harrison as the host employer”.[9]

  1. [12]
    Like the first incident, the defendant also admitted that the plaintiff “suffered injury, loss and damage” in consequence of the second incident, although not to the extent alleged in the statement of claim.[10]
  1. [13]
    Otherwise, the defendant purported to deny any negligence:
    1. (a)
      In the case of the first incident:

“9.In relation to paragraphs 13.1 to 13.6 inclusive, the Defendant denies there  was any negligence on the part of the Defendant. If the Plaintiff suffered any injury, loss and damage, then it was due to the negligence of Diverse Data who controlled the work and the worksite and directed the duties that were to be undertaken by the Plaintiff which were the cause of the injuries the Plaintiff alleges he suffered from the first incident. The Defendant will join Diverse Data as a third party to these proceedings, particulars of which will be pleaded in the third party notice to be served by the Defendant”.[11]

  1. (b)
    In the case of the second incident:

“10.In relation to paragraph 14 of the statement of claim, the Defendant says 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 the medical opinions expressed by the experts”.[12]

  1. [14]
    That said, an amended defence was filed and served by Gadens on 11 November 2009 along with a third party notice and statement of claim against the third party.
  1. [15]
    Dealing first with the third party statement of claim, after reciting that the plaintiff had “issued a statement of claim”[13]and the allegations contained therein referable to the third party, the defendant pleaded that it had “denied the allegations that it was negligent”[14]and alleged that the “events particularised in the statement of claim … occurred whilst the plaintiff was working under the direction and control of the third party”.[15]After pleading that the third party owed a duty of care to the plaintiff, the defendant alleged that the “personal injury, loss and damage claimed to be suffered by the plaintiff was caused by a breach of the third party”[16]of that duty and claimed an indemnity against the claim or, in the alternative, an entitlement to contribution.
  1. [16]
    Turning to the amended defence, the defendant purported to make several amendments, including these:
    1. (a)
      Paragraph 3 was changed to read as follows:

“3.In relation to paragraphs 5.1 to 5.7 inclusive, the Defendant  admits  the Plaintiff was working on premises controlled by Diverse Data, but denies any further allegations made against the Defendant on the grounds that they relate to issues of fact which are to be proven in evidence at trial of which the Defendant remain uncertain of the truth or otherwise of those objections.[17]

  1. (b)
    Paragraph 6 was also changed:

“6.In relation to paragraphs 9 and 10 of the statement of claim, the Defendant is prepared to admit that the Plaintiff undertook duties of employment as directed by Harrison, who was the host employer of the Plaintiff at the time of the period referred to. The Defendant is a labour hire company and the duties undertaken by the Plaintiff were solely directed to the Plaintiff by Harrison as the host employer.

  1. (c)
    A new paragraph, 6A, was added:

6A. The defendant says it is a labour hire company and the duties undertaken by the Plaintiff were solely directed to the plaintiff by Harrison and Diverse Data as the host employer at the various time alleged in paragraphs 8, 9 and 10, and 5 respectively of the statement of claim.

  1. (d)
    Paragraph 9 was amended:

“9.In relation to paragraphs 13.1 to 13.6 inclusive, the Defendant denies there  was any negligence on the part of the Defendant. If the Plaintiff suffered any Any injury, loss and damage suffered by the Plaintiff was caused by the acts or omissions then it was due to the negligence of Diverse Data who controlled the work and the worksite and directed the duties that were to be undertaken by the Plaintiff and the manner in which the duties were to be performed which was which were the cause of the injuries the Plaintiff alleges he suffered from the first incident. The Defendant will join Diverse Data as a third party to these proceedings, particulars of which will be pleaded in the third party notice to be served by the Defendant.”

  1. (e)
    Paragraph 10 was also amended:

“10.In relation to paragraph 14 of the statement of claim, the Defendant says 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 the medical opinions expressed by the experts and otherwise denies the allegations made as they are not true.”

  1. [17]
    An amended statement of claim against the third party was filed on 22 December 2009, but the only changes made were to the numbering sequence.[18]
  1. [18]
    On 4 January 2010, the third party filed and served a notice of intention to defend and defence. In the defence, the third party denied “that there was any ‘first incident’ or any incident at all involving the plaintiff on 7 July 2003, whether at 11 am or otherwise”.[19]Further, although it was admitted that the plaintiff was directed by the defendant to perform his duties of employment with the third party at the construction site located at 33 Charlotte Street on 7 July 2003, the third party alleged that “the plaintiff did not undertake the duties of laying cable trays or running data cable along trays or drilling holes in concrete”[20]on that day but, instead, had been “allocated the task of installing outlets on level 4”.[21]It is then specifically pleaded that the work carried out by the plaintiff on that day was the “installation of level 4 outlets”, although the third party alleged that it had “no knowledge of exactly what the plaintiff was doing as at 11 am on 7 July 2003”.[22]The third party then alleged that “the installation of electrical outlets on level 4 did not involve the use of 2 metre high mobile scaffolding or 3 metre long trays weighing 15 kilograms or the plaintiff standing on top of the scaffolding to balance a tray and secure it whilst the scaffolding was swaying”.[23] The third party went on to allege that the plaintiff “did not suffer any injury performing his tasks as a result of the ‘first incident” because “the ‘first incident’ did not occur”.[24]
  1. [19]
    After an unsuccessful mediation was held on 15 April 2010, Gadens forwarded a letter to the solicitors for the plaintiff on 17 August in which the following appears:

Liability evidence

Naturally, the [defendant] is unaware of the specific circumstances allegedly giving rise to the injury to your client on 7 July 2003. In terms of Diverse Data’s overall position that the incident did not occur in the manner alleged or at all, it has not disclosed any material to say what your client was doing on the date of injury rather than to rely on a work sheet which states that he was engaged in the installation of outlets on level 4 of the project worksite. The work sheet identifies other staff as being engaged in the task of laying cable trays, the specific task that your client alleges he was engaged in at the time of injury. We can only infer that Diverse Data have placed heavy emphasis on your client’s exclusion from the list of names of those workers performing the task of cable tray laying in coming to the position that they have adopted.

What is not clear to us from the worksheet are the following factual matters that should be within your client’s knowledge:

  1. Whether or not he concedes that he didn’t install outlets on level 4 on that day, if not for the full day, then at least at the outset?
  2. Did your client at any time during that day assist those other workers nominated with the laying of the cable trays?
  3. Did the installation of outlets on level 4 also entail the laying of cable trays?
  4. Did either task entail the use of scaffold?
  5. In the alternative, does your client allege that the job sheet for that date incorrectly reflects some or all of his duties on that date?

Our client’s exposure is of course heavily contingent on [there] being a finding that Diverse Data was liable for your client’s injuries. It obviously has no means of its own of challenging the notion that he sustained injury in the manner alleged and is to any extent reliant on the reliability of Diverse Data’s evidence. We have some concerns about the weight to be afforded to Diverse Data’s submissions in the light of the limited disclosure it has provided and would welcome your client’s further information about the above matters in the interests of potentially resolving the matter without the need to resort to a hearing.”[25]

  1. [20]
    The material before the court does not disclose whether there was any response to the letter extracted in the preceding paragraph.
  1. [21]
    In October 2013, Kaden Boriss (now DWF (Australia) Lawyers) commenced acting forthe defendant in lieu of Gadens. Mr Fraccaro was assigned the day to day conduct of the defence.[26] As Mr Fraccaro was later to depose, both the principal proceedings and the third party proceeding “suffered from varying periods of delay”[27] after the mediation in April 2010 and, indeed, that seems to have continued until around 2015.
  1. [22]
    On 19 May 2015, the solicitors for the plaintiff filed an amended statement of claim and, on 11 August 2015, forwarded a signed request for trial date to the defendant’s solicitors. On 27 August 2015, they responded in terms advising that, after a review of their file, it “will be necessary to amend the Defence and possibly the Third Party Notice”.[28]
  1. [23]
    The defendant’s solicitors wrote again to the solicitors for the plaintiff on 21 September 2015. They recorded having received advice from counsel briefed for the defendant that “the pleadings will in all likelihood require the withdrawal of admissions and so require an application to be made”.[29] Amendment of the third party notice was also foreshadowed. They concluded with this:

“We have instructed Counsel to draw and settle the amended pleadings and will bring the application at the earliest opportunity.”[30]

  1. [24]
    On 8 January 2016, the solicitors for the defendant sent a draft further amended defence and draft further amended third party statement of claim to the solicitors for the plaintiff so as to ascertain whether there was any objection to the filing of the further amended defence on the basis that leave to amend would be sought at the commencement of the trial. The solicitors for the plaintiff responded on 23 February 2016, advising that they objected to that course and, further, that any application for leave to amend will be opposed. Curiously, the solicitors for the defendant went ahead and filed the further amended defence on 31 March 2016, and it was served on the same day.
  1. [25]
    The further amended defence was drawn and settled by Mr Cormack of counsel. The amendments are not readily distinguishable from those that were made in the amended defence[31] but, when the marking up for those previous amendments is removed, the changes appear as follows:
    1. (a)
      Paragraph 3:

“3.In relation to paragraphs 5.1 to 5.7 inclusive of the amended statement  of claim, the Defendant admits paragraph 5.1 that the Plaintiff was working on premises controlled by Diverse Data (Third Party) and paragraph 5.2, but denies does not admit any further other allegations made against the Defendant because on the grounds that they relate to issues of fact of which the Defendant remains uncertain of the truth or otherwise of the allegations those objections and repeats and relies on paragraph 9 herein.

  1. (b)
    Paragraph 6:

“6.In relation to paragraphs 9 and 10 of the amended statement of claim, the Defendant is prepared to admits that the Plaintiff undertook duties of employment as directed by Harrison, who was the host employer of the Plaintiff at the time of the period referred to.”

  1. (c)
    Paragraph 6A:

“6A. The defendant says it is a labour hire company and the duties undertaken by the Plaintiff were solely directed to the plaintiff by Harrison and Diverse Data as the host employer at the various times alleged in paragraphs 8, 9 and 10, and 5 respectively of the statement of claim.”

  1. (d)
    Paragraph 9:

“9.In relation to paragraphs 13.1 to 13.6 inclusive of the amended statement of claim, the Defendant denies there was any negligence on the part of the Defendant. Any injury, loss and damage suffered by the Plaintiff was caused by the acts or omissions of Diverse Data who controlled the work and the worksite and directed the duties that were to be undertaken by the Plaintiff and the manner in which the duties were to be performed which was the cause of the injuries the Plaintiff alleges he suffered from the first incident.

 Particulars of the Third Party’s negligence

  1. (a)
    failed to take any or any adequate precautions for the safety of the Plaintiff whilst he was engaged upon his employment;
  2. (b)
     failed to provide and maintain, for the Plaintiff’s use, safe and adequate plant and equipment to carry out his employment;
  3. (c)
    failed to adequately instruct the Plaintiff in the safe performance of his duties;
  4. (d)
    failed to adequately supervise the plaintiff whilst he was undertaking his duties;
  5. (e)
    failed to provide the plaintiff with sufficient manual or mechanical assistance to carry out his duties.”
  1. (e)
    Paragraph 10:

“10.In relation to paragraph 14 of the amended statement of claim, the Defendant says that the Plaintiff returned to work with the host employer Harrison, 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 the medical opinions expressed by the experts and otherwise denies the allegations made as they are not true because:

  1. (a)
    information, training, instruction and supervision were provided to the Plaintiff by Mr Harrison, the host employer with whom the Plaintiff worked with;
  2. (b)
    the nature of the tasks directed by Harrison did not require the Plaintiff to be provided with assistance;
  3. (c)
    the Plaintiff was not required to undertake heavy lifting immediately following his spinal surgery when he worked with Harrison;
  1. (d)
    the Plaintiff was not required to undertake overhead work immediately following his spinal surgery when he worked with Harrison;
  2. (e)
    the Plaintiff was provided with any or any sufficient plan and equipment to carry out his work duties by Harrison;
  3. (f)
     the medical opinion at the time the Plaintiff’s return to work with Harrison was that he was capable of normal work duties and that his back had fully recovered;
  4. (g)
    the Plaintiff did not report pain or discomfort to the Defendant when undertaking his work duties with Harrison.”
  1. (f)
    Paragraph 11:

“11.In relation to paragraph 15 of the amended statement of claim, the Defendant refers to and repeats paragraphs 2A, 8, 9 and 10 of this defence and furthermore says:

  1. (a)
    The further injury sustained in the second incident, is a direct and inevitable consequence of the Third Party’s negligence in causing the Plaintiff’s injury sustained in the first incident.
  1. (b)
    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.
  2. (c)
     The Plaintiff’s damage for the first and second incident is caused by the negligence of the Third Party.
  1. [26]
    On 26 April 2016, the defendant’s solicitors filed a further amended third party statement of claim. That was met by an application filed on behalf of the third party on 6 May 2016 for a declaration that the defendant could not take a step in the proceeding by reason of r 389 UCPR or, alternatively, an order dismissing the third party proceeding for want of prosecution. The application was heard by Martin J on 20 May 2016 and the decision reserved. Judgment was handed down on 18 July 2016, with his Honour ordering that the third party proceeding be struck out.[32] In the course of doing so, his Honour observed:

“The major complaint made by [the third party] is that the lapse of time has put it in a position of great difficulty because of the absence of witnesses. The history of [the third party’s] efforts concerning the collection of evidence commenced in September 2007. At that time, it became aware that a number of possible witnesses were unable to be found. They included John Smithers (an apprentice) and Martin Malkin (another employee). Another former employee (Paul Grannell) was able to be contacted but he had no recollection of the plaintiff and had no knowledge of any incident involving the plaintiff. The witness who appeared to be the most useful for the third party was the site foreman, Matthew Kirk. In October 2007 a solicitor for [the third party] spoke to the Kirk. Kirk told the solicitor that he kept a site diary (which he regarded as extremely accurate) and that he signed off on that diary every day. He recorded the number of hours worked by each of the workers and if an accident, injury or the use of first aid was reported to him then it would have been entered in the diary. He could not recall the plaintiff and was unaware of any incident involving the plaintiff on site. Of importance was his statement that the absence of an entry concerning any type of injury meant that there had been no report made to him.

In April and May this year solicitors for [the third party] tried to contact Matthew Kirk. Those attempts were unsuccessful. The solicitors have no knowledge of his whereabouts nor do they have any contact details which would allow them to determine his whereabouts. The site diaries may well be admissible under s 92 of the Evidence Act 1977 but the inability to call the author would mean that its accuracy and the significance of the absence of an entry about an injury would not be in evidence. This is the problem confronting the third party.”[33]

  1. [27]
    His Honour then considered the factors to which the court should have regard in the exercise of the court’s discretion whether to grant leave to proceed as set out in Tyler v Custom Credit Corporation Ltd & Ors,[34]before stating that the “unsatisfactory explanation for the delay”, the “current inability of the third party to locate witnesses, especially Kirk” and the “inevitable deterioration in the memories of any witnesses who might be found” were the “factors which weigh heavily” in the exercise of that discretion. His Honour then said:

“In the absence of Mr Kirk, [the third party] has no witnesses upon which it can rely. Although the site diaries may be admissible under the provisions of the Evidence Act, the importance and meaning of the entries and, in particular, the absence of particular entries, cannot be conveyed to the court without Mr Kirk being available to give that evidence. Even if he were available, whatever recollection he might otherwise have had about general issues about the work system, the way scaffolding was used and the manner in which cables were laid in 2003 would have deteriorated substantially after the passage of 13 years.

This is a case in which the defendant has sat on its hands. That might have been due to a forensic choice or to mere unexplained inactivity. The third party should not be compelled to face a case in which, through no fault of its own, it would not be able to call an essential witness. Further, it should not be required to face a case which [the defendant] seeks to enlarge by its most recent pleading. The effluxion of time does lead to the deterioration of memory and, in this case, the unavailability of witnesses. That leads to a prejudice to the third party and will prevent it receiving a fair trial. In those circumstances it is appropriate to make the order sought.”[35]

  1. [28]
    A notice of appeal was filed by the defendant on 12 August 2016, however the plaintiff had earlier brought an application for summary judgment against the defendant. It came on before Atkinson J on 22 July 2016.[36]In the event, it was adjourned to a date to be fixed after counsel for the defendant (Mr Morton) indicated that consideration was being given to commencing an appeal from the decision of Martin J, but the contents of the further amended defence were discussed in the course of argument. Relevantly, counsel for the defendant accepted that “causative negligence on the part of the third party”[37]had been asserted and that the pleading otherwise appeared to contain a number of deemed admissions.[38]Due to the striking out of the third party proceedings, it was accepted that the defendant would need to amend the further amended defence, and counsel for the defendant indicated that thought would also be given to bringing an application for leave to withdraw admissions.[39] The application was then adjourned and agreement reached between the parties that the defendant would provide a draft of any proposed amendments to the further amended defence together with a draft application and supporting material in relation to any application for leave to withdraw admissions at least seven days prior to a mediation that was then scheduled to take place on 30 August 2016.[40]
  1. [29]
    A second further amended defence was filed on 1 September 2016, although the defendant’s solicitor neglected to serve it on the plaintiff’s solicitors and did not remedy that default until 13 February 2018.[41] This version of the defence was settled by Mr Morton of counsel. Again, the amendments were not readily distinguishable from those that were made in the further amended defence but, when the marking up for those previous amendments is removed, the amendments appear as follows:
    1. (a)
      Paragraph 3:

“3.In relation to paragraphs 5.1 to 5.7 inclusive of the amended statement  of claim, the Defendant admits paragraph 5.1 that the Plaintiff was working on premises controlled by Diverse Data (Third Party) and paragraph 5.2, but does not admit any other allegations made against the Defendant because the Defendant remains uncertain of the truth or otherwise of the allegations and repeats and relies on paragraph 9 herein. denies the remaining allegations in those subparagraphs. The Defendant believes the allegations to be false because:

  1. (a)
    the tasks the Plaintiff was performing did not require the matters in subparagraphs 5.3 and 5,4;
  2. (b)
    the events pleaded in subparagraphs 5.6 and 5.7 did not happen;
  3. (c)
    the Plaintiff did not suffer injury at that time as alleged in subparagraph 5.7;
  4. (d)
    the Plaintiff made no report of injury on 7 July 2003 and worked eight hours on:
    1. 8 July 2003;
    2. 9 July 2003; and
    3. 11 July 2003
  5. (e)
    on each of the days mentioned in subparagraph 10 hereof the Plaintiff would not have been required to perform the task alleged in paragraph 5.5 of the Statement of Claim.
  1. (b)
    Paragraphs 6 and 6A were unchanged;
  1. (c)
    Paragraph 9:

“9.In relation to paragraphs 13.1 to 13.6 inclusive of the amended statement of claim, the Defendant denies there was any negligence on the part of the Defendant. Any injury, loss and damage suffered by the Plaintiff (which for the reasons pleaded in paragraph 3 hereof are denied) was caused by the acts or omissions of Diverse Data (Third Party) who controlled the work and the worksite and directed the duties that were to be undertaken by the Plaintiff and the manner in which the duties were to be performed which was the cause of the injuries the Plaintiff alleges he suffered from the first incident.

Particulars of the Third Party’s negligence

  1. (a)
    failed to take any or any adequate precautions for the safety of the Plaintiff whilst he was engaged upon his employment;
  2. (b)
    failed to provide and maintain, for the Plaintiff’s use, safe and adequate plant and equipment to carry out his employment;
  3. (c)
    failed to adequately instruct the Plaintiff in the safe performance of his duties;
  4. (d)
    failed to adequately supervise the plaintiff whilst he was undertaking his duties;
  5. (e)
    failed to provide the plaintiff with sufficient manual or mechanical assistance to carry out his duties.”
  1. (d)
    Paragraphs 10 and 11 were unchanged.
  1. [30]
    The defendant’s appeal from the decision of Martin J was heard on 1 February 2017, and judgment was delivered on 3 March 2017.[42]At the hearing, leave was granted to the defendant to advance affidavit material establishing Mr Kirk’s availability to testify at a trial. In other words, unlike the position that obtained at the time when Martin J decided the application, Mr Kirk had since been located and, perhaps even more than that, two signed statements had been obtained from him by the defendant’s solicitors on 9 and 11 August 2016[43]and, according to the reasons in the Court of Appeal,[44]another was obtained on 9 November 2016 by the solicitors for the third party.
  1. [31]
    At the hearing of the appeal, the Court was advised by Mr Douglas QC (appearing for the defendant with Mr Morton) that, at first instance, both the defendant and the third party accepted that the principal proceeding and, if it were to proceed, the third party proceeding, were both ready to proceed to trial.[45]
  1. [32]
    That made clear, the Court of Appeal held that the exercise of the discretion whether to grant leave to proceed under r 389(2) UCPR had miscarried, and principally because the judge at first instance had proceeded, understandably, on the basis that Mr Kirk could not be located.[46] It therefore fell to the Court of Appeal to re-exercise that discretion and it did so in favour of the defendant, albeit on a conditional basis. Gotterson JA (with whom Holmes CJ and Bond J agreed) said:

“To my mind, factors that do weigh in favour of a continuation of [the third party proceeding] are the readiness of the principal proceeding for a trial, the readiness of the third party proceeding for trial, the availability of Mr Kirk to give evidence in it, and the absence of significant prejudice to [the third party] in the prosecution of its defence to the third party claim, attributable to delay on the part of [the defendant].

Two particular aspects of this case serve to distinguish it from the circumstances in Cassimatis & Anor v Commonwealth Bank of Australia, to which counsel for [the third party] referred. In that case, Bond J ordered that a proceeding where there had been extensive delays and failure to comply with Court orders and directions, be dismissed. As to prejudice, the evidence to which I have referred, shows positively that the delays in the third party proceeding will not significantly disadvantage [the third party] in the presentation of its case. In other words, the influence of the “working assumption” of prejudice through the passage of time of which Bond J spoke is moderated by specific evidence here. Secondly, unlike the position in Cassimatis where “significant work” remained to be done to bring the matter to readiness for trial, here, both the principal proceeding and the third party proceeding are ready for trial.”[47][Footnotes omitted]

  1. [33]
    In the result, the orders made by Martin J on 18 July 2016 were set aside and the defendant was given conditional leave to proceed. The relevant order of the Court of Appeal was expressed in these terms:

“Order that the defendant have leave pursuant to r 389(2) of the Uniform Civil Procedure Rules to take a new step in the third party proceeding on the condition that the third party claim is to be litigated on the basis of the statement of claim of the defendant against the third party filed on 11 November 2009.”

  1. [34]
    Another unsuccessful mediation took place on 28 June 2017.
  1. [35]
    On 4 August 2017, Daubney J made a number of caseflow directions including: that the third party be bound by the judgment given in the principal proceeding; that the evidence in the principal proceeding be evidence in the trial of the proceeding between the defendant and the third party; that the plaintiff serve any amended statement of claim and the defendant serve any amended third party statement of claim by 13 October 2017; that the defendant serve any amended defence and the third party serve any amended third party defence by 10 November 2017; and that the plaintiff serve any amended reply and the defendant serve any amended third party reply by 24 November 2017.
  1. [36]
    The defendant filed a second further amended statement of claim against the third party on 12 October 2017 and, 11 days later, the plaintiff filed a further amended statement of claim.
  1. [37]
    A third further amended defence[48]was filed and served on 16 November 2017. It, too, was settled by Mr Morton of counsel. Again, when the marking up for the previous amendments is removed, the changes appear as follows:
    1. (a)
      Paragraph 3:

“3.In relation to paragraphs 5.1 to 5.7 inclusive of the amended statement  of claim, the Defendant admits paragraph 5.1 that the Plaintiff was working on premises controlled by Diverse Data (Third Party) and paragraph 5.2, but denies the remaining remainder of the allegations made therein in those subparagraphs. The Defendant believes the allegations to be false because (the following matters being alleged as matters of fact):

  1. (a)
    the tasks the Plaintiff was performing did not require the matters in subparagraphs 5.3 and 5,4;
  2. (b)
    the events pleaded in subparagraphs 5.6 and 5.7 did not happen;
  3. (c)
    the Plaintiff did not suffer injury at that time as alleged in subparagraph 5.7;
  4. (d)
    the Plaintiff made no report of injury on 7 July 2003 and worked eight hours on:
    1. 8 July 2003;
    2. 9 July 2003; and
    3. 11 July 2003
  5. (e)
    on each of the days mentioned in subparagraph 10 hereof the Plaintiff would not have been required to perform the task alleged in paragraph 5.5 of the Statement of Claim.[49]
  1. (a)
    The Plaintiff did not undertake the duties of laying cable trays or running data cable along trays or drilling holes in concrete on 7 July 2003. The defendant further days [sic] that on 7 July 2003, the third party allocated the task to the plaintiff of installing outlets on level 4 and the work carried out by the plaintiff on 7 July 2003 was the installation of level 4 outlets. The installation of electrical outlets on level 4 did not involve the use of 2 metre high mobile scaffolding or 3 metre long trays weighing 15 kilograms or the plaintiff standing on top of the scaffolding to balance a tray and secure it whilst the scaffolding was swaying;
  2. (b)
    The plaintiff did not report any incident to the third party at any time on 7 July 2003 or otherwise;
  3. (c)
    None of the third party’s staff who were working on the site and with the plaintiff on 7 July 2003 observed any incident or injury to the plaintiff;
  4. (d)
    The plaintiff continued working at the site up to 18 July 2003 without reporting any incident or injury;
  1. (e)
    The plaintiff did not report the incident to the defendant until 19 September 2003;
  2. (f)
    On or about 9 July 2003, the Plaintiff made an admission to Dr Ruth Sutherland of the Charlotte Park Medical Centre that he was experiencing pain in the lumbar spine as a result of working as a scaffolder apprentice for 2 months with increasing pain over this period;
  3. (g)
    At all material times the third party was engaged by the owners of the site to install data cables;
  4. (h)
    The plaintiff commenced work at the site on 4 June 2003;
  5. (i)
    From 4 to 13 June 2003 the plaintiff worked on level 4 of the site installing cable trays with John Littler on 4 June 2003 and with Kasey Naidoo from 5 to 13 June 2003;
  6. (j)
    The plaintiff did not do any further work installing cable trays on the site after 13 June 2003;
  7. (k)
    On 30 June 2003 Matthew Kirk, the third party’s project manager arranged for scaffolding to be returned to the hire company;
  8. (l)
    The plaintiff attended a toolbox meeting organised by the third party on 4 July 2003 to, inter alia, discuss any workplace health and safety concerns on site. The plaintiff did not raise any issues of concern about the system of work at that toolbox meeting;
  9. (m)
    From 7 to 9 July 2003 the plaintiff worked with Clint Austin to install outlets on level 4 of the site. This work involved installing data outlets to be used at desks at the premises, and were installed at a low height. The work did not involve installing cable trays or using scaffolding as the cable trays had already been installed on this floor from 4 to 13 June 2003. At no time did the plaintiff report to his co-worker, Clint Austin, the supervisor, Matthew Kirk and Johnathon Smithers, or any other person that the plaintiff had injured his back;
  10. (n)
    On 11 July 2003 the plaintiff worked with Matthew Kirk to install conduit pipes on level 4 on the site. At no time did the plaintiff report to Matthew Kirk that the plaintiff had injured his back;
  11. (o)
    The scaffolding used by the third party was a tube and bracket scaffold which was erected as needed on the floor with wheels to allow the scaffold to be pushed along the floor as the work progressed, and wheel locks which could be easily activated by foot to secure the scaffold after it was moved;
  12. (p)
    The top rail of the scaffold was approximately two metres above the floor with the floor board of the scaffold positioned so that the rail was just above waist height;
  13. (q)
    The scaffold did not sway when used as cross braces kept the scaffold rigid;
  14. (r)
    The cable trays installed at the site were up to three metres long but did not weigh 15 kilograms, and in fact weighed between three to five kilograms;
  1. (s)
    The cable trays were always installed at the site by a two man team in order to complete the tasks efficiently and keep to the project timetable;
  2. (t)
    When installing cable trays, one worker drilled holes in the ceiling for suspension struts. The other person held the other end of the tray as the first person installed his end of the tray onto the struts;
  3. (u)
    The third party’s work on the site was carried out in stages on each floor, working up the floors in the building with cable trays installed first, then catenaries added, then running cables, following by installing outlets;
  4. (v)
    Matthew Kirk, as project manager, and Johnathon Smithers, as the leading hand, supervised the workers, including the plaintiff on the third party’s project moving between floors during the course of the day.”
  1. (b)
    Paragraph 3A was added:

3A. The defendant further says that:

  1. (a)
    the plaintiff suffered from a latent congenital defect in the lower back which predisposed the plaintiff to disc herniation;
  2. (b)
    the defendant did not know and could not reasonably have known that the plaintiff had a latent congenital defect in the lower back which predisposed him to a disc herniation;
  3. (c)
    the disc herniation was most likely caused by movement of the spine during daily activities;
  4. (d)
     the plaintiff’s work activities with the third party on the site would not cause a disc herniation in the lower back of a health [sic]17 year old male;
  5. (e)
     the plaintiff’s work activities with the third party on the site were not the cause of the disc herniation.”
  1. (c)
    Paragraphs 6 and 6A were not altered;
  2. (d)
    Paragraph 9:

“9.In relation to paragraphs 13.1 to 13.6 inclusive of the amended statement of claim, the Defendant denies there was any negligence on the part of the Defendant. The Defendant believes that allegation to be false because of the matters pleaded in paragraphs 3 and 3A hereof. Any injury, loss and damage suffered by the Plaintiff (which for the reasons pleaded in paragraph 3 hereof are denied) was caused by the acts or omissions of Diverse Data (Third Party) who controlled the work and the worksite and directed the duties that were to be undertaken by the Plaintiff and the manner in which the duties were to be performed which was the cause of the injuries the Plaintiff alleges he suffered from the first incident.

 Particulars of the Third Party’s negligence

  1. (a)
    failed to take any or any adequate precautions for the safety of the Plaintiff whilst he was engaged upon his employment;
  2. (b)
     failed to provide and maintain, for the Plaintiff’s use, safe and adequate plant and equipment to carry out his employment;
  1. (c)
    failed to adequately instruct the Plaintiff in the safe performance of his duties;
  2. (d)
    failed to adequately supervise the plaintiff whilst he was undertaking his duties;
  3. (e)
    failed to provide the plaintiff with sufficient manual or mechanical assistance to carry out his duties.
  1. (e)
    Paragraph 10 was unchanged;
  2. (f)
    Paragraph 11:

“11.In relation to paragraph 15 of the amended statement of claim, the Defendant denies the matters pleaded therein. The Defendant believes those allegations to be false because of the matters pleaded in Refers to and repeats paragraphs 2A, 3, 3A, 8, 9 and 10 of this defence and furthermore says that if, contrary to the matters pleaded above, the First Incident was caused by the negligence of the Third Party:

  1. (a)
    The further injury sustained in the second incident, is a direct and inevitable consequence of the Third Party’s negligence in causing the Plaintiff’s injury sustained in the first incident.
  2. (b)
    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.
  3. (c)
    The Plaintiff’s damage for the first and second incident is caused by the negligence of the Third Party.”
  1. [38]
    On 8 December 2017, caseflow orders were made by Bowskill J. They included a direction that the plaintiff bring any application with respect to the second further amended defence by 31 January 2018. Based on the correspondence that preceded the making of that direction[50]and the erroneous description of the third further amended defence, that direction must be taken to have been made in relation to that pleading, being the latest, and current, version of the defence.
  1. [39]
    On 9 January 2018, the plaintiff filed an application for orders that the third[51]further amended defence be “set aside or declared ineffectual” or, in the alternative, struck out as an abuse of process. A number of grounds for the principal relief claimed were specified in the application, but these were later amended[52]to the following:
    1. (a)
      The defendant “does not have leave to withdraw the admissions made in paragraphs 2, 3, 6, 6a,[53]9 and 11 of the Defence … dated 31 March 2016”;[54]
    2. (b)
      The defendant “does not have leave to plead the allegations made in paragraphs 3, 3A, 4, 9, 11, 12 and 13 of the Defences dated 1 September 2016[55]and 16 November 2017”.[56]
  1. [40]
    The 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]
  1. [41]
    As 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.
  1. [42]
    When 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]
  1. [43]
    The 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 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.
  1. [44]
    After 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).
  1. [45]
    By 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]
  1. [46]
    Rule 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:
  1. (a)
    how and why the admission came to be made;
  2. (b)
    the evidence surrounding the issue the subject of the admission;
  3. (c)
    whether there is likely to be a real dispute about the evidence;
  4. (d)
    whether there is delay in making the application for leave;
  5. (e)
    whether any such delay is satisfactorily explained; and
  6. (f)
    whether the other party will be prejudiced if leave is granted.[64]
  1. [47]
    The 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.
  1. [48]
    I return to the pleadings, and commence with the original defence.
  1. [49]
    Paragraph 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).
  1. [50]
    The 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 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.
  1. [51]
    Paragraph 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.
  1. [52]
    Paragraph 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.
  1. [53]
    The 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.
  1. [54]
    Paragraph 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.
  1. [55]
    Paragraph 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.
  1. [56]
    Lastly, 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.
  1. [57]
    It 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.
  1. [58]
    Turning 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.
  1. [59]
    The 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.
  1. [60]
    The 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.
  1. [61]
    Thus, 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”.
  1. [62]
    The further amended defence was filed over six years later and, as earlier discussed (at [23]), that occurred over the objection of the plaintiff.
  1. [63]
    Paragraph 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.
  1. [64]
    Paragraph 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”.
  1. [65]
    Paragraphs 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]).
  1. [66]
    Paragraph 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.
  1. [67]
    Paragraph 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.
  1. [68]
    Paragraph 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”.
  1. [69]
    It 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.
  1. [70]
    It 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:
    1. (a)
      No 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;
    2. (b)
      In 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”;
    3. (c)
      In 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 sustained 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;
    4. (d)
      Although 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
    5. (e)
      Although 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.
  1. [71]
    As to this change of tack on the part of the defendant, the plaintiff’s solicitor, Mr Tisdall, has sworn this:
    1. (a)
      The 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]
    2. (b)
      The 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]
    3. (c)
      Because “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]
    4. (d)
      The 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]
    5. (e)
      The 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]
    6. (f)
      From 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 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]
  1. [72]
    As 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]
  1. [73]
    On the other hand, the preparation of the further amended defence was the subject of much evidence.
  1. [74]
    The 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:
    1. (a)
      He 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;
    2. (b)
      As 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”;
    3. (c)
      He 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;
    4. (d)
      It 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;
    5. (e)
      At 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”;
    6. (f)
      A “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;
    7. (g)
      In 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;
    8. (h)
      Likewise, 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);
    9. (i)
      Mr 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;
    10. (j)
      By 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;
    11. (k)
      As 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;
    12. (l)
      He instructed Mr Cormack to “review the pleadings and … draft a defence in light of the material contained on the brief”;
    13. (m)
      When 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;
    14. (n)
      He relied on “counsel’s expertise” in the “framing” of the pleading.
  1. [75]
    Mr Cormack also gave evidence on affidavit and was cross-examined. His evidence may be summarised as follows:
    1. (a)
      He 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;
    2. (b)
      Amongst 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;
    3. (c)
      The 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;
    4. (d)
      Upon 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;
    5. (e)
      His 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”;
    6. (f)
      His 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;
    7. (g)
      As 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;
    8. (h)
      It 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 the making of such an admission;
    9. (i)
      Nor 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;
    10. (j)
      It 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.
  1. [76]
    For 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.
  1. [77]
    I 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.
  1. [78]
    The 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.
  1. [79]
    In 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]

  1. [80]
    In the same case, Williams J said this:

“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]

  1. [81]
    Here, 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.
  1. [82]
    The 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.
  1. [83]
    As 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.
  1. [84]
    Given 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.
  1. [85]
    For 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.

Footnotes

[1] Statement of claim filed on 8 May 2009, par 6.

[2] Ibid, par 7.

[3] Ibid, par 8.

[4] Ibid, pars 13 and 14. The injuries were particularised as a prolapsed intervertebral disc in the lumbo-sacral spine with radiculopathy and scarring of the lumbar region following surgery: par 17.

[5] Amended statement of claim filed on 19 May 2015; further amended statement of claim filed on 23 October 2017.

[6] Defence, par 3.

[7] Ibid, par 4.

[8] Ibid, par 5 (admitting paragraph 8 of the statement of claim).

[9] Ibid, par 6.

[10] Ibid, par 7.

[11] Ibid, par 9.

[12] Ibid, par 10.

[13] Third party statement of claim, par 6.

[14] Ibid, par 8.

[15] Ibid, par 10.

[16] Ibid, par 12.

[17] Amended defence, par 3.

[18] Amended third party statement of claim, par 6.

[19] Third party defence, par 5.

[20] Ibid, par 5.2.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid, par 5.3.

[25] Affidavit of Peter Tisdall filed on 16 January 2018, par 7, ex PT-1 (pp 42-43).

[26] Ibid, par 8 and ex PT-1 (p 45).

[27] Affidavit of Julien Fraccaro filed on 26 February 2018, par 31.

[28] Ibid, par 15 and ex PT-1 (p 67).

[29] Ibid, par 20 and ex PT-1 (p 72).

[30] Ibid.

[31] As r 382(1) UCPR requires.

[32] Medina v Electro Industry Group Queensland Ltd and Anor [2016] QSC 143.

[33] Ibid, [25]-[26].

[34] [2000] QCA 178.

[35] Supra, [33]-[34].

[36] The bringing of such an application was contemplated by case flow orders made by Daubney J on 1 July 2016.

[37] Transcript, 1-8.

[38] Ibid, 1-8 to 1-11.

[39] Ibid, 1-12 and 1-14.

[40] See letter from the plaintiff’s solicitors to the solicitors for the defendant dated 22 July 2016, being part of ex PT-1 to the affidavit of Peter Tisdall filed on 16 January 2018 (p 111). It may be, however, that the mediation did not in fact take place until 28 June 2017: see par 40 of the same affidavit.

[41] Affidavit of Peter Tisdall filed on 6 March 2018, pars 10 and 11.

[42] Electro Industry Group Queensland Ltd v O’Donnell Griffin Pty Ltd [2017] QCA 24.

[43] The statements are exhibited to an affidavit of Julien Fraccaro which was affirmed in the appeal proceeding on 12 August 2016, a copy of which is in turn exhibited to the affidavit of Julien Fraccaro filed in this proceeding on 9 February 2018, ex JF3.

[44] Supra, [19] and [23].

[45] Supra, [11]. Transcript (Appeal), 1-32 l.45 to 1-33 l.7.

[46] Supra, [26] – [29].

[47] Ibid, [38] and [39].

[48] It is erroneously titled, “Second Further Amended Defence”.

[49] Subparagraphs 3(a) to (e) of the second further amended defence were removed entirely; they should have remained and then been struck through (as appears in the reproduction above) to distinguish the amendments made by the third further amended defence from those made in the preceding version of that pleading: r 382 UCPR.

[50] Affidavit of Peter Tisdall filed on 16 January 2018, pars 45-47, ex PT-1 (pp 153-157).

[51] The application described the pleading attacked as the “second further amended defence”, but it should be understood as an attack on the current version of the defence i.e., the third further amended defence.

[52] Amended application filed on 7 March 2018.

[53] This should be taken to be a reference to paragraph 6A.

[54] The further amended defence.

[55] The second further amended defence.

[56] The third further amended defence.

[57] Exhibit JBF-1 to the affidavit of Julien Fraccaro field on 26 February 2018.

[58] Letter from the solicitors for the defendant to the solicitors for the plaintiff dated 5 March 2018 (pp 4-5 to ex PT-3 to the affidavit of Peter Tisdall filed on 12 March 2018.

[59] Transcript (12 March 2018), 1-31, 32, 36 and 38.

[60] Transcript (12 March 2018), 1-3, 4.

[61] Transcript (25 May 2018), 1-21.

[62] A useful discussion of the requirements of r 166 UCPR is contained in Cape York Airlines Pty Ltd v QBE Insurance (Australia) Limited [2009] 1 Qd R 116. And see Carswell v KBRV Resort Operations Pty Ltd [2017] QSC 239, [9]-[13].

[63] See Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100, [35]; In Roma Pty Ltd v Adams & Anor [2012] QCA 347, [25].

[64] See Hanson Construction Materials P/L v Norlis & Ors [2010] QSC 34, [16] per Margaret Wilson J, citing Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455, Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738, [742] – [750] and Civil Procedure Queensland [188.1] p 8271 and, on appeal, Hanson Construction Materials Pty Ltd v Davey & Anor (2010) 79 ACSR 668, [15]-[16]. And see Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2012] QSC 314, [35]-39].

[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.

[67] [2014] QSC 22.

[68] Ibid, [36].

[69] The making of evasive denials is the very mischief r 166 UCPR seeks to remedy: Ballesteros v Chidlow & Anor (No 2) [2005] QSC 285, [20] per White J.

[70] Affidavit of Peter Tisdall filed on 16 January 2018, par 49.

[71] Ibid, par 50.

[72] Ibid.

[73] Ibid.

[74] Affidavit of Peter Tisdall filed on 6 March 2018, par 14.

[75] Ibid, par 25.

[76] Affidavit of Julian Fraccaro filed by leave on 26 June 2018, par 12.

[77] Affidavit of Julien Fraccaro filed on 9 February 2018; affidavit of Julien Fraccaro filed on 26 February 2018.

[78] Described as a “Combined index of materials read by all parties”: Exhibit 4.

[79] Barker v Linklater [2008] 1 Qd R 405, [53]-[55].

[80] [2001] 2 Qd R 455.

[81] Ibid, [20]-[22].

[82] Ibid, [31].

Close

Editorial Notes

  • Published Case Name:

    Medina v Electro Industry Group Queensland Limited

  • Shortened Case Name:

    Medina v Electro Industry Group Queensland Ltd

  • MNC:

    [2019] QSC 63

  • Court:

    QSC

  • Judge(s):

    Burns J

  • Date:

    19 Mar 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment [2019] QSC 63 19 Mar 2019 Defendant's application to withdraw a number of admissions (some express, some implied) pursuant to r 188 of the Uniform Civil Procedure Rules 1999 (Qld) refused: Burns J.

Appeal Status

No Status