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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
WorkCover Queensland v Klinger Limited  QDC 225
(ACN 008 679 838)
District Court, Brisbane
11 September 2020
3 September 2020
Byrne QC DCJ
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – NUNC PRO TUNC ORDER – where the plaintiff failed to serve the defendant within the specified time – where the plaintiff served the defendant 24 minutes after the specified time – whether to order nunc pro tunc that the specified time be extended by 25 minutes.
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 7, r 103, r 189, r 368, r 667
Workers Compensation Rehabilitation Act 2003 (Qld)
Chavez v Moreton Bay Regional Council  2 Qd R 299
Cook’s Constructions Pty Ltd v Stork Food Systems Aust Pty Ltd  QSC 220.
Hanson Construction Materials Pty Ltd v Davey & Anor  QCA 246.
Markan v Bar Association of Queensland  QSC 88
McIntosh v Linke Nominees Pty Ltd  1 QDR 152.
Pollock v Thiess Pty Ltd & Ors  QSC 22.
Ridolfi v Rigato Farms Pty Ltd  2 Qd R 455.
WMJ Applications Pty Lt v Ireland and Ors  QSC 167
Mr. M. Grant-Taylor QC for the applicant/defendant.
Mr. B. Thomas (sol) for the respondent/plaintiff.
Baker McKenzie Lawyers for the applicant/defendant.
BT Lawyers for the respondent/plaintiff.
- The amended application before me is brought pursuant to r 7(1) of the Uniform Civil Procedure Rules 1999 (“UCPR”) seeking an order nunc pro tunc that the time within which the defendant is to serve on the plaintiff the defendant’s notice disputing the facts specified in the plaintiff’s Notice to Admit Facts dated 28 July 2020 be extended to 4.25pm on 11 August 2020.
- The application is brought in the context of an originating claim and statement of claim having been filed on 27 February 2019. In essence, the plaintiff’s action is to recover, by its statutory right of indemnity under the Workers Compensation and Rehabilitation Act 2003, compensation paid by the plaintiff to a named worker who had contracted mesothelioma. The defendant denies liability on a number of bases. There have been a number of interlocutory orders made in the course of the litigation, and since pleadings closed on 15 April 2019. Some observations about a few dates of relevance will assist in understanding the issues in the present application.
- On 28 July 2020, the plaintiff served a Notice to Admit Facts. It is an extensive document, comprising some 65 facts which were sought to be admitted and occupying 24 pages. Broadly speaking, the notice seeks the admission of high level statements of affairs. For example, and again broadly speaking, about half of the suggested admissions were in terms that sought acceptance that either there was an accepted scientific consensus concerning certain matters, or alternatively there was credible information in the public domain to the same general effect. The suggested admissions were directed at numerous points in time from the very early 20th century to 1982. A number of other suggested admissions then dealt with historical office holder facts pertaining to the defendant and sought to attribute knowledge of, or means of knowledge of the earlier suggested factual admissions to those office holders. Finally there is a body of factual assertions which deal with historical allegations of the means of using, cutting, etc a certain product and an attribution of knowledge or means of knowledge that these actions were dangerous.
- Pursuant to r 189(2) of the UCPR, a notice disputing any of the facts sought to be admitted had to be served within 14 days. That is, any such notice was required to be served by 11 August 2020.
- On 11 August 2020, the defendant’s notice disputing facts was served by way of email at 4.24pm. Pursuant to r 103 of the UCPR, service is deemed to have been effected the next day, and is therefore outside the 14 day timeframe comprehended by r 189(2).
- The defendant’s notice disputing facts sought to admit only four of the 65 facts in respect of which admissions were sought. Each of those four matters is, it is fair to say, of a perfunctory nature.
- On 12 August 2020, the plaintiff’s solicitor made contact with the associate to the Judge coordinating the Brisbane District Court civil list advising of an intention to apply for orders pursuant to r 368 of the UCPR to permit a Judge to be appointed to case manage the further conduct of this matter. The solicitor asked to be advised of his Honour’s availability to hear the application. Later that afternoon he was advised that his Honour would hear an application returnable at 9.00am on 17 September 2020.
- On 13 August 2020, the plaintiff’s solicitors wrote to the defendant’s solicitors advising their intended reliance on the deemed admissions pursuant to r 189 of the UCPR.
- On 14 August 2020, the defendant’s solicitors sought confirmation from the plaintiff’s solicitors that they intend to rely on the deemed admissions under r 189(2) of the UCPR. They also notified the plaintiff’s solicitors of an intention to apply for the present order, alternatively an order seeking leave to withdraw the deemed admissions under r 189(3).
- On 17 August 2020, the plaintiff filed the aforementioned application for the appointment of a case manager, returnable at 9.00am on 17 September 2020. It is not clear to me on the material precisely when that was served but, as will become apparent, it must have been that day or the next.
- On 18 August 2020, the plaintiff’s solicitors again confirm their intended reliance on the deemed admissions pursuant to r 189(2) of the UCPR. They also indicate their view that it would be preferable that any application by the defendant be listed on the same date as the already filed application for case management. I deduce from this that the defendant’s solicitors were aware of this date prior to the filing of the current application.
- On 24 August 2020, the defendant filed the current application.
- On 25 August 2020, the plaintiff’s solicitor sent an email to the defendant’s solicitors providing reasons as to why all matters should be heard on the listed date of 17 September 2020.
- There has been other correspondence between the parties since then which I do not need to delve into for present purposes.
- The matter is not presently listed for trial, although the defendant has recently sent the plaintiff notices to obtain a trial date. It seems to me that will likely be delayed until after the case management application is determined.
- The application has been brought pursuant to r 7(1) of the UCPR. The plaintiff submits that the correct procedure is to apply under r 189(3). It submits that because a specific power has been provided, the Court should only act under that specific power rather than the broader and less defined power in r 7.
- I accept that the present application can be brought in the manner in which it has been, that is, by an application under r 7(1).
- Rule 7 is a general power and so it must be exercised having regard to the interest of justice in the particular case. That necessarily means that there is no set list of matters that must be taken into consideration, and the weight to be given to different factors may change as between different applications.
- In WMJ Applications Pty Ltd v Ireland and Ors  QSC 167, Daubney J exercised the power under r 7(1) to extend the seven day period referred to in r 667(1)(b) for the court to vary or set aside an order. This is an instance where a specific power was found within the rules, but r 7 was nonetheless held to be applicable. That ruling was accepted and followed by Martin J in Cook’s Constructions Pty Ltd v Stork Food Systems Aust Pty Ltd  QSC 220 at .
- In Markan v Bar Association of Queensland  QSC 88, Atkinson J, in the context of an application to extend time to file a defence, said at p 3:
“Orders extending times are commonly made by me, in the case flow management jurisdiction, and, indeed, by applications Judges. There should, however, be a good reason for the extension.”
- The defendant has taken me to a decision of Keane JA (with whom Holmes JA and McMeekin J agreed) in Chavez v Moreton Bay Regional Council  2 Qd R 299 at . His Honour there said:
“The learned primary judge accepted that r 7 conferred on him a ‘broad power to relieve against injustice’. In particular, his Honour noted that it was common ground that an extension of time was available even though the order was made by consent. His Honour said:
‘I accept the submission made by Mr Sullivan… that matters relevant to the exercise of these discretions are the conduct of the defaulting party and the prosecution of the proceeding generally, the circumstances in which the self-executing order was made, any aspect of prejudice to the innocent party, and the circumstances of noncompliance.’”
- Although his Honour was there quoting the observations of the primary Judge in that matter, it seems to me, at least by implication, that his Honour accepted the legitimacy of the primary Judge’s observations.
- The defendant also urges upon me the observations of Muir JA (with whom Cullen and Douglas JJ agreed) in McIntosh v Linke Nominees Pty Ltd  1 QDR 152 at , where his Honour said:
“Rule 7(1) is a remedial provision in aide of the purpose expressed in r 5 of facilitating the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. The rule confers on a court a broad power to relieve against injustice. In my view, r 667(2), by listing a number of circumstances in which no time limit applies, does not impinge on the extent of the power conferred by r 7(1), although it may be relevant to the exercise of that power.”
- It seems clear to me from those authorities that the defendant is entitled to rely on the broader power in r 7 rather than being necessarily limited to the specific power under r 189(3), should it desire to do so. However, whilst the last sentence quoted above from McIntosh reinforces that finding, it also in my view makes relevant considerations that might be exercised under an application pursuant to r 189(3).
- In aid of the submission that the only recourse was r 189(3), the plaintiff took me to statements of de Jersey CJ in Ridolfi v Rigato Farms Pty Ltd  2 Qd R 455. They remain apposite for reasons just expressed. In particular I was taken to the two following paragraphs:
“ Asked to exercise the discretion under r 189(3), a court would ordinarily expect sworn verification the circumstances justifying a grant of leave. Those circumstances may include why no response to the notice was made as required, the response the party would belatedly seek to make, and confirmation that the response would accord with evidence available to be led at trial. Here none of those matters was so verified. Issues of prejudice may also fall for consideration upon the hearing of such an application.
 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…
 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.”
- While accepting the force of those comments, it must however be recognised that Ridolfi was a far different case from the present matter. In Ridolfi, the application to withdraw the admissions pursuant to r 189(3) was made on the first morning of trial, about four months after the service of the notice to admit facts. By that time the defendants had engaged a different set of solicitors to those who were involved at the time that a notice disputing facts was required to be provided. No explanation had been given for the failure to reply to the notice. It is in those circumstances of a late change of conduct of the trial that the comments were made.
- In any event, the observations speak only of what is “ordinarily expected”. They do not and cannot lay down a rigid and mandatory regime for success on an application under r 189(3).
- Relevant observations were also made by Chesterman JA in Hanson Construction Materials Pty Ltd v Davey & Anor  QCA 246. In that decision his Honour said:
“ It is no doubt true that the UCP Rules are meant to expedite litigation and to limit disputes to issues that are genuinely in contest, but it must, in my respectful opinion, remain the case that the rules do not operate so as to prevent the trial of issues that are genuinely in dispute.
 The first consideration, therefore, in an application to withdraw admissions must be whether the subject matter of the admission is truly contested. Often, if not always, that determination will be informed by the circumstances in which the admission was made. It is usually a good indication that a fact is not in dispute that the party against whom it is made admits it to be true. This, I apprehend, is why the cases emphasise the need for an explanation as to the making of the admission. If an applicant cannot demonstrate that there is a real dispute about the subject matter of the admission no other consideration need be examined.”
- In the present matter an affidavit has been filed which, in part, seeks to explain the reason for the late response. In that affidavit Ms Burn, a solicitor acting for the defendant who is based in Melbourne, relevantly states that she received the plaintiff’s notice on 28 July 2020. She says that after receiving that notice she was instructed by the defendant to serve a notice disputing facts and make admissions where appropriate, within the time prescribed by the UCPR. She deposes that having consulted the UCPR, she formed a belief that the response to the notice was due by 4.00pm on Wednesday 12 August 2020.
- The following explanation is provided:
“My belief regarding the time for service of a response to the Plaintiff’s Notice resulted from calculating times for service of various previous documents and notices in this proceeding, where the date of service of the relevant document or notice had been excluded for the purposes of calculating the time for service of the appropriate reply. As a result, I incorrectly calculated the time for service of the Defendant’s response to the Plaintiff’s Notice to be 4.00pm on 12 August 2020.”
- Ms Burn also deposed that her understanding was corrected at 4.12 pm on 11 August 2020. The notice was served 12 minutes later.
- The service of the notice disputing facts was 24 minutes late. As a result it is deemed to have been served the next day. The short passage of time by which service was late, is in my view, a highly relevant feature. However, it is only one feature of many that must be balanced in order to do justice to the parties.
- An explanation as to why it was late is sought to be proven through the affidavit of Ms Burn. The explanation itself is a little difficult to follow given that this too was a document which required that the date of service of the relevant document (that is, the Notice to Admit Facts) be excluded for the purposes of calculating time for the service of the reply. It must mean, on one view of it, that all such documents were late, or were potentially going to be served late in this proceeding if Ms Burn had any involvement. It is, in my view, a less than fully satisfactory explanation. Nonetheless I treat it as an unfortunate human error. Due to a late understanding of the correct date, service was in fact effected on 11 August 2020, albeit 24 minutes late.
- The material in that affidavit otherwise demonstrates, and is accepted by the plaintiff to demonstrate, that there was always an intention to reply to the notice. It also shows that an appropriately expeditious approach was taken to the obtaining of instructions and advice in relation to the response to the notice to admit facts. This is not a case where there was a deliberate decision made not to reply, and then an attempt to backtrack.
- Turning to the matters Keane JA implicitly endorsed in Chavez as a broad indication of some matters of relevance, it seems to me that the conduct of both the plaintiff and the defendant in the proceeding generally has been consistent with being involved in hard fought litigation. The matter, although requiring a number of interlocutory orders, appears to be generally proceeding in an orderly manner. That is not to say that the conduct of either party has been without fault, but it seems to me to be within appropriate boundaries.
- The defendant also points to specific conduct of the plaintiff in the proceedings, and in particular has taken me to an affidavit of Benjamin Burke filed 2 September 2020. Attached to that affidavit is a schedule of some 11 instances where it is said that the plaintiff has been late in providing responding material, sometimes by a matter of minutes. The relevance of that I think is to show that there has been failure by the plaintiff to adhere to timelines by a small margin, and that a matter of minutes often will not occasion any particular prejudice.
- The circumstances in which the self-executing order was made were those which arise by force of the rules. It seems to me that there is little, if anything, of relevance, in the circumstances of this matter, to that circumstance although I do accept that the Notice to Admit Facts was sent in a bona fide attempt to streamline the issues at trial.
- The plaintiff understandably asserts that it is prejudiced in the conduct of its proceeding by the granting of the order which would effectively remove a total of 61 deemed admissions. Many of these are of significant and complex factual allegations. The plaintiff’s solicitor has submitted that the effect of extending time would, in his best estimate, be to extend a potential trial of perhaps five days to something in the order of 20 days.
- I do not doubt that the granting of the order will significantly extend the length of any trial in this matter. I also have no doubt that it will significantly add to the already complex issues for determination in the trial. This is a matter which obviously favours ruling against the present application.
- The circumstances of non-compliance have been explained earlier, as has the manner in which I approach them.
- Referring back to the last sentence of the quoted passage from McIntosh, I think the considerations that have been held relevant in an application under r 189(3) are of some relevance in guiding the exercise of the broad power under r 7(1). Again the circumstances for the deemed admission have been explained.
- Drawing more directly upon de Jersey CJ’s observations in Ridolfi and Chesterman JA’s observations in Hanson Construction Materials, some focus needs to be placed on whether the subject matter of the admission is truly contested.
- Queens Counsel for the defendant has candidly informed me that not every matter of dispute which is sought to be raised by the notice disputing facts has been put in dispute by expert reports. Of those matters which are not directly put in dispute through reliance on reports and other evidence, he informs me that the defendant seeks to put them in dispute through the process of cross-examination.
- In those circumstances the plaintiff contends that not every matter could sensibly be considered to be in dispute for the purposes of this application, and also submits that the experience in other jurisdictions is that many of the matters sought to be put in dispute cannot sensibly be so. The plaintiff recognises that issues of res judicata and issue estoppel do not arise, but contends that the experience in other jurisdictions is relevant to assessing the likelihood that a particular fact is truly in dispute.
- I do not understand the authorities to necessarily require that there be evidence in the possession of one or both parties putting a matter in dispute before it can be said that the “admission is truly contested”.
- In my opinion, the approach to be taken will depend on the nature of the contested deemed admission. I accept that may be required in some cases. For example, the suggested admissions deal with recent events of readily known to all involved might be matters where evidence of an actual dispute would be required to be established.
- However, here almost all of those suggested admissions deal with high level assertions of the historical fact of “accepted scientific consensus” and “credible information in the public domain” and office holders’ actual knowledge or expected knowledge going back almost 120 years of those matters. Being states of affairs and of presumed knowledge of those states of affairs, they are matters which will not necessarily be responded to by opposing expert reports, but they are inherently susceptible to cross-examination. There is nothing in the authorities to suggest that I must be satisfied to any degree of the likelihood of success on the contest, only that the factual issue is truly contested.
- It appears to me that a deliberate decision has been made by the defendant as to the conduct of its defence. I am not prepared to accept that the defendant is unnecessarily putting matters in dispute. I do accept that where there is no opposing expert report or other evidence, the defendant will attempt to shake the tribunal of fact’s confidence in evidence which, in other jurisdictions and in other cases, may have been accepted. In that sense those factual issues are truly contested.
- True it is that to grant the application will considerably lengthen the trial, and also considerably add to its complexity. Given the estimated increase in the length of the trial, and the obvious complexity of the matters in respect of which admissions were sought, this is a factor that I think carries considerable weight. Subjectively it is explicable why the plaintiff has taken the position it has, and which seeks to give effect to the observations of de Jersey CJ in Ridolfi as to the importance of streamlined procedural provisions and enforcement of the consequences of non-compliance.
- However, had there not been human error, which was quickly rectified so that service was only 24 minutes late, the plaintiff would have been required to prove these matters in any event. The plaintiff has not pointed to any prejudice over and above the loss of the admittedly considerable advantage of relying on the deemed admissions.
- There is some comfort for the plaintiff in the application of r 189(4) regarding the ordering of costs, together with the application of r 5(4) which can also be used as a basis for sanctions including costs or perhaps striking out portions of the defence or of the notice disputing facts, in these circumstances. Given the position taken by the defendant in bringing this application, it also seems likely that there is a strong argument for any costs order to be made on an indemnity basis.
- Balancing all the relevant features, I consider that the justice of the situation is met by granting the application.
- I have received only very general submissions as to costs, which the parties are prepared to advance once my decision and reasons become known. I will give them that opportunity in writing.
- My orders are:
- I order, nunc pro tunc, that the time within which the defendant is to serve on the plaintiff the defendant’s notice disputing the facts specified in the plaintiff’s Notice to Admit Facts dated 28 July, 2020 be extended to 4.25pm on 11 August, 2020.
- The defendant file and serve written submissions as to costs, limited to five pages, on or before 4.00pm on 18 September 2020 with a view to the issue of costs being determined on the papers unless otherwise ordered.
- The plaintiff file and serve written submissions as to costs, limited to five pages, on or before 4.00pm on 25 September 2020 with a view to the issue of costs being determined on the papers unless otherwise ordered.
- The defendant file and serve any reply, limited to three pages, on or before 4.00pm on 30 September 2020.
A copy of the Notice to Admit Facts is exhibit A to the affidavit of Emma Louise Burn, filed 25 August 2020 (Court Doc 55).
The pleaded conduct by which it is said mesothelioma was acquired occurred in 1965 or 1966. I have not received submission on the topic, but the relevance of any of these matters after 1966 is not readily apparent to me.
“Dangerous” is not a word used in the suggested admissions, but I have used it to summarise the effect of the lengthy admissions sought.
A copy of the defendant’s notice disputing facts can be found at exhibit B to the affidavit of Emma Louise Burn, filed 25 August 2020 (Court Doc 55).
Affidavit of Bruce Richard Thomas filed 31 August 2020 (Court Doc. 56) at .
Pollock v Thiess Pty Ltd & Ors  QSC 22 per McMeekin J at .
Affidavit of Emma Louise Burn, filed 25 August 2020.
supra at .
supra at .
supra at .
- Published Case Name:
WorkCover Queensland v Klinger Limited
- Shortened Case Name:
WorkCover Queensland v Klinger Limited
 QDC 225
Byrne QC DCJ
11 Sep 2020