SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 23 November 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 November 2007 |
JUDGES: | McMurdo P, Jerrard JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: |
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CATCHWORDS: | PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS – where the learned trial judge refused the appellant plaintiff leave to withdraw, under Uniform Civil Procedure Rules 1999 (Qld) r 189(3), admissions deemed to have been made by it as plaintiff under r 189(2) – where those deemed admissions were made when the appellant plaintiff did not, within 14 days after service of a notice by the respondent defendant, dispute the facts asserted in the notice to admit facts – where the learned judge relied in part on the absence of a sworn explanation by the appellant of the circumstances resulting in its deemed admissions, and in part on the fact that the respondent defendant had assertedly relied on the deemed admissions in preparing its case – whether the learned judge ought to have acted under r 7, and extended the time within which it was required to respond to the notice to admit facts – whether the judge erred in finding that it had failed to set out what was and was not in dispute – whether the judge erred in not granting an adjournment – whether the learned trial judge erred in not granting leave to withdraw the admissions, because there had been an affidavit from the solicitor explaining the reason for the six day delay – whether the learned trial judge failed to consider the injustice likely to be done to it if the deemed admissions could not be withdrawn Uniform Civil Procedure Rules 1999 (Qld), r 189(3) Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455, [2000] QCA 292, applied |
COUNSEL: | M Wilson for the appellant M E Eliadis for the respondent |
SOLICITORS: | Porta Lawyers for the appellant Cooper Grace Ward for the respondent |
[1] McMURDO P: Jerrard JA has set out the relevant facts and issues in this application for leave to appeal. I agree with Jerrard JA that the applicant's only ground justifying the grant of leave to appeal is that concerning the primary judge's refusal to adjourn its application to withdraw admissions under Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") r 189(3).
[2] In refusing to adjourn the application on 5 June 2007, the primary judge wrongly considered the application had been before the court on 17 May 2007. Additionally, his Honour mistakenly thought it had been adjourned twice prior to the hearing before him. In fact, the application was adjourned only on the papers on 23 May 2007; it had not previously been before the court. The judge refused the adjournment based on a mistaken view of the facts. But does this warrant the granting of leave to appeal in this case?
[3] As Jerrard JA explains, the applicant's pleadings and conduct of its case prior to 5 June 2007 had been most unsatisfactory. Even before this Court, the applicant made no attempt to provide adequate pleadings or affidavit material sufficient to justify the withdrawal of its admissions under r 189(3): see Ridolfi v Rigato Farms Pty Ltd.[1] If it does not successfully appeal and have the orders at first instance set aside so that it can pursue its application under r 189(3), any case it may have against the respondent on liability would be, at least, gravely compromised.
[4] Despite its desultory approach to date, I am satisfied the applicant should have one last opportunity to get its case in order and to give sworn details of the issue or issues it would raise at trial if permitted to withdraw its deemed admissions under r 189(2), as required by Ridolfi. Accordingly, were I to give leave to appeal, allow the appeal and set aside the orders made at first instance, I would re-exercise the discretion by granting the applicant an adjournment of its application under r 189(3).
[5] I consider the interests of justice warrant the granting of leave to appeal, the allowing of the appeal, the setting aside of the orders made at first instance, and the adjourning of the application under r 189(3). As the original application was to remedy the results of the applicant's failure to comply with the UCPR and it has had to be adjourned because of the applicant's recalcitrance, it should pay the respondent's costs of the adjournment. Although the applicant has been successful in its application and appeal on a limited basis, in the unusual circumstances here it should not have its costs of the application and appeal. Upon the respondent making an application under s 15(1) Appeal Costs Fund Act 1973 (Qld), I would grant it an indemnity certificate in respect of the appeal.
[6] I agree with the orders proposed by Jerrard JA.
[7] JERRARD JA: This proceeding is an application for leave to appeal from a decision given in the District Court on 5 June 2007, refusing the appellant plaintiff leave to withdraw, under Uniform Civil Procedure Rules 1999 (Qld) r 189(3), admissions deemed to have been made by it as plaintiff under UCPR r 189(2). Those deemed admissions were made when the appellant plaintiff did not, within 14 days after service of a notice by the respondent defendant, dispute the facts asserted in the notice to admit facts dated 4 April 2007, served on the plaintiff on 5 April 2007. The learned judge who dismissed the plaintiff’s application for leave to withdraw relied in part on the fact that there had been no sworn explanation by the appellant of the circumstances resulting in its deemed admissions, and in part on the fact that the respondent defendant had assertedly relied on the deemed admissions in preparing its case.
[8] The plaintiff’s statement of claim dated 21 June 2006 pleaded that it was engaged in the business of manufacturing and installing wardrobes and bathroom cabinet-ware, and that the defendant was a builder engaged in the construction and/or renovation of building projects in Queensland. The plaintiff’s statement of claim alleged that on various dates in respect of five different buildings the plaintiff had quoted for the manufacture and installation of wardrobes and bathroom cabinet-ware, the quotes were accepted, and the plaintiff had done work pursuant to the accepted quotes. It claimed for money unpaid, without giving any particulars of the work done. There was no pleaded claim for the provision of services for which payment was owing but this Court was told by counsel that the plaintiff did intend to claim for unpaid services provided to the defendant. It follows that its pleading will need amendment.
[9] The defendant pleaded that the plaintiff’s work was incomplete and defective, and counterclaimed for the cost of replacing items supplied, or not supplied, and for rectification work. The plaintiff’s reply and answer admitted that some identified work were incomplete, contending that the defendant had declined to pay the plaintiff progress payments, and had repudiated the contract.
[10] Counsel for the defendant informed the learned trial judge that after observing that the plaintiff had admitted in its pleadings that a number of items listed in the defence and counterclaim, and described therein as incomplete or defective, had not been supplied, the defendant had determined to ask the plaintiff to admit the fact of non-supply; hence the lengthy and detailed notice to admit facts. The defendant’s counsel also contended that the plaintiff, while seeking to have its deemed admissions set aside, had not provided affidavit evidence identifying what was to be disputed as to work completed and what was not.
[11] The plaintiff’s solicitor asked for 14 days within which it would provide proper particulars of what was admitted, and what was contested. The learned judge was unsympathetic to that application.
Ground of appeal 1
[12] The appellant complains that the learned judge ought to have acted under UCPR r 7, and extended the time within which it was required to respond to the notice to admit facts. There was no application in those terms made before the trial judge. The plaintiff’s application[2] was simply for leave to withdraw any deemed admissions taken to have been made under r 189(2). Counsel for the appellant referred to UCPR r 7 which relevantly reads:
“7.Extending and shortening time
(1) The court may, at any time, extend a time set under these rules or by order.
(2) If at times set under these rules or by order, including a time for service, has not ended, the court may shorten the time.”
Counsel for the appellant also referred to the statement by the learned judge at
A83-84 that:
“Well, that’s the problem for you. I was initially with you on the reason that perhaps the other side were a bit unreasonable, the 25th of April was not a large time gap, but now that we’re at the stage where that leave is required, I’m not in a position to grant you leave to extend the time. If you had made the application before the 19th of April, then I could have granted you leave because its irregularity in accordance with Judge McGill said in that Rapid Metal case. But we’re past that, so we’re not talking about whether they’re being reasonable or not, the onus is upon you to produce that evidence.”
[13] The appellant submitted that on the proper construction of UCPR r 7, as at 5 June 2007, the learned trial judge could have granted leave to extend the time for responding to the notice to admit facts, even though, at the time of the hearing, the time frame of 14 days set by r 189(2) had expired. Whatever the merits of the argument, no application was made for an extension of time. There is therefore an insufficiency in that ground.
Ground of appeal 2
[14] That leads to ground 2, by which the appellant complains that the judge erred in finding that it had failed to set out what was and was not in dispute, despite the affidavit of the plaintiff’s solicitor which contained relevant particulars of the facts in dispute in the matter in the form of responses to the notice to admit facts served on the plaintiff, and which had been read into evidence at the hearing of the application. That ground refers to the following matter.
[15] The plaintiff read an affidavit by its solicitor, who swore that he had left his office on Thursday 5 April 2007 and returned on Friday 13 April 2007; he had telephoned his client on Tuesday 17 April to discuss the contents of the notice to admit facts. On 25 April 2007, six days after the expiration of the 14 days, he had sent the plaintiff’s reply to the notice to admit facts, and the solicitor annexed a copy of that to his affidavit.
[16] The plaintiff’s response was to tick each numbered paragraph in the notice to admit facts, indicating by the tick that those items were admitted; or in the alternative, to put a cross against items which were disputed. The plaintiff’s (late) response shows that it disputed the notice to admit facts about incomplete performance of its obligations, which appeared to have been in part conceded in its pleadings.
[17] The appellant says the refusal to allow its deemed admissions to be withdrawn effectively concludes the proceedings in the defendant’s favour, on both the claim and counterclaim. The appellant argued that the judgments in Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292 did not require that the appellant provide a significant level of particulars as to what was in fact contested and admitted, before leave could be given to withdraw deemed admissions. That submission overlooks what de Jersey CJ wrote at [2001] 2 Qd R 455 at 458, to this effect:
“[19]Asked to exercise the discretion under r 189(3), a court would ordinarily expect sworn verification of the circumstances justifying a grant of leave. Those circumstances may include why no response to the notice was made as required, the response the party would belatedly seek to make, and confirmation that the response would accord with evidence available to be led at the trial.”
His Honour went on:
“[21]The charter of procedure contained in the Uniform Civil Procedure Rules cannot be approached on the basis that if important provisions are ignored, even if inadvertently (and that is not established here), the court may be expected to act indulgently and rectify the omission.”
[18] McPherson JA wrote in that same case (at Qd R 460) that:
“Here the defendant has not condescended to swear to the circumstances in which the admission came to be made, or to show that it occurred by inadvertence, mistake or in some other way that might justify its withdrawal.”
[19] Williams J, as His Honour then was, wrote (at p 461):
“Certainly an admission flowing from the operation of r 189 should not be withdrawn merely for the asking. In my view a clear explanation on oath should be given as to how and why the admission came to be made and then detailed particulars given of the issue or issues which the party would raise at trial if the admission was withdrawn.”
[20] That decision does establish authoritative principles on the application of UCPR r 189. The purpose of the rule, and the decision, is to encourage parties to identify what is and is not really in issue between them. The appellant did not file the affidavit material described in Rigato Farms Pty Ltd v Ridolfi before the learned trial judge, and relied instead on its solicitor’s affidavit which described his absence from his office until 13 April 2007, but did not say why there was no reply within the 14 days. That deficiency has been corrected to some extent on this appeal, with affidavits from a Mr McLean, a director of the plaintiff. He deposes to having been too busy on and after 17 April 2007 to complete his response before 25 April 2007, when it was forwarded to the plaintiff. The second of those affidavits gives what he describes as particulars of the admissions and denials.
[21] A number of those particulars simply refer to the plaintiff’s reply and answer, and to the admissions therein that its works were incomplete; and others refer to the plaintiff’s further particulars of the plaintiff’s reply and answer to the counterclaim, dated 8 November 2006. One of those, number 3(a) simply reads:
“Defective works were complete as per defects lists issued by the defendant, copies to be provided to the Defendant’s solicitors with a copy of these particulars. A handwritten footnote to that same page of the appeal record (A205) contends that a copy was served on the defendant’s solicitors by post on 8 November 2006.”
[22] The particulars supplied in that affidavit require a good deal of examination of the pleadings and other documents. They do not clarify which facts are admitted and which are not; there is still considerable room to manoeuvre and disagree. It would be very difficult to assess the quantum for either party if judgment were given on those deemed admissions. In any event, the plaintiff’s pleadings need considerable re-working, and it has yet to make clear what it admits and what it denies, in both its claim and the counter-claim. The respondent says the particulars are insufficient, as well as that they are given too late.
Ground of appeal 3
[23] The appellant contends the judge erred in not granting it the adjournment it sought, since any prejudice to the defendant could have been remedied by a cost order, and since its reply to the notices were only six days late. The defendant, it argued, could not have accomplished any substantial preparation for trial in that time.
[24] There was no affidavit before the trial judge in explanation of the failure to reply in time, although by then a number of weeks had passed in which the plaintiff could have supplied that affidavit evidence. The appellant argues that the learned judge appears not to have made a decision on the request for the adjournment, but had simply made orders to the contrary. The judge gave no reasons per se for not adjourning, but appears to have been influenced by the absence of any affidavit explanation for the failure to reply in time.
[25] The judge did make an error of fact, in the reasons for judgment, conceded as an error by the respondent, when the judge said the matter had already been adjourned twice before. In fact, it had been listed for hearing once, and adjourned by consent, to the date 5 June 2007, when the learned judge dealt with it. Neither counsel corrected the error at the time.
[26] That error of fact means the learned judge exercised the discretion, not to grant the adjournment, on a basis that included a wrong assumption. Error being shown, it falls to this Court to re-consider the exercise of that discretion.
Ground of appeal 4
[27] The appellant contended the learned trial judge had erred in not granting it leave to withdraw the admissions, because there had been an affidavit from the solicitor explaining the reason for the six day delay in it providing its response, and the response it gave did distinguish between admitted and non-admitted facts. It had applied for leave to withdraw the deemed admissions as soon as it became clear that the defendant’s solicitors would not allow them to be withdrawn by consent.
[28] Those are good arguments, but there had not been any affidavit explanation to the learned judge as to why the answer was not given within the 14 day period. Affidavit evidence from Mr McLean on that important matter was only read in this appeal. The learned judge was certainly not bound to allow the admissions to be withdrawn in those circumstances.
Ground of appeal 5
[29] The appellant complains the learned trial judge failed to consider the injustice likely to be done to it if its deemed admissions could not be withdrawn. The result will be, it submits, that the matter will go to judgment against it, not on the merits. The appellant submits that fact of the notice having been served on Easter Thursday, the fact of a request for an extension having been within the 14 day time period allowed, and that the reply to the notice was given six days after the end of the 14 days, were all material considerations that should have been taken into account, together with the injustice to it of a refusal, in exercising the discretion to allow it to withdraw.
[30] Those are all reasons why the learned judge would have been justified in making an order in the appellant’s favour. But the judge was not compelled to do that. There was no error of law in the judge taking a course that was open.
[31] The appellant also contended that the District Court judge ought not to have made an order in the counterclaim, which was for an amount in excess of $250,000 in that the parties had not agreed by a memorandum signed by them that the District Court would have jurisdiction to hear it. Accordingly, the court did not have jurisdiction to hear the application concerning the counterclaim. The respondent submits that this submission has been made for the first time in this Court, and is misconceived, contending that the counterclaim is within the monetary jurisdiction of the District Court. The claim and counter-claim each relate to five separate buildings, each constructed at a different time, and each the subject of a separate alleged quote by the plaintiff and request to do work by the defendant. There are therefore 5 causes of action being litigated in one proceeding, each within the jurisdiction of the District Court. In any event, the notice to admit is not specific to either the claim or counter-claim, and ground 6 has no merit.
Conclusion
[32] The appellant has one valid ground of appeal, the error of fact by the learned judge, relied on by the judge, who ruled that:
“There was an application to adjourn this matter for further hearing to allow the plaintiff to comply with Ridolfi’s case. However, in view of the fact that it has been adjourned twice I exercise my discretion against that application.”
[33] The plaintiff’s pleadings appear in considerable need of revision; and the pleadings, including the notices to admit facts and documents, and the responses to them, fail to identify the facts which are in issue, and the facts which are conceded, between the parties. That being so, because of the mistake by the learned judge which affected his decision not to allow an adjournment, I consider it appropriate to allow the appeal on that ground of appeal, and set aside orders 1, 2, 3, 5, and 6 of the orders made on 5 June 2007. I would order instead that the application by the plaintiff for an adjournment be allowed, and its application for leave to withdraw its deemed admissions adjourned to a date to be fixed, with the plaintiff to pay the defendant’s costs thrown away by reason of the adjournment. Upon the respondent applying under s 15 of the Appeal Costs Fund Act 1973 (Qld) for an indemnity certificate, I would grant the respondent an indemnity certificate under s 15(1) of that Act in respect of the appeal, and make no order as to the appellant’s costs of the appeal, leaving it to pay its own.
[34] DAUBNEY J: I agree with the reasons for judgment and the orders proposed by Jerrard JA.
