Joamco Stockfeeds Pty Ltd v Annand Robinson Holdings Pty Ltd
[2004] QDC 109
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- Unreported Judgment
- Joamco Stockfeeds Pty Ltd v Annand Robinson Holdings Pty Ltd[2004] QDC 109
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Joamco Stockfeeds Pty Ltd v Annand Robinson Holdings Pty Ltd[2004] QDC 109
Joamco Stockfeeds Pty Ltd v Annand Robinson Holdings Pty Ltd[2004] QDC 109
DISTRICT COURT |
|
APPELLATE JURISDICTION
JUDGE BRITTON SC
JOAMCO STOCKFEEDS PTY LTD ACN 009 938 786 | Appellant |
and
ANNAND ROBINSON HOLDINGS PTY LTD ACN 009 655 034 | Respondent |
TOOWOOMBA
..DATE 26/03/2004
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JUDGMENT
HIS HONOUR: Gentlemen, I have prepared some reasons, which I have not had typed up, so I will read them into the record.
- 1This is an appeal against the decisions of Mr Schemioneck, Magistrate at the Magistrates Court, Toowoomba on the 8th of August 2003, whereby he refused an application by the appellant, Joamco Stockfeeds Pty Ltd (“the appellant”) for leave to withdraw admissions taken to have been made by the appellant under UCPR 189(2) and whereby he gave summary judgment for the respondent, Annand Robinson Holdings Pty Ltd (“the respondent”) in respect of both the respondent's claim against the appellant and the appellant's counterclaim against the respondent.
- 2On 14 February 2002 the respondent filed a claim against the appellant in which it claimed the sum of $3,940.60 for moneys owing pursuant to a contract for the sale of certain equipment.
- 3On 16 May 2002 the appellant filed its defence and counterclaim.
- 4In its defence and counterclaim, the appellant admitted all of the facts alleged in the respondent's statement of claim, but claimed a setoff or counterclaim exceeding the amount of the respondent's claim. The counterclaim was for damages in the sum of $32,740.65. The counterclaim was for damages for loss alleged to have been suffered by the appellant as the result of the alleged breach of an agreement between the appellant and the respondent relating to the processing of stockfeed meal delivered by the appellant to the respondent into pellets which the appellant then sold to its customers. It was alleged that as a result of the breach by the respondent of an express term of that agreement relating to the quality of the pellets the appellant was required to refund moneys to certain identified customers and to dump the defective pellets. It was further alleged that in the case of two of the named customers the appellant had suffered a future loss of profits.
- 5On the 20th of February 2003 the respondent delivered to the appellant a notice requiring further and better particulars of the counterclaim and a notice to admit facts.
- 6There was no response by the appellant to the notice to admit facts other than a letter from the appellant's solicitors dated 13th of May in which they said they were still obtaining instructions in relation to that notice and that they anticipated little difficulty in admitting facts 1 to 10, but expected to receive instructions to deny facts 11 to 20.
- 7On the 22nd of April 2003 the respondent had filed an application for further and better particulars of the defendant's counterclaim which was returnable on the 22nd of May 2003.
- 8On the 14th of May 2003, the appellant filed further and better particulars of its counterclaim.
- 9No extension of time for responding to the notice to admit facts was sought by the appellant or given by the respondent.
- 10On the 20th of May 2003 the appellant delivered to the respondent its notice disputing facts.
- 11On the 22nd of May 2003 the respondent's application for further and better particulars of the appellant's counterclaim was dismissed.
- 12On the 30th of May 2003 the respondent filed its application for summary judgment in respect of both its claim and the appellant's counterclaim. That application was returnable on the 24th of July 2003.
- 13On the 18th of June 2003 the appellant filed its application for leave to withdraw the admissions taken to have been made under sub-rule 189(2). This application was also returnable on 24 July 2003.
- 14The applications were heard together on the 28th of July 2003, but the learned Magistrate determined that the appellant's application should be disposed of first, because if leave was granted to withdraw the admissions, there would then be no basis for the respondent to be given summary judgment on the counterclaim.
- 15The learned Magistrate refused the appellant's application. He found that there was sworn evidence as to the failure to respond to the notice to admit facts and he seems to have found that the failure to respond within the time allowed by the rules and the delay thereafter was satisfactorily explained (reasons page 9 lines 20 to 30).
- 16However, his Worship found that the appellant had, “not condescended to swear to detailed particulars of the issues the defendant would raise at trial should the admissions be withdrawn” (reasons page 9 lines 35 to 40).
- 17His Worship referred to the affidavit of Andrew John Dolley (a director of the appellant) in which he swore that at the hearing of the matter he intended to call certain named witnesses “all of whom returned faulty product which I had sold them after it had been manufactured by the plaintiff.” Mr Dolley swore also that as a result of the respondent's production and supply to the appellant of faulty product, the appellant had “incurred damages by way of breach of contract in the order of approximately $32,740.65 plus interest.”
- 18His Worship referred also to the second affidavit of Graham Lawrence King filed on 28 July 2003 and in particular paragraph 5 where the following appears:
“From my lengthy discussions and instructions obtained from the plaintiff's (sic) managing director and his office manager I am able to say that of my own knowledge there is evidence both by way of witness testimony and documentary evidence which supports the counterclaim made by the defendant in all respects.”
- 19Having referred to these matters, his Worship then said:
“In all the circumstances, that evidence together with the notice disputing facts taken at its highest fails to particularise the issues which the defendant would raise on trial that the admissions be withdraw” (reasons page 10 lines 30 to 35).
- 20In relation to the application for summary judgement the Magistrate said that given the admissions made by the appellant in its defence, and “being satisfied with those matters set out in section 292(2) of the Uniform Civil Procedure Rules” the respondent was entitled to summary judgement on its claim.
- 21So far as the counterclaim was concerned, the Magistrate said that given the admissions made pursuant to rule 189 “and the findings earlier made as regards the affidavit material of Robinson and Dolley” there was no real prospect of success on all or part of the counterclaim and that there was no need for a trial of the counterclaim or any part of it and the respondent was entitled to summary judgment on the counterclaim.
- 22At the commencement of the hearing of the appeal, counsel for the appellant sought leave, pursuant to UCPR 766(1)(c) to adduce further evidence by affidavit.
- 23Rule 766(1)(c) provides that the Court may, on special grounds, receive further evidence as to questions of fact either orally in Court, by affidavit or in another way.
- 24It is therefore necessary that special grounds are shown to exist before such further evidence may be received.
- 25The further evidence sought to be adduced is a further affidavit by Graham Lawrence King filed on 2 September 2003 to which is exhibited a copy of the request for particulars delivered by the respondent on 20 February 2003 and a copy of the further and better particulars of the counterclaim provided by the appellant to the respondent on 13 May 2003, which document was filed on 14 May 2003. Mr King also deposed to the fact that the respondent persisted in its application for further and better particulars, but the application was dismissed.
- 26The application for leave to adduce this further evidence was formally opposed by the respondent on the basis that the application was unnecessary as the further and better particulars, having been on the file and being part of the pleadings were able to be taken into account by the Magistrate, but that in any event the evidence was irrelevant to the appeal points. Counsel for the respondent said that the respondent had no difficulty in my seeing the particulars.
- 27No material was put before me in relation to the requirement in rule 766(1)(c) that there be special grounds. I am not satisfied that there are special grounds for receiving further evidence and I refuse that application.
- 28This appeal is by way of rehearing on the evidence which was before the Magistrate. Clearly so far as the appeal relates to the refusal of leave to withdraw the admissions the appeal involves the review of the exercise of discretion. However, counsel for the appellant sought to argue that because there was final judgment the appeal against the judgment given in favour of the respondent was otherwise. I do not accept this proposition. There was no trial on the merits. The granting of summary judgment is an exercise of discretion.
- 29The principles which govern an appeal against a decision involving the exercise of discretion were set out by the High Court by House v. The King (1936) 55 CLR 499.
- 30Such a decision may be interfered with by an appeal Court only where it is shown that the Court below has acted upon a wrong principle or taken account of irrelevant or extraneous matters or has failed to take into account some material consideration or has proceeded upon a misapprehension of the facts.
- 31The appellant in this case bases its argument essentially upon the suggested failure of the Magistrate to take into account the further and better particulars filed by the appellant on 14 May 2003.
- 32It is true that in his decision the Magistrate did not make express reference to the further and better particulars (notwithstanding that this document was included in the material relied upon by the respondent) in considering whether or not to give leave to withdraw the admissions.
- 33Rule 189 provides:
“(1) A party to a proceeding (the “first party”) may, by notice served on another party ask the other party to admit, for the proceeding only, the facts or documents specified in the notice.
- (2)If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document specified in the notice.
- (3)The other party may, with the Court's leave, withdraw an admission taken to have been made by the party under sub-rule (2).
- (4)If the other party serves a notice under sub-rule (2) disputing a fact or the authenticity of a document and afterwards the fact or the authenticity of the document is proved in the proceeding, the party must pay the costs of proof, unless the Court otherwise orders.”
- 34The Magistrate referred to the decision of the Court of Appeal in Rigato Farms Pty Ltd v. Ridolfi (2000) QCA 292 and he quoted passages from the judgments of each member of the Court in that case. It is helpful for me to set out some of those passages.
- 35de Jersey CJ said (at paragraph [19]):
“Asked to exercise the discretion under rule 189(3), a Court would ordinarily expect sworn verification of the circumstances justifying a grant of leave. Those circumstances may include why no response to the notice was made as required, the response the party would belatedly seek to make, and confirmation that the response would accord with evidence available to be led at a trial.”
- 36McPherson JA said (at paragraph [27]):
“Before permitting the admission to be withdrawn, the first step to be determined here was whether there was a genuine dispute about the defendant's liability in this action. Drawing on the analogy provided by another branch of the law, it is not enough for that purpose simply to assert that a dispute exists: see re Brighton Club and Norfolk Hotel Co Ltd (1865) 35 Beav 204, 205; (1865) 55 ER 873, 874. Some proper basis must be laid for that assertion, which would ordinarily include an explanation of how the earlier admission came to be made and why it should not be permitted to be withdrawn. That is not shown by saying simply that there has been a change of solicitors, or that it is possible to see that, before the admission was made, the issue of liability was an open question. 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 now justify its withdrawal.”
- 37Williams J (as he then was) said (at paragraph [32]):
“Certainly an admission flowing from the operation of rule 189 should not be withdrawn merely for the asking. In my view a clear explanation on oath should be given as to how and why the admission came to be made and then detailed particulars given of the issue or issues which the party would raise at trial if the admission was withdrawn. Such a requirement is generally in accordance with the reasons of Roger CJ in Coopers and of Mackenzie J in Equuscorp Pty Ltd v. Orazio (unreported, S9208/96, judgement 30 November 1999). That ought not to be taken to be an exhaustive statement of what is required. Each case should be considered in the light of its own facts and the circumstances may well require even more extensive material in order to obtain leave to withdraw the admission.”
- 38The appellant argued before me that Rigato Farms v. Ridolfi (Supra) was really quite a different case from the present, particularly as in that case the party seeking leave to withdraw deemed admissions made the application on the very morning the trial was to take place, without notice and without sworn evidence.
- 39It was further argued by the appellant that the Court of Appeal did not purport to lay down some inflexible rule that in respect of every application for leave to withdraw admissions made under rule 189(2) there must be sworn particulars of the issue or issues the party would raise at trial if the admissions were withdrawn.
- 40I accept that proposition. I note that the Chief Justice said at paragraph [19] that asked to exercise the discretion under rule 189(3) a Court would ordinarily expect sworn verification of the circumstances justifying a grant of leave. (The emphasis is mine).
- 41I refer to the passage quoted above from the judgement of McPherson JA and note in particular his Honour's statement that it is not enough simply to assert that a dispute exists.
- 42It is clear that in this case the appellant has not given on oath the detailed particulars of the issue or issues which it would raise at trial if the admissions were withdrawn.
- 43The appellant's contention that it has fulfilled its obligation because of the delivery of further and better particulars is not accepted. The further and better particulars relate to the appellant's counterclaim.
- 44The Magistrate had regard to the notice disputing facts. He said (at page 9 lines 40 to 55 of his reasons):
“In that regard the notice disputing facts in itself I find to be nothing more than a paraphrase of the notice to admit facts, the only differing factor being that the notice is broken up into disputed facts and admitted facts.”
- 45The notice disputing facts may have been an adequate response to the notice to admit facts had it been delivered in a timely manner. That is not the issue. When a party has not complied with the rules and has delivered the notice disputing facts much later than required (and here it was over two months late) and then seeks the exercise of discretion in its favour to have deemed admissions withdrawn, it is, in my view, incumbent upon that party to give particulars of the basis upon which it wishes to dispute the facts the admission of which is sought. It is not sufficient to state merely that a fact is disputed. Ordinarily those particulars must be given on oath. There should also be confirmation that evidence will be called at the trial to support the appellant's case as disclosed by those particulars. The evidence of Mr Dolley that certain named persons will be called does not meet that requirement.
The notice to admit facts seeks admissions which relate to the respondent's answer to the counterclaim which makes positive assertions of fact. In those circumstances as is submitted by the respondent, even if it were the case that merely referring to the further and better particulars were sufficient to “condescend to particulars” those further and better particulars do not address the subject matter of the notice to admit facts.
- 47In those circumstances it seems to me that there was really no sworn or indeed unsworn material before the Magistrate giving detailed particulars of the issues which the appellant would raise at trial if the admissions were withdrawn.
- 48The appellant has argued that on the material before the Magistrate there were real issues to be tried and that these are disclosed in the counterclaim, the answer and the two affidavits of Mr King filed on the 28th of July 2003. However, it seems to me that an applicant on an application such as that before the Magistrate must go much further than that and should ordinarily indeed adduce sworn evidence of the particulars of the issues sought to be raised at trial and confirm that the response would accord with the evidence available to be led at trial.
- 49The evidence of Mr Dolley as to the witnesses he intends to call is not sufficient compliance with the obligation referred to in the preceding paragraph nor is the assertion by Mr King set out in paragraph 18 of these reasons.
- 50The learned Chief Justice said at paragraph [23] and paragraph [24] of the judgement in Rigato Farms v. Ridolfi (Supra):
“...appeal courts should be especially circumspect about interfering with decisions on matters of practice and procedure....the constraints confirmed in House v. The King are real constraints, to be respected not perfunctorily discarded, and they are especially powerful in limiting an appellate court, in a case of this character.”
“[24] Judges who at first instance, astute to the philosophy behind the UCPR, make procedural rulings which reflect that philosophy, sometimes proceeding with an appropriate robustness, should be able to proceed confident that their rulings will not on appeal be subjected to a pedantic or overly intrusive re-examination.”
- 51In my view the appellant has failed to establish any basis upon which I should interfere with the learned Magistrate's dismissal of the application for leave to withdraw admissions.
- 52As to the appeal against the granting of summary judgment, it seems to me to be clear that so far as the respondent's claim is concerned it was admitted in the appellant's defence and there is no basis for interfering with the learned Magistrate's decision.
- 53Rule 293(2) provides:
“(2) If the Court is satisfied:
- (a)the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's claim: and
- (b)there is no need for a trial of the claim or the part of the claim:
the Court may give judgement for the defendant against the plaintiff for all or the part of the plaintiff's claim and may make any other order the Court considers appropriate.”
- 54So far as the grant of summary judgment in respect of the counterclaim is concerned, the respondent is entitled to rely upon the deemed admissions. The appellant's counterclaim is based upon an allegation that in essence the pellets into which the stockfeed meal supplied by the appellant to the respondent had been processed were not fit for the purpose for which they were intended although the pleading is not so expressed.
- 55Paragraph 17 of the notice to admit facts was:
“the stockfeed pellets delivered by the plaintiff to the defendant were reasonably fit for the purpose for which the stockfeed pellets were intended.”
- 56By virtue of rule 189(2) this fact is taken to have been admitted by the appellant as indeed have all the facts in the notice to admit. That admission and the admissions to each of the facts at paragraphs 12 to 20 of the notice to admit facts in my view destroys any prospect of success on the counterclaim and shows that there is no need for a trial of the counterclaim.
- 57In Bernstrom v. National Australia Bank (2002) QCA at 231 the Court of Appeal held that rule 293(2) directed the Court to the need to see whether the plaintiff had a realistic as opposed to a fanciful prospect of success.
- 58On the basis of the deemed admissions and especially those contained at paragraphs 12 to 20 of the notice to admit, there was ample material for the Magistrate to be satisfied that the appellant had no real prospect of succeeding on all or any part of its claim and that there was no need for a trial of the claim or any part of the claim.
- 59No basis has been established for interfering with the learned Magistrate's grant of summary judgement in favour of the respondent in respect of the appellant's counterclaim. The learned Magistrate did not act upon a wrong principle. He did not take into account irrelevant or extraneous matters, nor did he fail to take into account any material consideration or proceed on a misapprehension of the facts.
- 60The appeal is dismissed.
MR DRUMMOND: Thank you, your Honour. I'd ask for costs.
HIS HONOUR: Yes.
MR DAVIES: I can not oppose that, your Honour. I wish I could.
HIS HONOUR: I order that the appellant pay the respondent's costs of and incidental to the appeal to be assessed.
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