Ding v Beta Gamma 51 Pty Ltd
[2004] QDC 270
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- Unreported Judgment
- Ding v Beta Gamma 51 Pty Ltd[2004] QDC 270
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Ding v Beta Gamma 51 Pty Ltd[2004] QDC 270
Ding v Beta Gamma 51 Pty Ltd[2004] QDC 270
DISTRICT COURT | No BD4079 of 2004 |
CIVIL JURISDICTION
JUDGE SAMIOS
MARLENE JOYCE DING | Applicant |
and
BETA GAMMA 51 PTY LTD | Respondent |
BRISBANE
..DATE 22/07/2004
JUDGMENT
HIS HONOUR: This is an appeal from the decision of the learned Magistrate at Brisbane on 26th November 2003. What the learned Magistrate did on the 26th of November 2003 is to refuse an oral application by the second defendant to withdraw admissions that arose as a consequence of the defendants failing to respond to a notice to admit facts served on the 4th of August 2000.
Having refused the oral application to withdraw the admissions the Magistrate then proceeded to give judgment in favour of the plaintiff against the second defendant for the sum of $40,834,78 comprised of $19,303.88 for the claim, $15,030.90 for interest and $6,500 for costs.
The learned Magistrate also ordered that the counterclaim of the first and second defendants against the first defendant added by counterclaim, one Kenneth Ralph Neilson and also against the plaintiff, be struck out. The learned Magistrate also ordered that the claim by the plaintiff against the first defendant be struck out. The learned Magistrate made no orders as to the costs in respect of the claims and the counterclaims were struck out.
The grounds of the appeal are that the learned Magistrate exercised his discretion wrongfully in not allowing the oral application to set aside the admissions. Further, that he did not take into account the delay of the plaintiff in the action when exercising his discretion under section 189 of the Uniform Civil Procedure Rules and did not give full weight to the sworn denials of liability by the second defendant and the first defendant who was the driver of the motor vehicle which happens to be jointly owned by the first defendant and the second defendant. Those sworn denials of liability were contained in affidavit material filed in the action.
The proceedings between the plaintiff and the first defendant and the second defendant relate to property damage occasioned to two motor vehicles involved in a collision on the Bribie Island Road on 6 January 1996. The plaintiff's claim which was then brought by one John Burnett Murphy was filed on 13 June 1996. Mr Murphy was replaced as the plaintiff by Beta Gamma 51 Pty Ltd on an application made later in the course of the proceedings.
At one stage in the course of the proceedings, because the defendants had failed to file a appearance and defence, judgment was entered against the defendants. However, that judgment was set aside. Thereafter the defendants filed a defence in which negligence on the part of the first defendant, who was the driver of the defendant's motor vehicle, was denied.
In the course of the proceedings the defendants swore answers to interrogatories and these were filed on 20 July 1998. The answers to interrogatories described the movement of the vehicles according to the defendants and also swears to distances and speeds. In terms of the allegations raised in the proceedings, it would seem that one of the issues was whether the vehicle driven by the first defendant came back on to the roadway after having stopped to leave so passengers disembark. An issue that would appear to arise is whether that movenent of the vehicle driven by the first defendant was such as to be a reason for a finding of negligence against the first defendant.
Consistent with the denial of negligence in the defence, the defendants' answers to interrogatories could be taken to imply that the cause of the collision was the negligence of the driver of the plaintiff's motor vehicle. That was not expressly asserted but that is what could be taken to be the implication from the answers.
As matters progressed in the action the number of interlocutory steps were completed by the parties. However, as can be seen from the evidence, the notice to admit facts that is relevant to this appeal was delivered to the defendants under cover of a letter dated 4 August 2000. The notice to admit facts sought the admission of the following facts:
“1.the quantum of the plaintiff's claim in the sum of $19,303.88;
- the first defendant was, at all material times, the agent of the second defendant;
- the collision, the subject of this claim, was caused solely through the negligence of the first defendant;
- the plaintiff drove, at all material times, at a speed at or below 90 kilometres per hour.”
There is no dispute that there was no response to the notice to admit facts. Consequently, the effect was, because of the rules, those facts were deemed to be admitted as they had not been denied by a response from the solicitors for the defendants.
The plaintiff filed an application in the Court on the 26th of November 2003 seeking judgment pursuant to Rule 190 of the Uniform Civil Procedure Rules against the second defendant in respect of the claim by the plaintiff against the defendants in the sum of $19,303.88 and interest and costs.
As is recorded in the Magistrates file and there is no issue about this, the solicitor for the second defendant appeared on the hearing of the application and made an oral application for withdrawal of the admissions. The learned Magistrate read the material, heard the parties and declined to exercise his discretion to allow the deemed admissions to be withdrawn.
The affidavit of the solicitor for the second defendant which was before the learned Magistrate noted that the first defendant had died on 27 November 2002, however, his firm continued to act for the second defendant, who was the respondent to the application. Mr Deed, the solicitor, swore that a solicitor employed by his firm was in control of the matter but had since left the firm. Further, that an affidavit from by one Deborah Neilson filed on behalf of the plaintiff/applicant before the learned Magistrate was not brought to his attention.
He swore it has always been the second defendant's instructions that she denied liability for the damage sustained by the plaintiff in the meter vehicle accident, the subject of the proceedings. He swears:
“The notice to admit facts referred to in the affidavit of Deborah Neilson is on our client's instructions disputed. A letter denying the admissions should have been sent to the plaintiff' solicitors as it was always the defendant's intention to defend the action.”
He goes on to say he spoke to the second defendant on the day of swearing his affidavit and on previous occasions and she indicated every intention of denying liability. He goes on to say in his affidavit that the failure to admit the facts contained in the notice has arisen because of the death of the first defendant. As a conseguence instructions had not been received from his estate and, secondly, on behalf of the second defendant as a consequence of the failure of the solicitor employed by Mr Deed's firm to bring the notice to admit facts to his attention before she left the employ of the firm.
He also noted in his affidavit that the matter had been set down for a hearing on Monday, 28 April 2003 at which time the second defendant intended to dispute liability, however, the trial was adjourned. He noted the first defendant had passed away, was not able to give evidence nor able to provide instructions to dispute the notice to admit facts. He then requested the judgment not be entered against the second defendant and he sought leave to be able to serve a notice of non admission of facts and to agree to have the matter set down for a further hearing date.
Notwithstanding Mr Deed's application as noted earlier the learned Magistrate exercised his discretion by refusing to allow the deemed admissions to be withdrawn and proceeded to give judgment, the judgment I have referred to earlier.
There is evidence to show that the collision between the two motor vehicles, the subject of the proceedings, was investigated by the police and statements made by the respective drivers and there are also witnesses identified in the police report.
On the hearing before the learned Magistrate the learned Magistrate is recorded as making the following comments which I accept for the purposes of this appeal:
“There has been delay by both parties in progressing the claim. No reason has been given why the action is still going after six years. The notice to admit was delivered in August 2000 and no response was made in three years. Response required in 14 days. Since then one defendant has died. Although there is affidavit evidence it is of dubious benefit where there is no opportunity to cross-examine the deponent. Rigato Farms is the authority. Must be sworn evidence of explanation for failure to resoond. There is an affidavit which refers to the reasons (death of defendant) but cannot be a reason because he died after the notice to admit facts was delivered? therefore, I do not have an affidavit swearing to the explanation for the nonresponse. There is no dispute that there is a dispute. One defendant is now dead. Decision is not to exercise discretion to allow the defendant's deemed admissions to be withdrawn.
Involving, as it does, the exercise of a discretion the test for an appellate Court interfering with the exercise of the discretion exercised by a lower Court is well settled. In House and the Queen, 1936, 55 CLR 499 at 504, the majority of the High Court said:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the Judges composing the appellate Court consider that if they had been in the position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration then his determination should be reviewed and the appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.”
It is to be noted, as his Honour Judge Boyce QC observed in Dougmax Pty Ltd v. Hodges, 2003 Queensland District Court 14 at paragraph 41, “These difficulties are compounded when the discretion is exercised in the course of a decision pertaining to practice and procedure.”
In Ridolfi and Rigato Farms Pty Ltd (2001) 2 Queensland Reports 455, the Chief Justice said at paragraph 20:
“There is no principle that admissions made or deemed to have been made may always be withdrawn ‘for the asking’, subject to payment of costs. The discretion is broad and unfettered as exemplified by Coopers Brewery Ltd v. Panfida Foods Ltd (1992) 26 New South Wales Law Reports 738 and Equuscorp Pty Ltd and Orazio (1999) Queensland Supreme Court 354.”
Further, the Chief Justice said at paragraph 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. 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.”
A little further in paragraph 22 the Chief Justice says:
“parties do not have inalienable right to a hearing of all issues on the merits. Rule 5 Subrule 3, for example, confirms each party's obligation to proceed expeditiously or risk sanctions (Rule 5 Subrule 3-4) which may include dismissal.”
I have also considered what their Honours, McPherson JA, and Williams J, as he then was, stated in Ridolfi, in the end agreeing with the order proposed by the Chief Justice, that the appeal in that case be dismissed with costs to be assessed. That is the Chief Justice found no ground had been established warranting interference with the Judge's ruling in that case that was the subject of appeal before the Court of Appeal, the ruling to the effect being to not allow the admissions that had been made in that case to be withdrawn.
The affidavits that have been read on this appeal before me show that the proceedings between the parties had been on foot for many years. The learned Magistrate seems to have recognised there had been delay in the progress of the proceedings.
Further, the learned Magistrate appeasers to have proceeded on the basis that he did not have an affidavit swearing to the explanation for the non-response to the notice to admit facts. However, it does appear, in my opinion, that there was an explanation in Mr Deed's affidavit.
In part the explanation referred to the passing away of the first defendant, however the explanation also referred to the second defendant's position which had not been protected by a solicitor in the firm. Even though that may amount to inadvertence on the part of that solicitor, it remained the case, as indicated on the material before the learned Magistrate, that a judgment had been entered in default of appearance which had been set aside and a defence had been filed which denied negligence on the part of the driver of the defendant's vehicle and, further, there were, answers to interrogatories which, in my opinion, by inference, demonstrated that the defendants were asserting that if there was fault for the collision, it lay with the driver of the plaintiff's vehicle and not the first defendant. Having that background before the learned Magistrate, it is my view that the learned Magistrate, while recognising there had been delay, placed the responsibility for that delay or the result of that delay at the feet of the second defendant. Further, the learned Magistrate appears to have misapprehended the affidavit of Mr Deed and the other material available which did explain the omission and in the context of the circumstances that I have indicated earlier, namely the history of the proceedings and the answers to interrogatories, failed to take into account those considerations when exercising the discretion.
In those circumstances, while I am conscious that this appeal is not to be approached on the basis that it is enough that I would have taken a different course, I am satisfied that there has been demonstrated by the appellant error in the exercise by the learned Magistrate of his discretion, that is at least to the extent of the issue of negligence.
On the hearing of this appeal, Mr Burnett of counsel, who appears for the appellant, does not submit that the learned Magistrate, in all the circumstances as they have now transpired, ought to have allowed the withdrawal of the other admissions, the real issue being, Mr Burnett submitted, that of negligence, and that has not been allowed to be determined on the merits.
I accept that in all the circumstances here the appeal ought to be allowed and I allow the appeal to the extent of allowing the appellant to withdraw the admission as to negligence.
...
HIS HONOUR: I allow the appeal. I order the Magistrate's decision granting judgment against the second defendant and striking out the second defendant's counterclaim be set aside. I give the second defendant leave to withdraw the admission as to negligence making it clear that that leave does not extend to the other admissions which remain deemed admissions for the purposes of any further proceedings between the parties.
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HIS HONOUR: Although the appellant has succeeded on having one of the deemed admissions withdrawn by this appeal and there were four in total my view of the appeal is that it was an appeal about that one issue. The respondent/plaintiff could have and did not offer to settle the appeal on the basis of conceding that the deemed admission with respect to negligence could be withdrawn, although the appellant/second defendant did not also do so. Nevertheless I consider the appellant/second defendant has been successful and that the appeal was really about that admission and not the other three.
There was ready admission made and concessions made by Mr Burnett of counsel on the hearing of this appeal that what was really in issue is what the appellant/second defendant has succeeded upon. I think it would be unfair not to allow the appellant/second defendant its costs of this appeal in the circumstances.
I order the respondent/plaintiff pay the appellant/second defendant's costs of the appeal to be assessed.
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