Bovey v McCarthy[2005] QDC 328

CITATION: Bovey v McCarthy & Anor [2005] QDC 328

PARTIES:

v

AND

FILE NO/S: Mackay D25/2005

DIVISION:

PROCEEDING: Application

ORIGINATING COURT: District Court, Mackay

DELIVERED ON: 28 September 2005

DELIVERED AT: Mackay

HEARING DATE: 28 September 2005

JUDGE: McGill DCJ

ORDER: Leave to withdraw admissions; cross-application dismissed

CATCHWORDS:

PRACTICE – Withdrawal of admission – admission in pleading – whether making inappropriate admission explained – effect of prelitigation MAIA proceeding – whether prejudice – costs

UCPR r 188

Cassie v Bodgan (2004) QSC 271 - followed

Coopers Brewery Ltd v Pantheda Foods Ltd (1992) 26 NSWLR 738 - applied

Foreman v Lee (2005) QSC 86 - distinguished

State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 - applied

CIVIL JURISDICTION

JUDGE McGILL SC

and

and

MACKAY

..DATE 28/09/2005

ORDER

HIS HONOUR: This is an application for leave to withdraw admissions in a pleading. The situation is that the action was commenced by a claim and statement of claim filed on the 21st of March 2005. A notice of intention to defend and defence were filed on the 20th of April 2005.

The action arises out of a motor vehicle accident which is alleged to have occurred on 14 December 2002 at a roundabout at an intersection of two streets in Mackay. The plaintiff approached the roundabout travelling in a westerly direction and a collusion occurred with the vehicle driven by the first defendant, who was approaching the roundabout heading in a southerly direction, that is from the right of the plaintiff's vehicle. According to the driver of the vehicle that was following the defendant's vehicle, the defendant's vehicle struck the plaintiff's vehicle in the centre of the plaintiff's vehicle on the driver's side, hitting the driver's side door.

Prior to commencing the proceedings, of course, the plaintiff gave a Notice of Accident Claim Form as required by the Motor Accident Insurance Act. In that form the version given by her was that, “I looked to my right and saw no cars coming as I entered the roundabout in a westerly direction... I do not recall anything that happened about the accident after this. The next thing that I can remember was Geoffrey, a passenger in the car, speaking to me.” She also said she did not see how the accident occurred.

In an Additional Information Form provided under the Act and signed by her on the 23rd of February 2004, when asked to advise any additional information which would assist to understand the circumstance and cause of the accident, she simply said, “No, I did not see how the accident occurred.” The plaintiff also obtained a statement from a passenger in the plaintiff's vehicle to the effect that as they approached the roundabout he looked to his right and saw there were no oncoming vehicles, but the vehicle he was in then travelled on to the roundabout and as it was approximately half-way on to the right-hand lane of the roundabout, he saw the defendant's vehicle coming towards his vehicle quite quickly and a split second later it collided with it.

The plaintiff also had available a witness whose vehicle had been approaching the roundabout from behind the defendant's vehicle. This witness claims to have been overtaken by the defendant's vehicle while himself travelling at about 50 to 55 kilometres per hour a little before the roundabout. He says that as he approached the roundabout he was about 25 feet behind the defendant's vehicle and he noticed the plaintiff's vehicle enter the roundabout just prior to the defendant's vehicle reaching the entrance to the roundabout.

He describes the plaintiff's vehicle as having slowly entered the roundabout and having done so before, though it must have been just before, the defendant's vehicle entered the roundabout, in each case by the vehicle crossing the dotted line. If that witness's version is believed, it would suggest that the defendant's vehicle was pretty close to entering the roundabout to the plaintiff's right at the time when the plaintiff entered the roundabout herself, notwithstanding that neither she nor her passenger claimed to have seen it.

The defendant's insurer, the second defendant, had available a version recorded by the investigating police officer in the Traffie Incident Report which was in the following terms:

The second defendant, on 18 March 2003, wrote to the first defendant asking the first defendant to make contact to provide his version of the accident circumstances but the first defendant did not at that stage comply. However, in June 2003, no doubt mindful of the timetable in the legislation, the second defendant denied liability.

There was held a compulsory conference after, I gather, a couple of adjournments on 16 February 2005. At that stage the second defendant still had not obtained a statement from the first defendant but the solicitor for the second defendant decided to proceed with the compulsory conference in the hope that liability could be settled anyway on the basis of the material which was available and without the benefit of a full statement. It was submitted on behalf of the plaintiff that this reflected a failure on the part of the defendant, the second defendant, properly to investigate the question of liability prior to the time of the compulsory conference because at that stage the second defendant had not obtained a report from the loss assessor and a proper statement from the first defendant.

It is true those steps were not undertaken until after the compulsory conference was unsuccessful. Nevertheless, there must, I think, be limits to the length to which an insurer can be expected to go prior to holding a compulsory conference. Apart from anything else, there is a time limit in the statute within which these conferences are supposed to be held and the Courts are now getting, more and more frequently, applications by prospective plaintiff's for the Courts to fix a date for a compulsory conference because insurers are not holding them, both in respect of this legislation and other legislation.

The system contemplates that these matters will proceed reasonably expeditiously and the situation, at least that I have adopted, is that insurers are not entitled to put off holding a compulsory conference indefinitely merely because there might be some possible further investigation which could be undertaken. If that approach is adopted there will never be a compulsory conference because matters could always be investigated further.

The statute contemplates a six month time limit for a compulsory conference and in my view that should be the guiding principle and, really, it would be a matter of the insurer undertaking reasonable investigations, such investigations as are reasonable in all the circumstances, bearing in mind all of the material which is available to the insurer. In my opinion, on the material presently available, it was not unreasonable for the insurer to have failed to pursue any further inquiries prior to the compulsory conference. Liability or, indeed, the whole claim might have been settled at that stage.

In the event, it was not and an action was commenced. The defence was filed within the time limits required by the rules but prior to obtaining the investigator's report. The formulation of the defence was, perhaps, a little unwise in that respect because there are aspects of the statement of claim which were admitted in that defence which, in that respect, ought not to have been admitted. That is really the issue at the present time.

The statement of claim alleged in paragraph 5:

In response to that the defendant admitted paragraphs 5(a)-(c). As to the balance of that paragraph in the statement of claim, paragraph 1(b) of the defence said:

Paragraph 3 alleges that there was a failure to give way to the vehicle and a failure to keep any or any proper lookout, and a failure to observe the first defendant's vehicle when it ought to have been observed.

It appears that at least paragraph 5(b) in the statement of claim might have been misread or perhaps the full significance of what was alleged there was missed. What was alleged there is not actually an allegation as to the state of observation undertaken by the plaintiff but rather an allegation that there were no vehicles on the roundabout, nor any vehicles about to enter on to the roundabout from the plaintiff's right.

On the information then available to the first defendant, or the defendants, it was not appropriate to make that admission and, indeed, presumably, although there can be no evidence about it, that must have been apparent at the compulsory conference. Indeed, it is something which emerges from the material made available by the plaintiff's solicitors.

Nevertheless, that admission was made and clearly in the circumstances was a mistake. What has happened since then is that the investigators have made contact with the first defendant and obtained the statement in which he alleges that his vehicle actually entered the roundabout first.

Counsel for the plaintiff has submitted it is a matter of some importance in relation to liability whether it was the plaintiff's vehicle or the first defendant's vehicle that entered the roundabout first. I am not, as presently advised, persuaded that it makes much difference at all, frankly, and it seems to me that even on the plaintiff's version the main cause of the accident was that the plaintiff failed to keep a proper lookout to her right as she approached and entered the roundabout.

However, I have not heard full argument on this matter and, of course, it may be that the trial Judge will take the view that this is a matter of some importance. However, if it is a matter of some importance, then it means that the pleadings in the present case, by mistake, make an admission which is of importance, as the plaintiff's counsel has conceded, to the resolution of the factual matters in the action.

It is well established by high authority that the overriding consideration in any curial proceeding must always be that the Court should, as far as possible, ascertain the true facts and base its judgment upon them. That particular proposition comes from the judgment of Rogers J in Coopers Brewery Ltd v. Panfida Foods Ltd (1992) 26 NSWLR 738 at 742, cited with approval by Chesterman J in Cassie v. Bogdan [2004] QSC 275. Reference may also be made to the views expressed in the High Court in Queensland v. J L Holdings Pty Ltd [1997] 189 CLR 146 to similar effect.

There is the further consideration that at this stage the matter is not set down for trial, let alone been given a trial date. In that respect the situation is quite different from that which confronted Fryberg J in Foreman v. Lee (2005) QSC 86, a case where there was an application to make amendments to the defence in relation to an issue of quantum, in circumstances where quantum was the only matter remaining in issue, and the application was made on the day of the trial, and the plaintiff's advisers had only been given notice of the proposed application, I gather, the previous day and were really not in a position to meet the new issues raised by the proposed amendment. I think that is sufficient to distinguish that decision.

In this case the matter is not listed for trial, although there was a cross application for the defendant's signature to the request for trial date to be dispensed with. It appears, indeed, that both parties say that the matter essentially is ready to be certified for trial.

It is true that the Motor Accident Insurance Act provides in section 51B(5)(d) that prior to the holding of a compulsory conference the parties are required to certify that the action is ready for trial. I have commented elsewhere on the artificiality and, indeed, absurdity of this requirement. The parties could not possibly be ready for trial in circumstances where a proceeding has not commenced, and the legislation prohibits the commencement of a proceeding prior to the time when a compulsory conference is heard.

Parties cannot be ready for trial until there has been at least an exchange of pleadings and there cannot be an exchange of pleadings prior to the commencement of the proceeding, and the proceeding cannot commence prior to the holding of the compulsory conference. The requirement of the legislation is therefore manifestly absurd. I do not think that the discretion in relation to giving leave to withdraw an admission on the defence should be distorted by these legislative absurdities.

The explanation for the making of what can now be seen to have been an inappropriate admission seems initially to have been a misreading of the pleading on the part of the solicitor for the defendants and also the fact that further information became available when, somewhat belatedly, the first defendant began to cooperate and provided a statement as to what I happened, at which stage there was, for the first time, some indication that there would be evidence available not only that the first defendant's vehicle was, apparently, in plain sight approaching the intersection at the time when the plaintiff entered it, but had actually entered the intersection at that time.

Of course, that evidence is inconsistent with the other evidence to which I have referred, but that is something which would have to be resolved by the trial Judge. It does mean that it was inappropriate for the matter to go to trial on the basis of an admission on the pleadings that the plaintiff's vehicle had entered the roundabout prior to the time when the first defendant had entered the roundabout; a matter which, as I say, is regarded by counsel for the plaintiff as being of considerable importance in the resolution of the issue of liability in this action.

The circumstances as to how the admission came to be made have therefore been explained and inevitably in a situation like this, where leave is sought to withdraw an admission, the explanation will reveal that, with the benefit of hindsight, the admission was a mistake. So it is unsurprising that that is the situation revealed here.

In relation to the question of prejudice, the only prejudice relied upon on behalf of the plaintiff is that the first defendant's statement has identified the two people present in his vehicle by reference to name but does not provide an address for them. That there were two other people present in the first defendants vehicle was revealed by one of the statements referred to earlier from another witness, which the plaintiff had, but the plaintiff had no information as to the identity of those people. The plaintiff now knows their names but not their addresses. It was apparently the then girlfriend of the first defendant and her son but the first defendant has advised that he is not aware of their current whereabouts, which may well be true.

The defendants' solicitor has made at least some investigations to locate them and has been unsuccessful so far. It may well be very difficult to locate them in the circumstances and what they could say is, of course, unknown, although it occurs to me that a former girlfriend of the first defendant may well not be disposed to say anything which is of assistance to him, and that factor may well be a factor which would be relevant if she did give evidence ultimately at a trial of that character.

I suspect that more will turn in the trial on the evidence of those witnesses who are independent, or apparently independent, of both parties but that, again, is a matter which cannot really be decided in advance. It does not seem that any particular difficulty that the plaintiff suffers in relation to the inability to trace these potential witnesses is really much different from the difficulty the defendant suffers, in circumstances where it is not known whose version will be supported. Indeed, I doubt whether in the circumstances a failure to call those witnesses would result in any inference being drawn against either party.

It seems to me, frankly, that that is not in itself any significant prejudice. There is no reason to think the amendment will result in any real delay to the action. It has not been tried in this sittings, which has been the first civil sittings in Mackay for some time. I do not know when the next one will be but there is no reason to think the action will not come to trial during it.

In those circumstances I think it is appropriate to give leave to the defendant to amend the defence in a way which would involve withdrawing the admission of paragraphs 5(b) and (c) and such of the contents of paragraph 1(b) of the defence which amounts to an admission of paragraphs 5(d) to 5(e) of the Statement of claim.

I have been provided with a draft defence.

...

HIS HONOUR: I will give you leave to make amendments as the defendants may be advised but withdrawing the admissions in the way that I have indicated.

...

HIS HONOUR: Leave to file and serve an amended defence within seven days on the basis that I have indicated.

..

HIS HONOUR: I do not think I need to make an order on the plaintiff's application in those circumstances.

...

HIS HONOUR: In relation to the question of costs, it is not uncommon for the defendant to pay the costs of an application for leave to withdraw an admission, even though leave is granted, on the basis that the admission ought never to have been made and I think that, to some extent at least, it is right to say that some of the matters admitted ought not to have been admitted, even in the state of the information reasonably in the possession of the defendants' solicitors at the time when the defence was originally filed.

So I think that the ordinary principles should follow, subject to the consideration that I am still not really persuaded that it was an appropriate case for cross-examination of Mr Chrara, although it may be that because an affidavit was used which was not served, required time in advance of the hearing, the rule required Mr Chrara to be available for cross-examination anyway.

...

HIS HONOUR: Yes. Rule 439(3) provides:

So given that there was a further affidavit of Mr Chrara sworn yesterday, I assume that was not served at least two business days before the hearing.

...

HIS HONOUR: In the circumstances, given that rule, I do not I think it would be appropriate to depart from the order which would otherwise be generally made in a matter such as this, so I will order the defendants to pay the plaintiff's costs of the defendant' application and the costs thrown away by the amendment to be assessed.

...

HIS HONOUR: The plaintiff's application is dismissed and I order the plaintiff to the pay the defendants' costs of the plaintiff's application to be assessed.

...

HIS HONOUR: I think the plaintiff's application was really unnecessary, so the plaintiff's application is dismissed and I order the plaintiff pay the defendants' costs of the plaintiff's application to be assessed.

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