Rapid Metal Developments (Australia) Pty Ltd v Griffiths
[2005] QDC 48
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- Unreported Judgment
- Rapid Metal Developments (Australia) Pty Ltd v Griffiths[2005] QDC 48
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Rapid Metal Developments (Australia) Pty Ltd v Griffiths[2005] QDC 48
Rapid Metal Developments (Australia) Pty Ltd v Griffiths[2005] QDC 48
DISTRICT COURT OF QUEENSLAND
CITATION: | Rapid Metal Developments (Australia) Pty Ltd v Griffiths [2005] QDC 048 |
PARTIES: | RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD Appellant v DAVID JAMES GRIFFITHS Respondent |
FILE NO/S: | Appeal 3689/2004; M6276/2003 |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Brisbane |
DELIVERED ON: | 10 March 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 February 2005 |
JUDGE: | McGill DCJ |
ORDER: | Order of the Magistrates Court of 16 September 2004 varied so as not to give leave to withdraw the deemed admission of the authenticity of the documents in the notice to admit documents served on 13 August 2004 on behalf of the plaintiff. Appeal otherwise dismissed. No order as to costs. |
CATCHWORDS: | PRACTICE – Notice to admit – leave to withdraw deemed admissions – effect of admission of authenticity of a document. UCPR r 189. Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2002] QCA 380 – applied. Ridolfi v Ragato Farms Pty Ltd [2001] 2 Qd R 455 – followed. |
COUNSEL: | H J Zillman for the appellant The respondent appeared in person |
SOLICITORS: | James Conomos Lawyers for the appellant The respondent was not represented. |
- [1]This is an appeal from an order of a magistrate on 16 September 2004 giving the respondent leave to withdraw admissions deemed to have been made because of a failure to respond to a notice to admit facts and a notice to admit documents, each dated 13 August 2004 and served on the respondent under r 189. The respondent did not respond within the time limited by the rule to either of those notices, and accordingly the question before the magistrate was whether leave to withdraw the deemed admissions should be given. The magistrate decided to give leave, and the appellant, the plaintiff before the magistrate, appeals against that decision. In order to understand the context in which the decision was made, it is necessary to say something about the nature and history of the proceeding in the Magistrates Court.
History of action
- [2]The action was commenced by the filing of a claim and statement of claim on 13 May 2003. These allege that the plaintiff is entitled to recover a total of $26,683.33 plus interest for goods sold and delivered by the plaintiff to the defendant, goods hired to the defendant, and services rendered to the defendant at its request, during the period of January to April 2003. Particulars were given of invoices, and two relatively small credits and a small payment. The plaintiff claimed interest pursuant to a contract between the parties.
- [3]By a defence and counter-claim filed 17 June 2003 the defendant among other things alleged that the contract was to hire formwork, plant and equipment for a particular amount each week in respect of a particular job. He also alleged that there were inaccuracies in the plaintiff’s material, and it did not accurately reflect the actual materials supplied or delivered to the job site. He also alleged that he made more payments than the plaintiff had given credit for, the plaintiff had failed properly to account for material returned to it in error, and had not properly accounted for hired material returned to the plaintiff. There was also a counter-claim pleaded; it is not necessary to look at that in detail, because it was for an amount in excess of the jurisdiction of the Magistrates Court, and was struck out.
- [4]On 20 June 2003 the plaintiff filed an application to have the counter-claim struck out; an order to that effect was made by a magistrate on 26 June 2003, and the defendant was ordered to pay the plaintiff’s costs of that application. Then on 25 August 2003 the plaintiff filed an application for summary judgment. Filed in support of that application was an affidavit by the regional office manager of the plaintiff. Paragraph 7 of that affidavit said: “The defence of the defendant seeks to dispute the plaintiff’s claim on the basis that” and then went on to list 16 specific grounds of defence which had been identified by the plaintiff, presumably from the defence which had been filed. Among the specific grounds were:
“(e) the invoices and accounts of the plaintiff are inaccurate and do not accurately reflect the actual timber, ply and steel framework delivered or supplied to the job site;
(f) the statements of account provided by the plaintiff for December 2002, January 2003, February 2003 and March 2003 are inaccurate;
(m) the plaintiff’s invoices are inaccurate and require reconciling;
(o) the plaintiff’s claim includes overcharges for materials and goods that were not belonging to the plaintiff and have been collected or returned to the plaintiff or its agent and returned to the plaintiff’s storage yard and in fact belong to the defendant and are referred to as over returns and the defendant estimates at least $15,000 of the defendant’s goods are presently in the control or hands of the plaintiff and must be returned to the defendant or set-off;
(p) the plaintiff’s invoices include charges for shortages of goods delivered but not returned to the plaintiff, such shortages were returned to the plaintiff’s yard and were not counted immediately or in fact up to several days following return to the plaintiff’s yard and the delays in counting of goods returned to the plaintiff’s yard has resulted in the production of inaccurate invoices.”
- [5]For present purposes what is significant about this is that it shows that as at 25 August 2003 the plaintiff was well aware of the basis of the defendant’s defence, and in particular that the accuracy of the plaintiff’s documents was disputed. On 15 September 2003 the defendant filed a cross-application, seeking better disclosure and leave to file an amended defence thereafter, and that the matter be referred to mediation. These applications came before a magistrate on 15 September 2003. It appears from the file that the defendant’s application was dismissed, but nevertheless a direction was given for the plaintiff to provide a list of documents within seven days, and for inspection of the disclosed documents to occur. The plaintiff’s application was adjourned to a date to be fixed by the registrar; an order for costs was made against the defendant.
- [6]A notice of adjournment on the file shows the following day the registrar fixed the date for the adjourned hearing of the plaintiff’s application for summary judgment at 3 October 2003. There is an affidavit of service on the file that the notice of adjournment was posted by the court on that day to the defendant care of his then solicitors at Burleigh Heads. On 3 October 2003 the application came before a magistrate, but there was no appearance on behalf of the defendant. Judgment was given for the plaintiff in the amount claimed together with interest and costs.
- [7]It does seem to me surprising, in circumstances where there had been a solicitor actively involved and the defendant had obviously been actively defending the matter, that a magistrate would proceed to hear a summary judgment application where there was no appearance for the defendant without at least having enquiries made to ascertain whether that was deliberate. I would not hear a summary judgment application in the absence of one of the parties in those circumstances, and it does not seem to me to be good practice to do so. It certainly in this case produced a great waste of time and money. As soon as the defendant found out what had occurred he applied to set aside the judgment.
- [8]On 17 October 2003 the defendant filed an application to have the judgment set aside. This was supported by an affidavit from his solicitor to the effect that the notice of the listing had not been received by him, and that he was therefore unaware the matter was going before the court that day. That application came on before a magistrate on 21 November 2003. The magistrate set aside the judgment on the basis that the defendant’s solicitor had not received the notice of listing of the hearing of 3 October, but would not proceed immediately to the rehearing of the summary judgment application, and left that to be heard on a new date to be fixed for the purpose by the registrar. On 5 January 2004 an affidavit of the defendant in response to the summary judgment application was filed in the Magistrates Court. Apparently the same day something came before a magistrate; whether it was the hearing of the summary judgment application I cannot say, but according to the file neither party appeared and the matter was just adjourned to the registry. I suspect that that was the further hearing of the summary judgment application, and that in the light of the contents of the affidavit which was filed on 5 January 2004, the plaintiff decided to abandon the application. It does not appear to have been taken any further. Having read the affidavit, that is entirely unsurprising.
- [9]On 14 April 2004 the plaintiff’s solicitors filed an application seeking to dispense with the execution of the request for trial date by the defendant. That application came on on 19 April 2004 before a magistrate who made an order to that effect, in the absence of the solicitor for the defendant. However, the same day there was received in the registry a letter from the defendant’s solicitor enclosing the request for trial date executed by both parties.
- [10]A notice of trial was given by the court for 15 September 2004. On 13 August a reply was filed on behalf of the plaintiff, notwithstanding that on 10 March 2004 the solicitors for the plaintiff had certified that all necessary steps in the proceeding were complete.
The applications in question
- [11]The action came on for trial before a magistrate in Brisbane on 15 September 2004. At the beginning of the trial it was noted that the defendant was now appearing in person. Counsel for the plaintiff advised that notices under r 189 had been sent on 13 August 2004 and sought to tender an affidavit from his solicitor exhibiting copies of the notices; it also said that no response had been received to them. A copy had been provided to the defendant; I was told during the hearing of the appeal that that was provided on the morning of the trial.
- [12]The appellant referred in the notice of appeal to the decision of the magistrate denying the appellant’s application for judgment against the respondent pursuant to rr 189(2) and 190, and the notice of appeal also lists among the orders sought from this court that judgment be given to the appellant against the respondent pursuant to r 190 of the UCPR for the appellant’s claim. According to the appellant’s outline of argument, the appellant is appealing against the decision to deny the appellant’s application for judgment pursuant to the provisions of r 189(2) and r 190 of the UCPR. Rule 190 provides for judgment on admissions, but it is by no means clear to me that there was an application for judgment under r 190 before the magistrate on 15 September.
- [13]Although reference was made at one point to r 190, I have some difficulty in locating in the transcript any clear statement by counsel for the plaintiff that he was applying to the court for judgment under r 190. Possibly that is because any such application was irregular and contrary to the rules. There was no application filed, and counsel for the appellant, who also appeared before the magistrate, conceded to me that there had been no notice of that application given to the defendant prior to his appearing at court on 15 September. Rule 470(c) permits a party to make an application in the proceeding after the filing of the request for trial date only with the leave of the court. Leave was neither obtained nor even sought to make an application under r 190. Rule 31 requires an application in the approved form to be filed and served at least two business days before the day set for hearing the application. Although r 32 permits an oral application, there was no justification for entertaining an oral application of which proper notice had not been given to the other party.
- [14]Assuming that there was an application pursuant to r 190 before the magistrate, in my opinion that was inappropriate. The action had been set down for trial on that day, and in circumstances where a magistrate is confronted with an application for judgment under r 190 which does not comply with the rules on a day when the matter has been set down for trial, in my opinion ordinarily a magistrate should refuse to entertain it and simply proceed with the trial of the action, at least unless the defendant is prepared to consent to the application under r 190 being heard. I mention this because this is the second occasion on which I have come across this procedure being followed in the Magistrates Court. The procedure is contrary to the rules, and should not be countenanced.
- [15]One of the difficulties that this inappropriate procedure produced was that the respondent did not realise that the appellant was going to rely on the failure to respond to the notice to admit facts and the notice to admit documents until he arrived at court on the day fixed for the trial. This meant that when the respondent in response appropriately sought leave under r 189(3) to withdraw the admissions he was not of course prepared to make that application, not having any of the material necessary for such an application. In the end effectively the two days allocated to the trial of the action were occupied in hearing the application under r 189(3). That was an extraordinarily inefficient way to proceed, and a huge waste both of the parties’ time and money and of the court’s time.[1] That waste was caused by the failure of the appellant to give reasonable notice to the defendant of an intention to rely on the deemed admissions either by way of an application under r 190 or simply in the course of the trial.
- [16]In my opinion a party intending to rely on a deemed admission under r 189(2) at a trial should always give reasonable notice of that intention to the other party. This is not a requirement of the rules, but in my opinion it is a requirement of good practice,[2] calculated to avoid wasting time and costs, and in particular calculated to avoid wasting the court’s time as happened here. If proper notice is given, a party intending to make an application under r 189(3) can do so in the appropriate place and at the appropriate time, that is, before the applications court, and prior to the trial. It gives the party time to assemble the necessary material for the application before the hearing of it, instead of trying to do it on the run, and it also means that the outcome of the application is known prior to the trial, so that whatever the outcome the parties ought to be able to proceed with the trial on the date on which it is set down.
- [17]A defendant who is seriously interested in defending a claim ought to respond to a notice to admit, but sometimes things go wrong, and there is a failure properly to dispute facts which are genuinely in dispute. This was an example of that situation. In such a case, giving notice of intention to rely on the deemed admission a reasonable time prior to the trial would in my opinion be good practice for a plaintiff, and would avoid the waste of time which occurred in the present case.
- [18]Over the course of the next two days the defendant obtained two affidavits from his former solicitor. These revealed, as the magistrate found, that after the notices were served on 13 August 2004 the solicitor wrote to the respondent but did not refer to the 14 day period or indicate any urgency. The respondent had then extremely onerous work commitments, and because of this did not immediately contact the solicitor. Eventually the solicitor contacted him, he attended the solicitor, and gave instructions on or about 3 September 2004. The solicitor then prepared a response, which was a simple notice disputing all the facts listed in the notice, and sent it that day with a covering letter by fax, intending to send it to the solicitors for the appellant. By mistake, the letter was sent by fax to a barrister who had previously done some work in the action for the respondent. The mistake apparently arose because the wrong fax number was put on the previous letter from the respondent’s solicitor to the appellant’s solicitor.
- [19]Had the letter in fact been sent to the appellant’s solicitor on that day by fax, it would have been outside the 14 day period specified in r 189. I suspect that the failure to give the notice within that 14 day period would just be an irregularity for the purposes of the rules,[3] but in any case counsel for the appellant conceded in argument that if the notice had in fact been sent to the plaintiff’s solicitors on that day the delay would have been excused, and I think that was a proper concession. If the only deficiency in the response was that it was seven days[4] out of time, I do not doubt that it would have been treated as effective, or, if necessary, leave to withdraw the admissions would have been given.
- [20]The problem was that by the solicitor’s mistake the notice was sent to someone else, and never reached the plaintiff’s solicitor. Of course, if there had been proper notice from the plaintiff’s solicitor of an intention to rely on the failure to respond to the notice, this would have emerged much earlier. As it was this seems to have come out slowly in the course of the first day, and nothing much else was achieved that day. The magistrate ultimately concluded that, in circumstances where there was a notice to dispute the facts prepared, and sent by mistake to the wrong fax number, and the respondent personally was not made aware of the 14 day time limit to respond, and bearing in mind that the defendant now was representing himself, it was appropriate to give leave to withdraw the admissions made in respect of the notice to admit facts. Because leave was given to withdraw the deemed admissions, there was no longer any basis for an application for judgment under r 190. That application was therefore not further dealt with by the magistrate.
The effect of a notice to admit documents
- [21]Turning to the notice to admit documents, this was a matter not referred to in the former solicitor’s affidavits, and not referred to in the letter which was prepared by him. The defendant told the magistrate that he instructed his solicitor that there were problems with the documents, and the magistrate referred to the affidavit sworn on 28 December 2003 (and filed 5 January 2004) which she said, “raises significant challenges to the various documents.” There was in the course of the defendant’s oral evidence before the magistrate, on what was to have been the second day of the trial, a good deal of evidence from him as well as to what was disputed about the contents of various documents.
- [22]The difficulty with the approach adopted by the magistrate seems to me to be that there was a failure to identify the real effect of the admission of the authenticity of a document for the purposes of r 189. The function of that part of the rule is to facilitate the proof of a document at a trial. If a document is disclosed by one party, it can be tendered at the trial against that party “as relevant and as being what it purports to be:” r 227(2). That of course does not give the document any particular added significance, or indeed make a document which would otherwise not be admissible on some other ground admissible; it is simply a method for facilitation of proof of a document, and avoids the necessity to call a witness to prove the document is what it purports to be.[5] In my opinion r 189 is the analogue of that, and applies in circumstances where a party wishes to put in evidence a document not disclosed by the other party. This rule enables the authenticity of the document to be admitted, so that the document can be tendered simply on the basis of that admission of authenticity.
- [23]That part of r 189(2) which is applicable to documents provides: “If the other party does not, within 14 days, served a notice on the first party disputing … the authenticity of the document, the other party is taken to admit, for the proceeding only, … the authenticity of the document specified in the notice.” In my opinion the term “authenticity” here simply means the document is, as it is put in r 227, what it purports to be.[6] In other words, if a document in a notice to admit documents is identified as a particular invoice which was generated by the plaintiff and sent to the defendant on a particular day, if the authenticity of that document is admitted it can be tendered as an invoice which was generated by the plaintiff and sent to the defendant on that day.
- [24]What the rule does not do however is affect the evidentiary value of the document once it has been put in evidence in this way. For example, if the document was irrelevant the court would be bound to reject the tender, and similarly if the document were otherwise inadmissible on other grounds.[7] The effect of the rule is simply to avoid the necessity to call evidence to prove that the document is what it purports to be, that is, to call evidence as to the authenticity of the document. Often that will not be a problem in litigation because the party will be calling a witness anyway who can speak to the authenticity of the documents intended to be relied on. But if that is not the case this rule provides a convenient way to avoid calling witnesses simply to prove that documents are what they purport to be. However it does not provide any additional significance to the contents of the document. In particular, a failure to respond to a notice to admit a document, or indeed a response admitting the authenticity of the document, says nothing as to the truth or accuracy of the contents of the document.
- [25]In the present case, admitting a particular invoice as a document simply admits that that invoice was generated by the plaintiff and sent to the defendant on a particular day; it does not involve an admission that the invoice was accurate. An admission of a statement from the plaintiff to the defendant involves an admission that that is the statement that was sent from the plaintiff to the defendant, but says nothing as to the accuracy of the information contained in that statement. Neither involves any admission that any amount referred to in the document is in fact owing.
- [26]Unfortunately the magistrate appears to have proceeded on the basis that an admission of the authenticity of a document involved an admission of the correctness of the contents of the document. That appears from her reference to the defendant’s disputing the documents. The defendant certainly made it clear before me that what he disputed was not that the documents were what they purported to be, but merely that the contents of the documents were correct. Although I have not read all the transcript of the proceeding before the magistrate, I think it unlikely that there was a different attitude displayed there. Counsel for the appellant told me that much of the time before the magistrate was taken up with the defendant’s explaining why the contents of certain documents were wrong, and those bits of the transcript that I have looked at are consistent with that. The problem here therefore appears to have been that everyone including the magistrate was proceeding on the wrong basis as to the effect of an admission of authenticity of the documents. In fact the defendant does not dispute the authenticity of any of these documents. That may well be why his solicitor was not concerned to respond to the notice to admit documents; if the authenticity of the documents is not disputed, then no response was necessary. It also follows that there was no reason to withdraw the admission of the authenticity of the documents.
The submissions of the appellant
- [27]The appellant’s submission was essentially that there had been a failure of the magistrate to give proper effect to the decision of the Court of Appeal in Ridolfi v Ragato Farms Pty Ltd [2001] 2 Qd R 455. The magistrate was certainly aware of that decision; she was referred to it in argument, and referred to it in her reasons; indeed she cited relevant passages from it. Nevertheless it was submitted that the magistrate had failed to apply the decision, because the requirements laid down in that decision before a deemed admission could be withdrawn had not been satisfied.
- [28]In Ridolfi the plaintiff in a personal injury action by a notice to admit facts under r 189 sought admission of factual matters founding the allegations of negligence and breach of duty. The notice was sent under cover of a letter drawing attention to the consequences of a failure to respond, and, after the 14 day period elapsed, there was a further letter pointing out those consequences. Subsequently a request for trial date was forwarded to the defendant’s solicitors, which was executed by them, and filed. The matter was set down for trial on a running list for a particular sittings. One week before the trial the defendant changed solicitors, and two days later the new solicitors foreshadowed an application for leave to withdraw the admissions. That was made orally at the commencement of the trial, and refused. The plaintiff’s solicitors said they had placed significant reliance on the admissions in preparing the plaintiff’s matter for trial.
- [29]The Chief Justice said that there was no principle that admissions made, or deemed to have been made, may always be withdrawn “for the asking,” subject to payment of costs: [20]. He also gave some guidance as to the material which ought ordinarily to be before a court when dealing with an application to withdraw a deemed admission in [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 a trial. Here none of those matters were so verified. Issues of prejudice may also fall for consideration upon the hearing of such an application.”
- [30]His Honour also noted that that was not a case where the defendant had made some reasonable though ineffectual effort to respond to the notice: [16]. He also noted that the respondent had, over a period of some three months,[8] relied on the deemed admission in preparing the case for trial: [18]. He said that inadvertence had not been established, and that in any case the UCPR cannot be approached on the basis that if important provisions are ignored inadvertently the court may be expected to act indulgently and rectify the admission: [21].
- [31]McPherson JA, who agreed with the reasons of the Chief Justice, added that the first step was to determine whether there was a genuine dispute about the defendant’s liability: [27]. “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 now 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.” His Honour also noted that no steps were taken to apply for leave to withdraw the admission prior to the commencement of the trial.
- [32]Williams J as his Honour then was also said that admissions flowing from the operation of r 189 should not be withdrawn merely for the asking: [32]. He continued: “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. … 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.” His Honour also agreed with the Chief Justice.
- [33]Clearly therefore a deemed admission is not to be withdrawn just for the asking. There must be proper material which shows a good reason to exercise the discretion. But it would be a mistake to read the decision as if it imposed some fetter or restriction on the exercise of the discretion. The Chief Justice at [20] said expressly that the discretion “is broad and unfettered.” In speaking about the material which ought to be before the court, both the Chief Justice (at [19]) and McPherson JA (at [27]) used the term “ordinarily.” This confirms that their Honours were providing guidance as to how the discretion may be exercised judicially, but were not intending to lay down rigid rules. The points which their Honours made about the material which should be before a judge asked to exercise the discretion show that, at least subject to considerations of prejudice, where there has been an inadvertent admission under this rule of a fact or facts genuinely in dispute it is reasonable for a court to exercise the discretion to enable the deemed admission to be withdrawn.
- [34]The magistrate’s reasons were also criticised because of a reference to some extra curial statements by the Chief Justice, in an address to a conference in August 2003, dealing with, among other things, the position of litigants in person. It was submitted that the magistrate had put too much reliance on what the Chief Justice had said on that occasion, rather than what was said in the decision of the Court of Appeal. But I do not think that any error in approach is shown. In my opinion the reference to these passages was simply to emphasise that litigants in person often face particular difficulties in coping with the procedural technicalities of litigation. The difficulties that this particular litigant in person suffered from were mainly in gathering and presenting appropriate material to support an application for leave to withdraw the deemed admissions. It is commonplace that courts attempt to overcome procedural difficulties which litigants in person may experience, at least to some extent, particularly where it appears that there is or may be some underlying justice in their position. I do not consider there was anything inappropriate in the magistrate’s comments, nor do they justify any concern as to her having taken into account irrelevant considerations in the exercise of discretion.
Analysis
- [35]In the present case there was affidavit evidence from the solicitor in relation to the response to the notice to admit facts, and the circumstances under which there was a failure to respond to that notice were, in my opinion, adequately explained. Furthermore, with one exception to which I shall come in a moment, there was ample material before the court to show not only that the factual matters of which admission was sought were genuinely disputed by the defendant, but that the plaintiff knew they were disputed, and had had the benefit of a detailed affidavit explaining how and why they were disputed.
- [36]The one exception was in relation to the first of the facts admission of which was sought. The difficulty with this is that what was sought in that paragraph was the admission of one, or rather two, facts, both of which were admitted on the defendant’s pleading. Although r 189 does not exclude from the scope of the notice to admit facts a fact which is not in issue in the action, it seems to me that there is really little point in seeking an admission of such a fact under that rule. In any event, no point seems to have been taken before the magistrate specifically about this paragraph in the notice to admit facts, and it is not appropriate therefore to vary the order made by the magistrate in this respect on appeal.
- [37]Once it was properly conceded that, had the notice disputing the facts been received by the plaintiff’s solicitors, albeit a little late, that delay would have been excused by the court, in my opinion it was clearly appropriate to allow the withdrawal of the deemed admissions of fact in the present case. The failure to send the notice at that point was simply due to an innocent mistake within the office of the defendant’s solicitor, and it would be obviously unjust to the defendant for him to be bound by the deemed admission in such circumstances. In my opinion no proper basis for criticising the magistrate’s exercise of the discretion in relation to the notice to admit facts has been shown.
- [38]With regard to the notice to admit documents however, the problem here is that the application really proceeded on a misapprehension as to the significance of an admission of the documents. In truth the defendant does not dispute the authenticity of the plaintiff’s documents, only the accuracy of the contents of many of them. But that is a matter for evidence at the trial. The mere fact that the authenticity of a document is admitted involves no admission whatever as to the accuracy of the contents of the document. Indeed, in my opinion it says nothing whatever about the reliability of the contents of the document as evidence. A document which is obviously unreliable, or inconsistent with other documents, gains nothing from the fact that its authenticity has been admitted under r 189. There is absolutely no impediment to a party who has admitted the authenticity of the document leading evidence, or extracting evidence by cross-examination, to contradict the contents of the document, or demonstrating by argument that the contents of the document are wrong.
- [39]Unfortunately, none of this was realised in the Magistrates Court. Once I pointed this out during the hearing of the appeal, the respondent was content to withdraw his desire to withdraw the admission of the authenticity of the documents. There was some hesitation on his part, prompted by a concern that, at a trial in the Magistrates Court, the documents might ultimately be given more significance than they deserve because their authenticity had been admitted. However, I believe I have made clear in these reasons the limits of the significance of that admission, and I am confident that any such concerns are misplaced. Perhaps I should add that if on appeal my view as to the significance of an admission of the authenticity of documents was shown to be wrong, approaching the matter in the way the magistrate did I would not interfere with the magistrate’s exercise of her discretion in relation to the notice to admit documents.
- [40]In the circumstances therefore the appeal should be allowed in part, but only so as to confine the operation of the order appealed from to the withdrawal of the deemed admission of the facts in the notice to admit facts. The effect of this is that the deemed admission of the authenticity of the documents will stand.
- [41]With regard to the question of the costs of the appeal, although the appellant has been partially successful, the appellant has not obtained the major relief sought by the appeal. The appellant in the notice of appeal, and the outline of argument, sought not only the overturning of the magistrate’s decision to give leave to withdraw the deemed admissions, but also judgment for the amount of the claim under r 190, in reliance on those deemed admissions. This shows that the real object of the appeal was to obtain judgment on the claim, to which any admission of the authenticity of the documents in the notice to admit documents is really irrelevant. Little separate reference to the notice to admit documents was made in the appellant’s outline of submissions, and although more of the oral argument was directed to this issue the primary focus of the appeal remained on preserving the deemed admission of facts, and seeking a judgment on the basis of them. In these circumstances, I am not persuaded to make any order for costs in favour of the appellant. There will be no order for costs of the appeal.
Footnotes
[1] I do not suggest that this was in any way the fault of the magistrate.
[2] It was done in Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455: see [6].
[3] Cf Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444.
[4] The magistrate referred to the response being only four days outside the 14 day limit (p. 5) but on my calculations it was seven days late.
[5] Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2002] QCA 380.
[6] The two terms were used in Equuscorp at [102] by Williams JA, obviously as synonyms.
[7] Equuscorp (supra).
[8] By way of contrast, in this case the notice was served only 33 days before the trial.