Bennett v Sunsuper Pty Ltd[2017] QDC 193

DISTRICT COURT OF QUEENSLAND

Application

1. [1]
   This is an application by the Second Defendant for leave to withdraw admissions pursuant to r 188 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).^[1]

2. [2]
   At the hearing the Second Defendant provided a proposed Amended Defence. Although the proposed Amended Defence has many amendments, not all amendments require leave. Those that require leave fall into three categories, namely:

1. (a)
   amendments withdrawing admissions that the Plaintiff satisfied “Eligibility Conditions”, was an “Insured Member” under an insurance contract the subject of the claim (“the AIA Policy”) and that the Plaintiff was entitled to make a claim under the AIA Policy which, if the terms of the policy were satisfied, obliged payment of the amount of $246,000 (referred to as the “At Work issue”);

2. (b)
   amendments withdrawing admissions that the Plaintiff could not work as a plant operator (referred to as the “Plant Operator issue”); and

3. (c)
   amendments withdrawing admissions as to the text, and correctly stating the terms, of the AIA Policy (referred to as the “Correct Terms issue”).

3. [3]
   The Plaintiff resists the Second Defendant’s application to withdraw the admissions relating to the At Work issue and those admissions relating to the Plant Operator issue. There is no opposition to leave being given to the Second Defendant to withdraw the admissions with respect to the Correct Terms issue.

Background

4. [4]
   The proceeding concerns a claim by the Plaintiff for a total and permanent disability (“TPD”) insurance benefit under the AIA Policy, which is a group life policy held by the Plaintiff’s superannuation fund (of which the First Defendant is trustee) with the Second Defendant as the insurer.

5. [5]
   The relevant chronology is as follows:

Withdrawal of admissions – some general principles

6. [6]
   Rule 188 of the UCPR provides that a party may withdraw an admission made in a pleading only with the court’s leave.

7. [7]
   There is no principle that admissions made in pleadings will be withdrawn “for the asking” subject to payment of costs.  The discretion is broad and unfettered: Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 445; [2000] QCA 292, 459 [20].

8. [8]
   Although the discretion is broad and unfettered, it ought be exercised having regard to the philosophy behind the UCPR, namely that the purpose of the rules is to “facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense” and that accordingly, the rules are to be applied by the courts with the objective of “avoiding undue delay, expense and technicality and facilitating the purpose of these rules”: r 5 of the UPCR.

9. [9]
   As was observed by Chesterman JA in Hanson Construction Materials Pty Ltd v Davey & Anor [2010] QCA 246:

“[15] It is no doubt true that the UCP Rules are meant to expedite litigation and to limit disputes to issues that are genuinely in contest, but it must, in my respectful opinion, remain the case that the rules do not operate so as to prevent the trial of issues that are genuinely in dispute.

[16] The first consideration, therefore, in an application to withdraw admissions must be whether the subject matter of the admission is truly contested.  Often, if not always, that determination will be informed by the circumstances in which the admission was made.  It is usually a good indication that a fact is not in dispute that the party against whom it is made admits it to be true.  This, I apprehend, is why the cases emphasise the need for an explanation as to the making of the admission.  If an applicant cannot demonstrate that there is a real dispute about the subject matter of the admission no other consideration need be examined.”

10. [10]
    The Second Defendant submits that generally there are five factors relevant to the exercise of the discretion. They are those outlined by Durward SC DCJ in Elford v Nolan & Anor [2014] QDC 257 at [24], namely:

1. (a)
   how and why the admission is made;

2. (b)
   what is the nature of the evidence of and about the issues the subject of the admission;

3. (c)
   whether there is likely to be a real dispute about the evidence;

4. (d)
   whether any delay has been made in making the application for leave to withdraw the admissions; and

5. (e)
   whether the other party will suffer prejudice.

11. [11]
    The Plaintiff does not dispute that those considerations are relevant to the exercise of discretion but submits that the discretion is not limited only to those considerations. The Plaintiff submits that relevant considerations that inform the exercise of the discretion include the 12 principles referred to by Applegarth J in Hartnett v Hynes [2009] QSC 225 at [27].^[2]  Those principles are as follows:

“1. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation.

2. The discretion is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense.

3. There is a distinction between amendments which are necessary for the just and expeditious resolution of “the real issues in civil proceedings” and amendments which raise new claims and new issues.

4. The Court should not be seen to accede to applications made without adequate explanation or justification.

5. The existence of an explanation for the amendment is relevant to the Court’s discretion, and “[i]nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment”.

6. The objective of the Court is to do justice according to law, and, subject to the need to sanction a party for breach of its undertaking to the Court and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment.

7. Parties should have a proper opportunity to plead their case, but justice does not permit them to raise any arguable case at any point in the proceedings upon payment of costs.

8. The fact that the amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave to amend.

9. Justice requires consideration of the prejudice caused to other parties, other litigants and the Court if the amendment is allowed. This includes the strain the litigation imposes on litigants and witnesses.

10. The point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources.

11. Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense.

12. The applicant must satisfy the specific requirements of rules, such as UCPR 376(4) where it seeks to introduce a new cause of action after the expiry of a relevant limitation period.”

(Footnotes omitted)

12. [12]
    The Plaintiff placed particular emphasis on principles 3 and 11.

13. [13]
    The Second Defendant sought to distinguish Hartnett v Hynes [2009] QSC 225 on the basis that it related to an application to amend a claim pursuant to r 377 of the UCPR and r 375 of the UCPR.  I accept that is an appropriate basis on which to distinguish principle 12.  However, given the discretion under r 188 of the UCPR is a broad and unfettered one, the principles outlined are potentially also relevant to the exercise of a discretion under r 188.  Further, it seems to me that the considerations outlined in Hartnett v Hynes raise similar considerations to the five factors referred to by Durward SC DCJ in Elford v Nolan & Ors or matters otherwise considered relevant by Durward SC DCJ at [25] - [34].

14. [14]
    The Plaintiff also placed considerable emphasis on a decision of the New South Wales Supreme Court in SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd & Ors [2005] NSWSC 816, where White J observed at [57]:

“I therefore start from the position that the admissions deliberately and formally made should not be permitted to be withdrawn, unless sufficient cause is shown why they should be.”

15. [15]
    I regard this as one of the matters relevant to the exercise of the discretion. It effectively highlights the need for an explanation and consideration of whether the issue is genuinely in dispute.

The “At Work” issue

16. [16]
    The admissions in respect of which leave is sought under r 188 of the UCPR are contained in paragraphs 6(a), 6(b) and 8(d) of the Defence.

17. [17]
    The admissions are proposed to be replaced with the denials in subparagraphs 5(a)(ii), 6(c), 6(k), 6(l), 6(m), 6(ma), 6(q), 6(r), 6(s), 6(t), 6(u) and 10A of the proposed Amended Defence, a copy of which was provided at the hearing.

18. [18]
    The withdrawal of the admission would put in issue whether the Plaintiff is entitled to make a claim under the AIA Policy.

19. [19]
    The Second Defendant asserts that, for the Plaintiff to be entitled to make a claim, the Plaintiff would need to satisfy clauses 4.1(a), 4.1(b) and 4.14 of the AIA Policy.^[3]

20. [20]
    Clause 4.1(b)(iii) has the effect that an “Existing Member” (such as the Plaintiff) who had cover in force on the day immediately prior to 1 July 2011 (“the  Effective Date”) is automatically provided with standard cover under the AIA Policy if they are “At Work” on that Effective Date.  If they are not “At Work” on that Effective Date then such an “Existing Member” who receives an increase in the level of cover under the AIA Policy^[4] is only provided with “Limited Cover” in relation to the increased level of their TPD cover until that member^[5] is back “At Work” for one day, whereupon the TPD cover would no longer be subject to “Limited Cover”.^[6]

21. [21]
    “Limited Cover” means that the “Insured Member” is only covered for claims arising from a sickness which first “Manifests” itself or an injury which first occurred on or after the date the “Insured Member’s” cover most recently commenced or increased where applicable under the AIA Policy.^[7]

22. [22]
    The Second Defendant is not “on risk” to the Plaintiff for claims arising from a sickness which first “Manifests” itself (as defined) or an injury which occurred before 1 July 2011 unless the Plaintiff:

1. (a)
   was “At Work” within the meaning of the AIA Policy on 1 July 2011; or

2. (b)
   if not “At Work” on 1 July 2011, went back to being “At Work” for one day after 1 July 2011.

23. [23]
    “At Work”,^[8] relevantly for present purposes, required the Plaintiff to:

1. (a)
   be engaged in his normal duties without limitation or restriction due to injury or sickness and to be working normal hours on the day cover is to commence; and

2. (b)
   not be restricted by sickness or injury from being capable of performing his full and normal duties on a full time basis (for at least 30 hours per week) even though actual employment can be on a full time, part time, casual or contract basis.

24. [24]
    The general purpose of the “Eligibility Conditions” in section 4 of the AIA Policy, and “Limited Cover”, is that if an injury occurred before the AIA cover commenced and the “Member” is not back “At Work” after 1 July 2011, then the Second Defendant is not “on risk”.  In those circumstances, the claim ought be made and assessed against the Suncorp Policy, being the policy of the previous insurer.

25. [25]
    The issue that the Second Defendant now seeks to agitate (by withdrawing its admission) is whether the Plaintiff meets the definition of “At Work”:

1. (a)
   as at 1 July 2011; or

2. (b)
   if not, then even for one day after 1 July 2011 and before the alleged sickness or injury resulting in TPD.

26. [26]
    In his Statement of Claim, the Plaintiff does not plead that he was “At Work” on 1 July 2011 or there was a day after 1 July 2011 when he was “At Work”.  The Plaintiff does not plead or particularise what his duties were as at 1 July 2011 or in February 2013.

27. [27]
    This, of itself, is not surprising as the Claim was commenced with reference to the decision of the Second Defendant, communicated to the Plaintiff by the First Defendant, on 10 November 2015. That decision refused the Plaintiff’s claim for a benefit, but only on the basis that the Plaintiff does not satisfy the definition of TPD under the AIA Policy and not on the basis that the Plaintiff did not satisfy the “Eligibility Criteria”.^[9]

28. [28]
    However, the Claim is not limited to a review of the decision. The Plaintiff also asserts an entitlement to payment of a benefit under the AIA policy. In that respect, the Plaintiff’s Statement of Claim includes an allegation in paragraph 7 that, at all material times, the Plaintiff satisfied the eligibility conditions of the insurance contract for total and permanent disablement cover. This is the allegation that has previously been admitted by the Second Defendant, but which admission the Second Defendant now seeks to withdraw.

29. [29]
    Were it not for the admission, to succeed in its claim, the Plaintiff would be required to establish that, at all material times, the Plaintiff satisfied the eligibility conditions of the insurance contract for total and permanent disablement cover.

Is there a genuine dispute?

30. [30]
    Whether the admission is truly contested is, in this case, informed by the circumstances in which the admission was made.

31. [31]
    How the admission came to be made is well explained in the affidavit of Mr Hardy.^[10]  He notes:

1. (a)
   at paragraph 96 of the affidavit:

“The relevant admission at paragraph 6 of the second defendant’s defence was made because the plaintiff represented that on 1 July 2011 he was engaged in his normal fulltime duties, was not in receipt of any income support benefits and was performing his full and normal duties without restriction or limitation.  This representation was made, without limitation, by the plaintiff by way of his solicitors’ letter dated 10 April 2014 and amounted to a positive representation that the plaintiff was “At Work” on 1 July 2011.”

2. (b)
   while the Plaintiff’s solicitors had represented that the Plaintiff’s employment for York Civil Pty Ltd was a “special light duties job”, they had made no such representation about the Plaintiff’s employment with Fulton Hogan Pty Ltd;^[11]

3. (c)
   Sam Ankomah, senior dispute resolutions specialist in employ of the Second Defendant, advised that the Second Defendant’s interpretation of the evidence that was before it during the assessment of the claim was that, without limitation:

1. (i)
   subsequent to the motor vehicle accident of 14 July 2009, the Plaintiff successfully retrained as a safety advisor and obtained fulltime employment in such a role with Fulton Hogan Pty Ltd on or about 21 May 2011 and was working on average 38 hours per week, was engaged in his normal duties, without limitation or restriction, and was not in receipt of, or entitled to receive, income support benefits on 1 July 2011;

2. (ii)
   the Plaintiff’s role at Fulton Hogan Pty Ltd was not a physically demanding role and involved primarily administrative and office-based tasks;

3. (iii)
   the medical reports that are most contemporaneous to the takeover date of 1 July (being the reports of Vanessa Aitken dated 3 December 2010, the report of Dr Soares dated 21 January 2011 and the report of Dr Pincus dated 26 October 2011) indicated that the Plaintiff was capable of performing, and was in fact managing, his role as a safety advisor for Fulton Hogan Pty Ltd at that time without restriction, albeit that he took pain medication on an intermittent basis; and

4. (iv)
   the Plaintiff did not begin to experience difficulty carrying out his duties as a safety advisor for Fulton Hogan Pty Ltd until those duties were altered by a new project manager and the job was rendered more physically demanding, sometime after 1 July 2011;^[12]

4. (d)
   the Second Defendant understood that it was the Plaintiff’s case that:

1. (i)
   notwithstanding that the Plaintiff suffered the injuries on 14 July 2009, the Plaintiff subsequently retrained as a safety advisor and did not become unable to perform the duties of his occupation as a safety advisor until about February 2013 (if at all);

2. (ii)
   the “Benefit Calculation Date” with respect to the claim was 28 February 2013;

3. (iii)
   the relevant qualifying period with respect to the claim commenced on or around 28 February 2013, when the Plaintiff ceased work with York Civil Pty Ltd; and

4. (iv)
   the relevant date for assessment of the claim fell on a date three months after the Plaintiff ceased work for York Civil Pty Ltd.^[13]

32. [32]
    I accept that the admission was made on the basis of a fair and reasonable interpretation of the information that had been presented to the Second Defendant and representations made by the Plaintiff.^[14]

33. [33]
    The admission was also made in the absence of:

1. (a)
   a statement of Sharon Saunders, which stated that it was “quickly identified that the plaintiff had difficulty in managing the administration required of a safety auditor’s role” and that the Plaintiff was “unable to fulfil his duty of plant safety inspections for compliance”;^[15]

2. (b)
   the report of Ms Scudamore, which indicates that the Plaintiff had an administrative assistant working with him who completed the more general administrative tasks and that the Plaintiff did not possess the skills or training associated with an administrative role.  The report also indicated that, without significant accommodation on the part of his supervisor, the physical requirements were in excess of his physical capacity;^[16] and

3. (c)
   the report of Dr Ballenden of 29 March 2017, in which the Fulton Hogan Pty Ltd job (covering 21 May 2011 to 12 August 2012) is referred to as being one “out of goodwill” from “a lady who was his boss who gave him the job”.  The report also indicated that the Plaintiff had been protected in the role in that he was not required to do anything physical under the old job as he had been provided with a labourer to help him.  It records that a “blind eye” was turned to the fact that there were some jobs that he could not physically do.  The report also records that when the benevolent manager was replaced, the Plaintiff could not perform the actual duties of his job.^[17]

34. [34]
    The Plaintiff submits that there is no genuine dispute as the Plaintiff and his supervisor have presented direct evidence that the Plaintiff was “At Work” on 1 July 2011.^[18] 

35. [35]
    The affidavit of the Plaintiff simply rehearses the “At Work” definition, and his evidence has not yet been tested.  If leave is given to withdraw the admission, it is clear that the Second Defendant wishes to test the veracity of this evidence, including through cross-examination of the Plaintiff.  The existence of the evidence does not, of itself, demonstrate that there is no genuine dispute.

36. [36]
    The Plaintiff also submits that the fact that the admission was made in the absence of the further information referred to in paragraph [33] above does not demonstrate a genuine dispute about whether the Plaintiff was “At Work” because:

1. (a)
   Ms Saunders was not employed at Fulton Hogan Pty Ltd on 1 July 2011, so cannot attest to whether the Plaintiff was “At Work” on that date;

2. (b)
   the report of Ms Scudamore is about a position not held by the Plaintiff, rather it relates to the Plaintiff’s ability to hold other positions; and

3. (c)
   the report of Dr Ballenden of 29 March 2017 contained information that was substantially the same as information provided before the admission was made and, as such, does not adequately explain why the issue is now sought to be disputed.

37. [37]
    Even accepting the Plaintiff’s submission with respect to the statement of Ms Saunders and the report of Ms Scudamore, the information provided by them is sufficient to create some doubt about whether the Plaintiff was capable of performing his full and normal duties on a full time basis, assuming the responsibilities of the role were those outlined in the position description in the Plaintiff’s employment contract.^[19]

38. [38]
    As for the report of Dr Ballenden of 29 March 2017, I accept that there is an overlap of information.  However, the Second Defendant provides an adequate explanation about why the information was not treated as more significant earlier.

39. [39]
    In my view, the Second Defendant has provided an adequate explanation and sufficiently demonstrated that there is a genuine dispute.

Other considerations

40. [40]
    The Plaintiff also relies on a number of other factors that it submits weigh against the grant of leave to withdraw the admissions about the “At Work” issue, namely:

1. (a)
   the lateness of the application;

2. (b)
   the raising of a new defence not previously in dispute;

3. (c)
   prejudice to the Plaintiff;

4. (d)
   case management considerations;

5. (e)
   the need to avoid the prolongation of stress and uncertainty in the commercial affairs of all involved; and

6. (f)
   the inconvenience and stress associated with the amendment and attendant delay in the resolution of the litigation will affect the Plaintiff as a personal litigant disproportionately and cannot be compensated by an award of costs.

41. [41]
    The delay in making the application is not particularly lengthy. As the chronology shows, the admission was made on 31 October 2016. The Report of Dr Ballanden was provided on 31 March 2017 and the Statement of Sharon Saunders was disclosed on 9 May 2017. A short time later, on 15 May 2017, the solicitors for the Second Defendant wrote to the Plaintiff’s solicitors suggesting that the Plaintiff was not “At Work” under the AIA Policy.  The application for leave to withdraw admissions was filed on 7 June 2017.

42. [42]
    It is axiomatic that by withdrawing an admission, a further issue will be in dispute. However, as is observed in paragraphs [28] and [29] above, at the time the Plaintiff commenced his claim, he must have known that, absent an admission, he would need to establish his entitlement to make a claim under the AIA Policy. 

43. [43]
    In terms of the inconvenience and stress occasioned by the prolongation of the litigation, the Plaintiff submits that he finds himself in financial distress because he is unable to work in circumstances where he claims he is owed an insurance benefit relating to his inability to work.

44. [44]
    The Plaintiff submits that the proceedings against the Second Defendant were commenced and maintained in reliance on the apparent acceptance by the Second Defendant that the AIA Policy responds to the claim. He also submits that the statement of Ms Saunders was voluntarily disclosed for the purpose of settlement discussions on pleadings which then included the relevant admission. 

45. [45]
    Those considerations are relevant. However, they must be balanced against other factors including that:

1. (a)
   the Second Defendant made the earlier admission on the basis of representations made by the Plaintiff;

2. (b)
   despite knowing that the Second Defendant now harbours doubt as to the applicability of the AIA Policy, the Plaintiff has not explained:

1. (i)
   why the information in the Saunders statement or the reports of Scudamore or Ballenden ought not be a concern, nor challenged the accuracy of that evidence at all;

2. (ii)
   the duties that his role entailed (as opposed to the role he was performing at the Toowoomba Range site), other than by providing his employment contract;^[20] and

3. (iii)
   how he was capable of performing the duties, including by reference to those duties listed in the employment contract.

Conclusion regarding the “At Work” issue

46. [46]
    Although the admissions were formally made, the explanation of the circumstances in which they were made persuades me that, balancing all of the considerations referred to above, leave ought be given to withdraw them.

The Plant Operator issue

47. [47]
    The Second Defendant wishes to withdraw the admission in paragraph 10(j) of the Defence. This would put in issue whether the Plaintiff is capable of returning to gainful employment as a plant operator.

48. [48]
    The first notice the Plaintiff received of the intention to withdraw the admission was on 6 July 2017, when his solicitors were provided with a copy of the proposed Amended Defence.

49. [49]
    The explanation given for the withdrawal of this admission is that Dr Ballenden recently opined that the Plaintiff, if so motivated, “could attempt to return to plant operating by trial of work and on site functional capacity assessment, of certain vehicles, as his shoulder and ankle would not prevent this, as found now”.^[21]

50. [50]
    The opinion expressed by Dr Ballenden is heavily qualified. It speaks only of an “attempt” to return to such duties and a “trial’ with respect to function and capacity. 

51. [51]
    The Second Defendant has not explained why it originally admitted this issue, rather than making a non-admission until such time as the issue was further investigated.

52. [52]
    I am not satisfied that there is a genuine dispute with respect to this issue and refuse the application for leave to withdraw the admission with respect to the plant operator issue.

Conclusion

53. [53]
    For the reasons outlined above, I propose to order that:

1. (a)
   leave is given to withdraw the admissions in paragraphs 6(a), 6(b) and 8(d) of the Defence and the admission with respect to the correct terms of the AIA Policy; and

2. (b)
   the application for leave to withdraw the admission in paragraph 10(j) of the Defence is refused.