Welsh v Biggin Pty Ltd[2023] QSC 34

SUPREME COURT OF QUEENSLAND

1. [1]
   A dispute has arisen in connection with the adequacy of the defendant’s pleadings. The defendant says they are adequate. They are not. Some are so non-compliant with the rules of pleading they unintentionally constitute deemed admissions. These reasons explain why and what should be done about it.

Genesis of the Application

2. [2]
   The plaintiff claims damages for personal injuries suffered in consequence of his movement of pallets with a pallet jack at his place of work. Much of the alleged circumstances and manner of that movement does not seem to be within the knowledge of the defendant. Yet the defendant has pleaded denials of it. The inadequacy of what has been proffered in explanation of those denials has resulted in the plaintiff contending, per r 166(5) Uniform Civil Procedure Rules (UCPR), that the defendant is deemed to have admitted paras 1(cd), 7(c), 10A(d)(ii), 10B, 10C, 10D, 10E, 11B, 11C and 11D of the amended statement of claim. 
3. [3]
   Rule 166 relevantly provides:

“166 Denials and non-admissions

3. (1)
   An allegation of fact made by a party in a pleading is taken to be admitted by an opposite party required to plead to the pleading unless—

1. (a)
   the allegation is denied or stated to be not admitted by the opposite party in a pleading;

…

4. (4)
   A party’s denial or non-admission of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegation is untrue or cannot be admitted.

5. (5)
   If a party’s denial or non-admission of an allegation does not comply with subrule (4), the party is taken to have admitted the allegation.” (emphasis added)

4. [4]
   In short, the plaintiff complains that the defendant’s pleaded response to the above paragraphs of the amended statement of claim (which was not settled by its counsel in this application) contains denials which are not accompanied by a “direct explanation” for the defendant’s belief that the allegation is untrue.
5. [5]
   This position manifested in the content of the plaintiff’s amended reply filed 27 June 2022.  There followed a further amended defence filed 31 October 2022 in which some amendments were made to relevant paragraphs and eventually an application by the defendant.
6. [6]
   The application seeks a declaration that the amended defence did not contain deemed admissions or alternatively an order giving leave to withdraw any such deemed admissions, which the Court may do in its discretion pursuant to r 188 UCPR.
7. [7]
   It will be necessary to deal progressively with the various subsets of pleading paragraphs in issue.  Before doing so, it is convenient to address one of the plaintiff’s arguments of general application. 

The r 166(4) argument regarding a corporate “party’s belief”

8. [8]
   That argument was that for a company to comply with r 166(4)’s requirement of “a direct explanation for the party’s belief” the company’s pleading should identify the individual whose knowledge provides the foundation for the alleged corporate belief. 
9. [9]
   Counsel for the plaintiff placed particular reliance, in support of this argument, on Brambles Holdings Ltd v Carey^[1] where Bright J observed:

“It is the company’s belief that is important.  The belief of any employee is relevant only in so far as that belief may be imputed to the company.  “Belief” is a strange word to apply to a company.  Always, when beliefs or opinions or states of mind are attributed to a company it is necessary to specify some person or persons so closely and relevantly connected with the company that the state of mind of that person or those persons can be treated as being identified with the company so that their state of mind can be treated as being the state of mind of the company.  This process is often necessary in cases in which companies are charged with offences such as conspiracy to defraud.”^[2]  (emphasis added)

The plaintiff’s counsel particularly stressed the above emphasised passage. 

10. [10]
    Care must be exercised in applying discrete sentences of judgments lest they be applied beyond the context supporting them.  The above-quoted observation by Bright J was preceded by an explanation that the observations related to the first of three defences being considered in respect of a company which owned an articulated motor vehicle that had allegedly been driven in excess of the permitted weight.  In short, the observations went to the evidentiary process by which a corporate belief may be inferred. 
11. [11]
    The plaintiff’s counsel highlighted that the observations of Bright J were adopted by the High Court in Krakowski v Eurolynx Properties Ltd.^[3]  But there again, the context under consideration was the circumstantial proof of a corporate belief, in that instance in meeting an allegation of fraudulent misrepresentation.  The plaintiff’s counsel referred in a similar vein to the observations of Maxwell P in Christian Youth Camp Ltd v Cobaw Community Health Services Ltd,^[4] a case concerned with corporate belief in the context of alleged breach of equal opportunity legislation, and of Buchanan J in Harbour Radio Pty Ltd v Australian Communications and Media Authority,^[5] a case in which it was relevant to consider whether a corporate belief was apt to inform the requisite foundation for a complaint about the adequacy of an investigation into a broadcaster. 
12. [12]
    Significantly, counsel for the plaintiff did not refer the Court to any case in which it has been held that the above-discussed mode of proof of evidence of a corporate belief by circumstantial evidence requires, in an explanation of corporate belief pursuant to r 166(4) UCPR, that the explanation identify a particular individual person or persons as the source of that corporate belief. 
13. [13]
    That no such authority exists is unremarkable.  The authorities cited in argument all relate to matters of proof of a belief to be established as an evidentiary pathway to proof of an action before a Court.  The belief referred to in r 166 is concerned solely with the need for a denial or non-admission in a pleading to be accompanied by a direct explanation for the party’s belief that the allegation is untrue or cannot be admitted.  The provision of a direct explanation for the party’s belief does not require exposition of the evidence to be adduced at trial in order to contradict the allegation in issue.  Indeed, r 149(1)(b) UCPR provides pleadings are to state the material facts relied on, not the evidence by which the facts are to be proved. 
14. [14]
    It is not necessary for a corporate party, in meeting the requirements of r 166(4), to identify the individual or individuals connected with the company who believe the allegation to be untrue, unless of course the circumstances of the case make reference to such persons necessary in the giving of the direct explanation required by r 166(4).  They do not do so here.
15. [15]
    I turn next to the particular paragraphs in issue.

Paragraph 1(cd)

16. [16]
    Paragraph 1 of the amended statement of claim relevantly pleads:

“1. At all material times this proceeding: …

(ca) pallets containing chicken feed were delivered to the premises (“the chicken feed pallets”);

(cb) each of the chicken feed pallets held plastic bags containing chicken feed bags (“the chicken feed bags”);

(cc) each of the chicken feed bags weighed approximately 20 kg;

(cd) each of the chicken feed pallets weighed approximately 1,000 kg;

(ce) the premises stored, inter alia, the chicken feed pallets; …”

17. [17]
    The plaintiff contends the defendant’s amended defence failed to properly plead to the allegation appearing in [1(cd)] in accordance with r 166 and has therefore admitted the allegation.
18. [18]
    The amended defence of the defendant relevantly pleads within para 1:

“1. As to paragraph 1 of the Amended Statement of Claim, the Defendant: …

10. (j)
    admits the allegations in subparagraphs 1(ca), 1(cb), 1(cc) and 1(ce) and says:

1. (i)
   Chicken feed was not always delivered from suppliers on pallets loaded with bags with a combined weight of approximately 1000kg;

2. (ii)
   the Defendant does not know and is not presently able to say how many chicken feed bags it had in stock on 8 and 9 October 2018;

3. (iii)
   Chicken feed bags held in stock were of different types and mixes;

4. (iv)
   Each type of chicken feed bag was kept together, and apart from each of the other types, with each differentiated type stored on its own pallet;

5. (v)
   For the reasons given in subparagraphs 1(j) (i) to (v) of this Amended Defendant (sic – defence), the Defendant disputes that any single chicken feed pallet located at the premises on 8 or 9 October 2018 held bags of chicken feed with a combined weight as heavy as:

 (1) 500 kg – 600 kg;

 (2) 700 kg – 800 kg; or

 (3) 1000 kg;

6. (vi)
   The Plaintiff did not, prior to or on 8 October 2018, move chicken feed pallets using the manual pallet jack, rather he used the Forklift;

and in the premises the Defendant denies as untrue the allegations made by the Plaintiff in subparagraph 1(c)(d) (sic – (cd)) of the Amended Statement of Claim and puts the Plaintiff to proof in respect of the allegation.”

19. [19]
    The defendant’s pleading to para 1(cd) of the amended statement of claim was somewhat more elegantly pleaded in its further amended defence at para 1(k).  However, the key features pleaded in explanation of its denial of the plaintiff’s allegation that “each of the chicken feed pallets weighed approximately 1,000 kg” remained that chicken feed was not always delivered from suppliers on pallets loaded with bags with a combined weight of approximately 1,000 kg.  That explanation was supplemented by the point that chicken feed bags held in stock were of different types and mixes, with each different type stored on its own pallet. 
20. [20]
    The collective effect of those pleaded facts is that “each of the chicken feed pallets” did not weigh approximately 1,000 kg as pleaded.  Importantly, the amended statement of claim’s use of the words “each of the chicken feed pallets” carries the contextual effect that it is a reference to all of the chicken feed pallets, that is to say, all of the chicken feed pallets delivered to the premises as alleged in the amended statement of claim para 1(ca). 
21. [21]
    The defendant’s pleading in response does more than merely state the negative of the proposition pleaded without further elaboration as to why the defendant believes the allegation is untrue, which, as Mackenzie J observed in Groves v Australian, Liquor Hospitality, and Miscellaneous Workers’ Union & Anor,^[6] would be insufficient to comply with r 166(4).  It was accompanied by an elaboration which adequately explains why the defendants believe the allegation that “each of” the chicken feed pallets weighed approximately 1,000 kg was untrue. 
22. [22]
    The defendant’s admittedly inelegant pleading on this point in its amended defence, and for that matter in its further amended defence, comply with r 166(4) and do not give rise to a deemed admission.  I will declare the defendant is not deemed to have admitted para 1(cd) of the amended statement of claim.

Paragraph 7(c)

23. [23]
    Paragraph 7 of the amended statement of claim pleads:

“The defendant did not:

1. (a)
   instruct the Plaintiff not to start pulling the pallet jack quickly from a stationary position with a load on it;

(aa) instruct the Plaintiff not to start pulling the pallet jack suddenly from a stationary position with a load on it;

(ab) instruct the Plaintiff not to start pulling the pallet jack forcefully from a stationary position with a load on it;

2. (b)
   provide the Plaintiff with a motorised or electric pallet jack to use in the course of his employment;

3. (c)
   perform any risk assessment in accordance with the Hazardous Manual Task Code of Practice 2011 in respect of the nature of the work which the Plaintiff was required to perform in the course of his employment.”

24. [24]
    The plaintiff complains the defendant’s pleading to para 7(c) does not comply with r 166 and thus constitutes a deemed admission thereof.  The amended defence of the defendant relevantly pleads:

“7. As to paragraph 7 of the Amended Statement of Claim, the Defendant: …

 (a) …

2. (ii)
   says that the allegations in subparagraph 7(c) of the Amended Statement of Claim are embarrassing and further says that the tasks which the Plaintiff alleges he performed on 8 and 9 October 2018 were not hazardous manual tasks.”

25. [25]
    The plain meaning of para 7(c) of the amended statement of claim is that the defendant did not perform any risk assessment which was in accordance with the content of the Hazardous Manual Task Code of Practice 2011 (Code of Practice). If the plaintiff wanted to allege that no risk assessment of any kind was performed and then separately allege that no risk assessment was performed in accordance with the Code of Practice, that is what he could have done.  If the defendant wanted to concede it had not performed a risk assessment in accordance with that Code of Practice as well as plead no such risk assessment was required because the tasks were not hazardous manual tasks, that is what it could have done.
26. [26]
    The simple question for the defendant to consider was whether or not it had performed a risk assessment in accordance with that Code of Practice. If it had not, then it should have admitted the allegation.  If it had, then it would have denied the allegation, doubtless with the accompanying explanation alluding to the nature of the risk assessment and to the way in which it accorded with the Code of Practice. 
27. [27]
    The defendant’s pleading did not comply with r 166(4).  To remove doubt, its rehashed pleading of the point in its further amended defence was no better.  It avoided the question of whether it had in fact performed any risk assessment in accordance with the Code of Practice by pleading that “if” it had not done so, it was not required to do so.  In short, it still failed to squarely plead an admission, denial or non-admission to the actual allegation in issue.  It is therefore taken per r 166(5) to have admitted the allegation.
28. [28]
    I am unpersuaded that the defendant should be relieved of the effect of its deemed admission of para 7(c) of the amended statement of claim in the exercise of my discretion per r 188.  This is not a case in which evidence has been filed to show that, as it turns out, the defendant did perform a risk assessment in accordance with the Code of Practice.  Further, its manner of pleading makes it inherently improbable that it did do so.  This is not then a case in which there can be any real concern of injustice to a party arising from an inept pleading of its case.
29. [29]
    I will make a declaration that the defendant is deemed to have admitted para 7(c) of the amended statement of claim and refuse leave to withdraw the admission.

Paragraph 10A(d)(ii)

30. [30]
    Paragraph 10A of the amended statement of claim relevantly pleads:

“10A. On 8 October 2018: (“the first day”):

  (a) 14 pallets of goods were delivered (“the pallets”) …

  (d) each of the pallets contained the mealworm:

1. (i)
   contained 22 cardboard boxes each of which weighed approximately 11 kg;

2. (ii)
   weighed between approximately 242 kg and 280 kg.”

31. [31]
    The plaintiff complains the defendant has not complied with r 166(4) in its pleading in response to the allegation in para 10A(d)(ii).  The relevant pleading in the amended defence of the defendant at para 10A is as follows:

“As to paragraph 10A of the Amended Statement of Claim the Defendant: …

2. (b)
   denies the allegation in subparagraph 10A(d) because:

a. Steritch Pty Ltd supplied 212 cartons of irradiated dried mealworm spread across 9 pallets;

b. 212 boxes do not divide evenly between 9 pallets;

c. The Defendant does not know the configuration and weight of each of the 9 mealworm pallets;

d. No pallet would have weighed as much as 280kg; …”

32. [32]
    The pleaded allegation that no pallet would have weighed as much as 280 kg says nothing as to whether each of the pallets containing the mealworm in fact weighed, as is alleged, between approximately 242 kg and 280 kg.  The pleading is clearly non-compliant with r 166(4). 
33. [33]
    The comparable component of the defendant’s pleading to the allegation in its further amended defence at para 10A(b) thereof now reads:

“10A As to paragraph 10A of the amended statement of claim the defendant: …

2. (b)
   denies the allegation in subparagraph 10A(d), and believes those allegations to be untrue, because:

a. Steritch Pty Ltd supplied 212 cartons of irradiated dried mealworm spread across 9 pallets;

b. 212 boxes do not divide evenly between 9 pallets;

c. Each of the said pallets weighed less than 240kg;

d. further or alternatively, none of the said pallets weighed as much as 280kg.”

34. [34]
    It is still not apparent from that form of pleading what the explanation is for the defendant’s belief the allegation that each of the pallets containing the mealworm weighed between approximately 242 kg and 280 kg is untrue.  Either it is true and, if so, as much should have been admitted; or the defendant did not know whether it is true, in which case it should not have denied and instead should have made a non-admission of the allegation; or the defendant knew it was untrue in which case its denial should have been accompanied by a direct explanation for its belief that the allegation is untrue.  It was not accompanied by the requisite “direct explanation”.  This has the consequence per r 166(5) that the defendant is deemed to have admitted para 10A(d)(ii) of the amended statement of claim.
35. [35]
    Should leave be given to withdraw the admission?  While no evidence has been filed by the defendant on this issue, it appears to be a reasonable inference from its various attempts at pleading that there exists a combination of circumstances which would have allowed it to estimate the weights between which each of the pallets’ weight would have ranged.  The pleading bespeaks a failure to properly consider matters of fact which must be within the defendant’s knowledge.  They are matters of fact of broader potential relevance than the specific paragraph at issue, making it unlikely a deemed admission would preclude their emergence and relevance at trial.  These considerations tell in favour of granting leave.
36. [36]
    Rather than holding the defendant to a deemed admission that the pallets containing the mealworm weighed between “approximately” 242 and 280 kg, it is likely to be of more utility to each side, in its preparation for and conduct at trial, if the defendant is given a further opportunity to provide properly pleaded content on the issue.  I will order that it file a further further amended defence properly pleading to para 10A(d)(ii).

The evolution of an incoherent series of pleadings

37. [37]
    The amended statement of claim’s paras 10B to 11D inclusive (excluding para 11A which simply refers to the time at which the plaintiff commenced work on the second day) outline the relevant activity allegedly engaged in on 8 and 9 October 2018, those being the days on which the plaintiff suffered alleged injury in consequence of the way he moved the pallets about.  Those paragraphs of the amended statement of claim were not present in the statement of claim, indeed they are replacements (along with para 10A) of its paras 10 and 11.  They are longer and loaded with more factual content than the old paras 10 and 11.
38. [38]
    That major variation to the initial statement of claim inevitably raised two options well known to lawyers who must amend a defence which was drafted to meet a substantially different statement of claim.  Those options were to strike out the entirety of the defence pleadings and replead the lot or make piecemeal amendments to the existing pleadings within the defence.  The latter option was chosen here, as is not uncommon. 
39. [39]
    It was likely the cheaper option but it came at a price.  As with any writing intended to be read by others, pleadings should be coherent.  The coherence of a piece of writing structured and styled to answer another piece of writing will likely be undermined, other than at the hands of a skilled writer with ample time, if its content is amended rather than structured and styled afresh to meet a different piece of writing.  So it was here.
40. [40]
    The amended defence was not easy to comprehend.  It provoked a frustrating need for the reader to flip back and forth between various paragraphs in order to comprehend layers of facts pleaded in accumulating purported explanation of the various denials pleaded to paras 10B, 10C, 10D, 10E, 11B, 11C and 11D of the amended statement of claim.  It is difficult to avoid the impression it is that frustrating quality which in part provoked the concern of the plaintiff, whose counsel borrowed from the remarks of Martin J, in Pinehurst Nominees Pty Ltd v Coer de Lion Investments Pty Ltd,^[7] to equate the comprehension task to that of pigs hunting for truffles.
41. [41]
    However, the extent to which back and forth reading of the subject paragraphs was required was substantially reduced by the further amended defence.  The plaintiff’s counsel nonetheless maintained that even the further amended defence did not provide the requisite direct explanation and was content for the Court to consider whether there had been a deemed admission in this context by reference to the further amended defence.

Two shared flaws

42. [42]
    Before considering the defendant’s discrete pleading to the plaintiff’s paras 10B, 10C, 10D, 10E, 11B, 11C and 11D it is convenient to identify two flaws uniform to them all.

The first shared flaw

43. [43]
    A curious feature of the further amended defence is that, in denying each of the presently relevant paragraphs of the amended statement of claim, its proffered explanations for the allegations being untrue all included subparagraphs pleading:

    1. (a)
       “the alleged events did not occur;”
    2. (b)
       “the Plaintiff is an unreliable historian”; and
    3. (c)
       “further or alternatively, the Plaintiff will not establish that the events occurred as alleged.”^[8]
44. [44]
    The bare allegation that the alleged events did not occur is not, per se, a problematic pleading, as long as it is accompanied by an explanation taking it beyond a bare assertion of the negative.  Without such explanation there can be no direct explanation, for a bare statement of the negative of the allegation pleaded by the plaintiff without elaboration why the allegation is untrue, is inadequate to the task of providing such a direct explanation.^[9] Neither of the pleaded propositions that the plaintiff is an unreliable historian or that the plaintiff will not establish that the events occurred as alleged provides such an explanation. 
45. [45]
    The allegation that the plaintiff is an unreliable historian appears to be a relic from content of the amended defence detailing inconsistencies in the history of events apparently given by the plaintiff.  That content was removed in respect of the subject paragraphs by the amendments made in the further amended defence.  The result is an assertion so devoid of factual particularity as to provide no explanation for a denial.  The “belief” in r 166(4)’s reference to a “direct explanation for the party’s belief that the allegation is untrue” is not to mere feeling or whimsy but to a belief in a factual state of things.  The articulation of that believed state of things is logically necessary to give a “direct explanation” for the belief. That is not to elide with the task at hand, the task of stating material facts which if not pleaded may take an opponent by surprise, a risk identified by Daubney J in Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd.^[10] It is simply to require information capable of explaining the belief that an allegation is untrue.
46. [46]
    It is difficult to see how in the present case the vague allegation of historical unreliability of the plaintiff could explain a belief the plaintiff’s allegations are untrue.  Let it be accepted for the sake of argument that the defendant knows information which would provide fuel for cross-examining the plaintiff to try to demonstrate he is an unreliable witness.  Let it also be accepted the defendant has no witness to what the plaintiff was doing at the time he was performing a task said to have caused the injury.  The defendant, believing the plaintiff to be unreliable, may understandably elect not to admit the plaintiff’s pleading of what the plaintiff alone knows he was or was not doing. Instead it may plead a non-admission explaining no one witnessed what the plaintiff was doing at the time alleged so that the truth of the allegation is not within the defendant’s knowledge or means of knowledge.^[11]  But mere knowledge he is an unreliable historian cannot logically carry the factual equation beyond support of non-acceptance, by non-admission, into positive support of contradiction, by denial.
47. [47]
    As to the allegation the plaintiff will not establish that the events occurred as alleged, it is an embarrassing distraction.  It is a mere purported prediction of the outcome of the case. It is not a proper pleading.
48. [48]
    For all of those reasons the above pleaded three propositions do not provide the requisite direct explanation for the denials in the subject paragraphs. They will be ignored in assessing whether there has been the requisite direct explanation.

The second shared flaw

49. [49]
    The second shared flaw with the paragraphs presently under consideration is that they each involve a singular denial to the whole of the plaintiff’s corresponding paragraph of the amended statement of claim, notwithstanding that the plaintiff’s paragraphs contain subparagraphs of discrete factual allegations.^[12]  There is generally no correspondence between the facts the defendant pleads in purportedly direct explanation of its belief that the plaintiff’s paragraph is untrue and the discrete facts alleged in the plaintiff’s subparagraphs.
50. [50]
    Various ills flow from this.  The defendant’s pleaded paragraphs do not meet the requirement identified by Martin J in Pinehurst Nominees,^[13] that “the explanation must be clearly connected with the denial”.  They are evasive.  They contain reference to facts the relevance of which, in explaining the requisite belief, is obscure.  They contain reference to facts that might support a denial of some facts discretely pleaded in the plaintiff’s subparagraphs but leave the reader guessing as to whether that is their purpose and if so which subparagraphs they relate to.  They do not contain sufficient, apparently relevant facts, to of themselves provide a direct explanation for the defendant’s purported belief that the whole of the plaintiff’s pleaded paragraph is untrue.
51. [51]
    The inevitable result by operation of r 166(5) is that the denials in the subject paragraphs do not comply with r 166(4) and the defendant is thus taken to have admitted the allegations in the plaintiff’s subject paragraphs.  However, this non-compliance is likely a result of a misconceived pleading method.  It appears highly likely from what the defendant did plead that the defendant’s true position is, on the one hand, that it denies some of the plaintiff’s subparagraphs and can give the proper requisite explanation but, on the other hand, it simply does not know enough to deny, as distinct from make a non-admission to, many of the plaintiff’s subparagraphs.  It would for those reasons be unjust to hold the defendant to deemed admissions.  As will be seen when the specific paragraphs are now canvassed individually, leave will instead be given for the defendant to withdraw those admissions by filing a further further defence which properly pleads to the paragraphs in question.

Paragraph 10B

52. [52]
    The amended statement of claim alleges at para 10B(a) that on 8 October 2018 the plaintiff moved the pallets from the loading area into the premises and at para 10B(b) that the plaintiff commenced the “first move” between approximately 4.00pm and 4:30pm.  The amended defence denies this, pleading an explanation at para 10B(a) that, “the Plaintiff had from approximately 1:34pm to move the delivered goods into the warehouse and commenced the said move from at or about that time.”  It further pleads at para 10B(c) it would not have taken as long as between one hour and one and a-half hours to complete and, at para 10B(d), that the closing time for the business premises was 5.00pm and the plaintiff was not authorised to remain past that time.
53. [53]
    It is not clear whether the explanation in the defendant’s para 10B(a), that the plaintiff commenced moving “the delivered goods into the warehouse”, means it is being conceded, as the plaintiff alleges at his para 10B(a), that the plaintiff “moved the pallets from the loading area into the premises”.  It seems likely the defendant agrees with that allegation of the plaintiff but has pleaded evasively to it.  It likewise seems from the defendant’s para 10B(a) that it probably denies the plaintiff commenced the first move at approximately between 4.00pm and 4:30pm for the specific reason that the plaintiff commenced the task from at or about 1:34pm.  In summary, para 10B(a) can probably be interpreted as an explanation but it is not a direct explanation.
54. [54]
    The relevance of the defendant’s para 10B(c) and (d) is much more obscure.  Those subparagraphs may have been proffered as a further explanation for the denial, as some kind of circumstantial evidence that the move could not have commenced as late as 4.00pm or 4:30pm, but they are not accompanied by sufficient or appropriate detail to have that effect.  For example, para 10B(c) does not attempt to articulate how long the first move would have taken, and para 10B(d) seems incomplete in that the mere absence of authority to remain at the premises past 5.00pm says nothing as to whether the plaintiff in fact did so or in fact could have done so. 
55. [55]
    The upshot is that para 10B is so lacking in clarity and in some respects so obscure that it does not contain a direct explanation for the denial.  It is thus deemed to be an admission.  However, leave should be given for its withdrawal because the defendant does appear to have knowledge of facts which, if properly articulated, may provide a direct explanation for a denial or non-admission. I will give the defendant leave to withdraw the deemed admission by the mechanism of filing a further further amended defence properly pleading to para 10B.

Paragraph 10C

56. [56]
    Paragraph 10C of the amended statement of claim pleads at para 10C(a) that there was insufficient time on 8 October to move all the pallets inside the premises and at para 10C(b) that there was insufficient time on 8 October to arrange the pallets in the final position where each of them was to be stored. 
57. [57]
    The defendant denies these allegations at para 10C of the further amended defence, providing explanation at para 10C(a) that, “The pallets were unloaded from the Blenner’s truck at approximately 1:34pm and before approximately 2.00pm, the Plaintiff left the premises at approximately 6.00pm, and he did little work connected with his employment and position in the intervening period.”  It is presumably part of the defendant’s intended explanation that there was sufficient time to move all 14 pallets inside and to arrange them in the final position where each was to be stored, by reason of them being available to be moved and so arranged from between about 1:34pm and 6.00pm.  But the obscurity of subpara (a) leaves the issue unclear. 
58. [58]
    For example, that subparagraph speaks of the goods being unloaded at approximately 1:34pm, consistently with the defendant’s previous para 10B, but introduces the words “and before approximately 2.00pm”, raising an element of ambiguity.  It continues on, though, to assert that the plaintiff left at approximately 6.00pm (this despite what was pleaded at the defendant’s para 10B about the timing of his authorised presence) and then makes a statement about him doing little work connected with his employment in the intervening period, the relevance of which is not apparent. 
59. [59]
    The real problem again is the obscurity of the defendant’s pleading.  Once again, the language raises the impression that it probably contains an explanation, in part, for the denial, but it is not clear enough to be a “direct” explanation for the whole denial.  This non-compliance with r 166(4) gives rise to a deemed admission.  However, because there is enough within what was pleaded to infer there exists a direct explanation capable of articulation in support of a denial or non-admission, I will give leave for the admission’s withdrawal pursuant to r 188 by the defendant filing a further further amended defence properly pleading to para 10C.
60. [60]
    The denial in the defendant’s para 10C was also of the plaintiff’s para 10E.  The subparagraphs just discussed were proffered in joint explanation for the denial of paras 10C and 10E of the amended statement of claim.  Why para 10E of the amended statement of claim was included in that denial, relying on the same explained denial as para 10C, is unclear.  None of the subparagraphs of the defendant’s para 10C relate to the content pleaded in para 10E of the amended statement of claim.  That content relates to what the plaintiff allegedly did after having completed a host of tasks detailed in para 10D of the statement of claim, and then going on to move some specifically named pallets to a specifically nominated position and the balance of the pallets further inside the warehouse and using a forklift in performing those tasks. 
61. [61]
    In short, the purported explanation contained in para 10C of the defendant’s further amended defence in explanation of its denial of the plaintiff’s para 10E, provides no explanation at all and the defendant is thus deemed to have admitted para 10E of the amended statement of claim’s para 10E.  Whether it should be given leave to withdraw that deemed admission by further pleading is a topic better concluded after discussing the defendant’s manner of pleading to para 10D of the amended statement of claim.

Paragraphs 10D and 10E

62. [62]
    Paragraph 10D of the amended statement of claim describes in some detail what pallets the plaintiff moved on the afternoon of 8 October 2018, where he moved them, what their weights were and the manner in which he moved them, including doing so using the pallet-jack, moving each of them separately, pulling each towards him commencing from a stationary position, being required to bend his knees whilst commencing to pull the jack, using maximum effort whilst using the jack from a stationary position, and pushing each pallet into position from a stationary position.  Those separate facts are pleaded in the plaintiff’s para 10B as discrete subparagraphs and, for that matter, some sub-subparagraphs. 
63. [63]
    The defendant’s para 10D pleads a mix of explanations but does not relate them to the subparagraphs of the plaintiff’s para 10D.  It is, at best, evasive.  Further, it includes a number of bland assertions merely stating the opposite effect of what is alleged by the plaintiff, the vice earlier alluded to as discussed by Mackenzie J in Groves.^[14]  The reason why such a deficient approach was taken is probably reflected in a now deleted pleading at para 10D(a) of the amended defence that, “The Plaintiff was alone at the time alleged by the Plaintiff to be relevant, so the Defendant cannot admit the allegations based on its own knowledge”. 
64. [64]
    Facts actually proffered in explanation of the denial are that there was adequate space for the pallets already so that there was no need to make space, as alleged, and that some of the alleged weights and loads were less, and that if the plaintiff did move one or two chicken-feed pallets (which is denied) he used the forklift not the pallet-jack.  This appears to be a reference to some peripheral facts bearing upon the truth of some of the factual allegations in the plaintiff’s para 10D, but certainly not all of them.  Whether those peripheral facts are sufficient to give a partial explanation for a denial, as distinct from a mere non-admission, is arguable but the argument is academic in the context of a pleading which does not contain adequate facts to provide a direct explanation for the denial of the whole of the plaintiff’s para 10D (as distinct from some discrete subparagraphs thereof). 
65. [65]
    I therefore conclude the defendant’s para 10D is a deemed admission of the plaintiff’s para 10D.  However, it is a reasonable inference from what has been pleaded that the defendant does have knowledge of some facts which may found a direct explanation for a denial or at least a non-admission.  To avoid the unjust prospect of the defendant being shut out from at least being able to rely on such facts as it can establish as relevant to the occurrence of the matters pleaded by the plaintiff in his para 10D, leave ought be given for the defendant to withdraw the admission by repleading. 
66. [66]
    Because of the factual connection between the plaintiff’s para 10D and para 10E, I reach a similar conclusion in respect of para 10E of the defendant’s further amended defence.  In the circumstances I will order the defendant has leave to withdraw its deemed admissions to the plaintiff’s paras 10D and 10E by filing a further further amended defence properly pleading to paras 10D and 10E.

Paragraph 11B

67. [67]
    Paragraph 11B of the amended statement of claim alleges in its subparas (a) to (e) inclusive, that on 9 October 2018 the plaintiff was required to move pallets that were blocking access to the premises and moved approximately 10 of the 11 pallets he had moved the previous day back into the loading area (the so-called “second move”), using a forklift to do so, commencing the task at approximately 7.00am and completing it at approximately 7:15am.  Those allegations are denied at para 11B(a) of the defendant’s further amended defence, with the only explanation for the denial being the aforementioned ineffective explanations that the alleged events did not occur, that the plaintiff is an unreliable historian and that, in the alternative, the plaintiff will not establish that the events occurred as alleged. 
68. [68]
    It is again noteworthy that some of the deleted subparagraphs of this paragraph previously contained in the amended defence of the defendant included the proposition that the defendant did not witness the matters alleged.  The conclusion is irresistible that this is a deemed admission by reason of its absence of a direct explanation for the denial. There appears to have been a pleading error in that there should likely have been a non-admission. The defendant should be relieved of the consequence of the deemed admission by being given leave to withdraw it and replead.
69. [69]
    As to para 11B(f) of the plaintiff’s amended statement of claim, it alleges that in the course of the second move the plaintiff was required to perform all of the tasks involved quickly and was constantly under time pressure to complete them.  In denying that allegation, para 11B of the amended statement of claim advances the explanation that if the plaintiff did move the pallets (which is denied) he performed the task in an unhurried and leisurely pace and was not required to perform the task constantly under time pressure or quickly.  It is a matter of degree, but this appears to go beyond the mere pleading of a bare opposite in that the defendant would know whether it made a requirement of the plaintiff that he perform the tasks in question.  This is arguably a generous interpretation but that is justified given the ambiguity in the plaintiff’s pleading he was “required” to perform the tasks as alleged. It is unclear whether the plaintiff meant “required” in his own conclusion in response to circumstances such as a blocked access or “required” in response to a requirement made of him by a representative of the defendant.
70. [70]
    It follows that part of the defendant’s further amended defence does not contain a deemed admission.  By reason of the earlier deficiencies I will direct that the defendant file a further further amended defence properly pleading to the plaintiff’s para 11B, but that direction is not prompted by a deficiency underlying the defendant’s existing pleading to the plaintiff’s para 11B(f).

Paragraphs 11C and 11D

71. [71]
    Paragraph 11C of the further amended defence contains a combined denial to both paras 11C and 11D of the amended statement of claim.  Those paragraphs relate to a so-called “third move” alleged to have occurred later on 9 October 2018.  The plaintiff’s para 11C pleads that involved moving the pallets, the subject of the second move, from the loading area into the premises into the final position for those pallets, that the move commenced at approximately 1.00pm and was completed at approximately 5.00pm, and that in the course of it the plaintiff was required to move around other pallets and to perform all of the tasks involved quickly and constantly under time pressure to complete those tasks.  The plaintiff’s para 11D pleads that, in performing that third move, the plaintiff used the forklift to move the pallets from the loading area inside, the pallet-jack to move the pallets around inside to their final position, worked continually on the task, pushed the loaded pallet-jack repetitively from a stationary or near stationary position, and pulled the loaded pallet-jack repetitively from a stationary or near stationary position. 
72. [72]
    The defendant’s para 11C pleads an explanation of its denial of both the plaintiff’s paras 11C and 11D.  It pleads at 11C(d) that the plaintiff attended to other tasks during the course of that day but it is not apparent how those tasks as described provide explanation for the denial, save that they introduce the fact there were some occasions when the plaintiff interrupted the performance of the alleged task between 1.00pm and 5.00pm to tend to some other tasks.  This scarcely explains the whole of the denial. 
73. [73]
    It is supplemented by additional explanations at para 11C(e) that the plaintiff’s co-worker Rob Robinson was present up to 2.00pm and would have offered assistance, if requested.  This does little to account for the balance of the period from 2.00pm to 5.00pm.  It is also pleaded by the defendant at para 11C(f) that if the plaintiff had carried out the tasks (which is denied) he could not have worked continually or quickly and did not do so because the alleged work could have been completed by one person in much less time than four hours, or at a very leisurely pace with many breaks. 
74. [74]
    Other pleaded explanations are more obscure.  For example, at para 11C(g) the defendant pleads that, “If the Plaintiff carried out the said tasks … given that he has alleged moving 10 pallets within the premises over 4 hours that afternoon, and some unspecified additional pallets, he could not have, and/or it is inherently implausible that he pushed or pulled pallets repetitively from a stationary position that afternoon.”  The causal connection between the first part of that allegation and the latter part is not apparent. 
75. [75]
    The defendant also pleads at para 11C(h) that if the plaintiff carried out the tasks they were undertaken using appropriate equipment, namely a forklift and pallet-jack, and involved loading pallets of modest weight which could be easily moved on the level surface of the premises using the pallet-jack without risk of injury.  This subparagraph pleads, again, that the work was performed at a leisurely pace.  It also pleads the task did not cause the plaintiff to suffer pain or injury, which is obviously a relevant issue in the case but is no explanation of the denial at hand.
76. [76]
    Considered overall the defendant’s para 11C contains a mix of pleaded facts, the significance of which, in explaining the denial of the plaintiff’s paras 11C and 11D, is of varying obscurity.  Once again the reader is left to infer what that significance is supposed to be in explaining the denial without the benefit of the required direct explanation.  Once again the non-compliance is a deemed admission.  Once again enough has been pleaded to suggest there may exist facts which may directly explain a denial or alternatively a non-admission so that it is unjust to hold the defendant to the deemed admissions and preferable that it replead.
77. [77]
    I will give leave for the withdrawal of the deemed admissions by the filing of a further further amended defence properly pleading to the plaintiff’s paras 11C and 11D.

Orders

78. [78]
    The defendant’s application met with little objective success.  These reasons and the orders to be made demonstrate the controversy which provoked the application was a product of the defendant’s making.  Those considerations powerfully support the conclusion that the defendant should pay the costs of the application. In case the defendant contends otherwise, I will allow the parties an opportunity to be heard as to costs.
79. [79]
    Given the orders will require the filing of a further further amended defence, my orders will impose a timetable for that and the filing of a further further amended reply.
80. [80]
    My order relating to the filing of a further further amended defence will require that it properly plead to nominated paragraphs of the plaintiff’s amended statement of claim. To remove doubt that does not confine the defendant to amending only those paragraphs of its further amended defence relating specifically to those paragraphs. If the defendant apprehends that other paragraphs need to be re-pleaded in light of these reasons then it is at liberty to do so (subject of course to it not going behind my refusal of leave to withdraw its admission to para 7(c) of the amended statement of claim).
81. [81]
    My orders are:

1. It is declared the defendant is not deemed to have admitted para 1(cd) of the amended statement of claim.
2. It is declared the defendant is deemed to have admitted para 7(c) of the amended statement of claim, per r 166(5) Uniform Civil Procedure Rules and leave to withdraw it is refused.
3. Leave is granted to the defendant, pursuant to r 188 Uniform Civil Procedure Rules, to withdraw its deemed admissions to paras 10A(d)(ii), 10B, 10C, 10D, 10E, 11B(a)-(e), 11C and 11D of the amended statement of claim, by filing a further further amended defence which properly pleads to those paragraphs within 14 days hereof.
4. The plaintiff shall file any further further amended reply within 14 days of service of the further further amended defence.
5. The parties will be heard as to costs, if costs are not agreed in the meantime, at 9.15am 22 March 2023 (out of town parties having leave to appear by videolink or telephone).
6. Liberty to apply on the giving of two business days’ notice in writing.