Bye v Hend

[2025] ACTSC 94

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Bye v Hend

Citation: 

[2025] ACTSC 94

Hearing Date: 

18 February 2025

Decision Date: 

20 March 2025

Before:

McWilliam J

Decision: 

Leave granted to plaintiff to withdraw admissions made in respect of a Notice to Admit Facts.  Plaintiff to pay defendants’ costs.

Catchwords: 

PRACTICE & PROCEDURE – application to withdraw admissions – where admissions deemed by omission to respond to Notice to Admit Facts – where delay but stage of proceeding permitted withdrawal without prejudice – application granted

Legislation Cited: 

Court Procedures Act 2004 (ACT) s 5A

Court Procedures Rules 2006 (ACT) rr 491, 492

Cases Cited: 

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175

Carr v Needham [2019] ACTSC 98

Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd [2005] SASC 158

1․    Clough and Rogers v Frog (1974) 48 ALJR 481

Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738

Cropper v Smith (1884) 26 Ch D 700

Drabsch v Switzerland General Insurance Co Ltd (unreported, Supreme Court of New South Wales, Santow J, 16 October 1996)

Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; 204 ALR 327

Le Meilleur Pty Ltd v Jin Heung Mutual Savings Bank Co Ltd [2011] NSWSC 1115; 256 FLR 240

Maile v Rafiq [2005] NSWCA 410

Re Rocco Celestino v Antonio Celestino (unreported, Federal Court of Australia Full Court, Spender, Miles and Von Doussa JJ, 16 August 1990)

Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292; [2001] 2 Qd R 455

Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm) [2016] FCAFC 2; 332 ALR 199

Wyer v Hunt [2005] ACTSC 15

Parties: 

Jennifer May Therese Bye ( Plaintiff)

Steven John Hend (First Defendant)

Homes Gallery Pty Limited T/AS L J Hooker Belconnen (Second Defendant)

Representation: 

Counsel

P Diaz ( Plaintiff)

J Moffett ( First Defendant)

A Costin ( Second Defendant)

Solicitors

Hampton Law Services ( Plaintiff)

Mills Oakley ( First Defendant)

HBA Legal ( Second Defendant)

File Number:

SC 246 of 2023

McWILLIAM J:         

1․The plaintiff in this proceeding, Ms Jennifer Bye, is in a dispute with her former landlord and agent.  She alleges that she suffered a personal injury as a result of suffering an electric shock from a faulty light switch which she alleges she told them about but was not repaired in a timely or effective manner.

2․Proceedings were commenced in this court in July 2022.  As part of the preparation of the matter for hearing, the defendants served the plaintiff with a Notice to Admit Facts on 15 February 2024 (Notice), pursuant to r 491 of the Court Procedures Rules 2006 (ACT) (Rules). 

3․For reasons outlined below, the Notice was not answered and pursuant to r 492 of the Rules, the facts alleged in the Notice are now deemed to have been admitted.

Application to withdraw admissions

4․By application dated 28 November 2024 (filed 2 December 2024), the plaintiff has sought leave to withdraw the deemed admissions.  The application was opposed.

5․During the course of the hearing, it emerged that not all the facts deemed admitted in the Notice were sought to be withdrawn.  The plaintiff refined her application to seeking leave to withdraw only the deemed admissions in paragraphs 17, 18, 21, 22 and 23 of the Notice.  An order granting leave to confine the application to those admissions was made at the hearing. 

6․The relevant admissions are as follows:

17. Between 21 February 2020 and 25 June 2020, the plaintiff did not raise with the First Defendant any issue with the Light Switch.

18. Between 21 February 2020 and 25 June 2020, the plaintiff did not raise in writing with the Second Defendant any issue with the Light Switch.

…

21. On 25 June 2020 the plaintiff was aware of the state of the Light Switch.

22. On 25 June 2020 the plaintiff was aware the Light Switch had become damaged.

23. As at 25 June 2020 the plaintiff was suffering from white matter disease.

7․If leave is granted to withdraw the admissions, the plaintiff will make no qualified admission in respect of [17] and [18] above.  She will make the following qualified admissions in respect of [21]-[23]:

(a)[21]: On 25 June 2020, the plaintiff was aware of the condition of the Light Switch, in that it was deteriorating.

(b)[22]: On 25 June 2020, from approximately 5pm, the plaintiff was aware the Light Switch had become damaged.

(c)[23]: As at May 2021, the plaintiff was diagnosed with white matter disease.

8․The defendants opposed the amended application.  They argued presumed and actual prejudice arising from the length of time between which the admissions were deemed to have been made and the application to withdraw them.

Principles applicable to the withdrawal of admissions

9․The guiding principles for the withdrawal of admissions, whether the admission be express or deemed, are well established, although the significance of case management and court resource considerations has been given more prominence since Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 (Aon). 

10․The authorities treat admissions made in correspondence in the context of court proceedings the same way as admissions made in pleadings: Re Rocco Celestino v Antonio Celestino (unreported, Federal Court of Australia Full Court, Spender, Miles and Von Doussa JJ, 16 August 1990) (Celestino). 

The discretion is broad

11․First, the Court’s discretion in deciding whether to permit the withdrawal of an admission is broad and unfettered, weighing up all matters, with the overriding question being what is in the interests of justice, to ensure that there is a fair trial: Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; 204 ALR 327 (Jeans) at [18] and [23]; Maile v Rafiq [2005] NSWCA 410 (Maile) at [42]; Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292; [2001] 2 Qd R 455 (Rigato) at [20] and the cases there-cited. As stated in Rigato at [20] (citations omitted):

There is no principle that admissions made, or deemed to have been made, may always be withdrawn “for the asking”, subject to payment of costs.  The discretion is broad and unfettered …

12․A fair trial does not mean that parties have an inalienable right to a hearing of all issues on the merits: Rigato at [22]. As Aon makes clear at [102]-[103] (discussed below), the modern approach to procedural decisions gives significance to case management considerations, such that earlier statements which minimise the weight to be given to court efficiency and case management should be approached with caution in the era of statutory intervention. In this jurisdiction, s 5A of the Court Procedures Act 2004 (ACT) (CP Act) requires that powers exercised in applying civil procedure provisions must be exercised in the way that best promotes the main purpose of the provisions.  The main purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.  This includes, inter alia, the efficient use of judicial resources, the efficient disposal of a court’s overall caseload, the timely disposal of civil proceedings and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

An explanation is required

13․Second, an explanation for the making of the admission which is now sought to be withdrawn is usually required. “The explanation must be a sensible one, based on evidence of a solid and substantial character”: Celestino; Maile at [76]. What is necessary by way of evidence depends on the facts of the particular case. Commonly the explanation will be given by an applicant’s solicitor from their own knowledge, but in some cases that is not necessary and in others, that of itself is not sufficient: see the discussion in Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm) [2016] FCAFC 2; 332 ALR 199 at [154]-[156].

Withdrawal of informed and deliberate admissions, which are accepted by the opponent, will not ordinarily be permitted

14․Third, a party should not be permitted to easily withdraw an admission, as otherwise the making of an admission might become meaningless: Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 (Coopers Brewery) at 750.

15․In furtherance of that principle, where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted: Drabsch v Switzerland General Insurance Co Ltd (unreported, Supreme Court of New South Wales, Santow J, 16 October 1996) (Drabsch).  This was approved in Jeans at [18] and [23] and has been consistently applied in this jurisdiction in cases such as Wyer v Hunt [2005] ACTSC 15 (Wyer) at [21] and more recently in Carr v Needham [2019] ACTSC 98 at [39]. The statements in Drabsch included the court not being obliged to give decisive weight to court efficiency.  However, this must now be read in light of procedural case management considerations given prominence in Aon.

16․Thus, where the court is satisfied that an admission has been made after consideration and advice, such as from an expert and after a full opportunity to consider its case and whether the admission should be made, such admissions made with “deliberateness and formality” would ordinarily not be permitted to be withdrawn.  The court will not approve the withdrawal of an admission where the application to withdraw is actuated by purely tactical reasons: Drabsch, cited in Wyer at [21].

Mistakes should be corrected provided they do not occasion injustice to the opponent

17․Fourth, the object of the courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases.  This picks up the competing policy that parties should not be discouraged from making admissions out of fear that they cannot later be withdrawn, referred to in Le Meilleur Pty Ltd v Jin Heung Mutual Savings Bank Co Ltd [2011] NSWSC 1115; 256 FLR 240 per Ward J (as her Honour then was) at [307]-[308]. If the mistake is not fraudulent or intended to overreach, can be corrected without injustice to the other party, and if not corrected will not lead to a decision on the real matters in controversy, it should generally be corrected as a matter of right: Celestino, citing Cropper v Smith (1884) 26 Ch D 700 at 710-711. That statement of principle was approved by the High Court in Clough and Rogers v Frog (1974) 48 ALJR 481 at 482.

A respondent does not need to establish prejudice

18․Fifth, a respondent carries no onus to establish actual prejudice.  The court is entitled to take into account presumed prejudice which arises from delay: Maile at [89]; Coopers Brewery at 746.

19․A helpful and frequently cited summary of the principled exercise of the discretion is to be found in Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd [2005] SASC 158, where Debelle J said at [32]:

The overriding consideration is the interests of justice. The Court will not lightly permit a party to withdraw an admission where the other party has acted to its detriment on the admission or is otherwise prejudiced by the withdrawal. It is plainly necessary to have regard to all relevant factors including the nature and importance of the admission, the circumstances in which the admission was made, whether the admission was made deliberately or inadvertently, the reason given for the application to withdraw, the detriment or prejudice which might be caused to the other party and the stage which the proceedings have reached, and whether the admission is contrary to the facts. The list of relevant factors affecting the Court’s decision will plainly vary from case to case.

What is in the interests of justice here?

20․It is clear from the explanation provided in the evidence that the deemed admissions made here were not admissions deliberately made. 

21․The plaintiff’s affidavit generally deposed to the Notice being served at a time when her solicitors were in the process of withdrawing from acting as her representatives, and to the plaintiff not receiving the Notice until two days before it was due to take effect. The evidence otherwise disclosed that her new solicitors did not get across the effect of the admissions (which were already deemed admissions by the time of their taking on the matter) and their consequences, or at least did not take any steps to undo that which was deemed under the Rules. This was despite the defendants ensuring that the new solicitors were made aware of the service of the Notice on 18 April 2024, shortly after they commenced acting. The evidence was that the defendants were notified of the intention to seek leave to withdraw the admissions during a mediation that occurred on 5 November 2024. Otherwise, the evidence of the solicitor acting was silent as to why no application was made earlier than November 2024. The explanation is unsatisfactory in that regard.

22․The confined admissions relate directly to matters relevant to the defendants’ liability and the extent of any damages, in that the particular facts admitted are as to the plaintiff’s knowledge of the risk, her notification of that risk to the defendants, and a pre-existing medical condition.  These are the real matters in controversy. 

23․Thus, it is the case that the admissions were made by inadvertence, a mistake which, if not corrected, will not lead to a decision on the real matters in controversy.  The consideration turns to whether they can be corrected without injustice to the defendants.

24․There was a period of approximately 9 months between the deemed admissions being made and the application to withdraw them.  The defendants relied on the principle that they do not have to establish actual prejudice but said that they were in fact prejudiced because they had made strategic decisions in preparing for trial, such as not briefing medical expert witnesses on the question of whether the plaintiff had a prior existing condition, and evidence from an electrician who apparently will assist their case on the issue of the state of the light switch at the time the plaintiff took possession of the rental premises.  It was not clear whether that was lay or expert evidence.  If the former, this is a matter where lay evidence is to be taken viva voce in any event. 

25․Further steps that the defendants say have not been done include reviewing the documents that were already obtained, and the first defendant serving a notice of contribution against the second defendant.  Although the defendants contended that the basis on which the parties negotiated during the mediation included the deemed admissions, counsel for the plaintiff did foreshadow an application to withdraw the admissions at that time, and the present application was filed when the matter did not resolve.

26․The stage of the proceeding at which the application has been made is relevant to the consideration here.  It appears that in the ordinary course, after the failed mediation in November 2024, the matter would have taken a hearing date in December 2024.  However, the matter is not yet listed for hearing. 

27․Counsel for the plaintiffs also submitted that the stage at which the admissions were sought and deemed is of significance here, in that the admissions were not made in a pleading.  The case was being pursued for a considerable period of time before the Notice was sent.  This means the defendants had full opportunity to make inquiries (and indeed, to review documents) before the admissions were made.  There is no evidence that any further steps they would have carried out cannot now be taken.

28․What that amounts to is that the defendants have obviously relied on the deemed admissions in good faith in preparing the case for hearing.  However, as far as I can discern, they will not suffer injustice by the grant of leave to correct the procedural mistake. The only real consequence of forensic or strategic decisions made is that the defendants did not prepare to defend issues that will now be contested if the admissions had not been made.  That is not to ignore the detriment.  It is simply that it is a detriment that does not amount to permanent prejudice.  It can be remedied, in that the defendants can now prepare to deal with facts that will now be in issue and, as the plaintiff submitted, the documents which would have been provided to a medical expert have not changed or been lost.

29․Insofar as the filing of a notice of contribution is concerned, the second defendant is already a party and the plaintiff’s case is pleaded equally against it in the pleading as seen from paragraphs 1.6, 1.11-1.13, and 1.14 of the statement of claim which refer to both defendants.  The allegations founding any notices of contribution are likely to in large part replicate what the plaintiff says should have been done by each defendant.

30․Delay is really the crux of the matter, as all these steps will prevent the matter being listed for trial. Mindful of case management considerations, this is far from desirable, particularly in circumstances where the Notice was one of the first things that the defendants brought to the attention of the solicitor coming onto the record, and nothing was done about the Notice for months.  However, the fact that the matter had not been listed for hearing (at the expense of other litigants who may have otherwise been allocated that time) lessens the weight to be given to that matter.

31․Overall, the circumstances still favour the plaintiff being permitted to withdraw admissions mistakenly made.  Regrettably, she has been let down by a combination of her former solicitors not taking any proactive steps to defend the Notice when they were still formally on record as acting and then her present legal representatives not engaging with the very significant consequences of the deemed admissions in a timely manner.   

32․The difficulties for the defendants and the consequent further delay are not such as to overpower the inappropriateness of the plaintiff being forced to run a case contrary to what her actual evidence will be, with those facts being of great significance both to liability and the ultimate scope.

33․I will therefore grant leave to withdraw admissions 17, 18, 21, 22 and 23 of the Notice to Admit Facts served 15 February 2024.  That will necessitate a timetable in order to bring the matter on for hearing.

Costs

34․The plaintiff has been successful on her application, but as the defendants submitted, the nature of the application was to seek an indulgence. The plaintiff should pay the defendants’ costs of the application, being the price of withdrawing admissions previously made. With the purpose behind costs being compensatory, that is the fair outcome in circumstances where the defendants complied with the Rules and were entitled to proceed to prepare the case on the basis of the deemed admissions. They are in the position they are without any fault on their part.

Orders

35․For the above reasons, the orders of the Court are as follows:

(1) Pursuant to r 492 of the Court Procedures Rules 2006 (ACT), leave is granted to the plaintiff to withdraw admissions made in respect of paragraphs 17, 18, 21, 22 and 23 of the Notice to Admit Facts served 15 February 2024 (Notice).

(2)  The plaintiff is to file any response in respect of the allegations contained in the said paragraphs of the Notice by 27 March 2025.

(3)  The matter is placed in the directions list on 7 April 2025 at 2:30pm for the making of a timetable to prepare the matter for hearing.

(4)  The plaintiff is to pay the defendants’ costs of the application, with such costs not to be recoverable until the conclusion of the proceeding.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of Justice McWilliam.

Associate:

Date: