Byrne v Byrne
[2013] VSC 218
•2 May 2013
| Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
SC I 2004 09583
| JANE BYRNE | Plaintiff |
| v | |
| THOMAS BYRNE | Defendant |
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JUDGE: | DERHAM AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2013 | |
DATE OF JUDGMENT: | 2 May 2013 | |
CASE MAY BE CITED AS: | Byrne v Byrne | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 218 | |
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PRACTICE and PROCEDURE – Notice to admit facts served by plaintiff– whether notice confined to facts or mixed facts and law – Whether rolled up facts and law proper for notice to admit - Defendant failed to give notice of dispute - Application to withdraw deemed admissions – Failure to dispute through oversight or error by defendant’s solicitor – Notice to admit not in accordance with the Rules – Application for leave to withdraw admissions allowed if necessary – Costs where other applications for discovery and inspection dealt with by consent – Costs following the event of the application for leave to withdraw admissions.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.G. Uren QC | Slater & Gordon |
| For the Defendant | Mr D. Masel SC with Mr D. Oldfield | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
The substance of the matter to which these reasons relate is an application by the defendant that, in so far as there has been an admission by the defendant by failing to respond to a notice to admit, the defendant had leave to withdraw that admission.
Background Facts
This proceeding has been set down for trial on 20 May 2013. Thus the determination of the defendant’s application is urgent.
It is a personal injuries claim, commenced by Writ filed on 13 December 2004, in which Jane Byrne (“Mrs Byrne”) is plaintiff and her husband, Thomas Byrne is defendant (“the defendant” or “Mr Byrne”). It is a claim for damages arising out of an incident alleged to have occurred on 29 February 1999 (which is apparently a misstatement of the date as 1999 was not a Leap Year). Mrs Byrne alleges that when she was travelling as a passenger in a vehicle being driven by her husband in Elliott Avenue, Parkville, that her husband braked suddenly causing the seatbelt which Mrs Byrne was wearing to pull heavily across her body. There is no allegation of any collision in consequence of the sudden braking.[1]
[1]A potentially more accurate account of the incident is given in the decision of Cavanough J in Byrne v Transport Accident Commission [2008] VSC 92 at [1].
At the time of the incident Mrs Byrne alleges she was approximately four months pregnant and that within 24 hours of the incident she required hospital admission and subsequently gave birth to a stillborn normally formed male foetus (on 2 March 1999).
It is also alleged that the loss of the foetus constituted a serious injury as defined in s 93(17) of the Transport Accident Act 1986, which having regard to paragraph (d) of that sub-section is clearly correct. Mrs Byrne alleges that the events referred to were occasioned by the negligence of Mr Byrne in the driving, management and control of the vehicle being driven by him. She also alleges that by reason of the matters just referred to she suffered injury, loss and damage, in particular loss of a foetus, psychological response including shock, anxiety and depression, major depressive disorder, symptoms of post-traumatic stress disorder, including sleep disturbance, tearfulness and loss of weight and impaired powers of concentration and memory.
The proceeding has been defended on behalf of the defendant by the Transport Accident Commission (“TAC”) pursuant to provisions of the Transport Accident Act. Although the proceeding was commenced by writ on 13 December 2004, it was adjourned sine die for many years whilst other proceedings against TAC were pursued, as well as other proceedings against solicitors formerly acting on Mrs Byrne’s behalf.[2]
[2]See Byrne v Transport Accident Commission [2008] VSC 92 and the affidavit of Patricia Faye Westray Toop sworn 29 April 2013.
In its defence filed 31 May 2011 TAC, on behalf of the defendant:
(a) does not admit:
(i) that the Mrs Byrne sustained injury whilst travelling as a passenger in the vehicle;
(ii) the sudden braking by Mr Byrne of the vehicle causing the seatbelt to pull heavily across Mrs Byrne’s body.
(b) Admits:
(i) the foetus was stillborn on 2 March 1999;
(ii) that pursuant to s 93 of the Transport Accident Act the plaintiff is entitled to maintain her claim for damages;
(c) but denies:
(i) that the injury alleged was occasioned by the negligence of the defendant
(ii) the injuries allegedly suffered by Mrs Byrne.
(d) In addition, it is pleaded in answer to the claims made by Mrs Byrne that:
(i) the stillborn foetus was entrusted to Tobin Brothers Pty Ltd for burial at Fawkner Cemetery (operated by Fawkner Crematorium and Memorial Park);
(ii) that contrary to the instructions and wishes of Mrs Byrne and Mr Byrne, Tobin Brothers and/or Fawkner Cemetery negligently and/or in breach of an agreement made, cremated the stillborn foetus instead of burying it,
in consequence of which if Mrs Byrne suffered the injury alleged it was caused in whole or in part by the wrongful cremation, a new intervening act for which the defendant is not liable.
(e) Moreover, it is pleaded in answer to the claim that Mrs Byrne (and Mr Byrne) commenced proceedings against Tobin Brothers and the Fawkner Cemetery which were compromised upon terms that those defendants pay Mrs Byrne, or Mrs Byrne and Mr Byrne “considerable compensation”.
The Applications
Against this background, the defendant applies by summons dated 24 April 2013 for a variety of relief, including that Mrs Byrne file and serve a further affidavit of documents listing and properly describing each document in her possession in relation to the proceedings brought against Tobin Brothers and the Fawkner Cemetery, that Mrs Byrne make discovery of and produce for inspection:
(a) the terms of settlement of the proceeding against Tobin Brothers and the Fawkner Cemetery;
(b) all letters of instruction written on her behalf to Dr Nigel Strauss and Professor Lorraine Dennerstein;
(c) copies of her tax returns and notices of assessment for each year from 2008 to date.
Further, the defendant seeks leave to inspect and copy a range of subpoenaed documents produced by DLA Piper Australia, Slater & Gordon Lawyers, Wisewould Mahony, K & L Gates, HWL Ebsworth Lawyers, Leake Street Clinic and Dr Penny Brabin.
Lastly, the defendant seeks that, in so far as there has been an admission by the defendant by failing to respond to a notice to admit that the defendant had leave to withdraw that admission.
The Discovery Issues
The parties have resolved by agreement the applications by the defendant for discovery and inspection of the various documents mentioned above and, in the process of that agreement, have obviated the need for any leave being granted by the plaintiff to the defendant to inspect and copy the subpoenaed documents. But they have not agreed how the costs of the defendant’s application for discovery and inspection should be dealt with.
The Notice to Admit and Withdrawal of Deemed Admissions
The one substantive matter that remains in dispute, apart from the question of costs, is whether the defendant should have leave to withdraw the deemed admission consequent upon a failure to give a notice of dispute within the time limit after a notice to admit facts was delivered.
The notice to admit facts was dated 11 January 2013 and, according to the affidavit of the solicitor for TAC, was received on or about 14 January 2013. The notice required the defendant to dispute, within 14 days of service, the following:
That the defendant admits negligence with respect to the motor vehicle accident in which the plaintiff was a passenger and thereby suffered injury and loss of a foetus on or about the 29 February 1999. (sic)
In the affidavit in support of the application, the solicitor for TAC who had the conduct of the proceeding on behalf of the defendant, swore that TAC failed to respond to the notice to admit within 14 days due to her oversight. Earlier, in a letter dated 28 February 2013[3] the solicitor asserted that TAC failed to respond to the notice to admit “in error” and that she was instructed that TAC does not admit negligence or causation in the matter. In a later letter dated 21 March 2013 the solicitor for TAC made it clear that it did admit that the accident was the cause of the loss of the foetus.[4]
[3]Exhibit MOA-4 to the affidavit of Michelle Olivia Adams sworn 24 April 2013 (“Adams affidavit”).
[4]Letter dated 21 March 2013, Exhibit MOA-7 to the Adams affidavit.
Rule 35.03 of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”) provides, so far as relevant, as follows:
(1)A party may serve on another party a notice stating that unless that party within a time to be expressed in the notice (which shall not be less than 14 days after service), disputes the facts specified in the notice, that party shall, for the purposes of the proceeding only, be taken to admit those facts.
(2)If the party served with the notice does not dispute any fact specified by serving notice that that party disputes the fact within the time allowed for that purpose, that party shall, for the purpose of the proceeding only, be taken to admit that fact.
(3)By leave of the Court, a party may withdraw an admission which is taken to have been made under paragraph (2).
Mr Masel SC, senior counsel for the defendant, submitted in the first place that the notice to admit facts did not satisfy the requirements for such a notice. It did not “specify facts”, alternatively it did not specify facts in an appropriate manner. Further, he submitted that if that was not correct, nevertheless the evidence established that the failure to serve a notice of dispute was as a result of an oversight and that was sufficient evidence to warrant the Court granting leave to the defendant to withdraw the admission. He also submitted that in the circumstances where TAC was defending the proceedings in the name of the defendant in accordance with the Transport Accident Act and had not admitted or had denied the elements going to the issue of negligence and causation, there was clearly a genuine dispute as to the “facts” (if they be facts) specified in the notice. In this regard, I note that the solicitor for TAC had, in correspondence in mid March 2013 relating to the notice to admit, expressed the necessity to discuss the notice with the defendant, but was reluctant to contact the defendant at his home address because Mrs Byrne resided there. She therefore requested an alternative contact number for him. Almost a month after this request, the solicitor for Mrs Byrne provided a mobile number, which I was informed, was incorrect.
Mr Uren QC, who appeared for the plaintiff, submitted that there are two preconditions that must be satisfied before the Court should grant leave to the defendant to withdraw the deemed admissions consequent upon the failure to serve a notice of dispute. First, there should be a clear explanation for both how and why the admission came to be made. Secondly, there should be detailed particulars given of the issue or issues which the parties would raise at trial if the admission was withdrawn: Ridolfi v Rigato Farms Pty Ltd (“Ridolfi”)[5] and Permanent Trustee Company Ltd v Gulf Import and Export Company (“Permanent Trustee Company”).[6]
[5](2001) 2 Qd R 455 at 461.
[6][2006] VSC 110 at [10].
Mr Uren QC submitted that this was a case where there was not a clear explanation on oath as to how and why the solicitor failed to give a notice of dispute in the time allowed, nor were there detailed particulars given of the issue or issues which the defendant would raise at trial if the admission was withdrawn. Mr Uren also submitted that there is no prohibition upon a party giving a notice to admit ultimate facts, and that is what the notice to admit in this case did.
It is clear that the notice to admit in this case rolled together in one so-called fact the following separate elements:
(a) That the defendant was negligent with respect to the motor vehicle accident, presumably meaning that the defendant was negligent in the driving of the motor vehicle on the occasion that he braked suddenly;
(b) that Mrs Byrne was a passenger in the vehicle at the time;
(c) that Mrs Byrne “thereby” suffered injury on 29 February 1999 (sic);
(d) that Mrs Byrne “thereby” suffered loss of a foetus on 29 February 1999 (sic) (which of course is contrary to the allegations in the statement of claim).
It seems to me that a notice to admit in the form in which the notice was given in this case, requiring the defendant to separate out the above facts, or mixed questions of law and fact, is not a notice in accordance with Rule 35.03 of the Rules. The Rule requires that the facts to be admitted be “specified in the notice”. This requires the stating of the facts definitely, or to state them in detail.[7] In my view, it also requires the distinct identification of the facts to be admitted or disputed. The rolling together of a variety of facts, ultimate facts and questions of law (and facts not consistent with the pleading) does not satisfy this requirement. Such facts, as distinct from conclusions of mixed fact and law, as are contained in the notice are not distinctly specified in a way that would enable an appropriate notice of dispute.
[7]The Macquarie Dictionary, 3rd Ed, definition of ‘specify’.
Even if it is appropriate to allow a notice to admit containing the rolled up conclusions and facts, at least two of those elements involve conclusions of mixed fact and law and as such cannot be the subject of a notice to admit. A notice to admit which requires the other party to admit such a conclusion is irregular and liable to be struck out. The two elements which are mixed questions of law and fact are the first and third set out in paragraphs 19 (a) and (c) above. In not responding to the notice, the defendant will not be taken to admit the conclusion: Aslor Pty Ltd (in liq) v Springmount Pty Ltd; Crema (Vic) Pty Ltd (in liq) v Aslor Pty Ltd (In liq).[8] In that case, Chernov J noted (at [29] that the notices were made up of a mixture of conclusions, facts and law. He found some paragraphs of the notice were confined to facts, but nevertheless considered the whole of the notices should be disregarded (at [30]).
[8]Chernov J, 15 October 1998, No. 2259/96 unreported BC 9805949; Cormie v Orchard [2001] QSC 021.
For these reasons it seems to me that it was not necessary for the defendant to give a notice of dispute in response to the notice to admit, and it was open to the defendant to apply to set aside the notice to admit.
But if I am wrong in this conclusion, I am of the view for the reasons following that the defendant should have leave to withdraw any deemed admissions arising from a failure to give a notice of dispute within time.
It is trite to say that each case needs to be decided according to its own facts and circumstances. Each of the decisions cited to me by Mr Uren QC, Ridolfi and Permanent Trustee Company need to be considered against their own facts.
In Ridolfi the application to withdraw the deemed admission was made by way of submission and was not supported in any way by an affidavit disclosing an explanation as to why the solicitor failed to give a notice of dispute. The application for leave to withdraw the admissions was made orally at the commencement of the trial of the proceeding in circumstances where there had been a change of solicitors some three months after the notice to admit was served (on the former solicitors for the defendant). The solicitors for the plaintiff had placed considerable reliance upon the admissions deemed to have been made in consequence of the service of the notice to admit. Thus, not only was there no evidence of the circumstances leading to the failure to give a notice of dispute, the application came very late. In the leading judgment of the Court given by de Jersey CJ, his Honour said (at [20]) that 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 a broad and unfettered discretion as exemplified by Cooper’s Brewery Ltd v Panfida Foods Ltd,[9] and Equuscorp Pty Ltd v Orazio.[10]
[9](1992) 26 NSWLR 738.
[10][1999] QSC 354.
In this case, the explanation is clear, albeit uncluttered with detail. It was an oversight by the TAC solicitor responsible for the conduct of the proceeding for the defendant. How further detail of the oversight would better inform the court is not clear. At bottom, the submission made by Mr Uren QC was that the explanation was “light”, in the sense that it lacked detail, and so was not a “clear explanation” as required by the authorities, particularly the observations of Williams J in Ridolfi at [32]. In my view, further detail in this case may be described as merely corroborative of the oath of the solicitor that she made an oversight, that is, she was in error.
Mr Uren QC sought to make something of the distinction between an oversight and an error. In the context of this case, it seems to me that they amount to the same thing. She overlooked the notice to admit, or the response to it, and in that sense made an error.
In relation to the second element that the authorities show is required in order for the defendant to be given leave to withdraw the admissions, namely that there is a genuine dispute about the defendant’s liability in the action, both the decision of the Queensland Court of Appeal in Ridolfi, and the decision of His Honour Justice Harper (as he then was) in Permanent Trustee Company make it clear that some proper basis must be laid for the assertion that a genuine dispute exists.
In this case, it is clear from the pleadings that negligence in the driving of the vehicle at the timing of the accident, and causation of the injury in consequence of the death of the foetus, are in issue. Moreover, TAC, representing as it must the defendant who is the husband of the plaintiff, is dependant on the defendant for detailed reasons in answer to the allegations of negligence and causation.
The contrast with Permanent Trustee Company case is instructive. In that case Harper J found that the facts and documents the subject of the notice were not in contention. He said (at [10]):
In general, a party ought not to be allowed to withdraw an admission where the truth of the relevant fact or facts… is not the subject of a genuine dispute. This is so even where the admission is a “deemed” admission by reason of a failure to serve, in time, a notice of dispute. Ex hypothesi, a notice of dispute ought not, in the absence of a genuine dispute, be served at all. In these circumstances, a court that granted leave to withdraw would allow the withdrawing party to thwart the very purpose which the rule is designed to advance.
His Honour then quoted from the decision of Williams J in Ridolfi (as referred to above in paragraph 17) and went on at [11]:
… By their defence and counterclaim, they allege that the plaintiff’s case is vitiated by fraud, and that that fraud is also sufficient to sustain the counterclaim. They wish to advance their case at trial by cross-examining witnesses whom the plaintiff is not likely to call unless forced to do so in order to prove facts and documents in respect to which the plaintiff has sought admissions.
In other words, the defendants wish to preserve a tactical advantage that, had a notice of dispute been served within time, they would have enjoyed. (at [13]).
… This is not in my view an adequate reason for the Court granting leave to take a step which would be contrary to the purpose which order 35 was designed to achieve.
The circumstances of that case were, therefore, that there was not a genuine dispute about the facts the subject of the notice to admit and for that reason alone it was appropriate that the application by the defendant be refused. In this case, in the circumstance that the defendant is the husband of the plaintiff, that the proceeding is defended on the husband’s behalf by TAC and because of the limited direct information available to TAC regarding the circumstances of the incident, the pleadings are as good a guide to the issues as exists. This is not the occasion for the introduction of evidence to sustain the pleaded defences. It is sufficient if the court is satisfied that there is a genuine dispute as to the elements identified in the so called notice to admit. Clearly, in my view, the central element of whether the defendant was negligent in the driving of the vehicle is and must be able to be tested by TAC, in the public interest. It is therefore a matter of genuine dispute.
For these reasons I will order that, insofar as any admissions are taken to have been made by the defendant in consequence of the notice to admit dated 11 January 2013, the defendant has leave to withdraw the admissions.
Costs
A large part of the controversy raised by the defendants summons dated 24 April 2013 concerned matters of discovery and inspection of documents, including subpoenaed documents. These matters were resolved sensibly by the parties. From the correspondence exhibited to the affidavit of the solicitor for the defendant in support of the summons it appears many requests were made with little or no response from the solicitor for the plaintiff. At the last moment the solicitor for the plaintiff swore and affidavit (29 April 2013 Patricia Toop) offering such of the documents sought by the defendant as appeared to be relevant and not privileged. It seems to me that the defendant’s application has therefore been productive in part and has been necessary to progress the matter. But it went too far in the material it sought to have inspected, including the files of solicitors who have acted for the plaintiff in proceedings now resolved. Much of those files were inevitably the subject of client legal privilege.
It seems to me therefore that the costs of the summons in so far as it concerned discovery and inspection of documents has involved degrees of success by both parties, and the costs in this respect should fall where they lie. I will accordingly make no order as to costs in respect of those parts of the summons that concerned discovery and inspection.
With respect to the application to withdraw admissions, insofar as any were made by the failure to give a notice of dispute, I have concluded that the notice to admit was not in compliance with the Rules, was susceptible to be set aside and, accordingly, properly understood it could not give rise to any admissions. I have in addition considered whether if it does give rise to admissions, whether this is a case where it is appropriate to give leave to the defendant to withdraw the admissions - and have decided that it is.
For these reasons, I consider that the defendant has had substantial success in the application to this extent. I will allow the defendant the costs of the day the argument was heard, 30 April 2013, and otherwise make no order as to the costs.
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