Byrne v Byrne - [2013] VSC 218

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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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSC 218
Decision Date: 2 May 2013

CaseChat Overview and Summary

The case of Byrne v Byrne involved a dispute between the parties over various issues including property settlements and financial obligations following the breakdown of their marriage. The matter was heard in the Family Court of Australia. The plaintiff, Byrne, sought to rely on certain admissions made by the defendant, Byrne, in a notice to admit facts served prior to the hearing. The defendant argued that the notice to admit facts was flawed as it included both factual and legal components, which was not appropriate under the court's rules.

The legal issues before the court centred on the validity of the notice to admit facts and the consequences for the defendant's failure to properly dispute the facts within the required timeframe. Specifically, the court needed to determine whether the notice to admit facts was properly confined to factual matters or whether it improperly included legal conclusions. Furthermore, the court had to consider the circumstances under which the defendant's failure to dispute the facts could be excused, and whether it was appropriate to allow the defendant to withdraw the admissions made.

In its decision, the court found that the notice to admit facts did indeed include both factual and legal components, which was not compliant with the court's rules. Despite this, the court allowed the defendant to withdraw the admissions on the basis that the failure to dispute was due to an oversight or error by the defendant's solicitor. The court also noted that the application for leave to withdraw the admissions was necessary and, given that the parties had resolved other discovery and inspection issues by consent, the costs associated with the application for leave to withdraw admissions were to be borne by the parties equally.

Orders