Lambropoulos v Adelaide Community Healthcare Alliance Incorporated & Van Renen

[2020] SADC 163

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Application)

LAMBROPOULOS v ADELAIDE COMMUNITY HEALTHCARE ALLIANCE INCORPORATED & VAN RENEN

[2020] SADC 163

Decision of Her Honour Judge Deuter

25 November 2020

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS

Application by Third Party for leave to file and serve a Notice to Admit Facts and Documents upon the Respondent.

Proceedings commenced by Applicant seeking damages from the Respondent after death of her husband at a hospital operated by the Respondent.  Pleadings of negligence related to the care provided to the Applicant's husband in the hours after surgery at the Respondent's hospital.

Respondent filed a Third-Party Claim against the third party, an independent anaesthetist, alleging negligence in relation to a decision made to transfer the applicant's husband to a High Dependency Unit after surgery rather than to an Intensive Care Unit.  Denied by third party who pleads gross negligence and dereliction of duty by the respondent's staff in the care of the applicant's husband, and that such gross negligence and dereliction of duty operates as a Novus Actus Interveniens, relying upon the pleaded negligence in the Applicant's claim.

Before trial Applicant's claim settled and judgment entered.  Respondent maintains third party action.

Third party can no longer rely on evidence being led by the applicant at trial to establish gross negligence and dereliction of duty on behalf of the respondent.  Third party seeks leave to file and serve the Notice to Admit, seeking admissions in relation to facts led and documents tendered at a Coronial Inquest.

Consideration of Uniform Civil Rules 2020 and differences with District Court Civil Rules 2006 in relation to objects of case management and purpose of Notices to Admit.

Held:

The burden of answering the Notice to Admit is not out of proportion with the likely time and cost savings to be achieved at trial by not having to call witnesses of fact.

The answers to the Notice will narrow the factual issues between the parties and will facilitate the just, efficient, cost-effective and proportionate resolution of the proceedings (Uniform Civil Rule 1.5).

Leave granted to the third party to file and serve a Notice to Admit Facts and Documents 'out of time' pursuant to Uniform Civil Rule 117.1(2).

Uniform Civil Rules 2020 Rules 1.5, 117.1; District Court Civil Rules 2006 Rules 116, 117, 156(5); Supreme Court Rules 2006 Rules 116, 117; Evidence Act 1929 (SA) ss 45a, 45b, 45c, (repealed) and ss 52, 53, referred to.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Rak v Coles Myers Ltd (1996) 68 SASR 272; Thomson Brindal Ltd v McLachlan (2000) 207 LSJS 90; Southern Equities Corporation Ltd (in Liq) v Bond (No 2) (2000) 34 ACSR 660; Sheahan v Hertz Australia Pty Ltd (1993) 171 LSJS 359; O'Brien v Cowie and Ors [2020] SASC 22; O'Brien v Cowier [2020] SASCFC 70; Cosenza & Anor v Roy Morgan Interviewing Services Pty Ltd [2020] SASC 65, discussed.

LAMBROPOULOS v ADELAIDE COMMUNITY HEALTHCARE ALLIANCE INCORPORATED & VAN RENEN
[2020] SADC 163

The Application

1. The second third party, Dr van Renan (‘the third party’) filed an Interlocutory Application[1] (‘the application’) on 13 August 2020 seeking an order that he have leave to file and serve a Notice to Admit Facts and Documents addressed to the respondent.

   [1]    FDN 28.

2. The order is sought pursuant to Rule 117.1(2) of the Uniform Civil Rules 2020 (‘UCR’):

   117.1   – Notice

   1)   A party may file and serve on another party to a proceeding a notice to admit –

   (a)the truth of a specified fact; or

   (b)the authenticity, relevance or admissibility of a specified document.

   2)   Unless the Court otherwise orders, a party cannot give more than two notices to admit or give a notice to admit after the earlier of –

   a)28 days after the last date on which lists of documents are due to be filed by operation of these Rules or an order of the Court; or

   b)the date on which the proceeding is either entered or listed for trial.

3. It is agreed that the time frames set out in UCR 117(2) (a) and (b) have long passed.  The third party argues that the nature of this action and its history means that leave to serve a Notice to Admit is appropriate to ‘facilitate the just, efficient, timely, cost-effective and proportionate resolution’ of the proceedings.[2]

   [2]    Uniform Civil Rules 2020 Rule 1.5.

4. The respondent opposes the application, submitting that the trial of the third party claim is listed to commence on 1 March 2021, and that the facts and documents sought to be admitted in the draft Notice to Admit (‘the draft Notice’) will not avoid the necessity for evidence to be adduced and/or witnesses to be called at trial. There will be no, or limited saving of costs or time at trial, by the answering of the Notice.

   The Claim

5. This Action was commenced by the applicant, the widow of Mr Andre Lambropoulos (‘Mr Lambropoulos’), on 24 November 2016.  The claim was brought against the respondent seeking damages for injury and loss that she and her children had suffered as a result of Mr Lambropoulos’ death on 30 November 2013.  He died after undergoing a laparoscopic bariatric surgical procedure on 25 November 2013, at Ashford Hospital, a facility operated by the respondent.  Mr Lambropoulos had remained in the care of Ashford Hospital between his surgery and his death.  The applicant claimed that Mr Lambropoulos’ death was caused by the negligence of the respondent as a result of its inadequate care of him post-surgery, while he was a patient in the Hight Dependency Unit (‘HDU’) over the afternoon and evening of 25 November 2013.  It was pleaded by the applicant that Mr Lambropoulos suffered from repeated hypoxic episodes and sustained hypoxia which led to him suffering a cardiac arrest and an irreversible severe ischaemic brain injury. 

6. The essential elements of the applicant’s claim in negligence are set out in paragraph 11 of her Claim documents, where she particularises the failures of the respondent’s employees or agents in their care of Mr Lambropoulos over 25 November 2013.  These include:

   ·     a failure to properly observe and attend to Mr Lambropoulos given his know pre-existing conditions;

   ·     a failure to ensure Mr Lambropoulos was connected to appropriate alarms, particularly a respiratory alarm for the purposes of oximetry monitoring;

   ·     a failure to recognise, acknowledge, respond and/or act on alarm sounds made by the respiratory alarm for oximetry monitoring to which Mr Lambropoulos was connected, including 33 such recorded alarms;

   ·     wrongly assuming that the respiratory alarms that had sounded were not reliable indicators of deterioration in Mr Lambropoulos’ condition;

   ·     a failure to ensure Mr Lambropoulos had an adequate oxygen supply while in HDU so as to remove the risk of a cardiac arrest and damage to his organs and brain due to hypoxia.

7. On 19 October 2018, the respondent filed a Third-Party Action against the third party, an independent anaesthetist engaged by Mr Lambropoulos for the procedure performed on 25 November 2013.  It is pleaded that the third party breached the duties he owed to Mr Lambropoulos in his role as an anaesthetist in making the decision to transfer him to the HDU after his surgery rather than to the Intensive Care Unit (‘ICU[DJJ(1] ’).  This plea was based upon Mr Lambropoulos’ pre-existing health issues, his post-surgery complications, including significant pain levels and his known high risk of respiratory failure.  The respondent pleads that had the third party directed that Mr Lambropoulos be transferred to the ICU his medical problems would have been successfully managed and he would have survived.

8. On 14 May 2019, the Action was set down for a 15-day trial to commence on 4 May 2020.  Before the trial commenced, I was advised at a Directions Hearing on 12 March 2020 that an in-principle settlement of the applicant’s claim had been agreed with the respondent.  There was however no resolution of the Third Party Action.  After approval of the claim on behalf of the infant children, judgment was formally entered for the applicant on 24 March 2020.  The Third Party Action remained on foot, but the trial was adjourned due to COVID-19 issues impacting witness availability in May 2020.

   Third Party Action – Issues

9. The fundamental issue between the respondent and the third party is the cause of Mr Lambropoulos’ death and the competency of the treatment provided by each of respondent and the third party.   The third party denies that any act or omission on his behalf was causative of Mr Lambropoulos’ death, and that given his presentation after surgery it was reasonable and appropriate for him to be transferred to the HDU.  He pleads that it was the acts or omissions of the respondent by its staff at Ashford Hospital that caused Mr Lambropoulos’ death.  In his defence, he relied upon the particulars of negligence set out in paragraph 11 of the applicant’s claim, and the fact that he was not notified of Mr Lambropoulos’ deteriorating condition whilst he was in the HDU. 

10. The third party also pleads that the respondent’s negligence in relation to its treatment of Mr Lambropoulos post-surgery ‘…was so gross as to be both inexcusable and a serious unforeseeable dereliction of the duty the defendant [respondent] owed to Mr Lambropoulos and the plaintiff [applicant]…’.[3]  He continues by pleading that the respondent’s gross negligence and inexcusable and serious unforeseeable dereliction of duty ‘…operates as a novus actus interveniens, so that even if there was negligence by him (which is denied), the death of Mr Lambropoulos and the plaintiff’s [applicant’s] loss and damage are solely attributable to the defendant [respondent]…’.[4]

    [3]    Para 16(k) of Second Defence (FDN 23).

    [4]    Para 16(n) of Second Defence (FDN 23).

11. The third party takes no issue with the reasonableness of the judgment sum agreed between the applicant and respondent.  The sole issue between the parties is who was responsible for Mr Lambropoulos’ death, and to what extent.  However, once the proceedings between the applicant and the respondent were finalised, the third party was left in the position of having to prove his case by calling evidence that would have been called by the applicant at trial to prove her case on liability.  This issue was raised by counsel for the third party at the Directions Hearing before me on 12 March 2020, when the in-principle settlement between the applicant and the respondent was first raised.  Counsel for the respondent attended on that occasion.

12. This resolution of the applicant’s claim raises an issue for the third party regarding the conduct of the Third Party Action.  His pleadings at paragraphs 16(k) and 16(n) of the Second Defence mean that he bears the evidentiary onus of proving his case of gross negligence and dereliction of duty on the part of the respondent and carries the onus of proving those actions caused a novus actus interveniens. He cannot simply lead evidence to defend the allegations of negligence pleaded by the respondent in relation to his actions or omissions relative to Mr Lambropoulos’ treatment.

    The Draft Notice to Admit

13. Having been advised of the finalisation of the applicant’s action against the respondent, the third party, by letters of 18 March 2020 (before the judgment had been finalised) and 24 April 2020, sought the admission of certain facts and documents from the respondent.[5]  The admissions sought largely arise out of evidence adduced at a Coronial Inquest conducted into Mr Lambropoulos’ death, between 16 November 2015 and 3 August 2016.  Despite an email of 14 May 2020 from the respondent’s solicitor indicating consideration was being given to the correspondence and seeking a further 21 days to respond,[6] no response was ever provided.

    [5]    Exhibit RMS 1 to the Affidavit of Richard Mark Smith dated 12 August 2020 (FDN 29).

    [6]    Exhibit RMS 2 to the Affidavit of Richard Mark Smith dated 12 August 2020 (FDN 29).

14. The draft Notice to Admit Facts,[7] sent with the correspondence to the respondent’s solicitors on 24 April 2020 mirrors the draft Notice now the subject of the third party’s application for leave.  The only difference is that the references to where to find the fact or document in the evidence before the Coroner is removed.

    [7]    Exhibit RMS 3 to the Affidavit of Richard Mark Smith dated 12 August 2020 (FDN 29).

15. The draft Notice seeks the admission of 49 facts set out in Schedule 1.  Of those facts, the third party seeks the admission of three documents, being documents that contain facts to be admitted; and nine documents that are statements or records of two nurses employed by the respondent. The facts sought include that in relation to four of the statements that they were tendered at the Coroner’s Inquest.  All of the facts sought to be admitted relate to the monitoring of Mr Lambropoulos while in the HDU during 25 November 2013, and the data from equipment and alarms over that period. This includes 5 facts that relate to statements or documents provided by Mr Brett Randell (‘Randell’), a biomedical engineer who works for a company that in 2013 provided services to Ashford Hospital.  He was involved in providing advice to the respondent in relation to the equipment used to monitor Mr Lambropoulos following his surgery at Ashford Hospital.  All documents by which facts are sought to be admitted in relation to Randell were tendered at the Inquest.

16. The draft Notice also seeks that the respondent admit the authenticity, relevance and admissibility of 13 documents set out in Schedule 2.  Nine of these documents are documents where admissions are already sought in Schedule 1 relating to the same two nurses who were caring for Mr Lambropoulos on 25 November 2013. The other four documents in Schedule 2, are three of the documents by which facts are already sought to be admitted in relation to Randell, and the transcript of Randell’s evidence at the inquest.

    Leave to File the Notice to Admit

17. By UCR 117.1, a party cannot file and serve a Notice to Admit if the time frames in sub-paragraphs (2)(a) or (b) have passed ‘unless the Court otherwise orders’.  That wording is slightly different to the previously applying District Court Civil Rules 2006 (SA) (‘DCR’).  By DCR 156(5) a Notice to Admit could not be filed after a time frame related to discovery had passed ‘without the Court’s permission’.

18. The respondent argued that although there was no commentary on the different wording, the word ‘permission’ in DCR 156(5) set a lower bar to be reached by an applicant seeking leave to file a Notice to Admit out of time, than requiring a court to make an order for leave to file a Notice pursuant to UCR 117.1(2).

19. The respondent argued that there had been an obvious shift in approach with the introduction of the UCR with a push towards a ‘cost-effective’[8] approach to the administration of justice.  While acknowledging the change in wording, I do not agree that the changes introduced by the UCR, have a purpose any different than the purpose set out in DCR 116(1), where it was stated that the Court in managing litigation must ensure it is conducted fairly, expeditiously and economically.  These were the principles set out by the High Court in 2009 in Aon Risk Services Australia Ltd v Australian National University[9], and have been adopted by courts since that time.  It is my view that the word ‘cost effective’ is no more than a more modern way of saying ‘economical’.

    [8]    Uniform Civil Rules 2020 Rule 1.5.

    [9] (2009) 239 CLR 175.

20. As to the difference in wording between the UCR and the DCR, I find that nothing can or should be read into that. In giving ‘permission’ to a party to file a Notice to Admit after the time to do so had expired pursuant to DCR 156(5), a Court needed to make an order granting leave for that Notice to be filed.  In granting permission, a judicial officer would exercise their judicial discretion before making an order.  Factors such as the reason for the delay, how close the matter was to trial, the extent of the Notice and the items sought to be admitted, the cost to the responding party in time required to answer the Notice, and the savings at trial are all part of that discretion. I find that in making an order for leave to file a Notice after time has expired pursuant to UCR 117.1(2) the same factors need to be taken into account.

21. These factors were considered by Lander J in Rak v Coles Myer Ltd[10] (‘Rak’) and Thomson Brindal Ltd v McLachlan[11] (‘Thomson Brindal’). Both cases deal with applications regarding the adequacy of a party’s response to a Notice to Admit.  In considering the applications Lander J set out the purpose of a Notice to Admit in the context of modern litigation.  In Rak he noted that the Notice to Admit meant parties could establish the authenticity of documents at an early stage in the litigation, meaning there would be no need to call unnecessary evidence at trial.  He said that the:

    ‘purpose of the rule in relation to documents is for the easier proof of that party’s case and for the saving of costs and time in the proof of that case.’[12]

    [10] (1996) 68 SASR 272.

    [11] (2000) 207 LSJS 90.

    [12] (1996) 68 SASR 272 at 276.

22. Similarly, with the admission of facts the Notice allowed a party to prove a fact without calling evidence meaning:

    ‘…again, the purpose of the rule is to make the proof of that fact easier and for a saving of costs and time in doing so… when used properly the rules have the effect of narrowing the issues between the parties, avoiding unnecessary expense, and avoiding unnecessary time in the trial process.’[13]

    [13] Ibid.

23. In relation to proof of documents, Lander J noted that Parliament recognised that formal proof of documents at trial, when they are really not in dispute, can be expensive and time-consuming by introducing (the then) ss45a, 45b and 45c of the Evidence Act 1929 (SA)[14] in relation to proof of business records.  He concluded:

    When one has regard to the reforms that have been made to the Rules of Court in the recent past, the sections of the Evidence Act and the modern approach to the Law of Procedure, it can be seen that the intention of both the Parliament and the courts is to ensure that any matter that is not subject to any genuine dispute, or any document about which there is no real dispute, ought to be proved quickly and without the previous requirement of formality.  The whole object is to require the parties to focus their attention on the matters genuinely in dispute so as to avoid the parties incurring the needless cost involved in lengthy litigation and to avoid the State bearing the cost of the administration of justice.[15]

    [14] Now ss52 and 53 of the Evidence Act 1929 (SA).

    [15] (1996) 278 SASR 272 at 278.

24. In Thomson Brindal[16] Lander J confirmed the purpose of the Notice to Admit in civil litigation when he stated:

    It is in the parties’ and the Court’s interest, and therefore it is in the interests of the administration of justice, that only those issues which are genuinely in dispute between the parties form the subject matter of litigation at trial.  It is no longer permissible, if it ever was, for one party to put another party to the expense of proving unnecessary matters, which are not genuinely in dispute.  Such an attitude on the part of the first part is contrary to justice. Any party who is being put to unnecessary expense by the other party is in a sense being denied justice.  The parties have an obligation to ensure that all attempts are made to narrow the issues between the parties and to ensure that the trial of the action is concerned only with the matters truly in dispute between the parties.

    …..

    [16] (2000) 207 LSJS 90.

1. To that end courts have an obligation, it seems to me, to ensure that they have practices and procedures in place to require parties to make genuine endeavours to ensure that a trial is limited to the true issues is dispute.[17]

   [17] Ibid at para 50 – 51.

2. The Courts have considered how these principles should be applied.  In Southern Equities Corporation Ltd (in Liq) v Bond (No2)[18] (‘Southern Equities’) Debelle J noted that the obligation on a party served with a Notice to Admit can be onerous and that answering the notice can involve substantial time and expense. However, this was not a sufficient reason to strike out a notice.  His view was that the task of the Court was to consider and balance the work and cost involved in a full and proper response, with the savings in time and costs at trial.  Justice Debelle adopted a test described by Master Burley in Sheahan v Hertz Australia Pty Ltd[19] (‘Sheahan’) where after discussing the balancing exercise he stated:

   If the effort and expense required to respond to the notice is out of all proportion to whatever saving may be gained at trial, then I consider that the notice to admit should be struck out. In light of that reasoning it is obvious that I need carefully to consider the extent of the detriment to the defendant in responding to the notice to admit, and compare that to the likely benefit that may accrue if the notice to admit is responded to.

   [18] (2000) 34 ACSR 660.

   [19] (1993) 171 LSJS 359 at 362.

3. In Southern Equities, Debelle J was required to consider the burden on the defendant, where he was seeking to strike out a very substantial Notice to Admit. That Notice was 106 pages long and contained over 1000 requests for admissions and 18 volumes of documents.  Justice Debelle concluded as follows:

   …the parties seeking to strike out a notice to admit on the ground that it is oppressive will not succeed simply by proving that the time and cost involved in answering the notice is substantial or that it equates, broadly speaking, with the savings in time and cost at the trial. It must be clearly demonstrated that the cost is out of all proportion to the savings at the trial.  That is consistent with the purpose of the notice to admit procedure as identified by Lander J.  Plainly there are uncertainties in attempting to assess the time and cost involved in each.  That uncertainty only serves to underline that a party seeking to set aside a notice to admit has a substantial burden to discharge.[20]

   [20] (2000) 34 ACSR 660 at para [9].

4. This is often described as a test of proportionality.  To deny a Notice to Admit a Court must be satisfied that the cost of responding to the requests for admissions bears no proportion to the savings to be achieved at trial in time and cost by not having to formally prove the matters upon which admissions are sought.

5. Justice Bampton recently considered an application by defendants to strike out a Notice to Admit in a matter where quantum in a personal injury claim was in dispute.[21]  The plaintiff’s profound injuries were suffered at birth.  The Notice to Admit was served on 14 October 2019. A six-week trial was listed to commence on 2 March 2020 before her Honour.  The Notice contained 170 propositions of fact and two volumes of documents, totalling 199 pages.  It dealt with issues that the defendants claimed would still require ventilation at trial, even if the Notice was answered.  Many of the facts sought to be admitted arose from the plaintiff’s extensive expert evidence (the plaintiff had obtained 25 expert reports).  The defendants argued that to answer the notice they would be required to work through each of their expert reports to determine whether each fact alleged had been observed and/or agreed by those experts, and if not whether further examination of the plaintiff by that expert would be required to determine the issue.  As would be expected in such a matter, the defendants submitted that there were significant differences of opinion between the experts and lay witnesses as to the level of ongoing assistance required by the plaintiff in all facets of her life.  Therefore, even if answers were provided to the Notice, all of the expert witnesses would be required to give evidence at trial.  The defendants submitted that at the least 20 hours of work would be involved in answering the Notice, and that the costs likely to be incurred, including of obtaining further expert opinion on some issues, were disproportionate to any savings to the parties in time and costs at trial.

   [21] O’Brien vCowie and Ors [2020] SASC 22.

6. Justice Bampton, as the trial judge considered the issues in dispute on the assessment of damages for a profoundly disabled plaintiff.  She noted that she would want to hear evidence from lay and expert witnesses as to the plaintiff’s needs for daily living, future care, earning capacity, accommodation, treatment requirements and life expectancy.  She considered the test for striking out a Notice to Admit as set out in Southern Equities and Sheahan, being the need to balance between the effort and expense in answering a Notice with the likely savings of cost and time at trial, and ultimately determined that no time would be saved at trial, given the number of expert witnesses who would still be required to give evidence.  Her Honour was also of the view that many of the responses sought depended on the ‘meaning and nuances of the responses’[22] and should be the subject of direct evidence at trial given that the expert evidence sought to be admitted was mainly informed by the evidence of lay witnesses.

   [22] O’Brien v Cowie and Ors [2020] SASC 22 at para 37.

7. The plaintiff had sought to rely on Lander J’s reasoning in Rak, however Bampton J noted that in that case, and each of Southern Equities and Sheahan the Notices to Admit were served well before the action had been listed for trial, and in matters where the admissions sought related to the issue of liability.  In relation to the defendants facing up to the issues in dispute, she noted that they had done so by admitting liability, making it clear that it was the quantum of damages that was the significant issue in dispute.

8. Justice Bampton did make comment regarding Lander J’s formulation of the issues in Rak, and the respondent has relied upon those comments in arguing against leave being granted in the matter before me.  She stated:

   This is not a matter where on my assessment the defendants are indulging in the, to use Lander J’s word, ‘…luxury of…requiring the other party to prove formally each and every fact where those facts are not genuinely in dispute’.  The practice of litigation has evolved since the litigation presided over by Lander J and Debelle J at the end of last century and beginning of this century. (emphasis is mine).[23]

   [23] Ibid at para [41].

9. Her Honour found that the Notice only added:

   ‘to the time, cost and trouble of the litigation…. I agree that it is likely that any responses given will result in argument about the meaning, significance, and effects of the notice and any answers given’.[24]

   [24] Ibid at para [43].

10. The respondent argues that the passage above from Bampton J’s judgment distinguished Rak and Southern Equities on the grounds that the practice of litigation has evolved since those cases were decided.  In considering this I note that her Honour does not identify the changes in the practice of litigation that she regards as important.  Leave to appeal has been granted by the Full Court.  The Full Court in granting leave stated that in view of Bampton J’s reference to potential change ‘…or at least difference in emphasis, in courts’ approach to the role and utility of notices to admit since the decisions in Rak and Southern Equities’, the appeal could provide guidance to litigants and lower courts. [25]

    [25] O’Brien v Cowie [2020] SASCFC 70 at para [13].

11. Justice Bampton’s comments were also referred to by Livesey J in Cosenza & Anor v Roy Morgan Interviewing Services Pty Ltd[26] where the respondent’s answers to a Notice to Admit Facts were being considered in the context of a failure to comply with the rules.  With reference to O’Brien v Cowie Livesey J stated:

    There is increasingly, a tendency to recognise that a Notice to Admit does not facilitate the proper resolution of the issues, especially where it is directed to matters that are likely to be the subject of evidence at a trial in any event. Notices to Admit should not it seems to me, be viewed as equipment for use in connection with any ‘sporting theory of justice’.[27]

    [26] [2020] SASC 65.

    [27] Ibid at para [15].

12. Taking all matters into account, including the development of the law since Rak, in considering the third party’s application for leave to file a Notice to Admit, I find that the approach to be adopted when assessing whether leave should be granted is whether the answering of the Notice adds to the costs and burden of the litigation, or whether the anticipated savings in time and cost at trial outweigh the burden to the respondent of attending to the Notice.  That savings in time and cost at trial involves an assessment of whether the matters to which the Notice is directed will likely still involve evidence to be called. 

13. This is the test applied by DeBelle J in Southern Equities and as set out in Sheahan.  This test was not rejected by Bampton J in O’Brien v Cowie, but rather distinguished on the basis of the facts of the action in front of her.  Those were:

    ·     the Notices to Admit in the earlier matters were delivered very early in the proceedings, and well prior to trial;

    ·     the Notices to Admit in the earlier matters all sought admissions in relation to liability, as opposed to liability having been admitted in the matter before her Honour;

    ·     the Notice to Admit before Bampton J was reliant upon responses relating to extensive expert evidence, where the heads of damage were genuinely in dispute;

    ·     the issues in dispute were the facts, assumptions and expert opinions concerning each head of damage;

    ·     the opinions of the experts relied on discussions with lay witnesses, which the defendants were entitled to explore at trial as they were the assumptions upon which the expert opinions were based;

    ·     her Honour concluded that she would need to hear the expert evidence for a number of reasons, and accordingly there would be no savings to be gained at trial in spending time and cost in answering the Notice.

14. In deciding the matter before me, I must also give consideration to the case management objects of the UCR of facilitating ‘…the just, efficient, timely, cost-effective and proportionate resolution or determination of issues in proceedings governed by these rules’.[28]  In this regard I note that O’Brien v Cowie is a decision where the Supreme Court Civil Rules 2006 applied.

    [28] Uniform Civil Rules 2020 Rule 1.5.

15. One of the factors set out in UCR 1.5 as being one of the objects of the new rules is the ‘proportionate resolution or determination of issues in proceedings’.  This was not set out as a factor to be considered in the either the Supreme Court Civil Rules 2006[29] or the DCR[30].  In considering an application for leave to file a Notice to Admit I am now required to consider, amongst other issues, the proportional response to the Notice

    [29] Supreme Court Civil Rules 2006 Rules 116 and 117.

    [30] District Court Rules 2006 Rules 116 and 117.

    The Third Party’s Argument

16. The third party argues that until 12 March 2020 he was entitled to assume that the applicant in her case would adduce all of the evidence required to prove the matters and circumstances in relation to the cause of Mr Lambropoulos’ death.  A Coronial Inquest had been conducted where all parties had been represented.  As a result, the third party was well aware of the evidence the applicant was likely to call to prove her case in negligence against the respondent.  It was only after settlement of the applicant’s claim and the removal of the applicant from the proceedings that the third party was required to call evidence at trial to establish his case.

17. The third party says that there was no unreasonable delay in requesting admissions from the respondent once he was aware of settlement of the applicant’s claim in that:

    ·     the issue of how the third party was going to prove his case was raised in court at a Directions Hearing on 12 March 2020, the day after the settlement had been achieved;

    ·     a letter was forwarded to the respondent’s solicitors on 18 March 2020 seeking admissions;

    ·     this letter was sent before the settlement with the applicant had been approved and formalised;

    ·     there was no response from the respondent’s solicitors to that letter;

    ·     a further letter was sent by the third party’s solicitor on 24 April 2020 attaching the draft Notice to Admit, seeking a response within 21 days;[31]

    ·     an email response was received from the respondent’s solicitors on 14 May 2020, indicating that they were considering the correspondence of 24 April 2020, (received on 29 April 2020).  The respondent’s solicitors sought a further 21 days and said that they ‘would get back to them as soon as they were able with a response’.[32]

    ·     no response to the requested admissions was ever provided;

    ·     the application for leave was filed on 13 August 2020.

    [31] Exhibit RMS 1 to the Affidavit of Richard Mark Smith dated 12 August 2020 (FDN 29).

    [32] Exhibit RMS 2 to the Affidavit of Richard Mark Smith dated 12 August 2020 (FDN 29).

18. The reason for the delay between the filing of the Notice and the argument before me on 16 November 2020 was not the fault of either party, but was caused by my unavailability.  The parties acknowledge this.

19. The third party relies upon the matters set out in UCR 1.5 as being applicable to this matter. He argues that given the circumstances of this matter, and in particular the inquest that was held where all issues in relation to Mr Lambropoulos’ death were ventilated, the respondent will not be prejudiced if leave is granted.  He will not be surprised by the issues raised.  If the admissions are made there will be substantial savings of time and cost at trial.  The third party argues that the facts sought to be admitted were all established by evidence led at the Inquest from employees or agents of the respondent.  The documents to be admitted were all tendered at the Inquest and are from records held and generated by the respondent as prepared by their employees, or by Randell who worked for the respondent in a contracting capacity.  The third party argues that the facts sought to be admitted in relation to the nature and extent of the monitoring of Mr Lambropoulos while in HDU on 25 November 2013 come from the respondent’s employees or Randell as per evidence at the Inquest.  The circumstances surrounding his death cannot genuinely be in dispute.  This is particularly so in relation to items 5, 7 and 25 which deal with data from the tracking of the monitoring equipment that Mr Lambropoulos was attached to in the HDU. 

20. The third party submitted that given the respondent’s counsel represented Ashford Hospital at the Inquest, with the same firm of solicitors acting, they well understand all of the circumstances surrounding Mr Lambropoulos’ death.  The respondent’s counsel had the opportunity at the inquest to explore all of the facts sought to be admitted.  As a result, answering the Notice to Admit will not take a significant amount of time.  They are not starting from scratch, but are being asked to admit facts and documents, the circumstances of which are well known to them.

21. One such fact is Item 16 that seeks an admission in relation to how alarms on the devices monitoring Mr Lambropoulos could be silenced.  It was submitted that this was a topic put to Randell in his evidence at the inquest by the respondent’s counsel as the only person who had evidence regarding this topic.[33]  Counsel for the third party took me to several other passages in the evidence of Randell to submit that the facts sought to be admitted were fully explored by counsel at the inquest. 

    [33] Page 406 of the evidence of Randell at Coronial Inquest, being Exhibit ‘L’ to draft Notice to Admit at Exhibit RMS 3 to the Affidavit of Richard Mark Smith dated 12 August 2020 (FDN 29).

22. All facts sought to be admitted arise from the evidence given by the respondent’s own employees, the two nurses who attended on Mr Lambropoulos in HDU who were led through their evidence at the inquest by the respondent’s counsel; or from the evidence of Randell who was the respondent’s contractor.  Randell was led through his evidence at the Inquest by his own counsel and thoroughly cross-examined by the respondent’s counsel who appeared before me.  The transcript of his evidence is 110 pages long.[34]  The third party argues that the totality of this evidence demonstrates that Randell’s testimony was thoroughly tested by several counsel and it sets out full detail of the monitors used in the HDU, how the alarms operated and how they can be silenced.  Several of the facts sought to be admitted come from this evidence, which the third party says is plain, unequivocal and not selective.

    [34] Exhibit ‘L’ to draft Notice to Admit at Exhibit RMS 3 to the Affidavit of Richard Mark Smith dated 12 August 2020 (FDN 29).

23. In his submissions, the third party answered the respondent’s argument that many of the facts and documents sought to be admitted rely on findings of the Coroner at an Inquest where different standards of proof are applied.  The third party argues that this is not the case, and it is irrelevant that the Coroner made findings consistent with the facts sought to be admitted.  The third party does not seek admissions in relation to the Coroner’s findings, but seeks admissions in relation to facts and documents from the respondent’s own employees and one sub-contractor that arise from their evidence and/or statements prepared before the Inquest.  The third party argues that to respond to the disputed items in the draft Notice, the respondent only needs to go back to those three persons and ask if their evidence at the inquest is right or wrong.  They submit this is not an onerous task with only three people to speak to, and with the time period to be covered being only 3.5 hours.

24. The third party also took me through several items where the facts sought to be admitted deal with the monitoring equipment in HDU and how it functioned according to the data taken from it.  He described these facts as critical, and unchallenged at the inquest.  Relying upon the statements of Lander J in Rak, he argued that if there is a valid reason for not admitting these facts it should be put before the Court at an early stage, so that only the issues genuinely in dispute can be litigated at trial.

25. In relation to the statements of the two nurses employed by the respondent, the third party argues that these were all prepared in the course of the nurses’ employments and are therefore business records of the respondent, as are the progress notes completed by the nurses.  These statements include statements given to police, but formally witnessed by solicitors employed by the firm of solicitors engaged by the respondent, and also statements prepared for the respondent for the purpose of seeking legal advice.  He argues that all nine documents completed by the nurses[35] are plainly admissible under ss 52 and 53 of the Evidence Act (SA) 1929 as business records of the respondent.  There should be no need to call the authors at trial.  The trial issue will be the weight which ought to be attached to the statements in all the circumstances.  That is the real issue for trial, and evidence will not be required on the facts and documents sought to be admitted.

    [35] Item Nos 54, 55, 56 ,57, 58, 59, 60, 61 & 62 of the draft Notice at Exhibit RMS3 to the Affidavit of Richard Mark Smith dated 12 August 2020 (FDN 29).

26. It is argued that by admitting the base line facts regarding what occurred in the hours after Mr Lambropoulos’ surgery, the trial will only deal with the substantive issue of causation by the calling of expert evidence within the context of the agreed facts.  The third party submits that the admissions sought are not contentious issues of opinion upon which oral evidence should be called as in O’Brien v Cowie.  He argues that there will in fact be no need to have the witnesses whose coronial evidence is in dispute, available for cross examination at trial if the admissions are made.

    The Respondent’s Argument

1. The respondent argues that given the different wording in UCR 117.1 regarding Notices to Admit, it should only be in exceptional cases where the Court should order leave be granted for a Notice to be filed outside of the timeframes set out in the rules.  As I have set out above, I do not accept the respondent’s arguments in relation to that interpretation of UCR 117.1

2. The respondent disputes that there will be substantial savings of time and costs at trial if the draft Notice is served, and submits that the third party has not demonstrated how that would occur. It further argues that the way the Notice is drafted means it will not lead to answers that will avoid the necessity for witnesses being called.  In particular the respondent points to 10 items[36] where it is submitted that the facts set out are founded on only selective parts of the evidence before the Coroner.  As a result, it will take much time and cost to go through the evidence at the inquest to respond to the requests.  This is disputed by the third party, who points out that Fact 1 is admitted by the respondent in its defence to the applicant’s claim at paragraph 6.3.  He says this is indicative of the respondent’s failure to face up to its responsibilities as a litigant and accept what is really in dispute between the parties.

   [36] Items 1,5,6,11,16,20,22,23,24 and 25 of the draft Notice at Exhibit RMS 3 to the Affidavit of Richard Mark Smith dated 12 August 2020 (FDN 29).

3. In relation to another 15 items[37] the respondent argues that the facts sought to be admitted are founded on findings of the Coroner and those findings are not binding on this court.  The respondent submits that in relation to 8 of the documents sought to be admitted[38] they are not admissible without the author being called, and that is particularly so in relation to the statements and transcript of evidence of Randell. With the authors needing to be called there is no saving at trial.

   [37] Items 2,3,4,7,12,14,15,19,20,21,31,32,33,34,35 and 36 of the draft Notice at Exhibit RMS 3 to the Affidavit of Richard Mark Smith dated 12 August 2020 (FDN 29).

   [38] Items 37,39,43,44,46 48, 50 and 51 of the draft Notice at Exhibit RMS 3 to the Affidavit of Richard Mark Smith dated 12 August 2020 (FDN 29).

4. The respondent submitted that the differences between a coronial inquest and an adversarial trial may have impacted upon how evidence was led at the inquest.  The Coroner is not bound by the rules of evidence, and therefore evidence led at the inquest does not necessarily form the basis for an unequivocal assertion of fact that is not able to be challenged in the trial in this Court.  The statement of Randell, sought to be admitted, was commissioned by the Coroner, not the respondent.  Randell was not led in his evidence by the respondent, and they do not accept his interpretation of the events of 25 November 2013.  The respondent has also engaged an expert witness to challenge Randell’s assertions, meaning that both Randell and the expert will be required to give evidence at the trial.

5. The respondent also argued that the request for admissions was poorly drafted and counsel took me to a number of items where he argued sweeping statements were made, or where the fact was premised on an assertion that was not accurate.  This meant considerable work would be required with witnesses to work through the facts, the basis on which they were postulated, and the evidence behind them, before any response could be given.  It is argued that the level of work required is not in proportion with any savings in time or cost at trial.

6. In relation to the nine documents prepared by two nurses employed by the respondent it is not accepted that they are admissible as a business records. The respondent submitted that the statements prepared for an inquest cannot form part of the records of the respondent’s business and do not fall within the definition of s53 of the Evidence Act (SA) 1929.  The statements cannot be admitted without calling the author to give evidence at trial.  The respondent notes that a least one third of the draft Notice deals with documents, and argues that those documents are not admissible in the proceedings without calling evidence to prove them.  Giving leave to file the draft Notice therefore serves no utility.

7. Finally, the respondent submitted that the application for leave was just too late, and that it appeared that the third party had expected that it would prove its case through the applicant and was taken by surprise late in the proceedings when the applicant’s claim settled.  The respondent submitted that there was nothing to stop the third party issuing the Notice within time or at any stage after discovery had been made by the parties.

   Discussion

8. The first issue to be determined is the timing of the third party’s application.  The respondent argues that there is no reason why the third party could not have made the application within the time frame required by both the DCR and the UCR.  The respondent should not be put to the time and effort of answering the Notice in circumstances where the third party had not prepared its case on liability and ‘took a punt’ that its case would be proved by the applicant calling evidence at trial.

9. However, this is not a matter where the respondent can be taken by surprise by the third party’s case on liability and the evidence that is required to prove it.  There was a coronial inquest over several days where the issues relative to Mr Lambropoulos’ death were tested in detail.  The respondent was represented by the same firm of solicitors and counsel at the Inquest.  The issue relating to calling evidence in the third party’s case was ventilated in court the day after the applicant had settled her action against the respondent, with a letter sent to the respondent’s solicitors six days later.

10. In my view, it was reasonable for the third party not to separately pursue proof of his case on liability while the applicant remained a party to the action.  By his pleadings it was clear that the third party relied upon the pleas of negligence in the applicant’s claim.  The costs of investigating liability and drafting a Notice to Admit could not be warranted.  The respondent also made no submission that it would have answered the Notice to Admit, and not made application to strike it out if the third party had filed it earlier.  It did not respond to the draft Notice forwarded on 24 April 2020.  There was no response until the formal application for leave to file was made.

11. I adopt the words of Debelle J;

    … that parties must address what is truly in dispute cannot be overstated.  Too often parties, or their legal representatives, fail to do so, thereby causing litigation to be unnecessarily protracted with the obvious consequences that the litigation is unnecessarily costly.[39]

    [39] Southern Equities Corporation Ltd (in Liq) v Bond (No 2) (2000) 34 ACSR 660 at para [80].

12. I find that the third party took steps to meet the gaps in the evidence required to prove his case as soon as he was aware that the applicant had resolved, in principle, her claim with the respondent.  The respondent failed to respond to all requests to agree evidence that had been produced before the Coroner despite an email suggesting it was considering the issue.  The failure to respond has not been explained, and the third party should not be disadvantaged as a result.  I reject the respondent’s arguments in relation to the delay on the part of the third party in filing its application.

13. As set out above in determining the third party’s application I propose to apply a test of proportionality.  I will consider whether the time and cost in answering the draft Notice is out of all proportion with the benefit that may be achieved by saving time and expense at trial.  I can see no reason why the judicial discretion should not be applied in the same way in relation to an application to strike out a Notice as for an application for leave to file a Notice to Admit ‘out of time’.  In fact, the parties before me pressed arguments based upon this test of proportionality.

14. The issue now in dispute in this matter is which of the respondent or third party caused Mr Lambropoulos’ death and to what extent.  This dispute centres around a discrete period of time, agreed to be 3.5 hours during 25 November 2013.  The facts to be determined are what occurred over this period whilst Mr Lambropoulos was a patient in the HDU at Ashford Hospital.  Once those facts are determined, expert evidence will be called to apply the facts to what should have occurred.

15. I have reviewed the draft Notice and find that the facts sought to be admitted relate to either:

    1     the monitoring of Mr Lambropoulos while in HDU and in particular the nature and features of the monitoring equipment used, and the data obtained from that equipment;

    2     whether detail of the data and information from the monitoring equipment was contained in various witness statements;

    3     whether detail of the data and information from the monitoring equipment, and statements of witnesses were tendered at the Coronial Inquest, and whether they are accurate;

    4     whether the monitoring equipment had crisis alarms (‘the alarms’), the features of the alarms, and how they operated;

    5     whether the alarms were activated while Mr Lambropoulos was in HDU and the nature, timing and detail of those activations including any silencing of the alarms;

    6     detail of the respondent’s nursing staff on duty in the HDU on 25 November 2013 who cared for Mr Lambropoulos, and their actions in caring for Mr Lambropoulos;

    7     the statements and records of the nursing staff provided after Mr Lambropoulos’ death, including those tendered at the Inquest;

    8     the statements of Randell tendered at the Inquest, the transcript of his evidence at the inquest and downloads made by Randell of data from the equipment monitoring Mr Lambropoulos whilst he was in HDU.

16. The draft Notice is not substantial.  It contains 62 Items of request for admissions of either fact or documents, of which 35, deal with 13 discrete documents.  There are only three witnesses referred to in the draft Notice, being the two nurses employed by the respondent, and Randell.  It was not suggested by the respondent that any additional witnesses would need to be interviewed to enable the draft Notice to be answered.  I was told that the draft Notice would not save witness time at trial, but I was not told by the respondent how many additional witnesses, beyond the main three witnesses would be called.

17. The respondent raised the issue of the time required to answer the Notice, but provided no assessment of the number of hours or days that would be required.  The respondent’s submissions centred around how poorly drafted the requests in the draft Notice were, and that it was as a result of this that significant time would be required to answer the Notice.  While accepting that in some cases the request could be clearer or more succinct, 12 of the requests are that a certain document was tendered at the Coronial inquest; 10 of the requests ask if a certain document contains a fact or depicts an item; and four of the requests ask whether a witness agreed that their statement tendered at the inquest was accurate.  Those 26 requests are simple and clear and it should take the respondent, who was involved in the inquest, little time to respond to them.

18. My review of the draft Notice is that it is not oppressive, and given the unusual circumstances of there having been an inquest with all the parties involved, should not place a burden upon the respondent out of all proportion to the utility gained by answering it.

19. Although taken to specific items in the draft Notice where the respondent objected to the drafting of the Request for a number of reasons, the current application is not the time to deal with specific objections.  The respondent was I believe trying to convince me that the defects in a large number of requests led to the draft Notice being oppressive.  I disagree for the reasons I have already set out.

20. While it is difficult to assess exactly what savings will occur at trial by the respondent answers to the Notice to Admit, the facts sought to be admitted deal very directly with the monitoring of Mr Lambropoulos on the 25 November 2013 while he was in HDU, and what went wrong.  These are factual matters and from them a trial judge will determine what weight is to be given to each fact or statement.  There can be no doubt that time at trial will be saved if there is a list of agreed facts as to what occurred during that 3.5 hour period on 23 November 2013, and each event does not have to be proved.  While it is never possible to state with accuracy what the savings in time and cost might be at trial by the answering of a Notice to Admit, I am persuaded in this matter it is possible that they could be considerable.

21. I also find that in the circumstances of this matter that answering the draft Notice will lead to only matters genuinely in dispute between the parties being the subject of the trial.[40]

    [40] Rak v Coles Myer Ltd (1996) 68 SASR 272.

    Decision

22. I am not convinced that the time and cost required to respond to the draft Notice is such that it will be out of proportion with the likely time and cost savings of not having to call additional witnesses at trial.  I find that the answers to the Notice will narrow the factual issues between the parties, and will facilitate the just, efficient, cost-effective and proportionate resolution of the proceedings.

23. On the third party’s application FDN 28, I make an order granting leave to the second third party to file and serve the Notice to Admit Facts and Documents, being exhibit RMS 3 to FDN 29.

24. I order that the Notice to Admit Facts and Documents is to be filed and served by 4.00pm Friday 27 November 2020.

    
    

[DJJ(1]