PARTIES: Sione Tukuafu Maile Evelyn Margaret Rafiq
JUDGMENT OF: Tobias JA Brownie AJA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 3018/03
LOWER COURT JUDICIAL OFFICER: Sidis DCJ
COUNSEL: A: B J Gross QC / H Bauer R: E G Romaniuk
SOLICITORS: A: McMahons National, Lawyers, Sydney R: Keddies, Solicitors, Redfern
CATCHWORDS: PROCEDURE – Leave to amend defence – Motor accident – Where defendant’s compulsory third party insurer admitted breach of duty – Where breach of duty admitted in defence – Where defendant unable to be interviewed until after defence filed – Leave sought to amend so as to deny liability and plead contributory negligence – Whether interests of justice required withdrawal of admission – Prejudice to plaintiff – Actual or presumptive – Whether adequate explanation for making of admission – Whether admission contrary to actual facts – Motor Accident’s Compensation Act 1999 s 81
DECISION: (a) Grant leave to appeal upon condition that the claimant file a Notice of Appeal within 7 days of the date of these orders (b) Appeal allowed (c) Set aside the order made by Judge Sidis on 23 September 2004 dismissing the claimant's Notice of Motion filed on 5 August 2004 (d) Grant leave to the claimant to file amended Notice of Grounds of Defence in the form of the draft amended notice dated 19 August 2004 (e) The opponent to pay the claimant's costs of the summons for leave to appeal and of the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40084/05 DC 3018/03
TOBIAS JA BROWNIE AJA
Thursday 24 November 2005
SIONE TUKUAFU MAILE v EVELYN MARGARET RAFIQ
Judgment
TOBIAS JA: The issue at stake in the substantive appeal before this Court relates to whether the claimant, the defendant below, should be granted leave to amend his Notice of Grounds of Defence in which he admitted breach of his duty of care to the opponent, the plaintiff below, so as to deny any such breach in circumstances where the claimant's compulsory third party insurer had, pursuant to s 81(1) of the Motor Accidents Compensation Act1999 (the Act), also admitted breach of duty in respect of the opponent's claim. The primary judge, Sidis DCJ, dismissed the claimant's Notice of Motion for leave to amend and it is against that decision that the claimant seeks this Court's leave to appeal. That application has been heard concurrently with the substantive appeal.
The relevant facts and the course of the proceedings
At approximately 3.30am on 3 March 2000 the opponent was driving alone in her motor vehicle west along Parramatta Road, Flemington in the third, or outside, lane next to the medium…
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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AGLC
Maile v Rafiq [2005] NSWCA 410
Case
[2005] NSWCA 410
Decision Date
CaseChat Overview and Summary
This case concerned an appeal from an order of a primary judge dismissing a claimant's notice of motion. The claimant sought leave to amend its defence in a motor accident claim. The dispute arose because the claimant's compulsory third party insurer had initially admitted breach of duty of care in its defence, but later sought to amend the defence to deny liability and plead contributory negligence.
The legal issues before the appellate court were whether the interests of justice required the withdrawal of the initial admission of breach of duty, whether the plaintiff had suffered actual or presumptive prejudice as a result of the proposed amendment, and whether there was an adequate explanation for the initial admission. The court also considered whether the admission was contrary to the actual facts of the case.
The appellate court found that the primary judge had not adequately addressed the issue of whether the claimant had provided solid and substantial evidence offering a sensible explanation for the initial admission. The court noted that the claimant was not seeking to withdraw an admission made under section 81 of the Motor Accidents Compensation Act 1999, but rather to amend its defence to deny negligence. The court determined that the evidence presented by the claimant, particularly the affidavit of Ms. Charleston, provided a solid and substantial explanation for the admission being made at that time, stemming from difficulties in interviewing the claimant and another witness. The court also found no relevant prejudice, even of a presumptive nature, that would prevent the opponent from securing a fair hearing on the issue of breach of duty.
The appeal was allowed, the primary judge's order dismissing the claimant's notice of motion was set aside, and the claimant was granted leave to file an amended notice of grounds of defence. The opponent was ordered to pay the claimant's costs of the summons for leave to appeal and of the appeal, with a certificate under the Suitors' Fund Act 1951 if otherwise qualified.
Orders
Orders of the court
(a) Grant leave to appeal upon condition that the claimant file a Notice of Appeal within 7 days of the date of these orders
(b) Appeal allowed
(c) Set aside the order made by Judge Sidis on 23 September 2004 dismissing the claimant's Notice of Motion filed on 5 August 2004
(d) Grant leave to the claimant to file amended Notice of Grounds of Defence in the form of the draft amended notice dated 19 August 2004
(e) The opponent to pay the claimant's costs of the summons for leave to appeal and of the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
In these circumstances, in my opinion no relevant prejudice even of a presumptive nature had been shown possibly to exist to warrant a finding that the opponent may not be able to secure a fair hearing on the issue of breach of duty if the claimant were now permitted to deny any such breach. Did the claimant place before the Court solid and substantial evidence which provided a sensible explanation for the making of the relevant admission? As I have indicated, this was an issue that her Honour did not address. It therefore becomes necessary for this Court to do so. In so doing, it needs to be remembered that the claimant is not seeking to withdraw the admission made by AMMI in the s 81 notice but only to amend his defence by withdrawing the admission that he was negligent. In some future case in which it is sought to withdraw an admission of liability made under s 81, it may be necessary to consider whether the decisions in Hannaford and Ness concerning such admissions, are entirely compatible with those in Frog and Celestino. I have already noted that in her statement of claim and in particular in [4] thereof, the opponent has pleaded that the claimant's insurer admitted, pursuant to s 81 of the Act, that the claimant breached his duty of care to the opponent. In the amended Notice of Grounds of Defence which the claimant seeks the Court's leave to file, [4] as well as [1], [2] and [3] of the ordinary statement of claim are still admitted and therefore available for tendering against the claimant at the trial. The critical amendment sought by the claimant is leave to deny [9] of the statement of claim which alleges that the opponent's injuries were caused by the claimant's negligence. In these circumstances, the evidence must establish an adequate reason based on evidence or a sensible explanation of a solid and substantial character explaining the admission of a breach of duty of care in the Notice of Grounds of Defence filed on 11 May 2004. In my opinion, the evidence establishes quite clearly an explanation as to why that admission was made at that point of time. There is no doubt that the evidence of Ms Charleston in her affidavit was evidence of a solid and substantial character and that it provided a sensible explanation as to how that defence came to be filed. In essence, from the time Ms Charleston was instructed in July 2003 shortly after the opponent's solicitors instituted proceedings by way of ordinary statement of claim, she and AAMI took a number of steps between then and May 2004 (when the defence was filed) to ascertain the whereabouts of the claimant and Mr Vikilani for the purposes of interviewing them and otherwise obtaining a statement as to their evidence. It was obvious from the police report that the insurer was placed in a difficult position in terms of defending the proceedings without being able to call evidence from the claimant and his witness, Mr Vikilani. It is true that it might have been appropriate for Ms Charleston to have informed her opposition that those enquiries were proceeding, but that notwithstanding, it is apparent that significant efforts were made to ascertain the whereabouts of the claimant and, when they were unsuccessful, on 10 May 2004 there was a change in investigator in order ultimately to achieve a result. A statement of the claimant was received from the investigator by the claimant's solicitor on or about 21 July 2004 and shortly thereafter the opponent's solicitor was put on notice that it was proposed to put breach of duty of care in issue when an application for a rehearing on the issue of liability only was filed on 2 August 2004.
Decision
Reasons for decision
The primary judge heard the Notice of Motion on 23 September 2004. Ms Charleston's affidavit was read without objection. She was not required for cross-examination. No evidence was filed on behalf of the opponent. On the other hand, it is to be noted that no evidence was called by the claimant from Madeleine Hibberd, AAMI's Client Manager CTP Claims, who had admitted breach of duty of care pursuant to s 81(1) of the Act on 30 January 2001, to explain or justify the making of that admission notwithstanding that she had not received a response to her letters to the claimant of 14 September 2000 and 6 November 2000 – there being no evidence that those letters had been returned unclaimed. It was only after the proceedings were commenced and Ms Charleston was instructed on 16 July 2003 to appear on behalf of the claimant that, as she deposed in [9] of her affidavit, she considered it prudent to engage an investigator to locate and interview the claimant and Mr Vikilani. It then took until 8 September 2003 for AAMI to agree to that recommendation.The reasoning and the decision of the primary judge After rejecting a submission on behalf of the opponent that it was not open to a defendant to withdraw an admission made by his or her third party insurer under s 81 of the Act, the primary judge stated that the application to amend the Notice of Grounds of Defence was to be dealt with"under the general principle of the law, namely that there is a discretion in the Court and that all of the issues involving the parties should be before the Court if the circumstances are such that the justice of the situation demands it." A little later in her judgment, her Honour stated the relevant principles in more expansive terms, namely,"In my view, in this case, those principles require the defendant to place before the Court material not only to explain the circumstances which have led to the situation in which the defendant finds itself, but also to satisfy the Court that were the relief to be granted, the plaintiff would be in a position to have a fair trial on the issues now raised." Although the opponent submitted that the claimant had been silent in the sense that his solicitors had not informed her or her solicitors of the investigations which were being undertaken on an ongoing basis from September 2003 to August 2004 and had proceeded with the arbitration in June 2004 on the basis that breach of duty was admitted notwithstanding those ongoing enquiries, her Honour considered that such conduct, although warranting some criticism, did not militate against the grant of the leave sought. Rather, "[t]he question is whether as a consequence of that conduct the plaintiff has suffered any material detriment or, going to the plaintiff's third point, any material prejudice." The primary judge noted that the opponent had placed no evidence of actual prejudice before her. However, she did not think that the matter of prejudice rested solely with the opponent. After stating the principles referred to in [38] above, her Honour continued in these terms:"Since January 2001 the plaintiff has proceeded on the basis that liability was not in issue. It was argued by the defendant that by January 2001 evidence concerning the damage to the motor vehicles would have been lost in any event. I do not know that this was the case. I do have material that suggests that both vehicles were written off but I have no material as to when and in what circumstances they were no longer available for investigation.It was argued further for the defendant that there was no evidence that there were any witnesses who might have been located at that early state. I have already pointed to material in the records of interview with the defendant and his passenger to suggest that that is not the case and that in fact there may have been other vehicles in the immediate vicinity at the time of the accident or within a very short time after the accident. It is not possible for either of the parties, I would suggest, at this stage to obtain evidence from any independent witness."It is to be noted that her Honour made no reference to the alternative amendment sought by the claimant to allege contributory negligence on the part of the opponent.The relevant principles stated