Matteo v Adelaide City Council - [2020] SADC 96

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MATTEO & ANOR v ADELAIDE CITY COUNCIL & ORS
[2020] SADC 96
Reasons of His Honour Judge Slattery
24 July 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - PARTICULARS - FURTHER AND BETTER
Application by the first respondent, the Adelaide City Council, for the provision of further and better answers to their Notice to Admit Facts and Documents by the first third party, the Adelaide City Women's Football Club Inc.
Held:
1. Application granted and order accordingly;
2. The court will hear the parties as to consequential orders and costs.
Uniform Civil Rules 2020 r 1.4(1)(b), 117.2; District Court Civil Rules 2006 r 156, referred to.
Hydron Pty Ltd v Harous [2005] SASC 74, discussed.
Rak v Coles Myer Limited (1996) 68 SASR 272, considered.

MATTEO & ANOR v ADELAIDE CITY COUNCIL & ORS
[2020] SADC 96

Interlocutory Application dated 1 June 2020 in which the first respondent seeks orders that the first third party give a further response to the Notice to Admit Facts and Documents served upon it on 15 April 2020.
The claim
This action was commenced in 2015 and involved a claim by the applicants connected with a sporting event occurring at or about 4:30pm on Saturday 19 May 2012. At that time, the first applicant was participating in a soccer match on Park 18 in the Adelaide Parklands situate at the corner of South Terrace and Hutt Street, Adelaide. There were three soccer fields in that area. The relevant match was being played on the middle field of the three. When competing for a ball on the western side of the field and upon reaching the western sideline of that field, the first applicant slipped on a concrete basin and then collided into an accompanying concrete bench placed about 1 m west of the western sideline of that middle field. The first applicant alleges that he sustained injury and loss. He alleges that the injury was caused by the negligence of the respondents, which included the Adelaide City Council (‘The Council’), the owner of the property.
The claims of the applicant
In the Particulars of Negligence, the applicants assert that the respondents failed to take any or adequate precautions for the first applicant’s safety; exposed the first applicant to a foreseeable risk of injury which could have been avoided by reasonable care on its part; erected a concrete bench on a concrete basin in close proximity to the western sideline of the middle field of the playing surface, when it knew or ought to have known that soccer players, wearing studded boots were running on that surface whilst playing competition soccer; and failed to provide adequate free space surrounding the playing field. There are other more general allegations of breach then pleaded including a failure to warn of the danger of slipping, a failure to inspect or adequately inspect the premises, permitting the bench seat to be erected within an unsafe distance of the playing field and failing to ensure the first applicant’s safety.
The third parties
In these proceedings, there are two respondents, the Council and St Aloysius College Incorporated (“the school”), and there are now three third parties. The first third party, Adelaide City Women’s Football Club Inc (‘Women’s Football Club’) and the third third party, the Dragon Rangers, are football clubs or associations which used the field for matches. The second third party is the South Australian Amateur Soccer League, which generally oversaw the soccer competition as the relevant controlling body. This application does not involve the third third party, the Dragon Rangers. I will refer to the first third party interchangeably as the Women’s Football Club, ‘the first third party’ or ‘this third party’.
The pleadings
In its defence, the Council admits that it entered into a parkland sporting licence over this playing field with the school and that the Women’s Football Club, and the third third party entered into sub-licences for use of the playing area from the school as head licensee.
In paragraph 5 of its defence, the Council alleges that the boundary of the soccer pitch was marked out by the Women’s Football Club which determined its proximity to the fixed bench. It pleads that it was unaware of and had no obligation to ascertain the proximity between the boundary of the pitch and the fixed bench and it was unaware that the proximity of the boundary of the soccer pitch, relative to the fixed bench, was unsafe for participants in a soccer match, if such was the case.
The defence of the Council puts in issue the fact of and the nature and regularity of the marking out of the soccer pitch upon the middle area of the playing surface. The Council has issued a Third-Party Claim against the Women’s Football Club. In paragraph 2 of that Claim, the Council alleges that the Women’s Football Club was responsible for marking the boundary of the soccer pitch following its entry into the sub-licence agreement with the second respondent.
The Council has also issued a third-party claim against the Dragon Rangers, an unincorporated association. In it, the Council alleges that the Dragon Rangers also entered into a written sub-licence agreement. On 19 May 2012, the first applicant was playing a game against the Dragon Rangers on that playing surface when he came into contact with the fixed bench located adjacent to the pitch. In the Third-Party Notice issued to the Women’s Football Club, the Council alleges that this third party was negligent because it marked the boundary of the pitch in such a way that there was insufficient distance between the boundary and the bench and it failed to mark the boundary so that there was sufficient distance between the boundary and the bench. In the alternative, it contends that if the boundary of the football pitch could not be marked further away from the bench, then it failed to take adequate measures to relocate or remove the bench or in cordoning off what is said to be a dangerous area.
Some essential issues
Some of the essential issues arising upon the parties’ pleadings concern the marking of the boundary of the soccer pitch. It is not contended by or against the Council that it marked the soccer pitch. It had given the licence for the use of the area to the second respondent and had agreed to a sub-licence of the area to the Women’s Football Club and to the Dragon Rangers. It is alleged in the applicant’s second statement of claim[1] that there was a connection between the Council providing the licence to use the playing field and the games played upon it, such as in this instance, soccer. In paragraph 12, there is an allegation that the Council permitted the school to upgrade two of the soccer pitches on the playing area in or about the year 2000. As a result, there was a realignment of the centre pitch and a relocation of the boundary lines of the three soccer pitches on the playing surface. It is alleged that the bench was installed by the Council between 2002 and 2004 and after the realignment of the three soccer pitches.
[1] FDN 56, filed 31 May 2019.
In the Defence to the Third-Party Action, the Women’s Football Club contends that it was not responsible for locating the pitch and it pleads that it only re-marked the existing boundaries when it became necessary to do so as a result of fading. It is unclear what is meant by the expression “fading”. I will assume that the lines marked are white, are of the usual width and they are required to be maintained to a sufficient standard under the rules of the league. They have to be renewed by repainting from time-to-time. There is no suggestion that at the relevant time there had ever been any change in the geography of the positioning of the lines of the soccer fields marked out in the playing area.
The Women’s Football Club then pleads that it did not mark the boundaries on the day of the injury. Although this plea is a response in part to the pleading in paragraph 3 of the third-party claim, it is largely irrelevant to the issue. This is because at the relevant time the lines were marked and re-marked on the same boundaries continuously by the users of the ground. These lines were proximate to the concrete basin and the bench and this may have been the case for a period of time, at least since the year 2000; that is a matter for evidence.
The essential issue for this discussion is the placement and marking of the lines; the Women’s Football Club admitted that, as required, it re-marked the existing boundaries.
The Women’s Football Club also pleads that it had no power to remove or relocate the bench and held no responsibility to do so under its sub-licence. For present purpose, so much may be accepted however, from the point of view of the Council, those pleadings do not completely address the issue of the layout of the grounds on the playing fields and so the marking and maintenance of those lines.
The Notice to Admit and the Response
On 15 April 2020, the Council delivered to the Women’s Football Club a Notice to Admit Facts and Documents. On 13 May 2020, the Women’s Football Club delivered a Reply. The content of the Notice to Admit and the Reply is the genesis of the parties’ dispute.
Paragraph 5 of the Council’s Notice to Admit asks the Women’s Football Club to admit the following facts:
5.On 18 May 2012, the Third Party was aware that an amateur league soccer match was to be played on the Soccer Pitch at 3pm on the afternoon of 18 May 2012.
There has been no response to this paragraph by that third party.
Paragraphs 7 and 8 of the Notice to Admit read as follows:
7.The Third Party had marked the outer boundaries of the Soccer Pitch on at least one occasion in the four weeks prior to 18 May 2012.
8.The Third Party had marked the outer boundaries on the Soccer Pitch on at least two occasions in the eight weeks prior to 18 May 2012.
In the Reply to the Notice to Admit, the Women’s Football Club said as follows:
3.As to paragraphs 7 and 8, the Third Party is not in a position to admit or deny the allegations as no records are kept and any persons who might have done so are no longer involved with the third party.
Paragraph 11 of the Notice to Admit read as follows:
11.The third party had no knowledge, in the eight weeks prior to 18 May 2012, of anyone other than the Third Party marking the outer boundaries of the Soccer Pitch during that time.
In response, the Women’s Football Club said as follows:
4.As to paragraphs 10 and 11, the Third Party is not in a position to admit or deny the allegations because the second defendant issues sub-licences to bodies other than the Third Party and other parties may have marked the Soccer Pitch. Further no records are kept about line marking and any persons who might have any relevant knowledge so are no longer involved with the Third Party.
It appears as the preposition “so” in the penultimate line of the paragraph is otiose.
By an Interlocutory Application of 1 June 2020, the Council sought orders that the Women’s Football Club provide a further response to the Notice to Admit or alternatively that the issues raised by paragraphs 7, 8 and 11 of the Notice to Admit be determined before the trial. On 9 June 2020, I made orders that the issues arising on that application be determined on the papers and upon written submissions. On 18 June 2020, the Council filed its written submissions and on 26 June 2020 the Women’s Football Club filed its submissions in response. The issues arising between the parties fall into two distinct categories. The first is the failure to respond to paragraph 5 of the Notice to Admit and the second concerns the responses about the timing and the positioning of the lines from time to time.
In its submissions, the Council contends that this application must be determined under the District Court Civil Rules 2006 because the issue of the Notice to Admit was a step taken prior to the commencement of the Uniform Civil Rules 2020.[2] The Women’s Football Club contends to the contrary and that the 2020 Rules apply.
[2] Rule 1.4(1)(b) Uniform Civil Rules 2020.
It is not necessary that I resolve that issue because the operation of the 2006 Rules and the 2020 Rules in relation to Notices to Admit are, with one difference, essentially the same. Under r 117.1 of the Uniform Civil Rules 2020 a party may file and serve a Notice to Admit. Rule 117.2 governs responses and r 117.2(3) reads as follows:
(3)If the party to whom a notice is admitted is addressed:
(a) does not respond to a particular assertion, the party is taken to have admitted that assertion …
(b) …
Rule 117.2 of the Uniform Civil Rules 2020 provides as follows:
117.2—Response
(1) A party to whom a notice to admit is addressed must, within 14 days after receipt of the notice to admit or such other time as may be fixed by the Court, file and serve a response responding to each assertion by either—
(a) admitting the assertion;
(b) denying the assertion and explaining why;
(c)   stating that the party is not in a position to admit or deny the assertion and explaining why; or
(d)   claiming privilege or some other proper ground for refusing to respond.
(2)     A response to a notice to admit must be in the prescribed form.
Prescribed form—
Form 102 Response to Notice to Admit
(3)     If the party to whom a notice to admit is addressed—
(a)     does not respond to a particular assertion, the party is taken to have admitted that assertion; or
(b)     does not file a response within the time referred to in subrule (1), the party is taken to have admitted each assertion in the notice to admit.
(4) The Court may, on application made within 14 days after a response is served, order the giving of a better response.
(5) A party may not withdraw an admission having effect under this rule without leave of the Court.
Under the 2006 Rules, r 156(6), (7), (8) and (9) provide as follows:
156—Notice to admit facts or documents
(6)A party to whom a notice to admit is addressed (the respondent) must, within 14 calendar days after the notice is given or a longer time agreed by the parties or allowed by the Court, give a notice (a notice of response) responding to each assertion in the notice to admit—
(a)     by admitting the assertion; or
(b)     by—
(i)    denying the assertion and stating the grounds of the denial; or
(ii)stating that the respondent is not in a position to admit or deny the assertion and explaining why the respondent is not in a position to do so; or
(iii)claiming privilege or some other proper ground for refusing to respond to the assertion.
(7)If the respondent fails to respond to an assertion in a notice to admit as required by subrule (6), the respondent is taken to have admitted the assertion.
(8)     A notice of response is given by—
(a)     filing the notice in the Court; and
(b)     serving the notice on the party who gave the notice to admit.
(9)The Court may, on application made within 21 calendar days after a notice of response is given—
(a)     order the respondent to give a further and better notice of response within the time allowed by the Court; or
(b)     if satisfied that the respondent has denied or failed to admit an assertion without adequate reasons for doing so—determine the issue raised by the assertion in advance of the trial.
The difference between the two versions of the rules is that under r 156(9) of the 2006 Rules, the court had power to determine an issue in advance of trial. There is no such power within r 117 of the Uniform Civil Rules 2020. In light of the content of my decision which follows, this difference is not pertinent or material here and it is not necessary that I address that matter further.
The application of the Council
I turn to the merits of the application. I will address the application by reference to the 2020 Rules. My decision would be the same if I applied the 2006 Rules.
The failure of the Women’s Football Club to respond to paragraph 5 of the Notice to Admit has the result that, under r 117.2(3)(a), the Women’s Football Club has admitted that fact.
I turn then to the responses to paragraphs 7, 8 and 11 of the Notice to Admit. In paragraph 3 of the Third-Party Claim, a positive assertion is made by the Council that the Women’s Football Club was responsible for marking the boundaries of the relevant soccer pitch on the playing area.
In the Reply to the Notice to Admit, the Women’s Football Club admits by its responses to paragraphs 13, 14, 15, 16 and 18 that the line marking equipment it used to mark the outer boundaries of the soccer pitch in 2012 was capable of marking the eastern boundary of the soccer pitch at least 1.5 m west of where it had been marked by that third party. It also admits that between 2006 and 18 May 2012 the third party had marked the outer boundaries of the soccer pitch in approximately the same location on every occasion. Further in its response in paragraph 5 in relation to paragraph 17 of the Notice to Admit (which alleges that in the eight weeks prior to 18 May 2012, there was no physical impediment for ensuring that the boundaries of the soccer pitch being marked closer to the centre than were actually marked by the third party), the answer of this third party is that it would admit the allegation if it had been the only party which had marked the soccer pitch during that period. Therefore, even though it at least implicitly admits that it carried out the line marking, it says that there were other sub-licensees using the soccer pitch, there are no records of line marking and the same conditions would apply to any other party that had used the soccer pitch during that period.
It appears that at least an inference arises that the Women’s Football Club marked the lines on the pitch, it did so with some regularity as and when required, it marked lines on the same place(s) as the lines had always been marked and it was aware that the established lines could have been moved. I have deliberately used the expression “inference” as I consider that it is inappropriate that only an inference arises about matters that are obviously relevant and appear to be within the knowledge of the Women’s Football Club. On that basis alone, an order for the provision of further answers should be made.
It is also unclear what relevance there may be in the assertion that there are no records of line marking. A better view perhaps is that it would be surprising if there were; arguably such records would only have been maintained if there were a cost/reward system in place between users to reimburse the user which did this work; however that is only speculation. There is no indication that this is the case here and the responses of the Women’s Football Club appear to the contrary. The Women’s Football Club is able to say that it did mark the lines and, logically, when it did not so do. It is not an answer to say that records are no longer available. It is unclear whether it is said that records are no longer available; whether it is said that records were never kept; or whether it is said that any knowledge once held is no longer available.
I turn then to the contentions of the parties. The Council contends that it has been insinuated by other parties to the proceedings that it had some role in marking the lines of the pitch. This insinuation is both intuitively and factually incorrect having regard to the answers to the Notice to Admit because the first third party and by implication, the third third party, did mark the pitch at the time of and prior to the incident. There is no allegation or suggestion that the licence carried any particular stipulation in this regard. The Council submits that it is necessary for there to be a more decisive position established about what the first third party did in marking the lines that were present at the time of the incident. As I have earlier demonstrated from my summary of the pleadings, this is an essential aspect of the case because of the alleged positioning of the lines, the proximity of the concrete basin and the seat and so the alleged danger posed for players running in the vicinity of the line in studded football boots. These matters are essential to the applicants’ allegations of breach of duty.

In relation to paragraphs 7 and 8 of the Notice to Admit, the Women’s Football Club says that it cannot admit or deny the allegations because of the absence of records and any persons who might have done so (i.e. mark the lines) are no longer involved with this third party. I have earlier said that there is no assertion that records were kept of the marking of the lines and I need not repeat that discussion. The primary complaint of the Council is that there is a claimed inability to respond because persons previously involved are no longer involved with this third party. The context also is that this third party says that it did not play games on a Saturday but only on a Sunday. It is to be accepted that club members would not have been present on the Saturday but only on the Sunday. However, little assistance could be gained from that fact. It is said (paragraph 6 of the first third party submissions) that it follows that it did not mark the pitch on that day, namely the Sunday. The two things do not logically follow. The question of the marking of the pitch is admitted in the response to paragraph 18 of the Notice to Admit. Merely because the first third party played a game the day after the third third party’s games on a Saturday does not inform the position. There may be any number of reasons why the Women’s Football Club might have re-lined the pitch on a particular day ranging between dissatisfaction with the state of the lines, safety and competition reasons and the weather.
The first third party then contends that as the allegation that the pitch was marked on the day of the injury has been denied, then that is a complete answer to the matter. There is an obvious logical flaw in this approach and I am satisfied that it is not a complete answer for a number of reasons. A principal issue in this action involves the marking of the pitch, the positioning of the pitch on the playing area and the positioning of the concrete basin and seat in the vicinity of the playing area. Merely to say that because the third party did not mark the pitch on the day on which the injury took place fails to properly answer the question.
The Council contends that the proceedings were commenced in 2015 and it is no answer to say that in 2020 those who had been involved with the club are no longer involved. This contention is emphasised by the responses to paragraphs 16 and 18 of the Notice to Admit about the line marking equipment being capable of marking the eastern boundaries of the playing area 1.5 m west of where they were marked and, further, that between 2006 and 18 May 2012 the Women’s Football Club marked the outer boundaries of the soccer pitch in approximately the same location on every occasion. It is difficult to reconcile the answers given by this third party with those questions and the answers given in relation to paragraphs 7 and 8 of the Notice to Admit. I do not think they can be completely reconciled and to an extent are inconsistent. No factual basis is put forward about why these persons could not now be identified. It would perhaps be unusual if a particular person or persons in or associated with the club was not responsible for this task. The answer given is not a sufficient answer.
The same reasoning applies in relation to line marking in 2012. The Women’s Football Club is able to say that on 18 May 2012 the boundary was less than 3 m from a bench; that between 2006 and 18 May 2012 it was aware of the proximity of the boundary to the bench; that it used equipment for line marking that could have marked lines elsewhere; and that between 2006 and 18 May 2012 it marked the lines of the pitch in a certain location.
The Council contends and I accept that those responses mean that the Women’s Football Club has access to sufficient persons who are able to give detailed instructions in relation to events as at and prior to 18 May 2012. No indication is given that there are any other persons who need to be identified or that some unsuccessful attempts have been made to contact other persons who may need to be identified. I accept the submission of the Council that having admitted that it marked the lines on the pitch during the period between 2006 and 2012, the Women’s Football Club must be able to determine whether or not those lines were marked within the time periods referred to in paragraphs 7 and 8 of the Notice to Admit. I consider that the responses made by the Women’s Football Club in its submissions do not address these essential matters.
The Women’s Football Club submitted that the Interlocutory Application is a breach of the Council’s overarching obligations as set out in the rules of court. I am unable to accept that submission.
The principles which guide the exercise of my discretion here were summarised by Besanko J in Hydron Pty Ltd v Harous[3] at [6]-[7]. There, his Honour held as follows:
Lander J considered the operation of r 54 in Rak v Coles Myer Limited (1996) 68 SASR 272. His Honour held that it was not a sufficient answer to a request for the admission of a fact for a responding party to say that he does not know and therefore could not admit the fact. I agree. The relevant sub-rule in relation to paragraphs 2 and 3 is r 54.02(1)(a) and that provides that the responding party must specifically deny the truth of the fact and set forth in detail the reasons why he cannot make the admission. A response that a party does not know and cannot admit a fact is not a specific denial of the truth of the fact, nor, other than at a very general level, does it provide in detail reasons why the party cannot make the admission.
In this case, there is a specific denial of the fact. However, I do not think that the defendant has gone on to set forth in detail the reasons why he cannot make the admission. It seems to me that the rule would be easily circumvented if a responding party is able to deny a fact and say that he does so simply on the basis that he does not know the fact. At the same time, I do not think that a party is bound to admit a fact unless he is able to state that the fact is wrong. It is proper for a party to deny a fact on the basis that he does not know whether the fact is true. To take an example given by Lander J in Rak v Coles Myer Limited (supra) (at 281 – 282), he may do so because he was not present when a conversation took place. In my opinion, to give proper effect to the rule and the words “in detail” a responding party needs to state reasons why he does not know the fact. In my opinion, the answers to paragraphs 2 and 3 do not comply with r 54.02 and the defendant should state the reasons why he cannot make the admission. To take paragraph 2 as an example, it may be that he has not heard of some of the companies or businesses referred to therein, or he may not have dealt with some of the businesses or he may have no knowledge of their sale figures or he may have some knowledge of their sale figures but is unable to “rank” the various businesses in the manner requested. There may of course be other reasons.
[3] [2005] SASC 74.
I am satisfied that the Women’s Football Club has not properly explained why, in the circumstances, it does not have the appropriate instructions to make the admissions sought.
Decision
In the circumstances, I am satisfied that on the application of the Council of 1 June 2020, within 7 days of this day, the first third party, the Adelaide City Women’s Football Club, are required to provide further and better answers to paragraphs 7, 8 and 11 of the Notice to Admit Facts and Documents delivered to it and dated 15 April 2020 (FDN 81).
I will hear the parties as to costs and ancillary orders.