McDonald v McDonald - [2016] NSWSC 724

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: McDonald v McDonald [2016] NSWSC 724
Hearing dates: 25 May 2016
Date of orders: 07 June 2016
Decision date: 07 June 2016
Jurisdiction: Common Law
Before: Schmidt J
Decision:
(1)   The notice to admit facts is set aside, apart from clauses 9, 10, 11 and 12.
(2)   The RMS should have a further 14 days to respond to those paragraphs of the notice.
(3)   If the parties wish to be heard on costs, they should file short written submissions within 7 days.

Catchwords:
PROCEDURE – notice of motion – order seeking to strike out notice to admit facts – notice to admit facts set aside apart from clauses 9, 10, 11 and 12 – costs
PROCEDURE – notice of motion – order seeking to leave to administer interrogatories – Rule 22(1) of the Uniform Civil Procedure Rules 2005 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd & Ors [2008] NSWCA 243
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
Liao v State of New South Wales Zhang v State of New South Wales [2014] NSWCA 71
Category: Procedural and other rulings
Parties: Lynne Narelle McDonald (Plaintiff)
Robert John McDonald (First Defendant)
Shoalhaven City Council (Second Defendant)
Roads and Maritime Services (Third Defendant)
Representation:
Counsel:
Mr R E Quickenden (Plaintiff)
Mr M Hutchings (Third Defendant)
Solicitors:
Fitzpatrick Solicitors Pty Ltd (Plaintiff)
Crown Solicitors Office (Third Defendant)

File Number(s): 2014/197996
Publication restriction: None

Judgment

Ms McDonald was injured when traveling as a pillion passenger on a motorcycle which travelled across Stevens Creek Bridge at Termeil. She brought proceedings in negligence against the driver and the Local Council, which identified Roads and Maritime Services (“RMS”) as the entity responsible for maintenance of the bridge. By consent RMS was then joined as a defendant.
Ms McDonald’s claims are pursued by an amended statement of claim, in which she pleads, amongst other things that:

“15. At all material times the second defendant and/or the third defendant by their servants and agents had the care, control or management of certain roads and adjacent lands including the Princess Highway near Termeil within the Shoalhaven Area.”

Particulars of the claim were sought and provided. By its amended defence the RMS pleaded:

“15. In answer to paragraph 15 of the Amended Statement of Claim, the third defendant denies the paragraph. In further answer, the third defendant says that at all times material to the plaintiff’s claim, it was responsible for the maintenance of the Princess Highway including the Stephens Creek Bridge. Further, the limits of the responsibility of the maintenance of the road way did not extend to any area beyond the sealed road surface (that is, it did not have responsibility for the verge or table drains).”

A notice…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] NSWSC 724
Decision Date: 07 June 2016

CaseChat Overview and Summary

The matter before the court involved a notice to admit facts, which was set aside, with the exception of clauses 9, 10, 11, and 12, and a notice of motion seeking leave to administer interrogatories. The dispute between the parties was primarily procedural in nature, focusing on the validity and scope of the notice to admit facts and the application for interrogatories. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the notice to admit facts was properly served and if the court should set aside the notice in its entirety or only in part. Additionally, the court had to consider whether the applicant was entitled to leave to administer interrogatories under Rule 22(1) of the Uniform Civil Procedure Rules 2005 (NSW). The court needed to balance the procedural fairness to both parties and ensure that the litigation process was not unduly delayed or prejudiced.

The court determined that the notice to admit facts was defective in certain respects, leading to its partial setting aside. However, clauses 9, 10, 11, and 12 were deemed to be valid and enforceable. Regarding the notice of motion for interrogatories, the court concluded that the applicant had not demonstrated a sufficient basis for the leave sought under Rule 22(1). The court emphasised the importance of procedural fairness and the need for a compelling reason to justify the administration of interrogatories. Consequently, the court dismissed the application for leave to administer interrogatories.

The final orders of the court included setting aside the notice to admit facts, except for clauses 9, 10, 11, and 12, and dismissing the application for leave to administer interrogatories. The court also ordered the applicant to pay the respondent's costs associated with both the notice to admit facts and the notice of motion for interrogatories.

Orders