O'Brien v COWIE - [2020] SASCFC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
O’BRIEN v COWIE
[2020] SASCFC 70
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Doyle)
21 July 2020
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
Application for leave to appeal in relation to a decision of a judge of this Court striking out a notice to admit.
Application granted.
Supreme Court Civil Rules 2006 (SA) s 156(7), referred to.
RAK v Coles Myer Ltd (1996) 68 SASR 272; Southern Equities Corporation Ltd v Bond (No 2) (2000) 34 ACSR 660, considered.

O’BRIEN v COWIE
[2020] SASCFC 70
Full Court: Kelly, Blue and Doyle JJ

THE COURT: The applicant seeks leave to appeal from a decision of a judge of this Court striking out her notice to admit.
The action involves a claim for personal injuries arising from the birth of the applicant on 27 June 1999. The applicant’s claim, pursued by her litigation guardian, is one in negligence against two respondent doctors involved in her birth. She alleges that she suffered a catastrophic brain injury, with a range of associated impairments. Liability has been admitted, and judgment for damages to be assessed was entered in the applicant’s favour against both respondents on 15 March 2019. The matter is proceeding as an assessment of damages. The matter was listed for a six week trial commencing on 2 March 2020, but for reasons which do not presently matter, did not proceed on that occasion.
On 14 October 2019, the applicant served a notice to admit on the respondents. The notice sought admissions both as to various facts (being largely assumptions and statements contained in the expert reports concerning the applicant’s various claimed heads of loss, including loss of amenities, past and future care needs, loss of earning capacity, reduction in life expectancy and accommodation requirements), and as to the authenticity and admissibility of various documents relied upon by the expert witnesses to quantify the applicant’s loss. The primary judge described the notice as requiring a response from the respondents to in excess of 170 propositions of fact and two volumes of documents (totalling 199 pages).
On 28 October 2019, the respondents brought an application to strike out the notice to admit, contending that it was oppressive and vexatious, was unnecessary for the just disposal of the action and would not avoid unnecessary time and expense in the trial of the unresolved issues.
The primary judge’s reasons commenced with a summary of the respondents’ contentions as to the burden and limited utility of responding to the notice to admit. The summary included reference to some of the factual and documentary admissions sought in the notice. The judge then summarised the applicant’s contentions, which drew upon the decisions of Lander J in RAK v Coles Myer Ltd[1] and Debelle J in Southern Equities Corporation Ltd v Bond (No 2)[2] in relation to the function of notices to admit, and the responding party’s obligations.
[1] RAK v Coles Myer Ltd (1996) 68 SASR 272.
[2] Southern Equities Corporation Ltd v Bond (No 2) (2000) 34 ACSR 660.
In the operative section of her Honour’s reasons, the judge explained in general terms why she considered that she as trial judge was unlikely to be assisted by the responses called for by the notice. Her Honour expressed the view that much would turn upon the meaning and nuances of the responses, and would need to be the subject of evidence in any event. While noting the observations made by Lander J and Debelle J in the authorities referred to in the preceding paragraph, her Honour said that those decisions needed to be seen in the context that the practice of litigation has evolved in the two decades since they were handed down.
Ultimately, the judge accepted the respondents’ contentions and concluded:
[43] I agree that the notice will not avoid any time or expense at trial and that it does not narrow the issues, nor will the answers assist my determination of the issues in dispute. I agree that the notice only adds to the time, cost, and trouble of the litigation contrary to r 116. 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. Accordingly, it is not in the interests of justice or the fair, expeditious, and economic management of this litigation to require the defendants to answer the notice.
Conclusion
[44] The defendants have discharged the substantial burden in seeking to set aside the notice. I am not satisfied that the work involved in answering the notice will bring about savings in time and costs at trial. The issues genuinely in dispute regarding each head of damage are such that the calling of evidence is necessary. If it transpires that the calling of certain evidence was not necessary, the party requiring the calling of that evidence runs the risk of adverse costs orders.
The judge ordered that the applicant’s notice to admit be struck out.
The applicant seeks leave to appeal against the judge’s decision to strike out her notice to admit. In relation to the documentary admissions (which were sought in paragraphs 13 to 17 of the notice), the proposed grounds of appeal are to the effect that the judge erred:
1.   in failing to consider, and provide reasons for striking out, the documentary admissions;
2.   if her Honour did consider the documentary admissions, in failing to give any or sufficient weight to various matters relevant to the likely burden and utility associated with those admissions; and
3.   in failing to deem the documentary admissions to have been admitted pursuant to r 156(7) of the Supreme Court Civil Rules 2006 (SA).
In relation to the factual admissions (which were sought in paragraphs 1 to 9 of the notice), the proposed grounds of appeal are to the effect that the primary judge erred:
1.   in stating and applying the wrong test to the question of whether the respondents had discharged the substantial burden in seeking to set aside the notice to admit;
2.   in the conclusions her Honour reached in relation to the likely burden and utility associated with various of the admissions sought;
3.   in failing to consider the evidence as to matters which were not genuinely in dispute;
4.   in purporting to distinguish the decisions in RAK v Coles Myer Ltd and Southern Equities Corporation Ltd v Bond (No 2) on the basis that the practice of litigation had evolved since those cases were decided without identifying any change in the applicable legal principles; and
5.   in reaching the conclusions in paragraph [43] of her Honour’s reasons (extracted above) as to likely utility and burden of the admissions sought.
For obvious reasons, this Court is generally reticent to grant leave to appeal in relation to matters of practice and procedure. It is not generally appropriate to do so unless the proposed appeal not only has reasonable prospects of success but also raises an issue of principle or general importance.
It may be accepted that a first instance judge has power to strike out a notice to admit, and should be afforded appropriate latitude in the exercise of that power. Further, the central thrust of the judge’s reasoning for striking out the notice to admit in this case was clear and sound, and was illustrated by reference to a handful of examples. That said, as the applicant complains, her Honour dealt with the matter at a relatively general or abstract level.
There will be cases in which a notice to admit seeks a response that is so onerous and lacking in utility that it may be approached on a global basis; that is, without it being necessary for the judge to address each and every fact or document the subject of the notice. Indeed, it may well be that this was such a case. However, and for the purpose of determining whether there should be a grant of leave to appeal, it is sufficient that we accept that it is reasonably arguable that her Honour erred in failing to consider or determine whether it was appropriate that the respondents be required to respond in relation to at least some of the facts or documents in respect of which admissions were sought.
In our view, particularly in light of her Honour’s reference to the 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 v Coles Myer Ltd and Southern Equities Corporation Ltd, the determination of the proposed appeal has the potential to provide litigants and first instance judges with guidance as to the same.
For these reasons, we grant leave to appeal on the grounds contained in the applicant’s notice of appeal.