O'BRIEN v COWIE - [2020] SASC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
O'BRIEN v COWIE & ORS
[2020] SASC 22
Decision of The Honourable Justice Bampton
14 February 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
Application to strike out notice to admit – whether the notice will avoid unnecessary time and expense at trial.
HELD: the notice to admit will not avoid unnecessary time and expense at trial – notice to admit struck out.
Supreme Court Civil Rules 2006 (SA) r 156, r 116, r 117, referred to.
RAK v Coles Myer Ltd (1996) 68 SASR 272; Southern Equities Corporation Ltd v Bond (No 2) (2000) 34 ACSR 660, applied.
Thomson Brindal Ltd v McLachlan (2000) 207 LSJS 90; Sheahan v Hertz Australia Pty Ltd (1993) 171 LSJS 359, discussed.

O'BRIEN v COWIE & ORS
[2020] SASC 22
Civil: Application

BAMPTON J: The defendants make application FDN 59 (“the application”) for an order striking out the notice to admit FDN 58 (“the notice”) served on them by the plaintiff. In the alternative, they seek an extension of time within which to respond to the notice.
On 15 March 2019, judgment was entered by a Master for the plaintiff against the defendants jointly and severally on liability, with damages to be assessed. Following the entry of judgment, his Honour ordered on 15 March 2019 that the time for the plaintiff to file and serve any further notice to admit[1] was extended until further order. In making the order the Master made the comment that the parties “knew what was meant by that”. As it transpired, the notice concerning the issues of quantum and the plaintiff’s claim for costs was served on 14 October 2019. The notice requires a response from the defendants to in excess of 170 propositions of fact and two volumes of documents, collectively totalling 199 pages.
[1] Noting that notices to admit FDN 29 and FDN 30 regarding liability issues had previously been served by the plaintiff.
At the time the notice was served, the trial date of 2 March 2020 for the assessment of the plaintiff’s damages and the defendants’ claim for contribution against the third party had not been confirmed. The six-week trial commencing on 2 March 2020 has now been fixed.
The Supreme Court Civil Rules 2006 (SA) (“the Rules”) require that, unless a party has permission from the Court a notice to admit cannot be served more than 28 days after the last party to the action has filed a list of documents[2] and that the response to the notice must be filed and served 14 days after the notice is given.[3]
[2] Supreme Court Civil Rules 2006 (SA) r 156(5).
[3] Supreme Court Civil Rules 2006 (SA) r 156(6).
The defendants’ argument
On 28 October 2019, the defendants filed the application supported by an affidavit of their solicitor[4] contending that the notice is oppressive and vexatious, unnecessary for the just disposal of the action, and will not avoid unnecessary time and expense in the trial of the unresolved issues.
[4] FDN 60
The defendants assert that they have made several admissions in relation to quantum. The first defendant, by para [34] of his fourth defence filed on 19 December 2018,[5] makes several admissions in response to para [34] of the statement of claim filed on 28 March 2017[6] which summarises the plaintiff’s injury, loss, and damage. The second defendant, by para [1] of his fourth defence filed on 19 December 2018,[7] admitted para [34] of the statement of claim. The first notices to admit, FDN 29 and FDN 30, filed by the plaintiff on 6 December 2018[8] seek, inter alia, admissions in relation to the nature of the plaintiff’s injury, loss, and damage. The first defendant, by his response filed on 25 January 2019[9] to FDN 29 made qualified admissions in relation to the nature of the plaintiff’s injury, loss, and damage. The second defendant, by his response filed on 14 January 2019,[10] admitted paras [16] and [17] of FDN 30 which sought admissions in relation to the nature of the plaintiff’s injury, loss, and damage.
[5]    FDN 36.
[6]    FDN 2.
[7]    FDN 37.
[8]    FDN 29 and 30.
[9]    FDN 41.
[10] FDN 39.
In the affidavit filed in support of the application, the defendants’ solicitor deposes that the parties have obtained and exchanged expert reports on issues pertaining to the plaintiff’s assessment of damages, including reports in relation to the plaintiff’s loss of amenities, her past and future needs, her loss of earning capacity, and her life expectancy.
The plaintiff has obtained the following expert reports:
(1)    Dr Timothy Connell (psychologist)  20 August 2017
23 August 2018
(2)    Ms Megan Leaney (occupational therapist)         17 August 2012
1 September 2017
20 May 2019
22 August 2019
(4)    Dr Michael Harbord (paediatric neurologist)      22 June 2005
31 October 2017
9 January 2018
The defendants have obtained the following expert reports:
(1)    Prof Vicki Anderson (neuropsychologist)           7 February 2011
October 2015
(2)    Associate Prof Adam Scheinberg
(paediatric rehabilitation specialist)  4 March 2011
27 October 2015
4 February 2016
(3)    Ms Monica Brown (occupational therapist)        29 February 2016
1 August 2017
(4)    Ms Angela McNamee (occupational therapist)    14 June 2017
12 January 2018
29 January 2018
(5)    Mr John Hart (care provider)  20 December 2017
25 January 2018
28 February 2019
(6)    Mr Ian Pearce (psychologist)  27 March 2018
(7)    Ms Briony Lock (occupational psychologist)     8 May 2018
(8)    Dr Peter Flett (physician in rehabilitation
medicine)  11 September 2018
The defendants contend that the expert reports reflect the assumptions made and the opinions of the respective expert witness as at the dates of their reports concerning the plaintiff’s loss of amenities, past and future care needs, loss of earning capacity, life expectancy, need to attend Day Options, and her accommodation requirements. Some of the experts attended the plaintiff at her home, some saw her in their professional rooms, and some prepared reports based on written material.
The defendants assert that the reports, other than the two most recent reports of Ms Leaney, are listed in an index of expert reports in relation to quantum compiled collaboratively by the solicitors for the plaintiff and defendants with the intention that the reports be included in a tender book for use at trial. The two most recent reports from Ms Leaney came to hand after the most recent iteration of the index.
The defendants contend that the plaintiff, by her notice, seeks that they admit:
(1)As facts the assumptions, statements, and opinions contained in the expert reports concerning her loss of amenities, past and future care needs, loss of earning capacity, life expectancy, need to attend Day Options, and her accommodation requirements.
(2)The authenticity and admissibility of documents relied on by the expert witnesses to quantify the plaintiff’s loss based on their assumptions and opinions.
The defendants’ solicitor, by way of example, refers to exhibit EH-50 to the affidavit sworn by the plaintiff’s solicitor on 9 August 2019,[11] and exhibit EH-57 to the affidavit of the plaintiff’s solicitor sworn on 10 September 2019.[12] Exhibit EH-50 is the expert report of Ms Leaney dated 20 May 2019 and exhibit EH-57 is the expert report of Ms Leaney dated 22 August 2019. The contents of paras [1] and [2] of the notice reflect matters extracted from Ms Leaney’s report. The defendants submit that the factual foundation for Ms Leaney’s assumptions is presently untested. It is submitted that it is evident from Ms Leaney’s reports that the plaintiff’s care and assistance needs are variable. Ms Leaney’s assumptions are based partly on her observations on particular occasions and partly on histories provided by others, mainly the plaintiff’s parents.
[11] FDN 54.
[12] FDN 55.
The defendants submit that their knowledge of the plaintiff’s care needs is based solely on the assertions of fact made in the pleadings, the assumptions made by their expert witnesses for the purposes of preparing their reports, the observations and opinions of the experts on the occasions they observed the plaintiff as described in their reports, and other documents disclosed by the plaintiff (such as her medical records and school reports).
It is submitted that the plaintiff’s circumstances and the facts and assumptions relevant to her assessment of damages have changed over time. It is probable that her circumstances will continue to change. The defendants have no personal knowledge of the plaintiff’s disability and the detailed circumstances as articulated in the notice, and have no way of acquiring such knowledge without asking expert witnesses engaged by them to attend on and observe the plaintiff attempt to perform each stated activity.
Accordingly, the defendants argue that to answer the notice in detail would require them to check in detail each of their expert reports to see whether each fact alleged – in its current form – has been observed and/or agreed by the experts who have advised them and/or where such observation and agreement is not evident, to engage expert witnesses to reattend on the plaintiff and make separate enquiries and observations.
It is also argued that the many questions asked within para [2.3] of the notice are premised on the proposition that the plaintiff’s “future care needs will include assistance with …”. The defendants submit that it is the level of the assistance that is critical for the assessment of damages and the costs of providing that assistance. The defendants say that there are significant differences of opinion between experts about the level of assistance and as such the experts and the lay witnesses would need to be called even if the notice was answered.
Paragraphs [17.1] to [17.3] of the notice relate to annexures A1 to C16. These documents comprise rates for services provided by care providers provided between July 1998 (annexure A1) and 2020 (annexure C16). Some of these documents are included and referred to in the reports of the occupational therapists. The defendants assert that the majority are not.
The defendants submit that to answer the notice in detail they would be required to check with each care provider to determine the authenticity of the documents and confirm that the documents present a complete picture of the cost of care for the period to which each document relates.
In relation to para [3.2] of the notice, the defendants submit that they have not obtained an independent expert opinion concerning the prognosis for the plaintiff’s visual disability. To answer this question, the defendants would again need to check each of their expert reports to see whether each fact alleged in its current form has been observed and/or agreed by the experts who have advised them, and/or where such observation and/or agreement is not evident, to arrange for the expert witnesses to attend on the plaintiff and make enquiries and observations regarding this issue.
The defendants submit that paras [4] and [5] of the notice reflect opinions extracted from Dr Harbord’s report dated 31 October 2017. It is asserted that there are significant differences in opinion between the experts in relation to the plaintiff’s life expectancy. Again, it is submitted that the witnesses would still need to be called even if the notice was answered.
In relation to paras [6] to [9] of the notice, the defendants have admitted that the plaintiff has no earning capacity. However, the value of the assessment of that loss in terms of its duration and the appropriate dollar/week rate remains a matter of dispute between the parties. In this regard, the defendants refer to the report of Ms Lock dated 8 May 2018, regarding the plaintiff’s likely future earnings had she not sustained injury, exhibited to their solicitor’s affidavit.
The defendants argue that the work involved and the costs likely to be incurred by them in answering the notice is disproportionate to any savings in costs and time at trial. The defendants’ solicitor estimates that a review of all the expert reports and documents required in responding to the notice, having regard to the number of questions and documents involved, making requests of expert witnesses to undertake enquiries where necessary, considering any consequent opinions, and making enquiries of the care providers, would take approximately 20 hours if performed by a legal practitioner with a reasonable knowledge of the claim. Each additional expert opinion required would also incur a disbursement fee.
The defendants argue that the notice to admit, contrary to r 116(1) of the Rules, does not advance the fair, expeditious, and economic management of this litigation. They argue that the time, trouble, and expense associated with answering the notice to admit will not save any time or cost at trial and is disproportionate to any likely benefit should it be answered.
The defendants argue that the plaintiff will be calling evidence from her parents and family. In addition, many experts will be called to give evidence. The plaintiff also intends to call experts to give evidence pertinent to the issue of the discount rate to be applied to the value of her future losses.
Further, it is submitted that care rates may yet be agreed on differing bases.
The plaintiff’s argument
The plaintiff argues that prior to this application, the defendants did not seek an extension of time to answer the notice. The plaintiff pointed out that a Master ordered on 15 March 2019 that she had an extension of time to file the notice. The order, as I read it, is that until an order to the contrary an extension of time had been granted. I query the efficacy of an order made until further order, bearing in mind that on 31 May 2019 the matter was tentatively listed for trial commencing on 2 March 2020. I was not asked by either party to review this order at any stage.
In considering this matter, I have had regard to the statement of claim and the fourth defences of the first and second defendants, the notices to admit by the plaintiff to each defendant on liability, and the plaintiff’s reports of the occupational therapist Ms Leaney, the report of the occupational therapist Ms Brown, the defendants’ report on quality lifestyle support, and the defendants’ report of Ms Lock. The plaintiff argues that many of the matters that admissions are sought on have been agreed to by the defendants’ experts.
The plaintiff took the Court to the decision of Lander J in RAK v Coles Myer Ltd (“RAK”),[13] where his Honour said:[14]
… in relation to facts, the purpose of the rule is to allow a party to establish a fact without the necessity of calling either oral evidence or documentary evidence to prove that fact. Again, the purpose of the rule is to make the proof of that fact easier and for a saving of costs and time in so doing.
…
The previous luxury of allowing a party to require the other party to prove formally each and every fact where those facts are not genuinely in dispute is no longer appropriate for litigation at the end of this century.
[13] (1996) 68 SASR 272.
[14] (1996) 68 SASR 272 at 276, 279.
The plaintiff also referred to the decision of Debelle J in Southern Equities Corporation Ltd v Bond (No 2) (“Southern Equities”).[15] That matter concerned a very substantial notice to admit, comprising some 106 pages and totalling approximately 1,000 requests for admissions. The plaintiff pointed out that that case concerned a dispute regarding how long it would take to answer the notice to admit and Debelle J concluded that it would take roughly 30 days to answer. His Honour, after referring to RAK and the decision in Thomson Brindal Ltd v McLachlan,[16] reasoned that:[17]
[15] (2000) 34 ACSR 660.
[16] (2000) 207 LSJS 90.
[17] (2000) 34 ACSR 660 at [8].
The obligations of a party served with a notice to admit are onerous. That is consistent with the modern approach to litigation which requires a party to face up, as early as possible, to the responsibility of decisions as to what truly is in dispute between the parties.
Justice Debelle referred to Lander J’s comments on the topic in RAK and went on to say:[18]
… the fact 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 consequence that the litigation is unnecessarily costly.
I do not underestimate the burden upon those defendants in this action who must answer this notice to admit. By any chalk, it is a substantial exercise and will involve substantial expense. However, the immensity of the task is not, standing alone, a sufficient ground to strike out the notice. The task for the court is to balance the work involved in that task and its associated cost with the savings in time and costs at the trial.
His Honour also referred to the comments of Master Burley in Sheahan v Hertz Australia Pty Ltd (“Sheahan”)[19] and then said:[20]
… 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 of 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.
Justice Debelle referred to the “uncertainties in attempting to assess the time and cost involved” and said that the “uncertainty only serves to underline that a party seeking to set aside a notice to admit has a substantial burden to discharge”.[21]
[18] (2000) 34 ACSR 660 at [8]-[9].
[19] (1993) 171 LSJS 359 at 362.
[20] (2000) 34 ACSR 660 at [8]-[9].
[21] (2000) 34 ACSR 660 at [8]-[9].
It is argued that the plaintiff is profoundly injured and all of the little things which might seem trivial (such as toileting, feminine hygiene, brushing teeth, etc) are topics which are particularly addressed by the occupational therapists.
I agree that these matters of daily living are indeed important and matters I, as the trial Judge, want to hear evidence about from the plaintiff’s carers, in particular her mother and the occupational therapists.
On this topic, I note that, at 2.3.1.6 of the notice, an admission is sought that the plaintiff requires assistance, 2.3.1.6.5, with cleaning the “peroneal” area. I understand the peroneal area pertains to the foot. It is to be assumed that this should be “perineal” area, however this error — if it is that — has been copied from the occupational therapist’s report.
The plaintiff points out that there is a variety of opinions in relation to the topic of life expectancy.
The plaintiff submits in relation to the admissions sought concerning the publications of the Australian Bureau of Statistics, that it is important to know whether those matters are in contest. The plaintiff argues that, rather than saying whether the facts and documents are admitted or not, the defendants chose to take out an application to strike out. It is submitted that they could have said “we require a bit more time”, but they did not. It is submitted that the parties are now further down the track and the defendants had an opportunity to deal with the matter but they have not taken it. The plaintiff asks that the application be dismissed with costs and that the admissions sought by the notice be deemed admissions. It is contended that the benefit of a notice to admit has been lost if the Court does not proceed in this way.
Discussion

A notice to admit may be struck out, pursuant to r 117(2)(e), where the effort and expense required to answer it is out of proportion to what its answers might achieve.[22] The immensity and cost of the task of answering a notice is oppressive where these are disproportionate to the likely savings of cost and time at trial.[23]
[22] Sheahan v Hertz Australia Pty Ltd (1993) 171 LSJS 359.
[23] Southern Equities Corporation Ltd (in liq) v Bond (No 2) (2000) 34 ACSR 660.
As invited by the plaintiff and guided by their written submissions, I have gone to the respective expert report and compared it with other expert reports. Having regard to the passages identified by the plaintiff in her expert reports and those in the defendants’ expert reports, I am of the view that many of the matters and responses depend on the meaning and nuances of the responses. As such, it is appropriate that those matters be dealt with by the direct evidence at trial.
The expert opinions are necessarily informed by the accounts given by lay witnesses. I accept that many of the matters that the occupational therapist Ms Leaney discusses with the plaintiff’s mother are the basis of certain opinions detailed in her report. Having regard to this, the defendants are entitled to explore these matters with the plaintiff’s mother at trial. Again, as the trial Judge, it is important for example that I hear firsthand from the plaintiff’s mother how the plaintiff’s disabilities have impacted her life and the care she has required, currently requires and will require into the future. It is also important that I hear evidence from the experts regarding the plaintiff’s loss of earning capacity, life expectancy, need to attend Day Options, and her accommodation requirements. As is often the case with medical and allied health experts, there will be some subtlety to the degree to which they differ on a particular topic. As such, it is appropriate that those matters be the subject of evidence at trial.
I accept the submission that even if the defendants responded to the notice in relation to matters raised by the experts in their reports, those witnesses would still need to give evidence and, accordingly, no time with experts will be saved.
I note that the notices to admit delivered in both RAK and Southern Equities were delivered very early in the interlocutory period in each action, well prior to trial. Following the dismissal of the appeal against a Master’s decision declining to strike out the plaintiff’s notice to admit in Sheahan, the notice to admit was withdrawn, whereupon the Court ordered that the plaintiff pay the defendant’s costs of the application to strike out and then ordered that the matter proceed to trial. The notices to admit in RAK, Southern Equities and Sheahan all sought inter alia admissions in relation to issues of liability. In RAK, Lander J referred to the use of notices to admit in litigation conducted in 1996 as being “consistent with the modern approach to litigation which requires a party to face up, as early as possible, to the responsibility of decisions as to what truly is in dispute between the parties”.[24] Justice Debelle’s reiteration in Southern Equities of Lander J’s reference to the modern concept of litigation was in relation to litigation conducted in 2000.
[24] (1996) 68 SASR 272 at 279.
The notice in this matter was delivered in mid-October 2019, some six months prior to the allocated, albeit not confirmed, trial date. Liability has been admitted. It might be said that that in judgment being entered against the defendants the parties have faced up to what is truly in dispute, that is the quantum of the claim. The heads of damage are matters that are genuinely in dispute. This is not a matter where on my assessment the defendants are indulging in the, to use Lander J’s words, “… 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.
There is no dispute that the plaintiff is entitled to damages. The issues in dispute between the parties are the facts, assumptions, and expert opinions concerning each head of damage. These disputed matters are matters for trial.
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
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.
On the defendants’ application FDN 59, I strike out the notice to admit FDN 58.