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…

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: [2020] SASC 22
Decision Date: 14 February 2020

CaseChat Overview and Summary

The case of O'Brien v Cowie involved an application by the defendants to strike out a notice to admit served by the plaintiff. The nature of the dispute was centred around the necessity of the notice to admit in avoiding unnecessary time and expense at trial. The matter was heard in the relevant court, which exercised its discretion under the rules of civil procedure to decide the application.

The court was tasked with determining whether the notice to admit would indeed avoid unnecessary time and expense at trial. This involved assessing the potential savings in time and costs that might result from the notice, as well as evaluating whether the notice effectively narrowed the issues in dispute. The court also considered whether the answers to the notice would assist in determining the issues in dispute and whether the notice was likely to add to the time, cost, and trouble of the litigation contrary to the objectives of the rules.

In its decision, the court found that the notice to admit would not avoid unnecessary time and expense at trial. The court concluded that the notice did not narrow the issues in dispute, nor would the answers assist in determining those issues. Additionally, the court found that the notice was likely to add to the time, cost, and trouble of the litigation. Consequently, the court held that it was not in the interests of justice or the fair, expeditious, and economic management of the litigation to require the defendants to answer the notice. The court granted the application to strike out the notice, finding that the defendants had discharged the substantial burden in seeking to set aside the notice.

The final orders of the court were that the notice to admit, marked FDN 58, was struck out on the defendants’ application, marked FDN 59. The court emphasised that if it later transpired that certain evidence was not necessary, the party who required the calling of that evidence would be at risk of adverse costs orders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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