Pollock v Thiess Pty Ltd and Ors - [2014] QSC 22

SUPREME COURT OF QUEENSLAND

CITATION:

Pollock v Thiess Pty Ltd & Ors [2014] QSC 22

PARTIES:

SCOTT WILLIAM POLLOCK

Plaintiff

And

THIESS PTY LTD

First Defendant

and

AUSTRALIAN BEARINGS CORPORATION PTY LTD

Second Defendant

and

WORKCOVER QUEENSLAND

Third Defendant

FILE NO/S:

S234 /2013

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

3 March 2014

DELIVERED AT:

Supreme Court Bundaberg

HEARING DATE:

20 February 2014

JUDGE:

McMeekin J

ORDERS:

1. Time for service of each application is abridged.
2. The second defendant is given leave to:
(i) withdraw the deemed admissions made in paragraphs 3 and 8 of its defence; and
(ii) amend its defence, as it might be advised, in accordance with these reasons.
3. The third defendant is given leave to withdraw the deemed admissions to paragraphs 4(a), 4(b), 4(c), 4(e), 6 and 7 of the plaintiff’s Notice to Admit Facts dated 21 November 2013.
4. No order as to costs in either application.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – OTHER MATTERS – where the second defendant’s pleading resulted in deemed admissions – where the second defendant’s pleading does not comply with the Uniform Civil Procedure Rules 1999 (Qld) – whether leave should be granted to withdraw the deemed admissions

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNFORM CIVIL PROCEDURE RULES – OTHER MATTERS – where the third defendant failed to respond to a Notice to Admit Facts served by the plaintiff resulting in admissions – where the Notice to Admit Facts contained questions of law – whether a question of law can be deemed an admission under r189 of the Uniform Civil Procedure Rules 1999 (Qld)

Uniform Civil Procedure Rules 1999 (Qld) r149, r150, r166, r171, r188, r189

Ballesteros v Chidlow (No 2) [2005] QSC 285 cited

Commix Communications Pty Ltd v Cammeray Investments Pty Ltd [2005] QSC 394 cited

Cormie v Orchard [2001] QSC 21 cited

Hanson Construction Materials Pty Ltd v Davey & Anor [2010] QCA 246 cited

Hartmann v Pilkington & Ors [2012] QSC 254 cited

In Roma Pty Ltd v Adams & Anor [2012] QCA 347 cited

Piatek v Piatek & Anor [2010] QSC 122 cited

Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 followed

COUNSEL:

R Morton for the Plaintiff

SK Yau (solicitor) for the First Defendant

S Deaves for the Second Defendant

B Charrington for the Third Defendant

SOLICITORS:

Suthers Lawyers for the Plaintiff

Sparke Helmore for the First Defendant

DibbsBarker for the Second Defendant

Hopgood Ganim Lawyers for the Third Defendant

McMeekin J: There are two applications before the Court. They each concern a defendant’s desire to withdraw admissions, alleged deemed admissions resulting from a very poorly drawn pleading in the case of the second defendant, and admissions following on from a failure to make a timely response to a Notice to Admit Facts in the case of the third defendant.

The proceedings involve a claim for damages for negligence, the plaintiff…

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: [2014] QSC 22
Decision Date: 3 March 2014

CaseChat Overview and Summary

Pollock, the plaintiff, brought a case against Thiess Pty Ltd and others in the Supreme Court of Queensland. The plaintiff sought to hold the defendants liable for various claims including breach of statutory duty, negligence, and breach of common law duty of care. The court was tasked with addressing two main procedural issues. Firstly, the second defendant had made admissions deemed by the court due to non-compliance with the Uniform Civil Procedure Rules 1999 (Qld). The second defendant sought leave to withdraw these admissions and amend its defence. Secondly, the third defendant failed to respond to a Notice to Admit Facts, resulting in admissions under r189 of the Uniform Civil Procedure Rules 1999 (Qld). The third defendant sought to withdraw admissions related to questions of law contained in the Notice to Admit Facts.

The court considered whether the second defendant’s pleadings, which did not comply with the rules, should result in deemed admissions, and whether leave should be granted to withdraw those admissions. The court found that the second defendant’s failure to comply with the rules warranted the admissions but also noted the need for procedural fairness. The court granted leave for the second defendant to withdraw the admissions and amend its defence. Regarding the third defendant, the court examined whether questions of law could be subject to deemed admissions under the rules. The court determined that the admissions related to factual matters, not questions of law, and granted the third defendant leave to withdraw those admissions. The court decided not to make any orders as to costs in either application.

Orders

Orders of the court

1. Time for service of each application is abridged.

2. The second defendant is given leave to:

(i) withdraw the deemed admissions made in paragraphs 3 and 8 of its defence; and

(ii) amend its defence, as it might be advised, in accordance with these reasons.

3. The third defendant is given leave to withdraw the deemed admissions to paragraphs 4(a), 4(b), 4(c), 4(e), 6 and 7 of the plaintiff’s Notice to Admit Facts dated 21 November 2013.

4. No order as to costs in either application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Pollock v Thiess Pty Ltd & Ors [2014] QSC 22
PARTIES:	SCOTT WILLIAM POLLOCK Plaintiff And THIESS PTY LTD First Defendant and AUSTRALIAN BEARINGS CORPORATION PTY LTD Second Defendant and WORKCOVER QUEENSLAND Third Defendant
FILE NO/S:	S234 /2013
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Rockhampton
DELIVERED ON:	3 March 2014
DELIVERED AT:	Supreme Court Bundaberg
HEARING DATE:	20 February 2014
JUDGE:	McMeekin J
ORDERS:	1. Time for service of each application is abridged. 2. The second defendant is given leave to: (i) withdraw the deemed admissions made in paragraphs 3 and 8 of its defence; and (ii) amend its defence, as it might be advised, in accordance with these reasons. 3. The third defendant is given leave to withdraw the deemed admissions to paragraphs 4(a), 4(b), 4(c), 4(e), 6 and 7 of the plaintiff’s Notice to Admit Facts dated 21 November 2013. 4. No order as to costs in either application.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – OTHER MATTERS – where the second defendant’s pleading resulted in deemed admissions – where the second defendant’s pleading does not comply with the Uniform Civil Procedure Rules 1999 (Qld) – whether leave should be granted to withdraw the deemed admissions PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNFORM CIVIL PROCEDURE RULES – OTHER MATTERS – where the third defendant failed to respond to a Notice to Admit Facts served by the plaintiff resulting in admissions – where the Notice to Admit Facts contained questions of law – whether a question of law can be deemed an admission under r189 of the Uniform Civil Procedure Rules 1999 (Qld) Uniform Civil Procedure Rules 1999 (Qld) r149, r150, r166, r171, r188, r189 Ballesteros v Chidlow (No 2) [2005] QSC 285 cited Commix Communications Pty Ltd v Cammeray Investments Pty Ltd [2005] QSC 394 cited Cormie v Orchard [2001] QSC 21 cited Hanson Construction Materials Pty Ltd v Davey & Anor [2010] QCA 246 cited Hartmann v Pilkington & Ors [2012] QSC 254 cited In Roma Pty Ltd v Adams & Anor [2012] QCA 347 cited Piatek v Piatek & Anor [2010] QSC 122 cited Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 followed
COUNSEL:	R Morton for the Plaintiff SK Yau (solicitor) for the First Defendant S Deaves for the Second Defendant B Charrington for the Third Defendant
SOLICITORS:	Suthers Lawyers for the Plaintiff Sparke Helmore for the First Defendant DibbsBarker for the Second Defendant Hopgood Ganim Lawyers for the Third Defendant