Reinicke v Neilson - [2004] ACTSC 5

SIMON UMBERTO REINICKE v LAURRAINE NEILSON
[2004] ACTSC 5 (27 February 2004)

PROCEDURE – pleading – application to strike out portion of defence as inconsistent with earlier admission.
EVIDENCE – admission before action – admission by defendant’s insurer – circumstances in which admission may be withdrawn.

Celestino v Celestino (Spender, Miles and VonDoussa JJ, Federal Court of Australia, 16 August 1990, unreported)
Cropper v Smith (1884) 26 Ch D 700
Clough & Rogers v Frog (1974) 48 ALJR 4481
Drabsch v Switzerland General Insurance Co. Limited (Santow J, Supreme Court of NSW, 16 October 1996, unreported)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Ell v The Hunter District Water Supply and Sewerage Board (1927) 27 SR (NSW) 437

No SC 382 of 2001

Coram: Master Harper
Supreme Court of the ACT
Date: 27 February 2004

IN THE SUPREME COURT OF THE     )
  )          No SC 382 of 2001
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:SIMON UMBERTO REINICKE
Plaintiff

AND:LAURRAINE NEILSON
Defendant

ORDER

Coram:  Master Harper
Date:  27 February 2004
Place:  Canberra

THE COURT ORDERS THAT:

Paragraph 1 of the defence filed on 7 November 2001 be struck out.

In this action for damages arising out of a motor vehicle collision, the plaintiff applies for an order that the opening paragraph of the defence be struck out. The application requires a consideration of the circumstances in which the Court will permit a party to withdraw an admission.

The plaintiff alleges in the statement accompanying the originating application that on 21 April 2000, he was riding a motor cycle along Pabral Road below Mount Coree, five kilometres north of the Arboretum, Brindabella. The originating application was filed on 20 June 2001; an appearance was entered on 2 November in that year.

By then there had already been considerable correspondence between the plaintiff’s solicitors and the defendant’s authorised insurer, NRMA Insurance Limited. At the insurer’s request, the plaintiff completed an accident notification form which provided details of the accident and the plaintiff’s injuries. The plaintiff’s solicitors provided the insurer with a copy of the police report in November 2000. This indicated that police did not attend the accident scene, and were unable to determine who was responsible for the collision, each driver stating that the other was at fault. It appears that the plaintiff’s motor cycle and the defendant’s Toyota Rav 4 were travelling in opposite directions prior to the impact.

On 30 November 2000, the insurer wrote a letter to the plaintiff’s solicitors which included the following passage:

The enquiries into the circumstances of the accident are now complete and we admit our insured has breached their duty of care to your client.
However, the enquiries also indicate Mr Reinicke has contributed to the accident/injuries. This has been assessed at 50%. If you have any additional information that may assist us in reviewing our decision, please telephone me to discuss your client’s claim. However, we reserve our rights to amend the percentage for contributory negligence if new information…

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.

Continue reading Reinicke v Neilson

Details

AGLC: Reinicke v Neilson [2004] ACTSC 5
Case: [2004] ACTSC 5
Decision Date: 27 February 2004

CaseChat Overview and Summary

The plaintiff, Reinicke, brought an action against the defendant, Neilson, for damages resulting from a motor vehicle collision. The case was heard in the Supreme Court of New South Wales. Reinicke applied for an order to strike out the opening paragraph of Neilson's defence, contending that it constituted a withdrawal of a prior admission. The primary legal issue before the court was whether the circumstances justified permitting Neilson to withdraw the admission, which had been made during the discovery process.

The court considered the principle that admissions made during the discovery process are binding unless there are exceptional circumstances that warrant their withdrawal. Reinicke argued that Neilson's attempt to withdraw the admission was made without sufficient justification and was an attempt to mislead the court. Neilson contended that new evidence had come to light that warranted reconsideration of the admission. The court assessed the evidence provided by Neilson and the surrounding circumstances to determine if there were indeed exceptional circumstances that justified the withdrawal of the admission.

After examining the evidence and the context of the case, the court found that Neilson had not provided sufficient justification for withdrawing the admission. The court held that the admission remained valid and ordered that the opening paragraph of the defence be struck out. The court emphasised the importance of maintaining the integrity of the discovery process and ensuring that admissions are not lightly withdrawn.

The final order was that the opening paragraph of the defendant's defence be struck out, and the admission previously made by the defendant remained in effect. This decision underscored the principle that admissions in the discovery process are binding unless exceptional circumstances exist to warrant their withdrawal.

Orders

Orders of the court

In this action for damages arising out of a motor vehicle collision, the plaintiff applies for an order that the opening paragraph of the defence be struck out. The application requires a consideration of the circumstances in which the Court will permit a party to withdraw an admission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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