Scott v Williams and Ors and Sims and Ors No. Scciv-98-1663

SCOTT V WILLIAMS AND ORS AND SIMS AND ORS
[2001] SASC 148

JUDGE BURLEY. The plaintiff has applied to strike out the defendants’ respective responses to an Amended Notice to Admit administered by the plaintiff. The first, second, third and fifth defendants on the one hand, and the fourth defendant on the other hand, are separately represented but on the hearing of the application all of the defendants were represented by one counsel, Ms Sofroniou. The response to the Notice to Admit of the fourth defendant was filed within time but the response of the other defendants was filed and served two days outside the relevant time limit. Those defendants applied for an order extending the time for the filing and service of their response and, by agreement, that application was dealt jointly with the plaintiff’s application to strike out the defendants’ various answers.
During the course of argument it became apparent that, on a proper reading of the provisions of SCR 54.02(1), once the period of limitation has expired, it is not open to the responding party to apply for an extension of time. Rather, the respondent must apply for an order under SCR 54.02(1) that the deemed admissions which would otherwise arise pursuant to that sub-rule do not occur: Rak v Coles Myer Limited (1996) 68 SASR 272. The plaintiff had no objection to the defendants pursuing an oral application to that effect in lieu of the application for an extension of time.
The plaintiff tendered the affidavits of Mr Lancione sworn on 5 February 2001 and 20 February 2001. The defendants tendered the affidavit of Mr Winter sworn on 8 February 2001. The earlier affidavit of Mr Lancione sets out the history of this litigation. The content of the affidavit has not been challenged. It reveals a long and tortuous history not only of the litigation but also of the administration of the liquidation of South Australian Ships Pty Ltd.
These proceedings are brought by the plaintiff pursuant to Section 588G of the Corporations Law. It is alleged that debts totalling in excess of $3.5 million dollars were incurred by the director defendants whilst the company was insolvent. It is therefore necessary for the plaintiff to prove at trial that those debts (some 600 of them) were incurred by the company at a time when the company was insolvent. The plaintiff’s Notice to Admit is directed mainly to those two aspects of the plaintiff’s claim.
SCR 54.00 deals with Notices to Admit. The relevant parts of the rule are as follows:-
“54.01(1)A party may request any other party to admit in writing the truth of any relevant fact or the authenticity or admissibility of any relevant document specified in the notice.
(2)[Immaterial].
(3)[Immaterial].
(4)[Immaterial].
(5)A party shall not file and serve more than two notices to admit without first having the leave of the Court to so do.”
The time either before which or not before which Notices to Admit might be administered has been changed in the Rules from time to time. The time at which a Notice to Admit is administered may have a bearing upon the adequacy of the responses given. I shall return to this point later in these reasons. It is sufficient to say at this stage that, the timing of the filing and service of the Notice to Admit has no greater significance under the repealed provisions of SCR 54.00 when compared with the current provisions of that rule.
I set out additional provisions of the Rules relevant to the applications before me:-
“54.02(1)Unless the Court otherwise orders, the truth of a fact or the authenticity or admissibility of a document specified in a notice to admit shall be deemed to be admitted unless within fourteen days, or such extended time as may be agreed between the parties, the party receiving the notice files and delivers to the party giving the notice a written statement that:
(a)specifically denies the truth of that fact or the authenticity or admissibility of that document and sets forth in detail the reasons why he cannot make the admission;
or
(b)states that the refusal to admit the truth of that fact, or the authenticity or admissibility of that document, is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets forth in detail the reasons for the refusal.
(2)    Within 21 days of the receipt of a written statement under subrule (1) the Court upon application by the party giving the notice to admit may order:
(a)that the party giving the written statement file a further and better statement within such time as is allowed by the Court;
(b)that the written statement, or some part of it, be struck out.
(3)    The Court may make an order pursuant to subrule (2)(b) if it is satisfied that the truth of any fact, the execution of any document or the authenticity of any document as sought in the notice to admit is not bona fide disputed by the party giving the written statement.
(4)    An order made under subrule (2)(b) striking out a written statement, or part thereof, shall take effect as though the said statement, or such part thereof, had never been filed and delivered.”
Before turning to the cases relating to the rule, I propose to deal briefly with the oral application of the first, second, third and fifth defendants for an order pursuant to SCR 54.02(1) that the deemed admissions shall not arise. The plaintiff, quite unrealistically in my opinion, has insisted on opposing that application because of the past history of his administration and this action. It is clear that the plaintiff believes that the defendants are doing everything in their power to obstruct him in pursuing this claim under the Corporations Law. I have no means to make a determination one way or the other in that regard. Certainly the defendants have resorted to a great deal of pre-trial activity which has had the effect of delaying the prosecution of these proceedings to a considerable degree. That no doubt is frustrating to the plaintiff. Nevertheless, any sense of frustration should be put to one side in making decisions about the conduct of the litigation because, if otherwise, time wasting and costly debate will have to be undertaken in circumstances where the law is clear and should be accepted as applicable.
To refuse to make an order that SCR 54.02(1) shall not apply to the first, second, third and fifth defendants would be to allow a minor technical default to bring about the result that the defendants would effectively be unable to contest a considerable range of evidence relating to essential elements of the plaintiff’s claim. The law does not countenance such a result. This is particularly so where there is a means by which the plaintiff can raise the determination of the merits or lack of merits in relation to the defendants’ response to the Notice to Admit. The plaintiff has done so by seeking an order that the responses of all of the defendants to the Amended Notice to Admit be struck out. For these reasons I consider it appropriate to exercise the discretion conferred upon the Court by SCR 54.02(1) by ordering that the deemed admissions do not arise and that the response of the first, second, third and fifth defendants in relation to the plaintiff’s Amended Notice to Admit shall stand as their response.
In Rak v Coles Myer Limited (supra), Lander J reviewed the provisions of SCR 54.00 in some detail. In relation to the rule his Honour said (at 275):-
“There is now an obligation upon the party receiving the notice to respond in writing, specifically denying the truth of the fact or the authenticity or admissibility of the document and at the same time setting forth in detail the reasons why the party cannot make the admission, or stating that the refusal to admit the truth of that fact or the authenticity or admissibility of that document is made on the grounds of privilege or irrelevancy or on the ground that the request is otherwise improper. There is also an obligation to set forth in detail the reasons for the refusal.”
Lander J also said (at 276):-
“The purpose of the rules relating to notices to admit is to aid a party in the proof of that party’s case in two ways. First, it allows the party to establish well before trial the authenticity of a document so that the party can be confident at trial that the party will not need to call formal proof to establish the provenance, execution, integrity or the authenticity, of that document. Secondly, it allows the party to be confident, subject to a ruling by the trial judge that the document will be admitted in evidence at the trial without the need for further proof or, except in unusual circumstances, further argument.
Therefore, a party seeks the opposing party’s concession, as it were, that the documents which are presented to that opposing party are both authentic and admissible.
Clearly enough the purpose of the rule in relation to documents is for the easier proof of that party’s case and for the saving of costs and time in the proof of that case.
So also 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.
When used properly the rules have the effect of narrowing the issues between the parties, avoiding unnecessary expense, and avoiding unnecessary time in the trial process.
The fact that a party can no longer simply not admit the authenticity of a document or the truth of any relevant fact but must instead now give reasons for declining to do [so] is consistent, in my opinion, with the modern concept of the orderly disposal of litigation.”
In Southern Equities Corporation Ltd (In Liquidation) and Ors v Bond and Ors (No 2), (2000) 34 ACSR 660 at 663, Debelle J dealt with SCR Rule 54.00. He referred to the decisions of Lander J in Rak v Coles Myer (supra) and Thomson Brindal Ltd v McLachlan, (2000) 207 LSJS 90, and set out there what he considered to be the essential points to be made in relation to the rule. They are as follows:-
“(1)In relation to documents, the notice to admit aids a party to prove his case in two ways, namely,
(a) it allows a party to establish, well before trial, the authenticity of a document so that he can be confident at the trial that there will be no need to call formal proof to establish the provenance, execution, integrity, or the authenticity of that document; and
(b) it allows a party to be confident, subject to a ruling by the trial judge, that the document will be admitted in evidence at the trial without the need for further proof or, except in unusual circumstances, further argument.
For that reason, a party seeks his opponent’s concession that the documents are both authentic and admissible in order to make proof of his case easier and to save the cost of proving documents which may not be truly in issue.
(2)Similarly, in relation to facts, the purpose of Rule 54 is to allow a party to establish a fact without the necessity of calling either oral evidence or documentary evidence to prove that fact. Here again, the purpose of the rule is to make proof of that fact easier and to save costs and time in doing so.
(3)When used properly, the Rule has the effect of narrowing the issues between the parties even further than pleadings, thereby avoiding unnecessary time and expense in the trial process.
(4)The obligation to give reasons for declining to admit the authenticity of a document or the truth of a relevant fact is consistent with the modern concept of the orderly disposal of litigation. The Rules reflect the fact that the court has a significant part to play, not only in the administration of justice, but also in the management of each individual action so as to ensure that the litigation proceeds smoothly and expeditiously and with the least cost to the parties. As I will note in a moment, the Rules have the goal of seeking to limit the issues to be tried to what is truly in dispute.
(5)The obligation of Rule 54 is to answer requests for admissions as to the authenticity and admissibility of documents is consistent with the enactment in recent years of statutory provisions designed to facilitate proof of documents, for example, s 45a, s 45b, s 45c and s 59j of the Evidence Act 1929.”
His Honour then said:-
“It is useful to repeat what Lander J said on this topic in Rak v Coles Myer Ltd (supra) at 279:
‘In circumstances, therefore, where there is no objection on the grounds of relevance or where the request does not raise a question of privilege or the request is not otherwise improper, then the only way the consequences of objections under r 54.02 can be avoided is by first denying the truth of the fact or the authenticity or admissibility of the document and secondly setting forth in detail the reasons why the party cannot make the admission.
All of that seems to me to be consistent with the modern concept of litigation which requires a party to face up, as early as possible, to the responsibility of decisions. The responsibility of decisions includes making, as early as possible, a determination of the facts truly in issue between the parties. 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. Neither the parties themselves nor the State can afford to allow parties to litigate at their own pace and with their own agenda because to do so would disadvantage the parties themselves and the other parties wishing to have their litigation dealt with.’ ”
I turn to a consideration of the specifics of this application bearing in mind the principles referred to above. I do not intend to set out in detail all the requests in the Notice to Admit and the respective responses by, on the one hand, the first, second, third and fifth defendants and, on the other hand, by the fourth defendant. During the course of argument Mr Ross-Smith, counsel for the plaintiff, handed up a schedule setting out those details. I shall refer to those items in the Notice to Admit, the response to which is in issue, by reference to the paragraph number of the request in the Notice to Admit. The schedule provided by the plaintiff does not deal with the paragraphs in the Notice to Admit in numerical order. For easy reference I intend to follow the numerical sequence contained in the schedule.
Paragraph 12
The defendants were requested to admit the incurring of unsecured debts totalling $3,537,358.34 between June 1996 and January 1997 by South Australian Ships Pty Ltd (the company). I shall refer to the first, second, third and fifth defendants as “the defendants” and to the fourth defendant as “the fourth defendant”.
The defendants’ response is that the incurring of a debt is a matter of law and that, as such, the request is improper. I accept that a Notice to Admit may not make a request as to a matter of law. I do not accept that if a request to admit that a debt in the sum of $x was incurred by A on a given date is an improper question. It may technically be a mixed question of fact and law but the factual content of the request so predominates that it would be unduly technical to reject an answer which took the point that, at least in part, the request was made in respect of a matter of law.
Although I have described above the effect of the request to admit in terms of the total of the alleged debts, the request has been made by reference to the schedule to the plaintiff’s Second More Explicit Statement of Claim which itemises each of the alleged debts. Consequently, the effect of the request is to make the request in respect of each of the alleged debts referred to in the schedule and as such, in my view, it is a legitimate request and should be responded to.
I must next decide whether or not to strike out the defendants’ answer (SCR 54.02(2)(b)) or direct that a further and better statement be given by the defendants (SCR 54.02(2)(a)). If I were to order the former, it would mean that the defendants would be taken to have admitted the request. The latter course enables the defendants to address the request in accordance with these reasons.
SCR 54.02(3) permits the Court to strike out the defendants’ response if the Court “is satisfied that the truth of any fact, the execution of any document or the authenticity of any document as sought in the notice to admit is not bona fide disputed by the party giving the written statement”. I do not think the stage has been reached where it is open to me to conclude that the incurring of the debts is not bona fide disputed by the defendants. Accordingly, I propose to direct that a further and better response be provided by the defendants.
As to the fourth defendant, he has stated that he did not take an active part in the day to day incurring of debts by the company and does not know whether or not the debts were incurred by the company. He said he is making his own enquiries by reference to the plaintiff’s discovered documents and by reference to expert advice that he is obtaining. The effect of the fourth defendant’s response is that he is not in a position to give the required response either admitting or denying the incurring of some or all of the debts referred to. This raises the question of the timing of the Notice to Admit. It might be possible for a defendant to give such a response where, very early on in the pre-trial stages of the litigation a Notice to Admit is administered. But that is not the case here. This litigation was commenced in 1998. The current Statement of Claim was filed in April last year, as was the plaintiff’s Amended Notice to Admit. The fourth defendant (and the defendants) filed their responses to the plaintiff’s Amended Notice to Admit in early February this year. It seems to me that the fourth defendant has failed to address these essential matters when he should have done, as the authorities cited earlier in these reasons clearly require him to do. His response is inadequate. For the reasons given in relation to the defendants, I think it appropriate to direct the fourth defendant to provide a further and better response rather than to strike out his present response.
I mention that there are some 600 debts referred to in the schedule to the Statement of Claim and I accept that considerable work needs to be done by the defendants and the fourth defendant in responding in detail to the request. I do not think that the request is improper merely because a considerable amount of time and expense is required to answer the request. The test, as accepted by Debelle J in Southern Equities Corporation Ltd (In Liquidation) and Ors v Bond and Ors (No 2) (supra), is whether or not the cost and time involved in answering the request is out of all proportion to the benefits to be gained at the trial as a result of the appropriate admissions being made. In my view, the defendants and fourth defendant must at some stage prior to trial address this point and for that reason I do not see that any relevant disproportion arises.
Paragraph 13
This request relates to the dates on which the alleged debts are alleged to have been incurred. The dates are itemised in the schedule to the Statement of Claim. The defendants and the fourth defendant have repeated their responses in relation to paragraph 12 of the Notice to Admit. For the reasons given in relation to paragraph 12, I think that the defendants and the fourth defendant should give a further and better response.
Paragraphs 14, 15
Paragraph 14 is a request to admit that at the time the debts were incurred the company was insolvent. Paragraph 15 is put in the alternative that the company became insolvent by incurring any or all of the debts. The defendants’ response to each is that the request is improper for the same reasons advanced in relation to paragraph 12. The fourth defendant’s response is that the request calls not for an admission of fact but for an admission of multiple conclusions. I think the respective responses of the defendants and the fourth defendant are correct and no further response is called for.
Paragraph 16

This paragraph requests the defendants and the fourth defendant to admit that a reasonable person in the position of the defendants as directors of the company knew or should have been aware that the company was insolvent at the time the debts were incurred or that it would become insolvent by incurring any or all of the debts. These are no doubt elements of the plaintiff’s claim or they raise matters which need to be dealt with in light of defences maintained by the defendants and the fourth defendant. Nevertheless, they do not constitute a proper request for admission of facts. Both the defendants and the fourth defendant have responded that the request is improper and I agree that it is. The use of the expression “should have been aware” makes the request relate to conclusions rather than facts.
Paragraph 26
By this paragraph the defendants and the fourth defendant are requested to admit that they failed to prevent the company from incurring the debts. The defendants and the fourth defendant have taken a similar approach in contending that the request is improper. I agree with the fourth defendant’s response that the request effectively seeks agreement with what will presumably be a submission on the part of the plaintiff in due course. It is therefore not a request to admit facts. In my opinion, no further response is called for.
Paragraph 27
The defendants and fourth defendant are requested to admit that the debts are wholly unsecured. The defendants contend that they have been requested to admit a matter of law. I think the approach taken by me in relation to paragraph 12 is appropriate to this request. Whether a debt is unsecured may to some degree involve a question of law but predominantly the matter is one of fact and as such the request should be answered.
The fourth defendant’s response is the same as the response given to paragraph 12. For the reasons given in relation to paragraph 12 I do not consider that response to be sufficient and a further and better response ought to be provided.
Paragraph 28
All the defendants have been requested to admit that the parties to whom the debts are owed suffered loss or damage in relation to those debts because of the company’s insolvency in that the debts remain unpaid. The defendants contend that the request is improper because the admission of an opinion is called for. The fourth defendant does not admit the allegations because the request addresses matters outside the fourth defendant’s knowledge. The fourth defendant also contends that the request is improper because it seeks an admission as to conclusions of law. I agree with the defendants that the request is improper. One way of articulating the inappropriateness of such a request is to ask the question: would such a question be allowed in the course of the trial? I do not suggest that that is the test for any request for an admission of fact but, in this instance, it highlights the fact that the request has assumptions built into it, such as insolvency, which in themselves cannot be the subject of a request for admission of facts. No further response is called for.
Paragraph 31
The defendants and fourth defendant are asked to admit that the company demonstrated certain specified characteristics during the insolvency period. All of the defendants have stated that the request is improper because it requires them to agree to conclusions rather than facts. I think they are correct in that contention and, consequently, no further response is called for.
Paragraph 32
This paragraph requires all of the defendants to admit that during the insolvency period (which is undefined) the company displayed a growing level of total indebtedness to creditors and a deterioration in the ageing of debts. All of the defendants have responded that the request is improper because it is a request for the admission of conclusions rather than fact. I agree that the request is improper. No further response is required.
Paragraph 20
This request requires all of the defendants to admit the meaning of the content of certain documents referred to in the request. All of the defendants contend that the request is improper and I agree that it is not open to a party to require the opposing party to admit what the requesting party contends is the meaning of those documents. No further response is required.
Paragraph 21
All of the defendants are required to admit that the company’s monthly accounts for the period October 1994 to March 1997 disclose consistent accumulated losses, negative net assets and negative working capital of significant amounts for the whole of the period of the company’s trading. All of the defendants have contended that the request is improper. The defendants have responded:
“The accounts in question will speak for themselves. It is not proper for the plaintiff to require the defendants to draw conclusions from, or express opinions as to the interpretation of, those accounts. The expressions ‘accumulated losses’, ‘negative net assets’ and ‘negative working capital’ are technical terms. Those terms have no precise factual basis but rely upon a level of understanding of accounting principles on the part of the defendants upon which they would then interpret the accounts accordingly. For example the concept of ‘working capital’ is a complex accounting concept. There is no line item in a set of accounts which specifies the amount of working capital available. Working capital is determined by a reasonably complicated formula, the components of which may vary based upon which accounting principle or theory is being relied upon at the time.”
For the purposes of this application I accept that the defendants’ response correctly discloses the basis upon which it may be said that the request in paragraph 21 of the Notice to Admit is improper. No further response is necessary from any of the defendants.
Paragraph 22
All of the defendants are requested to admit that the accounts referred to in paragraph 21 of the Notice to Admit were prepared by Mr Carver for consideration by the defendants at Board level and were considered by the defendants at or about the time of the respective monthly accounts. All of the defendants contend that the request is improper. The fourth defendant has said that the request “refers to several facts and is unclear as to when consideration by the defendants or any of them is said to have taken place”. The defendants were more elaborate in their response but it is essentially the same as that put by the fourth defendant. I do not consider that the respective responses of the defendants and the fourth defendant disclose that the request is improper. The elements –
·prepared by Mr Carver
·for consideration by the defendants
·at Board level
·were considered by the defendants at or about the time of the respective monthly accounts may be addressed in the response without unfairness to any of the defendants
may be the subject of separate consideration.
I consider that a further and better response should be provided.
Paragraph 23
This paragraph is as follows:
“During the Insolvency Period, the Company applied to MISBARD for:-
23.1the conversion of a loan of $250,000.00 to a grant and further funding of $400,000.00;
23.2A government guarantee of the Company’s debts in the sum of $1.35 million. The submission was made on 6 September 1996 and rejected by Cabinet twice, on 9 September 1996 and 21 September 1996.”
The fourth defendant’s response is:
“Assuming for the purposes of these responses that ‘Insolvency Period’ is the name given by the Plaintiff for the time period 1 June 1996 until 14 January 1997, and with no admission that the Company was in fact insolvent during the period, paragraph 23 is admitted.”
The defendants’ response contends that the request is improper. Essentially it is suggested that the request is unclear as to its meaning. It is also suggested that the request requires the defendants to draw a conclusion based on the contents of documents. I do not accept that the defendants’ response discloses that the request is improper. It is open to the defendants to give the same response as the fourth defendant or, alternatively, not to admit the various matters contained in the request stating the reasons why the admission is not given, provided that those reasons are not a repeat of what is contained in the present response. For these reasons, I consider that the defendants should provide a further and better response.
Paragraph 25
The request calls for admissions in relation to “strained relations with the banker”. All of the defendants have contended that the request is improper and I agree with their response. The fourth defendant has admitted part of the request, namely that Bruce Carter was appointed to monitor the company’s financial performance in about May 1996. The request refers to the ANZ Bank appointing Mr Carter and there does not appear to me to be any reason why that aspect of the request should not be admitted by all of the defendants. In my view, the defendants and fourth defendant should provide a further and better response to paragraph 25 limited to the appointment of Mr Carter by the ANZ Bank.
Paragraph 33
This is a request to make an admission that an annexure to the plaintiff’s expert report is an accurate summary of ageing of the company’s creditors during the insolvency period. All of the defendants have contended that the request is improper. Whilst I agree in general with the position taken by the defendants and the fourth defendant in their responses, I think specifically that the point taken by the fourth defendant that the request to admit that figures in the summary have been “property adjusted” in the manner specified takes the request beyond the mere request for admission of facts. No further response is called for.
Paragraph 34
This request is as follows:
“The Company consistently had the majority of its creditors aged over 90 days during the Insolvency Period.”
All the defendants contend that the request is improper because it calls upon the defendants to admit the accuracy of a conclusion drawn from a complex of facts. I agree with the contentions of all of the defendants. No further response is necessary.
So far I have dealt with the first four pages of the schedule handed up by the plaintiff’s counsel in relation to an admission of facts. The schedule continues until page 24. The plaintiff seeks to debate numerous requests to admit facts and the responses given by all of the defendants to those requests. By and large the requests come within the categories already dealt with by me in these reasons.
The balance of the paragraphs relating to requests to admit fact in the schedule are for the most part fundamentally flawed. Many of the requests seem to be a requirement to admit matters of opinion contained in an expert report relied upon by the plaintiff. Many paragraphs request an admission as to the definition of phrases or the meaning of the contents of documents and many have requested admissions as to conclusions to be drawn from a complex series of facts. A number of requests required the defendants to make conclusions of law. The defendants have been requested to agree to matters of expert accounting opinion. Many of the requests involve a combination of the above faults. There are interspersed in these paragraphs some requests which might be legitimately pursued, the clearest examples of which are where the fourth defendant has made partial admissions.
It serves no useful purpose to go through the balance of these paragraphs item by item. By and large they require the same consideration as has been given for the first four pages of the schedule. It is not the function of the Court to settle the Notice to Admit, in the same way as it is not the function of the Court to settle a set of interrogatories in respect of which leave to issue is sought. Almost all of the balance of the requests to admit facts are flawed by the presence of one or more of the defects that I have just referred to. I do not propose in those circumstances to attempt to isolate those few requests that may be legitimate. It is sufficient to say that there is no basis for suggesting that the responses of all of the defendants to the remainder of the requests in dispute should either be struck out or the subject of a direction that further and better answers be provided.
It is necessary to deal with a number of additional paragraphs not contained in the schedule handed up by Mr Ross-Smith.
Paragraph 18
This request relates to a report prepared by Leadenhall Australia Ltd. All of the defendants are asked to admit distribution and discussion at Board meetings of the documents. All of the defendants have contended that the request is improper but I disagree. The request may be divided into its components and a response given accordingly. I propose to direct that a further and better response be given by all of the defendants.
Paragraph 19
By this request all of the defendants are asked to admit the content of the Leadenhall report. It appears from the comments in the letter from Mr Lancione to Mr Winter (13 February 2001, Exhibit FFL1 to Mr Lancione’s affidavit of 20 February 2001 – Document 85A) that the plaintiff meant to request all of the defendants to admit the correctness of findings contained within the Leadenhall report. The request is not so worded. The respective responses by all of the defendants discloses that the request is improper because the document will speak for itself. In other words, it is not permissible to make a request for an admission relating to the content of a document. No further response is required.
Paragraph 58
This request is as follows:-
“During the Insolvency Period the Company was unable to ensure that its insurance premiums are [sic] paid when due to avoid the risk of its insurance policies being terminated for non-payment and consequently its assets becoming uninsured.”
This is a good example of what has regularly occurred in the Notice to Admit facts: the plaintiff has mixed fact with inference and submission. All of the defendants have rightly taken objection to answering such a request. No further response is necessary.
Paragraph 62
This request relates to payment of insurance premiums. The first part of the request relates to the content of a written document and is therefore impermissible. The second part of the question deals with the part payment of premiums and should be responded to despite the contentions of all of the defendants to the contrary. I propose to direct that a further and better answer be provided.
Paragraph 71
This request relates to the appointment of Mr Carter as receiver and manager of the company on 14 February 1997 (to monitor the company’s performance). This request is admitted by the fourth defendant. The other defendants have referred to their answer to request number 29 which deals with the same subject matter except for the question of whether the appointment was to enable Mr Carter to monitor the company’s performance. I do not accept that the defendants may avoid response to this aspect of the request. The purpose of the appointment is as much a matter of fact as the appointment itself and the defendants should address this aspect of the matter. I propose to direct the defendants to provide a further and better response.
Paragraph 74
All of the defendants have been requested to admit that in June 1996 the company entered into negotiations with YQ to construct a second high speed aluminium ferry. This has been admitted by the fourth defendant but denied by the other defendants who say that the negotiations commenced in March 1996. That answer is sufficient. There is no need for a further and better answer.
Paragraph 78
All of the defendants have been requested to admit that the directors of the company were, or should have been, aware of certain matters. I accept the contention of the defendants that the inclusion of the expression “the passage should have been” goes beyond the legitimate scope of a request to admit facts for the reasons advanced in relation to paragraph 16 above.
Paragraph 79
This reads:-
“The Company utilised all available bank resources to pay its creditors during the Insolvency Period.”
The defendants have denied the truth of the allegations and, in my view, their response is sufficient. The fourth defendant has contended that the request is improper because it calls for an admission of conclusions rather than facts. I think that the fourth defendant is correct in this assertion. No further response is required.
Paragraph 91
This is:
“The Company’s loss for January 1997 largely represents a write-off of the Company’s work in progress after it entered into voluntary administration.”
Again, the request contains a mixture of fact, inference, conclusion and submission. I agree that it is an improper request and no further answer is necessary.
For the above reasons, I propose to make the following orders:
1.That the defendants respectively provide further and better answers to paragraphs 12, 13, 18, 27, 22, 23 (other than the fourth defendant), 25, 62, 71 (other than the fourth defendant) and 78.
2.That the plaintiff’s application, insofar as it deals with requests to admit facts, be otherwise dismissed.
Before turning to a consideration of the Notice to Admit documents, it is necessary to say something about the conduct of this application by the plaintiff and his legal advisers. I have already referred to what I consider to be the unrealistic opposition of the plaintiff to the defendants’ oral application relating to the late filing of the defendants’ responses. It is apparent to me that this unreasonable attitude has crept into the plaintiff’s application to strike out the responses of all the defendants. This is discernible not so much from the words and actions of the plaintiff, but from his legal advisers. Intemperate language has been used by the plaintiff’s solicitor, Mr Lancione, in correspondence and intemperate language has been used by counsel in the prosecution of the application. There have been accusations of a want of bona fides and a breach of undertaking, initially made in terms that embraced not only the defendants but the defendants’ legal advisers. A belated withdrawal of such accusations against the legal advisers was grudgingly given during the course of submissions when the appropriateness of such an approach was rightly challenged by counsel for the defendants. Insult has been added to injury when one considers the frequent defects occurring in the Notice to Admit identified in these reasons. I deprecate the use of such language by the plaintiff’s legal advisers. As I have said before, their duty is to exercise an independent and objective judgment in relation to the way a matter should be conducted. They do their client a disservice by identifying with their client’s attitude to the defendants. Even it is assumed that the defendants have been guilty of the conduct in the defence of these proceedings to which the plaintiff takes objection, an assumption which I am by no means prepared to make, the intemperate language of the plaintiff’s legal advisers remains unjustified.
The argument relating to the requests to admit documents falls within a narrow compass. In various annexures to the expert report prepared by the plaintiff relating to the matters that are to be the subject of expert accounting opinion contain a number of documents which are indexed. Forming part of the index is a description of the content of the documents. To the request for admission the response of all of the defendants has been:
“admits the list appearing at the beginning of annexure [SAS5] to the Expert Report being document [B] as to its authenticity but denies its admissibility; and otherwise admits each item of correspondence in annexure [SAS5] as to its authenticity and admissibility.”

The point taken by all of the defendants is that they do not admit the description of the particular documents contained in the Index. I think this is a proper objection for all of the defendants to take and, accordingly, I do not consider that there should be a further response to Items B, D, F, J and K of the request to admit documents.
For the above reasons, insofar as the request that the Notice to Admit relates to documentation, I propose to order that the plaintiff’s application be dismissed.

[2001] SASC 148

11 May 2001