Waters v Transfield P/L - [2005] SADC 174

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
WATERS v TRANSFIELD P/L & ORS
Judgment of His Honour Judge Boylan
23 December 2005
PROCEDURE
Appeal from a Master's decision refusing to strike out answers to a Notice to Admit. Whether party bound by its pleading.
District Court Rules 46A.03, 46A.05, 46A.05(2), 55.02, referred to.

WATERS v TRANSFIELD P/L & ORS
[2005] SADC 174

This is an appeal pursuant to Section 43(2) of the District Court Act and Rule 97.01 of the District Court Rules from a decision of a Master refusing to strike out paragraphs 7, 8 and 9 and paragraph A of the first third party’s (ABB) response to the fourth defendant’s (WMC) Notice to Admit. I note that there was also an application to strike out paragraph 10 of the answers but that issue has been resolved and I need not concern myself with it.
The proceedings
The plaintiff’s claim is for damages for personal injuries allegedly suffered by him on the 30^th of October 1998 during the course of his employment. At the time of the accident, he was employed by ABB, a company which erects scaffolding. He was working as a scaffolder on a job which ABB was doing on WMC’s mining site at or near Roxby Downs. He sued, among others, WMC which became the fourth defendant in the proceedings. WMC joined ABB which has now become the first third party.
In its first and second amended Statement of Claim WMC claims that it entered into Contract Number OEP-1036 with ABB and that that contract was operative at the time of the plaintiff’s accident. WMC claims that Clauses 22.2 and 22.3 Part 2 General Conditions of the Contract, entitled it to indemnities from ABB should WMC be found liable to the plaintiff. WMC also claims, pursuant to Clause 18.2 Part 1 Special Conditions of the Contract, that it is entitled to the benefit of an insurance clause.
In its defence, ABB admitted that it had entered into Contract Number OEP-1036 with WMC and that the contract was operative at the time of the accident. As to the indemnity clauses, ABB has pleaded that it will refer to the full terms and conditions of Contract Number OEP-1036. It has denied that WMC is entitled to any indemnity.
On the 22^nd of January 2004, WMC served upon ABB a Notice to Admit. Paragraphs 7, 8 and 9 and paragraph A of that Notice read as follows:
“You are required, within 14 days clear or such other extended time as agreed between the parties, to admit or specifically deny the truth of the following facts:-
…
7.    Clause 22.2 Part 2 General Conditions of the ABB Contract was operative at the time of the incident.
8.    Clause 22.2 Part 3 General Conditions of the ABB Contract was operative at the time of the incident.
9.    Clause 18.2 Part 1 Special Conditions of the ABB Contract was operative at the time of the incident.
…
You are also required to admit or specifically deny, the authenticity and admissibility of the following documents, or set forth in detail your reasons for refusal to do so. True copies are attached.
A.    Copy of ABB contract
…”
There was attached to the Notice to Admit an unexecuted and unsigned copy of the contract.
ABB filed its answers to the Notice to Admit on the 2^nd of March 2004. Its answers to the questions listed above are as follows:
“7.    Denied. ABB says that a signed/executed copy of the contract has not been identified or provided.
8.    Denied. ABB says that a signed/executed copy of the contract has not been identified or provided.
9.    Denied. ABB says that a signed/executed copy of the contract has not been identified or provided.
…
A.     ABB denies the authenticity of (sic) admissibility of the ABB contract on the grounds that a signed/executed copy of the contract has not been identified or provided.”
WMC applied to the Master for those answers to be struck out, arguing that there is an inconsistency in ABB’s pleadings. The inconsistency is said to be between ABB’s admission of the fact and operation of Contract Number OEP-1036 and its denial in the answer to admit that Clauses 22.2, 22.3 and Clause 18.2 entitle WMC to indemnities and the insurance benefit. There is also an inconsistency, it is said, between ABB’s admission that it entered into the contract and its denial that the unsigned and unexecuted copy attached to WMC’s Notice to Admit is authentic and admissible. WMC argued that ABB’s pleadings do not conform with the relevant pleading rules and that the answers should, therefore, be struck out.
ABB’s submission was that ABB has complied with the relevant rules, that there is no ambiguity in the pleadings, and that WMC is on notice of the case it must meet at trial. The Master refused WMC’s application. WMC appealed. With respect to the Master, I agree with his conclusions. Nevertheless, I must consider the matter and decide it for myself.
The relevant rules are Rule 46A.03 and Rule 46A.05 and Rule 55.02.
I refer particularly to Rule 46A.05(2). That Rule reads as follows:
“46A.05
…
(2)     The defence must plead, but plead only:
(a)    what parts, if any, of the Statement of Claim are admitted;
(b)    the materials facts relied upon to constitute any ground of defence on which the defendant bears an evidentiary or a legal onus of proof;
(c)    such further materials facts as are necessary to give other parties clear notice of the defendant’s case which they will have to meet;
(d)    any defences in law;   and
(e)    any statutory provisions to be relied upon by the defendant.”
Rule 54.02 (where relevant) is as follows:
“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 14 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
…”
Mr Livesy, who appeared for WMC on appeal, argued that ABB is in breach of Rule 46A.05(2)(c) in that it has failed to give WMC fair notice of the case which it will have to meet at trial. Mr Livesy argued that ABB in its defence has admitted that it entered into the contract and that the contract was operative, but that in its answers to the Notice to Admit, ABB has denied that particular clauses were operative. He points out that ABB has not put forward any positive plea that other clauses were operative. As to Rule 54, he says that, while ABB has denied that the clauses were operative and has denied the admissibility and authenticity of the copy contract provided, it has not set forth in detail the reasons why ABB cannot make the admissions sought. He says that there is now an ambiguity in the pleadings and he points to the well established propositions that the purpose of pleadings is to remove ambiguities and to define clearly the issues which are genuinely in dispute at trial.
Mr Hoile, for ABB, submitted that there is no ambiguity. There is, he says, no ambiguity in admitting the fact and operation of the contract, but disputing the operation of certain of its terms. He argued that WMC is on notice that the operation and effect of the relevant clauses are in dispute. He referred to a number of cases which he said are authority for the proposition that the terms of a contract must be determined by reference to matters other than its written terms. It seems to me that the appeal must be resolved by reference to the issues raised on the pleadings.
My conclusions
I do not see any ambiguity in ABB’s position. By admitting that it had entered into contract OEP-1036 and that that contract was operative at the time of the plaintiff’s accident, ABB has not admitted the effect or operation of any particular clauses. As Mr Livesy conceded in submissions before me, clauses in contracts of the type that subsisted between WMC and ABB are subject to change and do change according to circumstances. A contract bearing a given number by which it is identified may not always contain the same clauses throughout its life although it may always be identified by that same number.
ABB has made it plain, by its answers to the notice, that it does not accept that clauses 22.2, 22.3 and 18.2 necessarily govern the relationship between it and WMC at the relevant times. It has also made it plain, by its answer to paragraph A, that it does not accept that Contract Number OEP-1036 subsisted in the form in which it appears in the copy attached to WMC’s Notice to Admit. By its answers it has put WMC on notice that WMC must prove the form of the contract at the time of the accident. The form of the contract at that time is not a matter that is not genuinely in dispute on the pleadings. Nor, it seems to me, is the construction of whatever clauses subsisted a matter that is not genuinely in dispute.
The appeal is dismissed.