Wesfarmers Kleenheat Gas Pty Ltd v Coffey LPM Pty Ltd [No 2]

[2015] WASC 269

WESFARMERS KLEENHEAT GAS PTY LTD -v- COFFEY LPM PTY LTD [No 2] [2015] WASC 269

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 269
Case No:	CIV:2072/2010	Heard:	2 JULY 2015
Coram:	CHANEY J	Delivered:	2/07/15
No of pages:	6	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	WESFARMERS KLEENHEAT GAS PTY LTD COFFEY LPM PTY LTD WA SEAFOOD EXPORTERS PTY LTD
Catchwords:	Practice and procedure Notice to admit facts Extension of time Trial adjourned part heard
Legislation:	Rules of the Supreme Court 1971 (WA), O 3 r 5, O 30 r 1, O 30 r 2, O 63A r 5, O 66 r 3
Case References:	Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WESFARMERS KLEENHEAT GAS PTY LTD -v- COFFEY LPM PTY LTD [No 2] [2015] WASC 269 CORAM : CHANEY J HEARD : 2 JULY 2015 DELIVERED : 2 JULY 2015 FILE NO/S : CIV 2072 of 2010 BETWEEN : WESFARMERS KLEENHEAT GAS PTY LTD

Plaintiff

AND

COFFEY LPM PTY LTD
First Defendant

WA SEAFOOD EXPORTERS PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Notice to admit facts - Extension of time - Trial adjourned part heard

Legislation:

Rules of the Supreme Court 1971 (WA), O 3 r 5, O 30 r 1, O 30 r 2, O 63A r 5, O 66 r 3

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr J A Thomson SC & Mr M J Hardy
First Defendant : Mr M N Blandford
Second Defendant : Mr T J Palmer

Solicitors:

Plaintiff : Hardy Bowen
First Defendant : SRB Legal
Second Defendant : DLA Piper

Case(s) referred to in judgment(s):

Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552

CHANEY J:

(This judgment was delivered extemporaneously on 2 July 2015 and has been edited from the transcript)

1 The first defendant seeks leave to administer a notice to admit facts dated 25 March 2015 to the second defendant. The application is opposed by the second defendant. The application is made on the basis that the court has jurisdiction under O 3 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC), to extend the time limit provided for in O 30 r 2 RSC, which deals with the issue of notices to admit facts.

2 Order 3 r 5(1) provides that the court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by the RSC, by any judgment, order or direction, to do any act in any proceedings. Order 3 r 5(2) provides that the court may extend any such period as is referred to in subrule 1, although the application for extension is not made until after the expiration of that period.

3 The provision under which a notice is sought to be issued is O 30 r 2. This rule provides that a party to a cause or matter may, by notice in writing at any time not later than seven days before the date on which the notice of trial has been given, or which has otherwise been appointed for trial, serve on any other party a notice requiring him or her to admit, for the purposes of that cause or matter only, a fact or facts specified in the notice.

4 The position in this case is that the trial commenced on 2 February 2015 and was adjourned part heard on 13 February 2015. As a result of directions which I made today, it will resume hearing for a period of 15 days, commencing on 12 October 2015. So it is clear that the first defendant requires an extension of time in order to have an entitlement to issue the notice under O 30 r 2.

5 The notice to admit facts deals with nine facts which are sought to be admitted, the first eight of which relate to clarification as to what is depicted in certain photographs which were included in discovery by the second defendant some years ago. The final question is to the same effect, although it is directed to the question of whether or not what is depicted in the photographs accords with the observation of Mr Cook, who is a witness whose evidence in the trial has now been completed, when he inspected the site the subject of the proceedings in April 2015.

6 In submissions in response for the application the second defendant has made it clear that if a notice is issued, it does not intend to admit the facts which are referred to in [4] through to [9] of the notice, but that it does admit the facts (which it says are self-evident from the photographs in any event) in [1], [2] and [3].

7 The effect of that admission contained in the submissions which are now filed in the proceedings is that the facts are effectively admitted, having regard to the provisions of O 30 r 1, which permits a party to a cause or matter to give notice by his plea, or otherwise, in writing, that he admits the truth of the whole or any part of the case of another party. So, the only issues are, in effect, whether a notice so far as it refers to [4] to [9] should be allowed to be issued out of time.

8 The effect of the notice being issued is, in practical terms, having regard to the intimation of the second defendant that it will not admit those facts, simply to create a basis for a costs liability on the part of the second defendant, in relation to proof of those facts. That is the consequence of the provisions of O 66 r 3(2), which is to the effect that, if a fact is not admitted following the issue of the notice to admit facts, the costs of proving those facts are to be paid by the recipient of the notice unless the Court otherwise orders.

9 The issue it seems to me arises in the circumstance of this case in this way. First, the solicitors or counsel for the first defendant did not, when inspecting discovered documents, realise the significance of the photographs which they apparently now consider them to have. Second, they mistakenly thought that the photographs were in the voluminous trial bundle which was produced for the trial, and they now wish to rely on those photographs independently of the trial bundle.

10 Third, notwithstanding that they thought, or assumed, that the photographs were in the trial bundle, they failed to cross-examine Mr Cook as to the facts that they now seek to prove. As I indicated, Mr Cook has already completed his evidence.

11 Counsel for the first defendant says that there is no present intention to recall Mr Cook in order to prove these facts, if and when they are not admitted by the second defendant. He observes that there is still a lay witness to be called in the proceedings, Mr Ognesis, who the papers reveal appears to have been present at the time of these photographs having been taken. So it will be open to the second defendants to cross-examine Mr Ognesis about the photographs. It is said by the first defendant that leave to issue the notice to admit facts should be granted so as to avoid the additional cost of prolongation of the trial by having to put questions about the photographs to Mr Ognesis.

12 In my view that additional cost is almost non-existent in the context of this trial which, by the time it finishes, will have run for some 24 days and in which cross-examination of Mr Ognesis, like the cross-examination of the other witnesses to date, is likely to be extensive. It is likely that the events surrounding the matters depicted in the photographs will necessarily be the subject of some questioning of Mr Ognesis, if they are thought to be significant by the first defendant, in any event.

13 It seems to me that the objective of trying to save costs and prevent unnecessary time being consumed on the trial has no significant substance in the context of this case at all. What is a possibility, although it is currently disavowed by the first defendant, is that because many of these questions relate to instructions given, or observations made, by Mr Cook relating to the photographs, there could be an application to recall Mr Cook.

14 If that became necessary then it is possible that there may be costs associated with Mr Cook's re-attendance, which would slightly extend the length of the time of the trial.

15 In the circumstances I do not consider that the use of O 30 r 2, or an extension of time to enable the use of that order, is appropriate. Those circumstances are that the desire to issue the notice has arisen simply because an opportunity to deal with those matters before trial and during the course of Mr Cook's evidence was overlooked.

16 The second defendant should not be prejudiced by a potential liability for the costs of proving the facts identified in the notice when, had the matter been identified and dealt with by the first defendants earlier, there would be no need for a notice to be issued at all. I propose, on that basis, not to grant an extension of time to issue the notice.

17 There have been submissions made as to whether or not, in any event, there is jurisdiction under O 3 r 5 to grant the extension of time, having regard to observations as to the proper construction of that provision made by Owen J in Eaton Developments Pty Ltd v NTC Pty Ltd.1Althoughit is not necessary for me to express any concluded view, I am inclined to the view that O 3 r 5 does permit an extension of the time limit provided in O 30 r 2. There is a distinction between the position considered in Eaton Developments v NTC Pty Ltd, which concerned the self-executing provision in O 63A r 5(2), and the situation which pertains under O 30 r 2. Had I considered that it was appropriate to exercise my discretion in the first defendant's favour, I consider that I would have had jurisdiction to do so under O 3 r 5.

18 For these reasons, I propose to dismiss the chamber summons.

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1Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552.