McDonald v McDonald

1. [1]

   Ms McDonald was injured when traveling as a pillion passenger on a motorcycle which travelled across Stevens Creek Bridge at Termeil. She brought proceedings in negligence against the driver and the Local Council, which identified Roads and Maritime Services (“RMS”) as the entity responsible for maintenance of the bridge. By consent RMS was then joined as a defendant.

2. [2]

   Ms McDonald’s claims are pursued by an amended statement of claim, in which she pleads, amongst other things that:

3. [3]

   Particulars of the claim were sought and provided. By its amended defence the RMS pleaded:

4. [4]

   A notice to admit facts and authenticity of documents was served on the RMS, after it had produced documents in answer to a subpoena. Correspondence ensued, much of it unhelpful. Information was sought as to the facts in issue to which each admission sought related. The response was:

5. [5]

   By motion filed on 19 April, the Authority sought orders striking out the notice to admit facts under Rule 2.1 or s 61(1) of the Civil Procedure Act 2005 (NSW) and in the alternative, if any admission of fact or as to authenticity of documents were deemed to have been made under Rule 17.2, ordering the withdrawal of the admissions.

6. [6]

   By motion filed on 24 July 2015, Ms McDonald sought leave to administer interrogatories under Rule 22(1) of the Uniform Civil Procedure Rules 2005 (NSW) and orders requiring the Authority to admit:

7. [7]

   At the hearing of the motions it became apparent that resolution of the controversy over the notice to admit facts was likely to resolve the question of interrogatories, so Ms McDonald’s motion has not yet been pressed.

8. [8]

   What remained in issue had to be approached in light of the obligations imposed by s 56 of the Civil Procedure Act, which imposes a duty on all parties to assist the Court to further the overriding purpose specified in s 56(1), namely, “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

The requirements of the Rules

1. [9]

   It emerged that there was a dispute between the parties as to the adequacy of the statement of claim. For Ms McDonald it was not accepted that there was any deficiency and, it was noted, no application to have the statement of claim set aside had been made. Nor have orders for further particulars been sought, it should be observed. An invitation to amend the statement of claim was refused.

2. [10]

   It is thus convenient to make some observations as to the requirements of the Rules, which impose obligations on the parties in relation to their pleadings.

3. [11]

   Rule 14.7 requires a party to plead a summary of the material facts on which it relies, to establish its case, not the evidence by which those facts are to be proven. The Rules envisage that this may require reference to documents and spoken words, in which event Rule 14.9 requires that the effect of the document or spoken word must, so far as material, be stated. While Rule 14.19 permits a point of law to be pleaded, it does not envisage that allegations as to the legal effect of pleaded facts be pleaded (see Liao v State of New South Wales Zhang v State of New South Wales [2014] NSWCA 71 at [216].

4. [12]

   Rule 14.14 also requires that a plaintiff must plead any matter that if not pleaded, may take the defendant by surprise. In the case of a negligence claim such as this, Rule 15.5 requires that the particulars given:

5. [13]

   If required particulars are not given, they may be sought and if not provided, they may be ordered to be provided (Rule 15.10).

6. [14]

   All of these requirements are directed at ensuring that the real issues in the proceedings can be identified; that the other party does not proceed under any misconception; that settlement can be encouraged; and that if a hearing is finally required, it is directed to the real issues which the Court has to decide.

7. [15]

   It must be accepted that Ms McDonald’s amended statement of claim does not adhere to requirements of the Rules, failing as it does to disclose the material facts on which the case advanced against RMS is based. Ideally, as was submitted for RMS, the parties’ pleadings will not only comply with the Rules, but will provide a complete statement of their respective cases, so that what is in issue can be readily identified. That does not always happen. That is why the Rules provide for particulars to be sought and provided.

8. [16]

   Further, in a case such as this, as was submitted on Ms McDonald’s behalf, where crucial information as to factual matters lies in the defendants’ hands, there can be real difficulties in pleading all of the material facts at the outset. A plaintiff’s case may thus change, as it did in this case, as information comes to hand.

9. [17]

   That does not mean that the obligation to disclose the facts by which the case advanced against the defendant, imposed by the Rules, need not be met by a plaintiff such as Ms McDonald. Even so, where there has been a failure to plead such facts, that will not always necessarily require pleading amendment. Much depends on the defendant’s attitude.

10. [18]

    A defendant may, for example, be content to seek and be provided with particulars of the claim, if the statement of claim does not disclose material facts, without requiring the plaintiff incurring the further costs involved in pleading amendment.

11. [19]

    As was discussed in Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024, the function of such particulars is not to expand the issues defined by the pleadings. Nevertheless, as discussed in Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd & Ors [2008] NSWCA 243 at [160] – [161], the need for co-operation between the parties, is “an essential aspect of modern civil procedure in the running of any civil litigation”, as is “the need for clarity, precision and openness as part of this co-operation”, which has been “emphasised in the context of ambush or surprise”

12. [20]

    In this case RMS’s application to have the notice to admit facts set aside rested in large part on its contention that the amended statement of claim has still not adequately pleaded Ms McDonald’s case, with the result that the relevance of admissions sought is not apparent. It was submitted, however, that it was apparent from the GCM document which the plaintiff had filed in October 2015, that part of her case is that RMS was responsible for the maintenance of the bridge and more particularly, the metal strips said to have caused the accident, but that this had not been pleaded. That and other submissions confirmed that RMS understands the case Ms McDonald seeks to pursue against it to be that RMS was responsible for the road, knew of the determination of the bridge and failed to take steps to deal with it. That understanding flows from the particulars which RMS sought and was provided.

13. [21]

    In clause 15 of the amended statement of claim it is pleaded that RMS had the care, control and management of certain roads. In clauses 19 and 20, it is pleaded:

14. [22]

    That pleading is deficient, because it fails to reveal the facts and circumstances which it is claimed establish the alleged failures.

15. [23]

    That is why, no doubt, before it made the admission at paragraph 15 of its amended defence, RMS sought particulars of the statement of claim, including in relation to paragraphs 19 and 20. Answers were provided on 24 February.

16. [24]

    The particulars sought included:

17. [25]

    The answers provided were:

18. [26]

    There was no evidence of any suggestion that the answers so provided were deficient; that they did not provide sufficient information as to the material facts to allow RMS to understand Ms McDonald’s case; or that they expanded her pleaded case. RMS made no application under Rule 14.28, for example, to have the statement of claim struck out, because it failed to provide it with proper notice of Ms McDonald’s case, nor were orders under Rule 15.10, that further particulars or a statement of the nature of her case be provided sought. Instead it filed its defence, later amended to make the admission earlier quoted.

19. [27]

    The dispute over the notice to admit facts has to be understood in this context.

Admissions

1. [28]

   Rule 17.2 provides that a party may make admissions by service of a notice. They may also be made, as RMS here did, in its defence, or orally in the course of the proceedings.

2. [29]

   A party who considers that parts of a statement of claim ought to be admitted, is free to serve a notice to admit facts (see Liao at [251]). Service of a notice to admit facts is provided for in Rule 17.3 and a notice to admit authenticity of documents in Rule 17.4. Provision is also made for leave to withdraw an admission. A reason for grant of such an application includes a failure to respond in time to a notice to admit, which under Rule 17.3(2), requires service of a notice disputing alleged facts within 14 days of service, failing which the facts are taken to be admitted. Here the motion seeking to have the notice set aside, was served before that period expired.

3. [30]

   Apart from the cases referred to by the parties, I dealt with such an application in Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433. There is no question that the Court has power to make such an order in an appropriate case, or indeed its power to compel appropriate admissions, to ensure that it is called on only to determine issues bona fide in dispute or to avoid expense or delay (see Liao at [241] - [244]).

4. [31]

   Whether admissions are made; whether further admissions are sought; and if sought, how they are responded to, must all be approached by the parties in light of the overriding duty imposed upon them by s 56. In RMS’s case, it also has relevant obligations as a model litigant.

The notice to admit facts and authenticity of documents

1. [32]

   It has to be understood that much of what was sought to be admitted in the notice served for Ms McDonald related to RMS documents which it had produced in answer to her subpoena. Why, in those circumstances, it would be thought that there would be any issue as to the authenticity of RMS’s own documents, is not apparent. That there was not, could easily have been clarified by the parties’ legal representatives, without the time, trouble and expense involved in the service of a notice to admit facts in accordance with the regime established by the Rules.

2. [33]

   That there was no issue as to authenticity could also have been easily clarified by RMS when served with the notice, but it was not. That was, however, soon clarified at the hearing, as were a number of other things which were readily capable of clarification, without resort to the motions which the parties filed.

3. [34]

   Given that there is in truth no issue between the parties as to the authenticity of the RMS documents referred to in the notice, there is no purpose in the pursuit of the admissions sought in respect of their contents (see Liao at [53]).

4. [35]

   Those documents were variously referred to in the Notice to Admit Facts at the following paragraphs:

5. [36]

   What is contained in these documents can be proven by their tender at the hearing, provided of course that they are relevant to what is in issue in the proceedings. They are not referred to in the statement of claim. The requirement as to relevance flows from ss 55 and 56 of the Evidence Act 1995 (NSW). Section 56 provides that only relevant evidence is admissible and s 55(1) that what is relevant is “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.

6. [37]

   What is in issue depends firstly on what is pleaded and secondly, what is admitted.

7. [38]

   On its face the admission made in paragraph 15 of the amended defence, in compliance with RMS’s obligations as a model litigant, that “at all material times” it had responsibility for maintenance of the bridge, covered the periods referred to in paragraphs 1 and 2 of the Notice to admit Facts. They provide:

8. [39]

   RMS’ counsel confirmed at the hearing that its admission covered not only all parts of the bridge, including the steel angle, but also every date identified by Ms McDonald in her statement of claim to be material to her case. There is, accordingly, also no issue between the parties as to the admissions sought in paragraphs 1 and 2 and no utility in the pursuit of this aspect of the notice to admit facts.

9. [40]

   What was otherwise in issue appeared in paragraphs 3, 9, 10, 11, 12 and 13 of the Notice to Admit Facts. They provide:

10. [41]

    It was clarified at the hearing that paragraphs 3 and 13 concern the same document, one provided to Ms McDonald by the Council. It is also not referred to in the amended statement of claim, or the particulars provided. It is an unsigned and undated agreement which purports to assign responsibility for certain obligations, as between the Council and the RMS.

11. [42]

    Given the Authority’s admission that it had the responsibility at all relevant times for maintenance of the bridge, what is sought to be admitted in paragraph 3 is directly inconsistent with the admission and, it would seem, contrary to Ms McDonald’s case against RMS. The relevance of the document or its authenticity to any fact in issue is accordingly not apparent. This aspect of the notice should accordingly be struck out.

12. [43]

    Paragraphs 9 and 10 seek admissions that the RMS carried out no maintenance work in relation to the steel angle claimed to have been exposed on the road, which RMS accepts is a part of the structure of the bridge.

13. [44]

    Given the answers sought and provided in the particulars, and what appears in the amended defence, it is apparent that the admissions sought in paragraphs 9 and 10 are relevant to what is in issue, as is that appearing in paragraph 12. That admission appears to concern a report about the repair of the bridge, which the plaintiff contends ought to have been attended to before the accident.

14. [45]

    Paragraph 11 also appears to be relevant to what is in issue, given what is pleaded in paragraphs 2- 5 of the amended statement of claim, denied in the amended defence.

15. [46]

    The usual order is that costs follow the event.

16. [47]

    I do not consider that the parties’ approach to the matters I have discussed accorded with their obligations under s 56 of the Civil Procedure Act. They have each had certain success on RMS’s motion. In the circumstances I consider the just order to be that each party bear their own costs of the motion. Unless they approach to be heard on costs within 7 days, that will be the Court’s order.

17. [48]

    In the result, I am satisfied that the following order should be made:

    1. (1)

       The notice to admit facts is set aside, apart from clauses 9, 10, 11 and 12.

    2. (2)

       The RMS should have a further 14 days to respond to those paragraphs of the notice.

    3. (3)

       If the parties wish to be heard on costs, they should file short written submissions within 7 days.