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NSW Crest

Supreme Court
New South Wales

Medium Neutral Citation:
Latimer v Day Jr [2014] NSWSC 1217
Hearing dates:
01/09/2014
Decision date:
01 September 2014
Jurisdiction:
Common Law
Before:
R S Hulme AJ
Decision:

1. Defendant's notice of motion filed on 4 August 2014 be dismissed.

2. Extend time to serve a Notice Disputing the Facts the subject of paragraphs 15, 17, 18, 19-23, 29, 30 and 34 of the Defendant's Notice to Admit dated 4 June 2014 up to, and including, Friday, 5 September 2014. I see no reason to extend time so as to permit the Plaintiff to dispute the remaining paragraphs of that notice or the authenticity of the documents referred to in it.

3. Grant leave to extend time to serve a notice disputing the facts the subject of paragraphs 15, 17, 18, 19 to 23, 29, 30 and 34 of the defendant's notice to admit dated 4 June 2014 up to and including Friday 5 September 2014. I see no reason to extend time so as to permit the plaintiff to dispute the remaining paragraphs of that notice or the authenticity of the documents referred to in it.

4. Order each side to pay its own costs of, and incidental to, the notices of motion, which I have dealt with today.

Catchwords:
NOTICE TO ADMIT FACTS - Little or no benefit
Legislation Cited:
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Category:
Procedural and other rulings
Parties:
Gregory William Latimer (Plaintiff)
Maurice Jerome Day Jr (Defendant)
Representation:
Counsel:
D R Campbell SC / S J Longhurst (Plaintiff)
M J Walsh (Defendant)
Solicitors:
RMB Lawyers (Plaintiff)
Norton Rose Fulbright (Defendant)
File Number(s):
2009/339881

Judgment (EX TEMPORE - REVISED 1 september 2014)

1HIS HONOUR: In these proceedings the Plaintiff alleges that the Defendant was a neurosurgeon to whom the Plaintiff was referred for investigation and treatment of back pain associated with degenerative disc disease. The Statement of Claim goes on to allege that on 14 March 2006 the Defendant performed a micro discectomy at the L2/L3 level on the Plaintiff and was negligent in operating at that level instead of the L3/L4 level. The particulars of negligence go on to include a number of other complaints which may be summarised, perhaps inaccurately, as relating to the methodology said to have been followed by the Defendant.

2The Plaintiff had been a party to earlier proceedings in the District Court in the Coalminers Workers Compensation List in which he sued two companies said to have been previous employers alleging against one employer injuries in February 2004, March 2004 and December 2005, from the nature and conditions of his employment from 2004 to 2005, from an aggravation of his condition occurring at home and, against the second employer, for injuries in April 2003, May 2003, and the conditions of employment from 2000 to 2003.

3In consequence of the injuries to which reference has just been made, it would appear that those Defendants or their insurers paid out a sum of $181,000 though the judgment entered in the District Court in the proceedings recorded a verdict of only some $65,000.

4The Statement of Defence seeks to rely on these payments in diminution of any damages to which the Plaintiff may otherwise be entitled. On 4 June of this year the Defendant's solicitors served on the Plaintiff's solicitors a Notice to Admit Facts and the authenticity of documents. The Plaintiff's solicitors did not attend to the matters raised by that notice as soon as they probably should have, certainly having regard to the short time limit imposed by the rules in connection with such a notice. However an extension of time was requested and granted up to 9 July and with a view to complying with that time limit the Plaintiff's solicitor arranged a meeting with the Plaintiff on 7 July. On 4 July the Plaintiff's solicitor suffered from an illness which precluded her to working until 14 July. A Notice of Dispute was then prepared and served but, of course, it was not within the time as extended.

5The Notice of Dispute disputed all 34 paragraphs in which the Plaintiff was asked to admit facts and the 11 paragraphs of the Notice Seeking Admissions as to the Authenticity of Documents.

6On 4 August the Defendant filed a Notice of Motion requiring the Plaintiff to make the admissions called for and an order pursuant to s 192A of the Evidence Act by way of a ruling or the making of a finding that the facts and documents set out in the Notice to Admit are admissible and might be adduced by the Defendant as admissions made by the Plaintiff for the purposes of proceedings at a final hearing. The Notice of Motion also sought such further or other order as the nature of the case required.

7The Plaintiff on the following day filed his own Notice of Motion seeking that there be an extension of time to serve the Notice Disputing Facts so as to give operation to the Notice of Dispute which had been served. The Plaintiff's Notice of Motion sought other relief having a similar effect.

8In the proceedings before me this morning I was asked to delay coming on to the bench for a time and when the hearing did commence I was informed that the Plaintiff was prepared to admit the authenticity of all the documents the subject of the Notice to Admit and some 21 paragraphs of the Notice to Admit Facts. Accordingly I am only required to deal with the remaining paragraphs.

9To a very large degree but not entirely the terms of those remaining paragraphs reflect the contents of documents the authenticity of which the Defendant has now admitted or which appear to be obviously admissible on their face. An example of documents falling into that category are a Statement of Claim in the District Court and the judgment there given. Other documents are documents emanating from, for example, Medicare indicating payments made by that organisation and which came into existence as an incident of the conclusion of the District Court proceedings. However a number of the paragraphs in the Notice to Admit Facts go beyond such primary facts and extend to linking those primary facts with events which were the subject of the District Court proceedings.

10I quote by way of example paras 30 and 31 of the Notice to Admit Facts.

"[30] We...lower back injury included payment for medical or hospital treatment and rehabilitation given in 2006 and subsequently as a result of the plaintiff's lower back injury...with Walter Constructions and BHP Steel."

'[31] The workers compensation paid for...referred to in para 30 above included payment for medical or related treatment given by the defendant as a result of the plaintiff's lower back injury arising out of or in the course of his employment with Waler Constructions and BHP Steel."

11In so far as the admissions sought merely reflect the terms of documents of the nature to which I have referred, it seems to me that the Notice to Admit was and is a waste of time. Counsel for the Defendant when I raised that possibility with him responded by saying that the notice was calculated to reduce the issues and volume of material which the trial judge would have to deal with. There is some although I think little validity in that response. Clearly an admission constituted by agreement, actual or deemed, to a five line paragraph may involve less work than reading the terms of a document even if that document is but one or a few pages long.

12On the other hand one must balance against any such saving the sort of time likely to have been expended in the formulation of the relevant paragraph of the Notice to Admit and its consideration by the lawyers on both sides of the case. That consideration must necessarily involve a close comparison of the statement in the paragraph with the statement in the document and I am by no means satisfied that there would be any saving in the time and costs involved in the litigation. When one, however, brings into account the sorts of issue that arise when paragraphs of the Notice to Admit seek to link what I have referred to as primary facts with the further questions whether those primary facts arise out of or in the course of employment with the Plaintiff's previous employers the matter becomes, in my view, substantially more complicated.

13As I have indicated the Plaintiff's complaints in the District Court alleged some six or eight incidents of injury. To what extent any damages recovered in those proceedings bear on any damages which may flow from the matters complained of in the instant proceedings will not necessarily be an easy question and it certainly seems to me that any connection between the damages recovered in the District Court proceedings and those which the Plaintiff might otherwise recover in these proceedings is a question which is best answered at the hearing in light of a full account and analysis of the relevant primary material.

14In the result the conclusion to which I have arrived is that at least in the case of the paragraphs which fall to me to decide, the Notice to Admit facts should not have been given.

15My attention was directed to s 56 of the Civil Procedure Act and some other statutory provisions concerned with the just, quick and cheap resolution of a real issue in the proceedings and while nothing I say is intended to ignore any such statutory provisions one cannot but be conscious of the fact that very often in the course of litigation steps are taken which while they are said to be directed to narrowing the issues at trial have the consequence of building up the interlocutory costs far more than any saving that might be effected at trial.

16In this case particularly it seems so obvious that the matters the subject of the Notice to Admit could and can so easily be proved at trial by provision of documents that it seems that the Notice to Admit, at least in relation to the facts with which I am concerned, was a waste of time and calculated to increase the costs quite out of proportion to any benefits which could have been achieved.

17The Defendant fairly points out that the bringing of the proceedings to court here has resulted in the Plaintiff making admissions today which it did not make in its Notice of Dispute and I certainly think the Plaintiff is to be criticised for not having admitted the authenticity of the documents before this.

18In the course of the proceedings the Defendant did not actively pursue prayer two of its Notice of Motion seeking preliminary rulings as to the admissibility of facts and documents, but I would not have been disposed, in any event, to make such rulings. I do not see that the rulings are likely to be difficult. I don't see that any significant benefit would be achieved by me making those rulings now, rather than leaving it to the trial judge who can make them in the light of all the relevant material and the issues as they exist at that time. I have indicated that I am not disposed to require the Plaintiff to make admissions as sought in paragraph 1 of that Notice of Motion. Accordingly, the proper order is that the Defendant's Notice of Motion dated on 4 August 2014 be dismissed.

19Turning to the Plaintiff's motion, I think it proper to extend time to serve a Notice Disputing the Facts the subject of paragraphs 15, 17, 18, 19-23, 29, 30 and 34 of the Defendant's Notice to Admit dated 4 June 2014 up to, and including, Friday, 5 September 2014. I see no reason to extend time so as to permit the Plaintiff to dispute the remaining paragraphs of that notice or the authenticity of the documents referred to in it. Subject to anything counsel may say, I see no reason to make any further order on the Plaintiff's Notice of Motion.

20That raises the question of costs, and while I have heard some argument on that, that argument is by no means complete, and so I shall hear anything anyone wishes to say.

(ARGUMENT)

21I turn to the question of costs. Counsel for both sides are agreed that an appropriate order to make in relation to costs is that costs should be in the cause. I am not persuaded that that is the proper order. In my view, the Notice to Admit Facts should never have been drawn in the width that it was. It was calculated to increase costs, and to obviously do so without commensurate benefit. The Plaintiff is in my view fairly to be criticised in not being prepared to make admissions earlier than it did, viz. at 20 past 10 this morning, or in the few minutes before that. In the result, I am not disposed to make the order for costs which both parties have sought. What I propose to do is order each side to pay its own costs of, and incidental to, the Notices of Motion which I have dealt with.

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Decision last updated: 03 September 2014