Supreme Court New South Wales Medium Neutral Citation: FSS Trustee Corporation as Trustee of the First State Superannuation Scheme ABN 53 226 460 365 v Metlife Insurance Limited [2014] NSWSC 369 Hearing dates: 28 March 2014 Decision date: 28 March 2014 Before: Kunc J Decision: Notice to Admit Facts set aside Catchwords: EVIDENCE - General matters - Notice to admit facts - Set aside as prolix and oppressive Cases Cited: Kalgeracos v Bomba [2009] NSWSC 1271 Parkesbourne Mummel Landscape Guardians Inc v Minister for Planning [2009] NSWLEC 101 Category: Procedural and other rulings Parties: FSS Trustee Corporation as Trustee of the First State Superannuation Scheme ABN 53 226 460 365 (Plaintiff) Metlife Insurance Limited (Defendant) Representation: Counsel: V.M. Heath (Plaintiff/Respondent) J.G. Duncan (Defendant/Applicant) Solicitors: Mills Oakley Lawyers (Plaintiff) TurksLegal (Defendant) File Number(s): 2013/254957 Publication restriction: No EX TEMPORE Judgment 1HIS HONOUR: The Court has before it a notice of motion filed on 28 February 2014 by the defendant ("Metlife") seeking to set aside a notice to admit facts filed on 24 January 2014 (the "Notice") by the plaintiff (the "trustee"). The trustee is the trustee of a superannuation scheme. One of the members of that scheme was a Mr Speed. Mr Speed brought a claim under the terms of the scheme for a total and permanent disability benefit. Metlife was the trustee's insurer in relation to such claims. 2The proceedings in which the Notice was issued are brought by the trustee against Metlife seeking various relief arising from the purported or actual denial of the trustee's claim upon Metlife in respect of Mr Speed's claim to be entitled to a total and permanent disability benefit. 3The trustee's claim falls into two broad parts. The first part culminates in these allegations: 45. On all of the evidence provided to MetLife to consider and reconsider the TPD Claim, a. it was the fact that Mr Speed had been absent from his occupation as a police officer with NSW Police through injury or illness for at least six consecutive months; and b. the evidence was capable of satisfying a reasonable person properly instructed that Mr Speed was become [sic] incapacitated to such an extent as to render him unlikely ever to engage in any gainful profession, trade or occupation for which he is reasonably qualified by reason of education, training or experience. 46. Further and alternatively, on all of the evidence provided to MetLife to consider and reconsider the TPD Claim, a. it was the fact that Mr Speed had been absent from his occupation as a police office with NSW Police through injury or illness for at least six consecutive months; and b. no reasonable person properly instructed would fail to be satisfied that Mr Speed was become [sic[ incapacitated to such an extent as to render him unlikely ever to engage in any gainful profession, trade or occupation for which he is reasonably qualified by reason of education, training or experience. 4The second part of the trustee's claim relates to a number of alleged breaches of the contract of insurance to the effect that Metlife, amongst other things, failed to give any reasonable or proper consideration to the question of whether Mr Speed's claim was one which should have been met by Metlife under its policy with the trustee. 5It is apparent from the material before me that there are many reports and other documents concerning Mr Speed's condition that were considered by Metlife in dealing with the trustee's claim in respect of Mr Speed. It is those documents which have given rise to the Notice. 6The Notice is fifty pages long and contains 206 separate "facts" which Metlife is required to admit. I say "facts" because many of the paragraphs contain numerous allegations and other matters which can be described as a collection of facts, opinions, assertions and observations all said to reflect the documents from which they are derived. It is sufficient for me to give one example: (19) On 11 February 1995 Mr Speed suffered an injury to his right arm and wrist when he was violently assaulted by a suspect in custody at Revesby Police Station. Mr Speed had been restraining one prisoner from stabbing another with a pen. Mr Speed fell to the floor and landed on his right wrist. Several hours later he felt the onset of severe pain in his right wrist. An initial x-ray did not reveal the fracture but a subsequent bone scan did. He had a right scaphoid fracture. His arm was immobilised in a cast for 6 weeks. He found this quite disabling for the tasks of daily living including personal care. His doctor advised he should have leave but he was not given sick leave by his employer for the whole period. He was required to attend work by public transport as he could not drive and to type one-handed at work. He felt his manager was unsympathetic and unconcerned for his safety. He had conflict with his manager over this and as a result he broke down psychologically. He sought assistance from Police Welfare but was only advised he should consider quitting his job which he did not want to do. While taking public transport in this injured condition he was confronted by the offender by whom he had been assaulted. Mr Speed felt exposed and fearful for his safety as he could not defend himself if attacked. He became very distressed and again sought assistance from Police Welfare. He had about 10 weeks leave for the physical injury and the breakdown. Police Welfare arranged his transfer to Auburn on restricted duties for 2 months. This injury caused early-onset osteoarthritis of his right hand and wrist which became symptomatic in about 2002. 7There is no dispute between the parties that I have jurisdiction to set aside the Notice. Counsel for Metlife drew to the Court's attention the decision of Lloyd J in the Land and Environment Court in Parkesbourne Mummel Landscape Guardians Inc v Minister for Planning [2009] NSWLEC 101 in which his Honour identified at least three bases on which the Court could set aside the Notice: 6. The court has power to set aside a notice to admit facts served pursuant to Pt 17 r 17.4. There are three sources of power: (a) Section 14 of the Civil Procedure Act 2005: In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case. (b) Section 61(1) of the Civil Procedure Act: The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (c) Rule 2.3(e) of the UCPR which enables the court to give directions or make orders relating to the making of admissions. 8Metlife submitted that the Notice: (1)Is prolix, extraordinarily so; (2)Frequently conflates fact, conclusions, submissions and purported medical opinion; (3)Is inutile, in whole or substantial part, due to functional ambiguities and uncertainties; and (4)Is not relevant to, and is unable to advance, any issue pleaded in the statement of claim. 9I accept the first three parts of that submission unreservedly. Insofar as the submission as to relevance is concerned, I am not in a position to accept it as an absolute proposition because the Notice is so wide in its scope that it must be theoretically possible that there is some fact in the Notice which is relevant to an issue pleaded in the statement of claim. 10However, it is unnecessary for me to take the time in dealing with this application to try to find some part of the Notice which may be relevant. I propose to take the approach adopted by Brereton J in Kalgeracos v Bomba [2009] NSWSC 1271 that the Court looks at a document such as the Notice as a whole rather than attempting to investigate whether there is any individual part that may, if taken as such, be able to be salvaged from the shipwreck. 11Metlife also submitted that to endeavour to answer the Notice in any sensible way would require the expenditure of approximately $40,000 in professional fees. That in itself is a result contrary to the overriding purpose of the rules of civil procedure in this Court, that matters are to be dealt with in a just, quick and cheap fashion. Furthermore, in exercising my discretion to set aside the Notice, that discretion itself must be exercised with a view to achieving the just, quick and cheap conduct of the proceedings. 12The trustee's response to Metlife's submissions was to confess and avoid. It was drawn to my attention that after Metlife had raised its concerns about the Notice in correspondence with the trustee, the trustee offered, in effect, not to hold Metlife to the consequence under the rules of a deemed admission of the matters set out in the Notice. Rather, it was suggested that the trustee would keep the fact of the Notice in reserve in order to deploy it, if necessary, in support of some special costs argument at the end of the proceedings. Presumably, the thinking was that if some matter referred to in the Notice ultimately was put into dispute then the trustee could make a submission as to costs of the kind that would normally be made if a notice disputing facts had been issued in response to the Notice and it transpired that the matter which was the subject of dispute could or should have easily been admitted. 13Metlife responded by submitting that it was entitled to know whether or not the Notice had effect. If the Notice was bad for any of the reasons which Metlife had indicated, then the Notice should be set aside and form no part of the record in these proceedings. I accept that submission. It would be inimical to the proper conduct of litigation in this Court to permit a process such as the Notice to remain on the record or to be dealt with in the way in which the trustee's proposal contemplated. Either the Notice has the effect for which it was intended under the rules or it does not. 14Before making orders setting aside the Notice and dealing with costs, I should also record the trustee's submission that the underlying reason for the issue of the Notice was a concern as to what, if any, of the material contained in the various documents sought to be synthesised in the Notice would, in fact, be put in issue by Metlife. I am not persuaded that the way in which Metlife has pleaded its defence makes the concern, which I accept motivated the trustee, a real one. The case will be determined by the way in which it has been pleaded. 15The case as pleaded, at least as I understand it on the brief acquaintance I have had with it this afternoon, will require a consideration of the material which was before Metlife. Counsel for Metlife has indicated that his client does not propose to take issue with the underlying truth of the facts referred to or stated in the various material. That approach is what I would have expected having regard to the way the case is pleaded. While the trustee's concerns were undoubtedly genuine, as I understand both the pleadings and what has fallen from Metlife's counsel, they were unnecessary. 16At the outset of the hearing of Metlife's motion today, the trustee made an application from the bar table for a direction pursuant to UCPR rr 2.1 and 2.3(b) "that Metlife would within fourteen days notify the trustee of the real dispute, if any, as to Mr Speed's reported history (including symptoms) by reference to the numbered documents in the plaintiff's draft Court book containing the factual matter in dispute". The need for such a direction has been overtaken by the point made by Metlife's counsel that no issue was taken by Metlife as to the truth of the matters set out in the material (whatever that may have been) that was before Metlife in making the decisions or purported decisions which are the subject of these proceedings. For this reason, I do not propose to accede to the trustee's application for such a direction. 17The orders of the Court are: (1)The Notice to Admit Facts filed 24 January 2014 is set aside. (2)The plaintiff is to pay the defendant's costs of the defendant's motion filed 28 February 2014. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2014