Supreme Court New South Wales Medium Neutral Citation: McDonald v McDonald [2016] NSWSC 724 Hearing dates: 25 May 2016 Date of orders: 07 June 2016 Decision date: 07 June 2016 Jurisdiction: Common Law Before: Schmidt J Decision: (1) The notice to admit facts is set aside, apart from clauses 9, 10, 11 and 12. (2) The RMS should have a further 14 days to respond to those paragraphs of the notice. (3) If the parties wish to be heard on costs, they should file short written submissions within 7 days. Catchwords: PROCEDURE – notice of motion – order seeking to strike out notice to admit facts – notice to admit facts set aside apart from clauses 9, 10, 11 and 12 – costs PROCEDURE – notice of motion – order seeking to leave to administer interrogatories – Rule 22(1) of the Uniform Civil Procedure Rules 2005 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 Cases Cited: Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433 Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd & Ors [2008] NSWCA 243 Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 Liao v State of New South Wales Zhang v State of New South Wales [2014] NSWCA 71 Category: Procedural and other rulings Parties: Lynne Narelle McDonald (Plaintiff) Robert John McDonald (First Defendant) Shoalhaven City Council (Second Defendant) Roads and Maritime Services (Third Defendant) Representation: Counsel: Mr R E Quickenden (Plaintiff) Mr M Hutchings (Third Defendant) Solicitors: Fitzpatrick Solicitors Pty Ltd (Plaintiff) Crown Solicitors Office (Third Defendant) File Number(s): 2014/197996 Publication restriction: None Judgment 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. Ms McDonald's claims are pursued by an amended statement of claim, in which she pleads, amongst other things that: "15. At all material times the second defendant and/or the third defendant by their servants and agents had the care, control or management of certain roads and adjacent lands including the Princess Highway near Termeil within the Shoalhaven Area." 1. Particulars of the claim were sought and provided. By its amended defence the RMS pleaded: "15. In answer to paragraph 15 of the Amended Statement of Claim, the third defendant denies the paragraph. In further answer, the third defendant says that at all times material to the plaintiff's claim, it was responsible for the maintenance of the Princess Highway including the Stephens Creek Bridge. Further, the limits of the responsibility of the maintenance of the road way did not extend to any area beyond the sealed road surface (that is, it did not have responsibility for the verge or table drains)." 1. 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: "The factual admissions sought are self evident. If you mean what issue the factual admission sought go to, we can respond to your request. In general terms the factual admissions sought in the notice to admit facts go to your client's liability in common law negligence and pursuant to the Civil Liability Act 2002 (CLA). The admissions sought may also be relevant to the liability of the second defendant in negligence and pursuant to the CLA. The factual admissions sought in paragraphs 1, 2 and 3 of the notice are relevant to sections 5B, 5C and 5D of the CLA and the common law. In particular in relation to any duty of care owed to the plaintiff. Further, the extent and the content of any duty of care. The admissions sought in paragraphs 4, 5, 6 and 7 of the notice to admit facts are also concerned with the content of the duty of care the third defendant may owe to the plaintiff as well as the breach of any duty of care the third defendant may owe to the plaintiff. Paragraphs 9 and 10 of the notice to admit facts are relevant to any breach of duty of care by the third defendant towards the plaintiff. The admissions sought in paragraphs 11 and 12 of the notice also relate to breach of duty of care and the content of any duty of care. I note if matters cannot be resolved "'to satisfaction" you are instructed to file a notice of motion to set aside the notice to admit facts and authenticity of documents. A motion to set aside the notice to admit facts and authenticity of documents is not appropriate. Your client either admits or disputes the facts and the documents. We enclose in respect of the authenticity of the documents a paginated version of the documents in respect of which admissions as to authenticity is sought together with an Index thereto. Please note the Pagination is at the Top Right Hand Corner in Blue Pen. Please respond within seven (7) days from the above date in respect of your client's position." 1. 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. 2. 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: "1. ORDER- The Third Defendant admit it was responsible for the repair of a steel angle on the longitudinal joint of the Stevens Creek Bridge at Termeil, NSW as at 7 November 2012. 2. ORDER: The Third Defendant admit it was responsible for the maintenance of a steel angle on the longitudinal joint of the Stevens Creek Bridge at Termeil, NSW between 7 November 2011 and 7 November 2012. 3. ORDER: The Third Defendant admit that between 7 November 2011 and 7 November 2012 it was responsible for the repair of a steel angle on the longitudinal joint of the Stevens Creek Bridge at Termeil, NSW. 4. ORDER: Pursuant to part 22(1) of the Uniform Civil Procedure Rules 2005 the Plaintiff have leave to administer interrogatories on the Third Defendant in the form attached to the Affidavit of Denis Fitzpatrick sworn on Friday 24 July 2015. 5. Such other orders as the Court deems fit. 6. Costs of the Notice of Motion be costs in the cause if the Notice of Motion is undefended. In the event the Notice of Motion is unsuccessfully defended the Third Defendant pay the Plaintiff's costs of the Notice of Motion." 1. 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. 2. 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. 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. 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. 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. 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: " … (a) must state the facts and circumstances on which the party pleading relies as constituting the alleged negligent act or omission, and (b) if the party pleading alleges more than one negligent act or omission, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged negligent act or omission." 1. If required particulars are not given, they may be sought and if not provided, they may be ordered to be provided (Rule 15.10). 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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" 8. 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. 9. 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: "19. The plaintiff's said injuries, loss and damage were caused by the negligence of the second defendant, and/or the third defendant (their servants or agents). 20. PARTICULARS OF NEGLIGENCE OF THE SECOND DEFENDANT AND/OR THIRD DEFENDANT 20.1. Failing to properly maintain and/or repair the section of roadway which caused the metal strip to be exposed; 20.2. Failing to remove and/or otherwise conceal the metal strip so as not to pose a hazard to road users; 20.3. Failing to make the roadway safe for users such as the plaintiff to use; 20.4. Failing to warn of the hazard posed by the exposed metal strip in the surface of the roadway; 20.5. Failing to install warning signs to alert motorists to the presence of hazards such as the exposed metal strip; 20.6. Failing to erect a safety barricade around the metal strip in the surface of the roadway; 20.7. Failing to investigate the structure and/or design of the roadway to prevent risk factors such as the exposed metal strip in the roadway; 20.8. Failing to properly construct a roadway free of hazards; 20.9 Failing to properly construct a roadway that was not inherently unsafe; 20.10. Failing to monitor the roadway for hazards posed to road users such as the metal strip; 20.11. Failing to properly maintain the roadway or at all; 20.12. Failing to take any or any adequate precaution for the safety of the plaintiff; 20.13. Exposing the plaintiff to a risk of injury which could have been avoided by reasonable care on its part." 1. That pleading is deficient, because it fails to reveal the facts and circumstances which it is claimed establish the alleged failures. 2. 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. 3. The particulars sought included: "As to Paragraph 20 2. How is it alleged that the third defendant failed to properly maintain and/or repair the alleged hazard on the said road? 3. What is meant by the term "properly maintain and/or repair"? 4. How is it alleged that the third defendant failed to properly maintain and/or repair the alleged hazard on the said road? 5. How is it alleged that the third defendant failed to make the roadway safe for users? 6. How is it alleged that the third defendant failed to warn the plaintiff of the presence of the alleged hazard on the said road? 7. Is it alleged that on the 7 November 2012 the third defendant had a duty to install warning signs and: 8. (a) it failed to install any warning signs; or 9. (b) it had installed warning signs but the warning signs were not adequate? 10. Is it alleged that on the 7 November 2012 the third defendant had a duty to erect a safety barricade and: 11. (a) it failed to erect a safety barricade; or 12. (b) it had erected a safety barricade but the barricade was not adequate? 13. If it is alleged that the third defendant had installed a safety barricade but it was inadequate such that it became a danger to persons lawfully using the road, please specify in what way such a safety barricade was a danger to such persons. 14. What safety barricade is it alleged, should the third defendant have erected? 15. Please include a diagram with the positioning of the accident and the safety barricade that was in place as well as the safety barricade that should have been erected. 16. How is it alleged that the third defendant failed to investigate the structure and/or design of the roadway to prevent risk factors? 17. How is it alleged that the third defendant failed to properly construct a roadway? 18. What is meant by the term "properly construct'? 19. How is it alleged that the third defendant failed to monitor the roadway? 20. How is it alleged that the third defendant failed to properly maintain the roadway? 21. Is it alleged that the third defendant did not maintain the roadway? 22. What is meant by the term "properly maintain'? 23. How is it alleged that the third defendant failed to take any adequate precautions? 24. Is it alleged that the third defendant took no precautions? 25. What is meant by the term "adequate precautions"? 26. How is it alleged that the third defendant exposed the plaintiff to risk of injury which could have been avoided?" 1. The answers provided were: "Particulars of Negligence … 2. The Plaintiff alleges if the Third Defendant had properly maintained the roadway and/or repaired the hazard on the roadway, there would not have been exposed metal strip on the roadway which could potentially (and in this case did) cause an accident which resulted in the injuries pleaded. 3. To keep the roadway in a condition that it would not pose a hazard to road users by leaving an exposed metal strip in the roadway. 4. The Third Defendant failed to remove or safely cover (for example by a bitumen layer) the exposed metal strip. 5. The Third Defendant failed to remove, or safely cover the exposed metal strip, thereby leaving an exposed hazard posing a danger to road users. 6. There were no warning signs warning of the presence of an exposed metal strip on the roadway. 7. Yes. 8. (a) yes. 9. (b) Not Applicable. 10. Yes. 11. (a) yes. 12. (b) Not Applicable 13. Not Applicable. 14. A safety barricade that would have protected road users (including motorbike riders) from colliding with the exposed metal strip. 15. No safety barricade was in place. As for the safety barricade that should have been in place, that is a matter for expert evidence. 16. The Third Defendant failed to remove or safely cover the exposed metal strip on the roadway. 17. A properly constructed roadway would not have an exposed metal strip on the roadway, which posed a danger to road users. 18. To construct in a manner that does not contain dangers to the public, such as an exposed metal strip on the roadway. 19. If the Third Defendant had monitored the roadway, the Third Defendant would have known about the exposed metal strip on the roadway and taken steps to make it safe by removing it, covering it or erecting a safety barricade. 20. By leaving on the roadway an exposed metal strip which posed a risk of injury to road users. 21. It is alleged that the Third Defendant failed to maintain or properly maintain the roadway. 22. To maintain in such a manner that would not leave an exposed metal strip on the roadway posing a risk of injury to road users. 23. The Third Defendant left an exposed metal strip on the roadway posing a risk of injury to road users. 24. It is alleged that the Third Defendant failed to take any or any adequate precautions for the safety of the Plaintiff, by failing to remove or otherwise make safe the exposed metal strip. 25. Precautions that result in there not being any exposed metal strip in the roadway. 26. By leaving an exposed metal strip in the roadway." 1. 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. 2. The dispute over the notice to admit facts has to be understood in this context. Admissions 1. 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. 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. 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. 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. 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. 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. 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. Those documents were variously referred to in the Notice to Admit Facts at the following paragraphs: "… 4. On or about 27 September 2009 the Roads and Traffic Authority of NSW (henceforth RTA) prepared a report on the Bridge dated 27 September 2009 which report under the heading of 'Inspector's Comments on Required Actions and Locations on Structure' included: "Moisture is getting through the centre longitudinal joint between the bridge widening". "The steel angel on the longitudinal joint is exposed and needs to be flush sealed (or equivalent) to give between traction for motorbikes etc". 5. On or about 12 October 2010 it is recorded in a document generated by the then RTA that work was performed on the bridge including: "Got paving mix off angle's each end of abutments. Saw on sawn sides saw cut steel joint running with road". 6. On or about 14 October 2010 it is recorded in a document generated by the then RTA that work was performed on the Bridge including: "Seven mts of steel angle cleaned out joint mixed highway mix loaded in". 7. On or about 22 October 2010 the RTA prepared a document headed 'Work Brief Completion Report' which included an entry as follows: "The steel angle on the longitudinal is exposed and clean out the joint and needs to be flush sealed with Daw corning 902". 8. On or about 4 October 2011 the third defendant prepared a Bridge Inspection Report for the Bridge which stated, inter alia: "The flush seal on the bridge deck is wearing off the Abut AS/L just on the bridge side of the protection angle". "The steel angle on the longitudinal joint is exposed and needs to be flush sealed (or equivalent) to give better protection for motorbikes etc. … " 1. 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". 2. What is in issue depends firstly on what is pleaded and secondly, what is admitted. 3. 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: "1. Between about September 2010 and December 2012 the third defendant was responsible for the maintenance of the surface of the Stephens (also called Stevens) Creek Bridge near Termeil NSW on Princes Highway (henceforth the Bridge). 2. Between about September 2010 and December 2012 the third defendant's maintenance responsibility for the Bridge involved repairs to the surface of the Bridge including any steel angle situate thereupon." 1. 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. 2. What was otherwise in issue appeared in paragraphs 3, 9, 10, 11, 12 and 13 of the Notice to Admit Facts. They provide: "3. Between about September 2010 and December 2012 the source of the third defendant's maintenance responsibilities for the Bridge was a written agreement between the third defendant and second defendant operative between about September 2010 and December 2012. … 9. Between about October 2011 and 8 November 2012 the third defendant did not undertake any maintenance work on the Bridge to maintain the steel angle on the longitudinal joint so that the steel angle was not exposed and flush sealed (or its equivalent) to give better traction for motorbikes. 10. Between about October 2011 and 8 November 2012 no one on the third defendant's behalf undertook work on the Bridge to maintain the steel angle on the longitudinal joint so that the steel angle was not exposed and flush sealed (or its equivalent) to give better traction for motor bikes. 11. By 19 November 2012 the third defendant had become aware of a motorcycle accident that had occurred on the Bridge on 7 November 2012 including a motorcycle driven by the first defendant (Robert McDonald). 12. On or about February 2013 (alternatively March 2013) the third defendant prepared a Project Report to repair the longitudinal and lateral joint of the Stephens Creek Bridge. The plaintiff requires the third defendant to admit the authenticity for the following documents: 13. Limits of maintenance responsibilities, Roads Act 1993 section 62 agreement Roads and Traffic Authority and Shoal Haven City Council undated and unsigned (6 pages)." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. Costs 1. The usual order is that costs follow the event. 2. 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. Orders 1. In the result, I am satisfied that the following order should be made: 1. The notice to admit facts is set aside, apart from clauses 9, 10, 11 and 12. 2. The RMS should have a further 14 days to respond to those paragraphs of the notice. 3. If the parties wish to be heard on costs, they should file short written submissions within 7 days. ********** Amendments 15 June 2016 - Amendment made to Order 1 due to oversight 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: 15 June 2016