| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ABBOTTS PTY LTD -v- GEL GROUP PTY LTD [2005] WADC 138 CORAM : MARTINO DCJ HEARD : 18 JULY 2005 DELIVERED : Delivered Extemporaneously on 18 JULY 2005
FILE NO/S : CIV 2755 of 2003 BETWEEN : ABBOTTS PTY LTD Plaintiff
AND
GEL GROUP PTY LTD
Defendant
Catchwords: Procedure - Amendment of pleadings after grant of leave - Application to strike out amended pleading - Withdrawal of admission
Legislation: Nil
Result: Application dismissed
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Representation:
Counsel:
Plaintiff : Mr A P Hershowitz
Defendant : Mr P Mendelow
Solicitors:
Plaintiff : Stewart Forbes
Defendant : Mullins Handcock
Case(s) referred to in judgment(s):
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Case(s) also cited:
Gardiner & Anor v Ray [1999] WASC 140
Hunt v Knabe (No 2) (1992) 8 WAR 96
KA & C Smith Pty Ltd v Ward & Ors, unreported; SCt of NSW; BC 9703097; 11 July 1997
Murran Investsments Pty Ltd v Aromatic Beauty Products Pty Ltd (2000) 191 ALR 579
Sangora Holdings Pty Ltd v Dunstan (1996) 16 WAR 552
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (a firm) (1997) 18 WAR 190
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1 MARTINO DCJ: The plaintiff carries on the business of chartered accountant. The defendant carries on the business of accounting and finance recruitment.
2 This action was commenced on 16 December 2003. By the statement of claim filed on 22 December 2003 the plaintiff claimed that in January 2003 the plaintiff and the defendant entered into a partly written and partly oral agreement under which the defendant would recruit an accountant for employment by the plaintiff. The plaintiff contended that in so far as the agreement was in writing it was contained in: 3 The plaintiff claimed that the person recommended by the defendant and employed by the plaintiff was incompetent and claimed from the defendant damages for breach of contract, negligence and for misleading and deceptive conduct in contravention of the Trade Practices Act. 4 By its defence filed on 22 January 2004 the defendant admitted that in January 2003 the plaintiff and the defendant entered into an agreement under which the defendant would recruit an accountant for employment by the plaintiff but denied that the agreement was partly oral and contended that it was entirely in writing and contained in the defendant's terms of business dated 21 January 2003 and the defendant's schedule "A" to those terms of business. The defendant denied it had breached the contract, been negligent or engaged in misleading or deceptive conduct. 5 On 17 May 2004 by consent the defendant was given leave to amend its defence to plead exclusion clauses in the contract, a provision in the contract that if the person employed by the plaintiff left that employment within 3 months of commencement then the defendant would recruit a replacement at no charge except for expenses, that the defendant had made a reference check of the person employed by the plaintiff and that the plaintiff had relied on its own interview of that person and the reference check before employing the person recommended.
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6 A pre-trial conference was held on 4 June 2004. At that pre trial conference Acting Registrar Christo gave the plaintiff leave to amend its statement of claim within 14 days and the defendant leave to file an amended defence within 14 days of the amended statement of claim. No limitation was placed upon the terms of the amendments by that order.
7 On 21 June 2004 the plaintiff filed an amended statement of claim. By that amended statement of claim the plaintiff pleaded that in so far as the agreement between the plaintiff and the defendant was in writing it was contained in a letter from the defendant to the plaintiff dated 25 February 2003. The plaintiff deleted the pleading that the agreement was contained in the defendant's terms of business dated 21 January 2003 and the defendant's schedule "A" to those terms of business. The amended statement of claim also pleaded further allegations of representations made by the defendant to the plaintiff. 8 On 22 July 2004 the defendant filed a re-amended defence in which it alleged that the agreement between it and the plaintiff was contained in the defendant's letter dated 25 February 2003, the defendant's terms of business dated 21 January 2003 and the schedule "A" to those terms of business. 9 By a chamber summons filed on 19 October 2004 the plaintiff applied for an order remitting the action to the Local Court. The defendant opposed the application. On 29 October 2004 a Registrar dismissed that application. 10 On 10 December 2004 the defendant filed a chamber summons in which it applied for leave to bring the application and an order that the amendment to the statement of claim whereby the plaintiff deleted the paragraphs in which it pleaded that the agreement between the plaintiff and defendant was contained in the defendant's terms of business dated 21 January 2003 and the schedule "A" to those terms of business be struck out and the pleading be reinstated. In support of that application the defendant filed an affidavit of a solicitor who attended the pre-trial conference on 4 June 2004. In that affidavit the solicitor deposed that at the pre-trial conference the plaintiff by its counsel informed the Registrar that the plaintiff proposed to amend its statement of claim to plead further issues relevant to the trade practices claim. The plaintiff's counsel did not in any way indicate the nature of the proposed amendment and when the solicitor for the defendant was asked to comment on the proposed amendments he was unable to comment without seeing the defence.
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The reference to a defence is obviously a typographical or similar error and should be a reference to the statement of claim. 11 This is an appeal by the defendant against a decision of Deputy Registrar Hewitt delivered on 11 February 2005 in which he dismissed the defendant's application. 12 The appeal is a re-hearing of the defendant's application: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26. The defendant's notice of appeal contends that there were various errors of fact and law made by the Deputy Registrar. However my task is not to identify whether there have been errors made by him but to determine afresh the defendant's application made on 10 December 2004. 13 In support of the appeal the defendant has filed an affidavit from a solicitor handling the file to which is annexed a copy of a letter from the defendant to the plaintiff dated 25 February 2003 which refers to two copies of the defendant's terms of business being enclosed and requests the plaintiff to return the original of the terms to the defendant when the agreement was authorised. As the appeal is a re-hearing the parties are permitted to adduce further evidence: Hazart Pty Ltd v Rademaker. 14 The defendant contends that the plaintiff's original statement of claim contained an admission that the terms of the contract included its terms of business dated 21 January 2003 and its schedule "A" to those terms and that the plaintiff should not now be permitted to withdraw that admission. The plaintiff disputes that the statement of claim contains an admission and contends that the unsigned documents were not incorporated into the contract and the plaintiff should not be prevented from so arguing. 15 An admission is simply an acknowledgment or concession. It can therefore be contained in any pleading, including a statement of claim. There is a well established principle that an admission cannot be lightly withdrawn. Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323 is an example of the application of that principle. However that principle is subject to the overriding principle that the ultimate aim of a court is the attainment of justice and except in extreme circumstances a party should not be prevented from arguing a point that is fairly arguable: State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. 16 The affidavits that the defendant has filed show that the defendant's terms of business and the schedule "A" to those terms were not signed and that the defendant had commenced work on identifying an employee for the plaintiff before first providing those documents to the plaintiff on
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17 January 2003. Whether unsigned documents containing terms that exclude or limit liability which were provided after work under the contract had commenced have been incorporated into a contract is a question that involves considerations of the communications between the parties and the extent of notice of the terms provided: Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197. It is a question upon which lawyers can legitimately have different views. 17 In this case the parties have never agreed in the pleadings on what constitutes the contract between them. The defendant has never agreed with the plaintiff's contention that the contract was partly oral. Although the defendant now admits that the contract includes its letter of 25 February 2003 it did not do so until it filed its re-amended defence on 22 July 2004. It was always the case therefore that at the trial of this action the parties would need to lead evidence as to the formation of the contract. 18 The defendant did not make clear in its application the rule under which its application is made. In this regard it has failed to comply with O 59 r 4(3) in that the chamber summons did not specify the grounds for the application. As the order of Acting Registrar Christo did not contain any limitation on the amendment to the statement of claim it seemed to me that the basis upon which the application was made was under O 20 r 19. Counsel for the defendant confirmed to me that the application was made under O 20 r 19(1)(c) and submitted that the amended statement of claim would prejudice or embarrass or delay the fair trial of the action. The application should therefore have been made within 21 days after the amended statement of claim was served. 19 I do have power to extend that time and the affidavit evidence does disclose some reason for the delay as the solicitor for the defendant handling the matter took leave soon after the amended statement of claim was served and counsel for the defendant did not indicate the nature of the proposed amendment when the application for leave to amend was made. I extend the time for the defendant to make the application. 20 Counsel for the plaintiff submitted that because the amended statement of claim is not unclear and the defendant had no difficulty in pleading to it it could not prejudice or embarrass or delay the fair trial of the action. I do not accept that submission. If a pleading places in dispute matters that could not be bona fide in dispute then in my view it would delay the fair trial of the action.
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21 However, as I have said, it is my view that the amendment raises a matter upon which lawyers can legitimately have different views. In my view the amended statement of claim will not prejudice or embarrass or delay the fair trial of the action. I dismiss the defendant's application.
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