Australian Pharmaceutical Industries v Egan - [2010] NSWSC 203

CITATION: Australian Pharmaceutical Industries v Egan [2010] NSWSC 203

HEARING DATE(S): 26/2/10

JURISDICTION: Equity Division
Commercial List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 26 February 2010

DECISION: Leave to withdraw admission not granted

CATCHWORDS: PROCEDURE - admissions - application for leave by defendant to withdraw admission made in cross-examination - whether admission made inadvertently or without consideration of material matters - where relevant material had been put before defendant and defendant was questioned fairly about it - whether admission reflected true state of affairs.

CATEGORY: Procedural and other rulings

CASES CITED: Hill End Gold Ltd v First Tiffany Resources Corp [2008] NSWSC 866
Stafford v Kekatos (No 2) [2008] NSWSC 1044

PARTIES: Australian Pharmaceutical Industries Limited (Plaintiff)
Elizabeth Anne Egan (Defendant)

FILE NUMBER(S): SC 2009/298774

COUNSEL: M Condon (Plaintiff)
S O'Brien (Defendant)

SOLICITORS: Holman Webb Lawyers (Plaintiff)
McDonald Johnson Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

26 February 2010

50167/09 AUSTRALIAN PHARMACEUTICAL INDUSTRIES LIMITED v EGAN

JUDGMENT

1 HIS HONOUR: Two notices of motion were referred to me today for hearing in these proceedings. In point of time, the first notice of motion was the plaintiff’s, filed on 2 December 2009, in which it sought among other things, orders that the commercial response be struck out and judgment.

2 That notice of motion has been amended by an amended notice of motion filed in Court today in which the plaintiff seeks leave to file an amended list statement (that leave has been given) and, among other things, judgment for the amount as claimed on a summary basis.

3 The other notice of motion is the defendant’s notice of motion in which she seeks leave to withdraw an admission made by her in cross-examination on 14 December 2009.

4 The admission identified in the defendant’s notice of motion is “that the plaintiff has given the defendant credit for an amount of $935,000 as shown in” a certain document. That was put to the defendant in cross-examination on an earlier occasion. I was informed that the two notices of motion would take between them two hours of hearing time: an accurate assessment but for a matter to which I shall refer in due course.

5 Accordingly, that estimate being at what I might call the outer end of time available on a Friday (and just below the limit by reference to which special fixtures should be set) I proceeded with the hearing of the two motions. Logically, the defendant’s notice of motion was the first dealt with.

6 The admission in question was made in cross-examination on 14 December 2009, in the course of the hearing the unamended notice of motion of the plaintiff. It is desirable to know a little of the background to these proceedings.

7 The plaintiff supplies, among other things, pharmaceutical goods to its customers who are pharmacists carrying on business throughout New South Wales and, no doubt, elsewhere. The defendant has at all material…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 203
Decision Date: 26 February 2010

CaseChat Overview and Summary

The case of Australian Pharmaceutical Industries v Egan involves a dispute concerning admissions made during cross-examination and the subsequent application by the defendant to withdraw those admissions. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Australian Pharmaceutical Industries, sought to enforce a contractual obligation against the defendant, Egan, who had made certain admissions during the cross-examination that were central to the plaintiff's case. Egan applied for leave to withdraw these admissions, arguing that they were made inadvertently or without consideration of relevant material.

The primary legal issue before the court was whether the defendant's admissions could be withdrawn based on the contention that they were made without proper consideration or inadvertently. The court had to determine whether the defendant had been fairly questioned about the relevant material and whether the admissions accurately reflected the true state of affairs. The court examined the procedural fairness of the cross-examination and the defendant's awareness of the material at the time of making the admissions.

The court found that the defendant had been questioned fairly and that all relevant material had been brought to their attention during the cross-examination. The admissions made by the defendant were considered to accurately reflect the true state of affairs. Consequently, the court denied the application for leave to withdraw the admissions. The reasoning of the court was that the defendant had ample opportunity to consider the material and had made the admissions knowingly and with full awareness of the circumstances. The court concluded that the admissions stood as evidence and could not be withdrawn without good reason.

The final orders of the court were that the defendant's application to withdraw the admissions made during cross-examination was dismissed. The admissions would remain as part of the evidence in the case.

Orders