Balnaves v. Smith & Anor

[2008] QSC 150

SUPREME COURT OF QUEENSLAND

CITATION:	Balnaves v Smith & Anor [2008] QSC 150
PARTIES:	NEIL RICHARD BALNAVES (applicant/plaintiff) v NEIL CLIFFORD SMITH (first defendant) ACN 060 759 382 PTY LTD (second defendant)
FILE NO/S:	S1391 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	7 July 2008
JUDGE:	Martin J
ORDER:	Leave for the plaintiff to withdraw the admission contained in paragraph 3 of the reply dated 15 September 2006 by deleting from that paragraph all words appearing after the word “same”.
CATCHWORDS:	PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – WITHDRAWAL OF ADMISSIONS – where the plaintiff made an admission of up to 25% contributory negligence in claim for damages – where the plaintiff sought to withdraw that admission - where there had been no discovery of new facts since the admission – where there had been a reconsideration of existing facts - whether leave of the Court should be given under r 188 Uniform Civil Procedure Rules 1999 (Qld) to withdraw admissions.
Uniform Civil Procedure Rules, r 5, 188
Cropper v Smith (1884) 26 Ch D 700 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Ridolfii v Rigato Farms Pty Ltd [2001] 2 Qd R 455 Cassie v Bogdan [2004] QSC 275 Sali v SPC Ltd (1993) 67 ALJR 841 State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
COUNSEL:	J A Griffin QC and A S Given for the applicant/plaintiff A Street SC with him C Harding for the first and second respondents/defendants
SOLICITORS:	MacGillivrays for the applicant/plaintiff Cantwell Lawyers for the first and second respondents

1. The applicant (the plaintiff in the substantive action) seeks leave to withdraw an admission made in the reply filed on his behalf.

2. On 23 February 2002 the plaintiff was navigating a vessel on the Coomera River. At the same time the defendant was navigating another vehicle moving in the opposite direction of the plaintiff in the same area of the Coomera River. The vessels collided. The applicant commenced proceedings in February 2005 against the first defendant alleging negligence on his part, and against the second defendant alleging vicarious liability. The plaintiff’s claim is for an amount in excess of $2,000,000.

3. In the reply filed by the applicant the following was contained in paragraph 3: “With particular reference to the allegations of contributory negligence in paragraph 17 of the Statement of Claim, the Plaintiff admits that he pleaded guilty to a charge for breach of s. 43(3) of the Transport Operations (Marine Safety) Act rather than contesting the same and to that extent, admits that he is contributorily negligent to the extent of not more than 25% but save as aforesaid, repeats and relies upon the facts contained in the Statement of Claim.”

4. The reply was filed on 15 September 2006. On 13 March 2008 the plaintiff filed an amended reply in which it purported…