Bodycorp Repairers v Maisano (No. 3)

[2013] VSC 244

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2005 09071

BODYCORP REPAIRERS PTY LTD (ACN 068 589 408)	Plaintiff
v
ANUNIZIATO ENZO MAISANO (also known as MICHAEL MAISANO and MICHAEL MASON) & ORS	Defendants

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 MAY 2013
DATE OF RULING:	8 MAY 2013
CASE MAY BE CITED AS:	BODYCORP REPAIRERS v MAISANO (No. 3)
MEDIUM NEUTRAL CITATION:	[2013] VSC 244

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Practice and Procedure – amendment of defence – withdrawal of admission – whether necessary to determine the real issues in controversy between the parties – whether prejudice to plaintiff – Civil Procedure Act 2010 (Vic), ss 7, 8 – Supreme Court (General Civil Procedure Rules) 2005 (Vic), r 36.01.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R van de Wiel QC, M Goldblatt and Mr D Yarrow	Frank Sanna
For the 1st Defendant	Mr T Di Lallo	Oakley Thompson & Co
For the 4th, 5th and 6th Defendants	Mr P Cawthorn SC and Mr P Crennan	Moray & Agnew
For the 7th and 8th Defendants	Mr T Messer	Kempsons

HIS HONOUR:

1. The 4th to 6th defendants (“the AAMI Defendants”) have made an oral application to be granted leave to file and serve a further amended defence. 

1. The application was foreshadowed by senior counsel for the AAMI Defendants at the directions hearing last Thursday, 2 May 2013.  I understand the proposed pleading was only served a short time before the directions hearing.  Accordingly, I gave the plaintiff (“Bodycorp”) time to consider the draft before any argument on the leave application was heard.  As a result the application was made yesterday, the first day of trial. 

1. The proposed defence contains a number of admissions previously not made.  There is no opposition to those amendments. 

1. Leave was opposed in relation to a new paragraph 38B.  By this proposed paragraph, and some consequential amendments, the AAMI Defendants seek to expressly deny that a business trading as "Bodycorp Heidelberg" was a franchisee of Bodycorp either under the AAMI agreement, as that term is defined in paragraph 30 of the defence, or at all.

1. The application is self-evidently very late.  The current version of the statement of claim has been on foot since 18 September 2003.  Further, the AAMI Defendants amended their defence, pursuant to leave granted by the court, on 20 September 2011. 

1. The explanation given for the timing of the application was that, upon reviewing the documents in the court book for the purposes of preparing for trial, the issue became apparent to counsel.

1. As we can all appreciate this may happen from time to time in a case involving a large number of documents.  In particular, this may occur in circumstances where the relevant facts are not within the knowledge of counsel's clients but are solely within the knowledge of the opposing party or parties.  That is the case here.  The AAMI Defendants’ principal means of ascertaining the true position between Bodycorp and its franchisees, or purported franchisees, would be from the records of Bodycorp.

1. Accordingly, although the timing of the application is not ideal it is understandable and, in the circumstances, not unreasonable. 

1. In my view the real question is what, if any, prejudice the proposed amendments cause Bodycorp.  Related to that question is what, if any, effect the amendments will have on the conduct of the trial. 

1. Before turning to those matters I note the submission of Bodycorp that, by introducing paragraph 38B and the related amendments, the AAMI Defendants are effectively withdrawing a previous admission. 

1. Although this is a relevant matter to consider, its significance should not be overstated.  In Mercieca v SPI Electricity Pty Limited,[1] Justice Dixon referred[2] to 2 earlier decisions of Justice Gillard in Jeanes v The Commonwealth[3] and McKenzie v The Commonwealth,[4] including the following extract from Jeanes v The Commonwealth:[5] 

It is not the law that a defendant is not permitted to resile from an admission unless it is shown the admission was made inadvertently or through error;  justice is the determinant. 

Justice Dixon then continued.[6] 

The principles that apply are not controversial.  An amendment to withdraw an admission is in essence no different from any other pleading amendment.

[1][2011] VSC 656.

[2]At [12].

[3][2005] VSC 488.

[4][2001] VSC 361.

[5]At [19].

[6]Mercieca v SPI Electricity Pty Ltd at [13].

1. On the question of prejudice Mr Goldblatt, on behalf of Bodycorp, frankly and quite properly, admitted no prejudice would be caused to Bodycorp if the amendment were allowed.  Further, when an analysis is made of the other parts of the pleadings, it is plain that Bodycorp is required to prove the business known as "Bodycorp Heidelberg" was a franchisee of Bodycorp in any event. 

1. By r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2005 the court may at any stage grant leave to amend for the purposes of, amongst other things, determining the real question in controversy between the parties.  I am also required to take into account, and seek to give effect to, the overarching purpose as set out in the Civil Procedure Act 2010 (Vic) which is to effect the just, efficient, timely and cost-effective resolution of the real issues in dispute.[7]

   [7]See ss 7 and 8.

1. During the course of argument, I was taken by counsel for the AAMI Defendants and counsel for Bodycorp to numerous documents which indicated to me there is a real question about the status of “Bodycorp Heidelberg” at the relevant times.  Some of the documents referred to were clearly inconsistent on this point. 

1. The granting of leave will allow the question in issue to be squarely and clearly put.  In these circumstances, given the complete absence of any prejudice to Bodycorp, I propose to grant leave to the AAMI Defendants to file and serve an amended defence substantially in the form of the proposed further amended defence filed in court on 2 May 2013, by 4 pm today.

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