Cassisi, L. v C.F.C. Holdings Pty Ltd

[1990] FCA 811

JUDGMENT No. %!! ..... /.-a

IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	)
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1	NO. WAG89 OF 1987
B E T W E E N :	LORENZO CASSISI AND FELICE CASSISI

Applicants

and

C.F.C. HOLDINGS PTY. LTD.

First Respondent

and

PAGANELLI ENGINEERING PTY. LTD.

Second Respondent

and

ANGEL0 PAGANELLI

Third Respondent

and

C.F.C. HOLDINGS PTY. LTD.

Cross Claimant in the

First Cross Claim

and

CENTURION TRANSPORT CO. PTY.

LTD.

and

Cross Respondent to the

First Cross Claim

and

C.F.C. HOLDINGS PTY. LTD.

Cross Clalmant in the
Second Cross Claim

CENTURION TRANSPORT CO. PTY.

LTD.

Cross Claimant in the

Third Cross Claim

and

PAGANELLI ENGINEERING PTY. LTD.

First Cross Respondent to
the Second and Third Cross

Claims

and

ANGEL0 PAGANELLI

Second Cross Respondent to the Second and Third Cross Claims

CORAM: LEE J.

DATE : 14 FEBRUARY 1990

EX TEMPORE REASONS FOR JUDGMENT

My determination on each motion is as follows. The
Rules are intended as an aid to preparation of matters for

trial in a way which will eliminate unnecessary hearing time

as possible. However, they remain an aid rather than an	and endeavour to extract and distil1 the real issues as soon
imposition of a rigid system. Above all, it must be remembered that even if formal admissions have been made with due attention to the consequences of what has been done by making the admissions, there is still capacity in the Court to allow the withdrawal of such admissions.
In the present case, I am satisfied that neither party has found itself in a position of admitting the matters other than by inadvertence; inadvertence that I think could have been overcome by the application of appropriate systems in the offices concerned. There should be provision for due notice to be given to a member of the firm assuming control of a matter where another party who has the control of that matter is on leave.

However, the essential facts remain as follows:

The notice was not delivered until 28 December 1989, a date on which it is not uncommon for legal offices to be shut, or for personnel to be on leave. The notice was dated 6 September 1989 and, had it been served on or about that date, perhaps the whole thing could have been attended to before the Christmas break even started, it being less likely that there would be personnel on leave at that time.

I am satisifed that what occurred in each case was having responsibility for attending to it thereby allowing the	that the notice did not come to the attention of the persons
time provided by the rules to expire without attention being given to it.
Another matter that is important is that although admissions may have been expected by the applicants, on its face the notice may not have related to an area in respect of which the respondents were in a position to make admissions with full knowledge of the relevant facts. That may be a matter that goes to the question of costs in due course, in the event that the applicants are put to added expense to make good those elements of their case.
Also, in the circumstances that have been outlined it would be unsatisfactory to allow the trial to commence on the basis of deemed admissions, and leave it to the trial judge to determine whether the respondents should be given leave to withdraw the admissions.
Therefore, there should be leave granted under 0.18 sub-r.2(2) to withdraw the admissions that may otherwise be deemed by operation of the rule.
The orders on each motion will be that the respondents have leave to withdraw the admissions that would
otherwise operate under 0.18 r.2. I will not make any other
order.
The question of costs in circumstances where admissions have been withdrawn is not expressly covered by the Rules but I will make an order that the terms of 0.18
sub-r.2(iv) will apply to the withdrawn admissions. Sub-r.2(iv) seems to apply only where there has been a denial. Therefore, to put it beyond doubt I will make an order that sub-r.2(iv) will apply, so that the question of costs will be argued at a later time if it is necessary to do so.
And as far as the costs of the motions are concerned, I will order that they be reserved pending the trial.

I certify that the preceding
five (5) pages are a true copy of the

Reasons for Judgment of his Honour Mr Justice Lee.

Associate :

 ate:  4ckFLi:7q0

Counsel for the Applicants:  Mr W.S. Martin

Solicitors for the Applicants : Robinson Cox

Counsel for the First Respondent: Mr A.J. Goldfinch

Solicitors for the First Respondent: Sly and Weigall

Counsel for the Second

and Third Respondents:  Mr A. Smetana

Solicitors for the Second
and Third Respondents: Phillips Fox

Date of Hearing: 14 February 1990 Date of Judgment: 14 February 1990