Lodge v DIPPIE
[2007] WADC 121
•30 JULY 2007
LODGE -v- DIPPIE & ANOR [2007] WADC 121
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 121 | |
| Case No: | CIV:1200/2004 | 12 JUNE 2007 | |
| Coram: | REGISTRAR KINGSLEY | 30/07/07 | |
| PERTH | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | JULIE LODGE JOHN MALCOLM DIPPIE BILL RUSSELL |
Catchwords: | Practice Application to amend defence to withdraw an admission Turns on own facts |
Legislation: | Nil |
Case References: | Celestino v Celestino; unreported, Fed Ct of Aust FC, G7 of 1990, 16 August 1990 Hutton v Meston [2004] WASCA 178 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
JOHN MALCOLM DIPPIE
Second Defendant
AND
BILL RUSSELL
First Defendant
Catchwords:
Practice - Application to amend defence to withdraw an admission - Turns on own facts
Legislation:
Nil
Result:
Application allowed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr R Lewis
Second Defendant : No appearance
First Defendant : Mr T Lethbridge
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
Second Defendant : Not applicable
First Defendant : Kott Gunning
Case(s) referred to in judgment(s):
Celestino v Celestino; unreported, Fed Ct of Aust FC, G7 of 1990, 16 August 1990
Hutton v Meston [2004] WASCA 178
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
(Page 3)
1 REGISTRAR KINGSLEY: The first defendant seeks leave to amend his defence in terms of a minute of proposed amended defence dated 7 June 2007.
2 In her statement of claim, the plaintiff pleads that the first defendant was a chiropractor and was either practising as an independent contractor with a firm Chiropractic 2000, or alternatively was the servant of Chiropractic 2000, the second defendant.
3 The plaintiff pleads at par 4.6 that by reason of back symptoms the plaintiff contacted Chiropractic 2000 on 4 September 1999 and made an appointment to attend the first defendant at 10.15 am on that day. The plaintiff pleads that the first defendant performed manipulative therapy on her, but that her condition deteriorated. The plaintiff pleads at par 4.6 that she and the first defendant had a series of conversations. At par 4.8 the plaintiff pleads a further conversation with the first plaintiff on 5 September 199. On 6 September 1999 the plaintiff underwent an x-ray and CT scan, and was informed by her general practitioner that she had a herniated disc. Thereafter, the defendant underwent a series of procedures including a microdiscectomy and decompression of the L5 nerve at Joondalup Health Campus. The plaintiff claims the first defendant was negligent, and if the first defendant was a servant of the second defendant, the second defendant is vicariously liable for the negligence.
4 The first defendant filed a defence on 30 November 2006. At that time the first defendant was acting in person. Par 2 of that defence pleads that:
1. Whilst the plaintiff alleges to have attended the second defendant's place of business (on the material date) and to have made and attended an appointment with the first defendant, both this and an associated duty of care owed by the first defendant are not demonstrated.
5 The first defendant then goes on to plead that the claims made by the plaintiff in respect of her presentation between September 1 and 5, and the alleged statements between her and an attending practitioner alleged to be the first defendant are unsubstantiated. The first defendant denies making the statements alleged in par 4.6 and 4.8 of the statement of claim. The first defendant goes on to plead that the plaintiff's allegations are inconsistent with his practice during his attendance at Chiropractic 2000 or in his personal practice. The first defendant then concludes his
(Page 4)
- pleading by pleading that the plaintiff or her solicitors did not pursue an offer by the first defendant in 2001 to assist with resolution of this matter.
6 In his affidavit sworn 25 May 2007, the first defendant deposes at par 7 of his affidavit that he did not have any appointment scheduled at Chiropractic 2000 earlier than 10.30 am. The first defendant goes on to depose that the second defendant was often treating patients at Chiropractic 2000. Thus, the first defendant is now squarely putting in issue who was the treating chiropractor.
7 I note that the plaintiff in her pleading of October 2006 at par 4.4 pleads that an appointment was made to attend the first defendant at 10.15 am but the first defendant's defence of 23 November 2006 does not respond to this allegation. There is therefore a deemed admission on this point. I also note that in October 2001, in response to letters from the plaintiff's solicitor, the first defendant states that he does not propose to refer the matter to his professional indemnity insurer as he states he has not treated the plaintiff in his practice. This is because as the first defendant states, he does not, nor has he ever, owned, or had a vested interest in, Chiropractic 2000.
8 The relevant law in relation to withdrawal of an admission of liability is set out in Hutton v Meston [2004] WASCA 178. McLure J (as she then was) considered that the case of Celestino v Celestino; (unreported, Fed Ct of Aust FC, G7 of 1990, 16 August 1990) constitutes an improper fetter on the discretion to permit or refuse an amendment. Her Honour after considering State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 stated that the overriding principle is the attainment of justice. In considering that position and the fact that the nature and effect of an admission can vary widely, it is unhelpful to formulate any general rules.
9 In this matter the affidavit of the first defendant does not go to explain why the implied admission was made in the defence. If it was the case that, as the first defendant deposes, he did not have any appointments at Chiropractic 2000 before 10.30 am then this is a fact the first defendant would be keen to emphasise in the defence of 30 November 2006. The affidavit of the first defendant seems more intent to shift the blame to the second defendant than to give explanation.
10 The first defendant deposes that, as a result of a complaint being made against him to the Chiropractors Registration Board, he saw a lawyer in February 2000. The first defendant showed the lawyer a letter
(Page 5)
- dated 17 February 2000 from the plaintiff's solicitor. The lawyer drafted a response to the plaintiff's solicitor letter which included the phrase "and did consult your client on one occasion only". The first defendant deposes that he telephoned the lawyer to advise the sentence was not correct and sought to have it removed. However, the letter sent to the plaintiff's solicitor by the lawyer then acting for the first defendant kept that phrase in.
11 The first defendant deposes that he drafted his defence filed 30 November 2006 without the assistance of lawyers and did not consider the defence makes any admission of having seen or treated the plaintiff. If such an admission was made then it was unintentional. It would appear the first defendant in drafting his defence was trying to be clever rather than putting the facts before the court.
12 In my opinion it is in the interests of justice to ascertain who, was the treating chiropractor at the time. That is an issue that must go to the trial Judge. There is little prejudice to the plaintiff – the facts are within her knowledge. Accordingly, I give leave to the first defendant to file the minute of amended defence dated 7 June 2007.
13 I will hear counsel on further programming orders and on the issue of costs.
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