M, B v T, AP - [2012] SADC 107

District Court of South Australia
(Civil: Interlocutory Application)
M, B v T, AP
[2012] SADC 107
Reasons for Ruling of His Honour Judge Slattery (ex tempore)
22 August 2012
PROCEDURE
Interlocutory Application - Plaintiff sought leave to amend an admission in response to a Notice to Admit - Error by Solicitor - Defendant not opposed.
District Court Civil Rules 2006 r 158, referred to.
ACN 007 528 207 Pty Ltd (In liq) v Bird Cameron & Ors (2003) SASC 429; Centrestate Sports Pty Ltd v Amarantos Shipping Co Ltd (2005) SASC 518; Rak v Coles Myer Ltd (1996) 68 SASR 2712; McLachlan v Australian Stock Exchange (1999) SASC 12, considered.

M, B v T, AP
[2012] SADC 107

The plaintiff’s application pursuant to r 158 of the Rules for leave to amend an admission in response to a Notice to Admit.
On the Interlocutory Application undated and received by me on 20 August 2012, the first day of the trial of this action (under the Domestic Partners Property Act 1996) the plaintiff sought the following orders:
1. Leave be granted to the plaintiff to amend the admission in para.20 of the notice of response filed by the plaintiff on 24 November 2011 to the sum of $126523.
2. Further or other orders as the court deems fit.
The application was supported by an affidavit of David Glyn Morgan, solicitor, sworn 19 August 2012.
In the affidavit, Mr Morgan deposes to the fact that a Notice to Admit Facts was served by the defendant on the plaintiff on 27 October 2011 and a response was delivered by the plaintiff on 24 November 2011.
Mr Morgan then goes on to depose in his affidavit that a particular error was made in the response to para 20 of the Notice to Admit. That paragraph sought an admission by the plaintiff of the total of $117,000 cash in her possession as of the date of separation, 24 September 2009. The response denied that fact and asserted a total cash position of $190,578 on the relevant date.
The affidavit of Mr Morgan then deposes to matters concerning the conduct of the case by the previous solicitors acting for the plaintiff, and indicates that there is no explanation as to how a figure of $80,011 (to make up the amount of $190,578) was interpolated for a figure of $15,936 which was the actual cash position of the plaintiff at the relevant time (giving a different total figure of $126,503). The affidavit explains there were two bank accounts holding two sums at the relevant time: $110,567 in one and $15,936 in the other. In any event, there is no explanation as to the source of the wrong figure.
The application was initially opposed and there was objection to the receipt of the affidavit of Mr Morgan. The application has been adjourned on a number of occasions. After a discussion between bench and bar about the deficiency in the plaintiff’s affidavit material, the plaintiff applied for time to file further affidavit material.
On 21 August 2012, the plaintiff filed the following further affidavits in support of her application: the second and third affidavits of David Glyn Morgan sworn on 21 August 2012 and an affidavit of the plaintiff sworn the same date.
The defendant was then given further time to review that material.
The relevant authorities concerning whether or not an admission may be withdrawn are summarised in two decisions of the Supreme Court of South Australia; ACN 007 528 207 Pty Ltd (In liquidation) v Bird Cameron & Ors (2003) SASC 429 per Duggan J and Centrestate Sports Pty Ltd v Amarantos Shipping Co Ltd (2005) SASC 518 per Debelle J. The relevant principles and other applicable authorities are gathered in those cases.
After the further affidavit material was filed it became clear that the plaintiff, through her then solicitors, had prepared responses to the Notices to Admit but those responses contained a wrong admission. That error is explained by the letter from the relevant practitioner of the plaintiff’s previous solicitors to the plaintiff’s current solicitors of 21 August 2012, which forms Exhibit DGM1 to the third affidavit of Mr Morgan. The readily available inference is that at the time that the answers to the notice to admit were prepared, the previous solicitors viewed the wrong bank statement of the plaintiff in making the calculation and therefore the response. That is, the solicitor appears (inferentially) to have had regard to the bank statement of the plaintiff (for the relevant account) for the date one year prior to the relevant date and that the (wrong) bank statement disclosed a credit balance in the relevant account of $80,011. That was the information that was reflected in the answer to the Notice to Admit.
As I have said, the defendant’s initial attitude to the matter was to resist the application but on the morning of 22 August 2012, the defendant withdrew its resistance to the application and left the matter in the hands of the court.
I have now weighed in the balance the whole of the factual material that has been provided to me and I have considered the following matters in coming to my decision. First, notwithstanding that the application was made late, namely on the first day of trial and it is not clear when the mistake was identified, the lateness of the application was not fatal. In my opinion, the detriment suffered by the defendant on the evidence was also not so great that he would have to have completely recast his case.
Second, I am satisfied that the figure is in error. It appears not to be an error of judgment because there seems to have been a transcription error and nothing else. That is, it is a human error. In my view, the plaintiff should not suffer for the human error of her advisors. There is also no evidence that the plaintiff was taken through the answers and asked to compare the answers to the documents, and I refer in particular to the affidavit of the plaintiff of 21 August 2012.
Third, in my opinion, the correction causes no injustice. The question asked by the defendant was wrong. The defendant asked the plaintiff to admit that a particular cash position was in the amount of $117,000 when in fact it was an amount greater than that position. It was necessary in the circumstances for the plaintiff, under the relevant authorities, to put the correct position in her response.[1]
[1] Rak v Coles MyerLtd (1996) 68 SASR 2712 and McLachlan v Australian Stock Exchange (1999) SASC 12.
Fourth, it was necessary in the circumstances to correct what appeared to be a wrong view that was pervasive to both parties. The reply given by the plaintiff was in conformance with applicable authority but it was incorrect. The correction therefore does not change the position of the plaintiff and it discloses that the plaintiff has not been fraudulent or overreached her position.
Fifth, it is my view that a failure to correct the response would lead to a situation that part of the matter in controversy between the parties will not be easily resolved. I refer in particular to what was the true cash position of the parties at various times and its importance to a resolution of the issues between the parties.
Sixth, a consequence of a failure to correct will mean there will be a pervasive confusion in the case which, in all of the circumstances, will be unjust as between the parties.
In the exercise of my discretion, I am mindful of everything that has been put to me by parties through their counsel. I have read all of the documents and taken into consideration all the matters that have been put to me. In my view, the balance weighs in favour of the grant of the plaintiff’s application.
I make the following orders:
1.Leave to the plaintiff to withdraw the admission in para 20 of the reply of the plaintiff dated 24 November 2011 to the defendant’s Notice to Admit Facts.
2.Leave to the plaintiff to amend the reply dated 24 November 2011 by deletion of the sum of $190,578 and the interpolation in lieu the sum of $126, 523.
3.Leave to the plaintiff to file a fresh reply to the Notice to Admist of the defendant to reflect the content of paras 1 and 2 of these orders.
In the exercise of my discretion on the question of costs, the defendant shall have the costs of the application, the adjournment of it and any costs thrown away as a result of or in consequence upon the consideration of the earlier response. I give a certificate as to counsel.