Mees v Sherwood Nominees Pty Ltd T/As Wovodich Engineering
[2005] WADC 8
•28 JANUARY 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MEES -v- SHERWOOD NOMINEES PTY LTD T/AS WOVODICH ENGINEERING [2005] WADC 8
CORAM: FENBURY DCJ
HEARD: 3 DECEMBER 2004
DELIVERED : 28 JANUARY 2005
FILE NO/S: CIV 2182 of 2000
BETWEEN: ANDREW DAVID MEES
Plaintiff
AND
SHERWOOD NOMINEES PTY LTD T/AS WOVODICH ENGINEERING
Defendant
ON APPEAL FROM:
For File No : CIV 2182 of 2000
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DEPUTY REGISTRAR HARMAN
Citation :MEES -v- SHERWOOD NOMINEES PTY LTD T/AS WOVODICH ENGINEERING [2004] WADC 174
File No :CIV 2182 of 2000
Catchwords:
Appeal from Registrar's decision refusing leave to withdraw admissions in defence - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Defence to be amended in accordance with Minute
Representation:
Counsel:
Plaintiff: Mr R E Keen
Defendant: Mr P P McCann
Solicitors:
Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Jackson McDonald
Case(s) referred to in judgment(s):
Hutton v Meston [2004] WASCA 178
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Case(s) also cited:
Baker v Shire of Albany (1994) 14 WAR 46
Hamilton v Australian Telecommunication Commission [1989] 1 Qd R 18
Ketteman v Hansel Properties Ltd [1987] AC 189
Kuligowski v Metrobus [2002] WASC 170
Kuligowski v Metrobus [2004] HCA 34
Lowther v Heaver (1889) 41 Ch D 248
Matheson v Commissioner of Main Roads (2001) 25 WAR 269
Murran Investments v Aromatic Beauty Products Pty Ltd (2002) 191 ALR 579
Sangora Holdings Pty Ltd v Dunstan [1999] WASCA 1055
Unioil International Pty Ltd v Deloitte Touche Tomahatsu (a firm) (1997) 18 WAR 190
FENBURY DCJ: This is an appeal from a decision of a Deputy Registrar refusing the defendant leave to withdraw an admission contained in par 4 of the minute of a Substituted Defence dated 5 February 2003, that substitution being made by consent.
The relevant admission was made in par 4 of the Substituted Defence which reads as follows, and the specific admission that the defence wishes to withdraw is highlighted in bold by me;
"4.The defendant says that on 29 November 1994 the plaintiff suffered soft tissue injury to the left thigh and knee and subsequently developed disabilities being a psychiatric condition and reflex sympathetic dystrophy and the defendant otherwise denies the plaintiff has suffered any other of the injuries and disabilities as alleged at par 7.1 of the statement of claim."
As phrased in his outline of submissions, the defendant wishes to place in issue all matters in relation to the diagnosis, prognosis and causation of the plaintiff's alleged personal injury, loss and damage (as was the case before the filing of the substituted Defence dated 5 February 2003).
There was a threshold issue at the hearing of this appeal arising from the defendant's desire to amend the defence further from that which it had unsuccessfully sought to do before the Deputy Registrar. The plaintiff did not object to the defendant taking this course.
There was another issue relating to the extent of further affidavit evidence offered to this Court. This material was not presented to the Deputy Registrar. After hearing argument I made a ruling at T9 in these terms:
"…given that this is an application where the defendant seeks to withdraw admissions made in pleadings upon the basis that they were inadvertently or mistakenly made or made as a result of an administrative breakdown or communication breakdown, in essence that's it, then affidavit evidence which details how that arose and thereby contra indicates anything else, any other sort of dark strategic factors, behind the matter I think should be received because it is relevant and helpful and I would be minded to allow that new material to be received to do justice to the issue before me in this matter."
In essence the affidavit material explains how it came to be that the defendant made the admissions it did in the substituted Defence of 5 February 2003. Put shortly the admission was made inadvertently. It was made as a result of a breakdown in communication between the client (the defendant's insurer) and the legal advisers.
I do not think it is necessary to detail this material. There can really be no doubt about the matter and, indeed, counsel for the plaintiff appeared to concede as much at T16 when he said:
"When one looks at the affidavit evidence, particularly the evidence of Mr Seaman, one finds that this was not a mistake as such. It was a breakdown of communication between those parties perhaps but this was a carefully considered pleading on the part of Mr Seaman."
Counsel for the plaintiff argued that the plea was not a mistake and therefore should stand. I shall come back to this. However, there does not seem to me to be any dispute that what occurred was a result of communication breakdown and it is to that conclusion that all of the affidavit material is directed.
The Full Court in Hutton v Meston [2004] WASCA 178 (which was decided since the Deputy Registrar's decision) considered the principles applicable to applications to amend pleadings which result in withdrawal of admissions.
In that case the defendant, in a personal injury matter, represented by an extremely experienced litigation insurer, admitted liability prior to the issue of the writ and afterwards and only upon the eve of the pre‑trial conference was leave sought to withdraw that admission and raise issues concerning liability and contributory negligence. The Deputy Registrar allowed the defendant leave to amend his defence, a judge of this Court on appeal refused that leave and his Honour's decision was upheld in the Full Court. McLure J, who wrote the judgment, commences her remarks about the legal principles by reference to O 25, r 5(1) of the Rules of the Supreme Court (which apply to the District Court by its practice directions) and observes that the Court has an unfettered power at any stage of proceedings to grant leave to amend a pleading "on such terms as to costs or otherwise as may be just and in such manner (if any) as the Court may direct" (par 17 of the judgment). Her Honour then discusses various authorities including Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 and the acceptance that the overriding principle is the attainment of justice.
Her Honour expressed the view that as the nature and effect of an admission can vary widely it may be unhelpful to formulate a general rule. Her Honour went on to assess the case "mindful that the scope of, and weight to be given to, relevant considerations in the exercise of the discretion is determined by the governing principle of the attainment of justice" (par 23). Her Honour, after balancing all the considerations she thought relevant, reached the conclusion that the balance of justice in the case clearly favoured the view the defendant should not be allowed to withdraw its submission of liability.
In the case at hand the relevant admissions are that the plaintiff's disabilities developed "subsequently" to the soft tissue injury suffered on 29 November 1994, and that those disabilities were a psychiatric condition and reflex sympathetic dystrophy.
The defendant now wishes to dispute those two matters.
Prior to 5 February 2003, and since the issue of the writ in 2000, those matters appear not to have been admitted. Thus there was a considerable period of time in the running of the litigation, perhaps up to three years, when the admissions had not been made and then a period of about two years that has passed since they were made. Of that period of two years it appears that the question of withdrawal of the admission was raised after one year, perhaps early 2004.
This is not a case of witnesses lost or losing their memory. This is a case of the interpretation of medical evidence that has apparently been disclosed although there might be conflict. There may be some need for further medical evidence and further opinion which must necessarily be based upon whatever contemporaneous materials are available and is likely to be in the nature of review by current medical experts.
As indicated earlier, counsel for the plaintiff all but conceded the admission was made inadvertently but nevertheless argued, if I have understood him correctly, that withdrawal should not be permitted because it was an admission of an unarguable fact. As he put it in par 8 of his outline, and thereafter:
"8.That Substituted Defence of 5 February 2003 properly pleaded the determination of the review officer being a determination that the plaintiff had suffered, as a consequence of his injury, a disability being a psychiatric condition and RSD. Further, at paragraph 4 the defendant pleaded that on 29 November 1994 the plaintiff suffered a soft tissue injury to the left thigh and knee and subsequently developed disabilities being a psychiatric condition and RSD. Again this was a proper pleading in the light of the findings that had been made and in effect constitute an admission of the particulars of injuries (or some of them) as set out in paragraph 7.1 of the Statement of Claim. In particular it is an admission of the psychiatric condition and RSD."
Counsel then put submissions relating to the plaintiff, if the amendment was allowed, suffering unfair prejudice in the litigation and then at par 14 resumes:
"14.Apart from all of the foregoing there is a sound basis for the admission having been made by the defendant. The Review Officer had the benefit of lengthy argument and submissions on the medical evidence and made her findings which have not been appealed.
15.To allow the withdrawal of the admission would give rise to an element of falsity in the pleading. In his seminal article "Lawyers' Duty to the Court" 114 LQR 63 at 79 Ipp J dealt with the duty not to abuse the court process and in particular (at 81) dealt with the requirement for truth in pleading. Standards required of the profession in pleading cannot be subordinated to any tactical gain that may be obtained from leading tactical denials…"
He then refers to authority and winds up by submitting that to allow the withdrawal of the admission in the pleading 'flies in the face of truth in pleadings and the application to amend should be refused'.
In my view the characterisation of the inadvertent admission seems to me to be irrelevant. It is the inadvertence in the making of it that is the key and, all other things being equal, on the material supplied, the balance of the competing factors tips well in favour of the defendant being allowed to withdraw the admission.
What remains is the question of prejudice. I agree with the comments of counsel for the defendant at T26 and T27 that there is no incurable prejudice to the plaintiff if the amendment is allowed.
Applying the principles that have been explained by the Full Court in Hutton v Meston (supra) it seems to me to be a case where the application to amend the defence and withdraw the disputed admission should be allowed. It was, in my view indisputably, made as a result of inadvertence and communication breakdown. The defendant did not intend to make the admission. That seems to me to be the end of the matter. It is not of great significance what it was that was erroneously admitted. It would not be just for the party to be compelled to go to trial on the basis of a bona fide but erroneously drafted pleading.
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