Mendicino and Mendicino and Ors (No 4) - [2015] FamCA 485

FAMILY COURT OF AUSTRALIA

MENDICINO & MENDICINO & ORS (NO 4)

[2015] FamCA 485

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION IN A CASE – Application for leave to rely on an amended defence, which would have the effect of withdrawing admissions – Whether a complete and convincing explanation for all of the changes is necessary to exercise the discretion to allow the leave sought – Where a complete and convincing explanation is not necessary – Where the issues subject of prior admissions remain live as between the applicant and other respondents – Where specific prejudice on the part of the applicant is not identified – Where carelessness on the part of the solicitors is a major contributor for the admissions initially being made – Leave granted to rely on amended defence.

Family Law Act 1975 (Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127
Fitzgerald v Hill (2008) 51 MVR 55
Hill End Gold Ltd v First Tiffany Resource Corporation [2008] NSWSC 866
Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327
Maile v Rafiq [2005] NSWCA 410
Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455
Sangora Holdings Pty Ltd v Dunstan (Unreported, Supreme Court of WA, Scott and Steytler JJ, 156/1998, 13 April 1999)
SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816

APPLICANT:

Ms Mendicino

FIRST RESPONDENT:

Mr Mendicino

SECOND RESPONDENT:

Mr D Mendicino

THIRD RESPONDENT:

Ms E Mendicino

FOURTH RESPONDENT:

Ms F Mendicino

FIFTH RESPONDENT:

G Pty Ltd

FILE NUMBER:

BRC

875

2013

DATE DELIVERED:

19 June 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

19 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr SJ Williams

SOLICITOR FOR THE APPLICANT:

Cooper Grace Ward Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE FIRST RESPONDENT:	HopgoodGanim Lawyers
COUNSEL FOR THE SECOND, THIRD AND FIFTH RESPONDENTS:	Dr Brasch QC
SOLICITOR FOR THE SECOND, THIRD AND FIFTH RESPONDENTS:	Phillips Family Law
COUNSEL FOR THE FOURTH RESPONDENT:	Mr Kearney SC with Mr Alexander

SOLICITOR FOR THE FOURTH

RESPONDENT:

Emanate Legal

Orders

IT IS ORDERED THAT:

Leave is granted for the Fourth Respondent’s Application in a Case filed on 18 June 2015 to be listed today for hearing.
Leave is granted to the Fourth Respondent to rely upon his Amended Defence filed on 11 June 2015.
Each party’s costs of and incidental to the Fourth Respondent’s Application in a
Case filed on 18 June 2015 be reserved to the trial of these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mendicino & Mendicino & Ors (No 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 875 of 2013

Ms Mendicino

Applicant

And

Mr Mendicino

First Respondent

And

Mr D Mendicino

Second Respondent

And

Ms E Mendicino

Third Respondent

And

Ms F Mendicino

Fourth Respondent

And

G Pty Ltd

Fifth Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an application in a case, the fourth respondent seeks leave to rely upon an amended defence filed on 11 June 2015. The grant of such leave would carry the consequence that the fourth respondent is given leave to withdraw admissions made in the fourth respondent’s defence, filed on 26 September 2014 as to a number of matters. The matters are set out in paragraph 8 of the outline of argument on behalf of the fourth respondent, although it must be said that the outline filed on behalf of the wife contends – correctly I think – that there is a broader degree and number of withdrawals involved.
Each of the other parties to the proceedings, save for the wife who opposes leave, consent to the leave being granted.
In my judgment, it is fundamental to the determination of this application to keep in focus the nature of the substantive proceedings and, in particular, the relief claimed by the wife in them. These are proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), which authorises the Court to adjust property interests of the husband and wife, the principal players in the proceedings. There is also a spousal maintenance claim by the wife. Fundamentally though, there is no claim for relief by the wife as against the fourth respondent including, for example, any claim under Part VIIIAA, for example, s 90AA. Thus, this is a case where no direct relief is sought by the wife as against the fourth respondent or any respondent other than the husband.
Plainly, no admission made by the fourth respondent binds any other party to the proceedings and, most particularly, the sole party against whom relief is claimed, namely the husband. Thus, it may be observed that no admission by the fourth respondent supports any claim for relief as against the fourth respondent in the proceedings. Moreover, the admission by the fourth respondent in the previous defence cannot be characterised as an admission against interest in the proceedings in the sense of an admission supporting any basis for the grant of any relief against the fourth respondent.
It also seems to me to be an important matter of context to note that the fourth respondent, as regards the allegations advanced by the wife against the other respondents, is in a fundamentally different position not only to that of the husband against whom specific relief is claimed, but also in respect of the positions of each of the second and third respondents, his siblings. As but one simple example, it is not alleged amongst the wife’s allegations that the fourth respondent is a member of the partnership alleged as one of the alternative claims.
I also consider as a relevant matter of context, the subject matter of the admissions previously made. Whilst these are matters of fact, many are factual matters that involve to a significant extent mixed questions of fact and law. They are not facts as to simple events of normal kind or of a day-to-day character.
Moreover, at least some of the facts are not within the exclusive knowledge of the fourth respondent and, so far as assessing prejudice and the like is concerned, it is therefore not a matter of a party with the sole means or sources of knowledge as to the relevant facts having made an admission as to them, seeking to subsequently withdraw them.
Fundamentally too, no admission by the fourth respondent has put to rest the issues the subject of the previous admissions in the proceedings. At all material times each of the other respondents have disputed and continue to dispute the relevant allegations.
I have been provided in submissions with a number of authorities as to the relevant principles with respect to leave to withdraw admissions.[1] Notably all of those authorities, so far as I am aware, emanate from civil courts where causes of action need to be established for the relief claimed. That is somewhat different to the substantive relief claimed here, where the Court has an obligation to determine the existing property interests of the relevant parties (the husband and the wife) at law and equity as at the time of the trial.
[1] Sangora Holdings Pty Ltd v Dunstan (Unreported, Supreme Court of WA, Scott and Steytler JJ, 156/1998, 13 April 1999); Hill End Gold Ltd v First Tiffany Resource Corporation [2008] NSWSC 866; SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816; Maile v Rafiq [2005] NSWCA 410; and Fitzgerald v Hill (2008) 51 MVR 55.
Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327 a decision of the Full Court of the Federal Court conveniently summarises the relevant principles with approval to the matters outlined by Santow J of the Supreme Court of New South Wales in Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127 as follows:
1.Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted . . .
2. The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guidelines being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded . . .
3. Where a court is satisfied that admissions have been made after consideration and advice such as from the parties’ expert and after full opportunity to consider its case and whether the admission should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn . . .
4. It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission . . .
5. Following Cohen v McWilliam (1995) 38 NSWLR 476, a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party.
I am satisfied on the evidence in support of the application that the defence as initially drawn on behalf of the fourth respondent was based upon errors, in effect, of the solicitor by assuming some untested facts. Equally though I am satisfied by reference to the matters pointed to by Mr Williams of counsel for the wife that, in many respects, the purported explanation for now withdrawing some of the admissions is woefully inadequate. The question is really whether a complete and convincing explanation for all of the changes is necessary to exercise the discretion to allow the leave sought.
There is reference in the authorities such as Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455 and Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 that the discretion to allow the withdrawal of an admission is a broad and unfettered one but of course the discretion, as with all such discretions, must be exercised judicially.
Whilst I am satisfied that it is important to consider explanations, I am not satisfied that the absence of a complete explanation denies of itself, leave being granted to withdraw the admissions. In this case, the relevant delay is between the first defence filed on 26 September 2014 in which the admissions are contained, and the position reached in May when a notice disputing facts indicated a contrary approach by the fourth respondent. Whilst this is a significant delay, it is not accompanied by any particulars of prejudice, the prejudice is said to be confined to the wife’s reliance upon the fact that the fourth respondent had admitted significant matters in her pleading.
But it is not said that the wife thereby relied upon the admission and did not pursue steps she might otherwise have pursued to prove her case in the context where the issues the subject of the admissions remained live as between the wife and all other respondents. I therefore do not consider the delay of itself, works against a grant of leave as giving rise to relevant prejudice.
Fundamentally I am not satisfied that, because a refusal of leave would not bring an end to any of the subject issues, that is a matter that stands against leave being granted. In other words the issues the subject of the admissions importantly remain live for the trial and there will be a need for the Court to assess the evidence of all parties at the trial.
The substantial criticisms mounted by the wife with respect to the explanation or lack of explanation for the change in the fourth respondent’s approach are all matters that can be addressed by the wife at the trial either by way of cross-examination or ultimately by way of submissions.
I would also observe, to the extent that explanation is a necessary consideration, that the subject matters rest upon matters that are not without their complexities in themselves. Some of those matters may well be said to be open to interpretation. Indeed, even the assertion as to an agreement between all parties of a particular kind as referred to by Mr Williams with respect to the fourth respondent’s exit from the group.
In the end, in my judgment, leave ought be granted primarily for the reason that I am satisfied that carelessness on the part of the fourth respondent’s solicitor was a major contributor to the response in its first iteration, but more particularly for the reason that admission by the fourth respondent as to the relevant issues does not bring an end to the issues the subject of these proceedings; and each party should have the opportunity to advance their true case at trial.
For these reasons, I grant the leave that is sought.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 19 June 2015.

Associate:

Date: 24 June 2015