Royal Automobile Association of South Australia Inc v Brian Polomka Pty Ltd T/A Berry Gilbert

[1993] SASC 4338

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Pleadings - application by plaintiff to strike out amended defence on the ground that it conflicted with rulings given in two previous judgments of a Master and two judgments on appeal by a judgment of the the Court - held that in the particular circumstances it was better that the Court hear argument as to why an order should not be made under s.59j of the Evidence Act dispensing with proof of matters asserted by the plaintiff and disputed in the defence, which were clearly covered by the previous rulings - appearance by the defendant had been filed seven years ago stating 'Entry of appearance in this action for John William Connell trading as John Connell and Associates' - until 1991 the litigation was conducted on the basis asserted in the appearance which was repeated in other pleadings and documents filed by Connell - later Connell denied that he had authorised entry of the appearance in his name, the filing of the defence making admissions, and other admissions made by letter by solicitors purporting to act for him held that in the particular circumstances of the case there was a discretion as to whether or not Connell should be permitted to resile from the admissions made during the course of the litigation, but that the discretion should be exercised against permitting such a course - order made under s.59j of the Evidence Act dispensing with proof of the matters admitted. Evidence Act 1929s59j. Anon 1 Salk 86, 91 ER 81; In re Gray (1891) 45 LT(NS) 743; Reynolds and Anor v Howell
(1873) 8 LR QB 398 and Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR
738, considered.

HRNG ADELAIDE, 26 November 1993 #DATE 17:12:1993
Counsel for plaintiff:             Mr D. Clayton QC with him
   Mr M. Beamond and
   Mr A.S. Clare
Solicitors for plaintiff:         Mellor Olsson
Counsel for defendant Connell:     Mr A.I. Fairbank
Solicitors for defendant Connell: Phillips Fox
Defendant John Connell Holdings Pty Ltd
T/A John Connell and Associates:     In Person
Defendant Kenneth W G Smith:        In Person
Defendant Kenneth W G Smith and Associates Pty Ltd:                 In Person
Counsel for defendant Kinhill:     Mr M.N. Rice
Solicitors for defendant Kinhill: Baker O'Loughlin

ORDER
Discretion exercised.

JUDGE1 PERRY J On 2 November 1993 during the course of an general directions hearing, I intimated that a document described as a "new amended defence" (document 198) of the second-named defendant John William Connell ("Connell") was in certain respects vexatious and that I would, of my own motion, unless persuaded otherwise by argument, exercise my power under s.59j of the EvidenceAct 1929 to dispense with proof of certain matters asserted by the plaintiff and disputed in the defence. I went on to intimate that subject to hearing argument, I proposed to make orders as follows: "Pursuant to Rule 55 an order striking out the last sentence of paragraph 3 of the new amended defence, being document No 198, and pursuant to s.59j of the Evidence Act an order that proof of the assertion in paragraph 10 of the amended Statement of Claim, being document No 124, that in or about the month of August 1974 the architect engaged the second defendant, John William Connell, for reward to carry out an investigation of the land therein referred to, be dispensed with." 2. At the same time I intimated that if I made the foreshadowed orders, I would not permit any further amendments to the defence. 3. Subsequently, on 26 November 1993, I heard counsel for Connell and counsel for the plaintiff on the question whether or not an order should be made in the terms which I have indicated. 4. Having further considered the matter, it will be seen that I have not been persuaded by the arguments adduced on behalf of Connell to do other than make an order of the kind which I postulated on 2 November 1993. 5. Although this action was commenced as long ago as 1983, it has not yet been brought to trial. Progress of the action has been bedevilled by a series of interlocutory manoeuvrings which, regrettably, have subjected the parties to what is no doubt a substantial burden of delay and cost, with very little to show for it except an unwieldy number of documents on the Court file. 6. It is to be hoped that under the new regime of case flow management we will never see cases like this again. 7. In the meantime, it is necessary for me to retrace, re-express, and to a certain extent extend, observations already made in two judgments of a Master of this Court and two previous judgments which I delivered on appeal from him. The two judgments of the Master are those of Judge Bowen Pain made on 28 August 1992 and 6 July 1993. The judgments on appeal to me are those delivered respectively on 16 April 1993 (Judgment No 3899) and on 10 September 1993 (Judgment No 4185). 8. The last judgment was the subject of a notice of appeal to the Full Court (document 203). That appeal was never proceeded with, and must be taken to have been abandoned. Both judgments delivered by me stand, therefore, according to their terms. This is not unimportant for present purposes, unless any further evidence now before the Court should compel a different result. While it is true, as will be seen, that further affidavits have been filed since the last of those judgments, for reasons which I come to in due course, they do not identify any matters which cause me to change the substance of the views which I have expressed in those two judgments. 9. Although I repeat parts of those judgments in the course of these reasons, I have done so only to the extent necessary to make these reasons intelligible. It is intended that those two judgments be read with this judgment, as I have not paused to repeat everything in them which is relevant to the conclusions which I express in this judgment. 10. The defendants are all either architects or engineers. The plaintiff seeks damages against them on the footing that they were negligent in failing to avoid a subsidence of soil which caused a building constructed for the plaintiff on certain land at Ridleyton in 1978 and 1979, to suffer damage to its foundations. The defendants individually deny liability, and by various cross claims assert that the damage to the building was the fault, if at all, of some other defendant or defendants. 11. I quote from the reasons for judgment delivered by me on 10 September 1993, given after the hearing of the second of the appeals from Judge Bowen Pain (Judgment No 4158):
    "When the writ was issued, it named as the second
    defendant John Connell and Associates, and as the third defendant
    John Connell Holdings Pty Ltd trading as John Connell and
    Associates (document 1). Mouldens, Solicitors, filed appearances
    on behalf of both of those defendants on 25 July 1984. The first
    appearance (document 2) read: 'Enter an appearance in this
    action for the abovenamed defendant John Connell and Associates
    of 168 Melbourne Street, North Adelaide in the State of South
    Australia'. That appearance was endorsed:
    'This appearance is filed by Mouldens of and whose address
    for service is 54 Currie Street, Adelaide, solicitors for the
    defendant John Connell and Associates'. The second appearance
    was entered: 'for the abovenamed defendant John Connell Holdings
    Pty Ltd trading as John Connell and Associates of 168 Melbourne
    Street, North Adelaide.' A summons for directions (document 7) came on for hearing before Master Lunn, as he then was, on 18 December 1984. Mr Twidale of Mouldens appeared before him. One of the orders made by Master Lunn on that occasion was: 'Leave to the defendant John Connell and Associates to file a fresh appearance complying with Order 48A rule 5 in lieu of that filed on 25 July 1984'. No doubt that order was made on the basis of an affidavit sworn by Mr Twidale on 3 December 1984 in which he swore, inter alia:
     '2. On 25 July 1984 an appearance was filed on behalf of
    John Connell and Associates.
     3. John Connell and Associates seeks leave to file an amended
    appearance in accordance with Order 48A rule 5 of the Supreme
    Court Rules.' Order 48A rule 5 as it then stood read: '(1) Where persons are sued as partners in the name of their firm they shall appear individually in their own names: but all subsequent proceedings shall nevertheless continue in the name of the firm.' 12. A further appearance was filed, apparently pursuant to the order of Master Lunn, but not until 13 May 1986. That appearance (document 11) read: 'Enter an appearance in this action for John William Connell trading as John Connell and Associates of 168 Melbourne Street, North Adelaide in the State of South Australia'. 13. As I have pointed out in the earlier reasons delivered by me, the appearance is a somewhat confusing document, in that it is signed by Mr Twidale on behalf of Mouldens as 'solicitors for John Connell Holdings Pty Ltd trading as John Connell and Associates'. On 6 August 1987, the plaintiff filed a notice (document 61) pursuant to Rule 36.03 of the Supreme Court Rules, requiring the delivery by the second defendant, John Connell and Associates, of a list setting out the names and addresses 'of all persons who were or are partners in the second- named defendant between the 1st day of January 1974 and the date of delivering' the list. That notice was responded to by a letter dated 2 October 1987 from Ross McCarthy and Nosworthy, solicitors, written on behalf of the second defendant stating: 'In response to your notice pursuant to Rule 36.03, we are instructed that between the 1st day of January 1974 and the 29th day of September 1976 (at which latter date the business ceased trading) the partner was John William Connell, 531 The Boulevarde, East Ivanhoe, Victoria 3079'. 14. On 5 October 1987, Ross McCarthy and Nosworthy filed a notice of change of solicitors (document 64). The notice reads: 'Take notice that Ross McCarthy and Nosworthy are acting for the defendant John Connell and Associates in this action'. 15. Subsequently, in November 1987 the plaintiff applied to substitute "John William Connell" in the proceedings as second defendant in lieu of John Connell and Associates. The application was supported by an affidavit of a Mr Henley filed on 23 November 1987 (document 67), paragraph 8 of which reads:
    'When proceedings were issued the plaintiff was unaware of
    the constitution of the second named defendant. That defendant
    appeared to trade as a partnership or firm at the relevant time.
    Proceedings were issued against it as a firm on that basis. The
    second defendant's answer to the Rule 36.03 notice served by the
    plaintiff on that defendant indicates that John Connell and
    Associates was not a partnership but was operated by John william
    Connell personally. We therefore seek leave to amend the second
    named defendant's name to "John William Connell" and to make
    consequential amendments to pleadings.' 16. On 26 November 1987, Mr Hunkin (from Mouldens) appeared on the hearing of the application, presumably on behalf of the second-named defendant, but there was no appearance by a solicitor from Ross McCarthy and Nosworthy. Master Boehm ordered, inter alia: '(2) That the plaintiff be at liberty to amend the proceedings herein by altering the name of the defendant John Connell and Associates to John William Connell and to make all consequential amendments to the Statement of Claim.....' 17. That amendment was carried into effect. John William Connell became the second-named defendant in lieu of John Connell and Associates. On 26 November 1987, no doubt fortified by the plain indications by those purporting to act on behalf of John William Connell, that he was the person behind the business of John Connell and Associates, the plaintiff filed a Notice of Discontinuance against the third-named defendant John Connell Holdings Pty Ltd trading as John Connell and Associates (document 69). Even although Ross McCarthy and Nosworthy do not appear to have been represented when the substitution of John William Connell as the second defendant was ordered by Acting Master Boehm, there is no doubt that Ross McCarthy and Nosworthy accepted the position which was then reached, and from thereon filed documents and otherwise conducted the litigation on behalf of John William Connell. In document after document in the Supreme Court file from then on they describe themselves as the solicitors for the second-named defendant, John William Connell. On 3 August 1989, Ross McCarthy and Nosworthy filed sworn answers to interrogatories administered by the plaintiff to the second defendant (document 106). The first two paragraphs of the answers read as follows:
    'I, JOHN WILLIAM CONNELL of 531 The Boulevard, East
    Ivanhoe in the State of Victoria, 3079, Company Director, MAKE
    OATH AND SAY as follows:-
     1. I am the second named defendant herein.
     2. In giving these answers I have made proper enquiry from
    those former servants and agents of John Connell and Associates
    who may have any knowledge of the matters enquired into and whom
    I have been able to contact, and my answers are based upon my own
    knowledge and the information received by me from the servants
    and agents of John Connell and Associates, which knowledge and
    information has been derived in the course of their employment by
    John Connell and Associates, all of which I believe to be true.' 18. In paragraph 3 of the answers to interrogatories, Mr Connell takes objection to answering certain interrogatories: '... on the bases that they are vexatious because I have already admitted John Connell and Associates engagement by the architect in paragraph 4 of my defence and because these matters involve questions of law.' 19. The defence there referred to was apparently a defence filed by Mouldens on behalf of the second- named defendant on 20 October 1986, then described, of course, as John Connell and Associates (document 22). Paragraphs 3 and 4 of that defence read:
    '3. The second defendant admits that it carried on business
    in 1974 within the State of South Australia as a consulting
    engineer under the name John Connell and Associates.
     4. The second defendant admits that in or about the month of
    August 1974, it was engaged by the Architect for reward to carry
    out soil testing, trenching and to report on the site.....' 20. Similar sworn answers to interrogatories administered by the sixth-named defendant Kinhill Pty Ltd for the examination of John William Connell were filed and delivered (document 105). Paragraphs 1 and 2 of these answers are in the same terms as paragraphs 1 and 2 of the answers to the interrogatories administered by the plaintiff." As at August 1989, after the answers to interrogatories had been filed, the position of the action as against Connell may be summarised as follows:
    (1) On 13 May 1986, following the leave given on 18
    December 1984 by Master Lunn, as he then was, to the defendant
    John Connell and Associates to file a fresh appearance, a fresh
    appearance was filed by Mouldens Solicitors, the operative terms
    of which read: "Enter an appearance in this action for John
    William Connell trading as John Connell and Associates of 168
    Melbourne Street North Adelaide in the State of South Australia".
     (2) On 20 October 1986, a defence was filed on behalf of John
    Connell and Associates, paragraphs 3 and 4 of which admitted that
    it carried on business in 1974 as a consulting engineer, and that
    in or about August 1974 it was engaged by the architect (one of
    the other defendants) for reward to carry out specified work on
    the site.
     (3) After the plaintiff had filed a notice pursuant to Rule
    36.03 of the Supreme Court Rules requiring the delivery by John
    Connell and Associates of the list setting out the names and
    addresses of the partners as they were between 1 January 1974 and
    the date of delivering the list, Messrs Ross McCarthy and
    Nosworthy, then purporting to act for Connell, wrote in reply by
    the letter dated 2 October 1987, to which I have referred,
    stating that "the partner was" Connell.
     (4) No doubt in consequence of the information given by that
    letter to the plaintiff's solicitors, the plaintiff, believing
    that the business named John Connell and Associates was operated
    by John William Connell, sought and obtained by order of this
    Court made on 26 November 1987, leave to amend the second
    defendant's name to "John William Connell".
     (5) On 26 November 1987, having obtained the order referred to
    in (4), the plaintiff filed a notice of discontinuance against
    the third-named defendant, John Connell Holdings Pty Ltd trading
    as John Connell and Associates (document 69).
     (6) On 3 August 1989, Ross McCarthy and Nosworthy, who had by
    then filed a number of documents confirming that they acted for
    John William Connell, filed sworn answers to interrogatories
    administered for his examination, in which Connell confirmed that
    he was the second-named defendant, that he had made inquiries
    from former servants and agents of John Connell and Associates as
    to the answers which he gave, and that he described certain
    interrogatories as vexatious because "I have already admitted
    John Connell and Associates engagement by the architect in
    paragraph 4 of my defence....". 21. (Mr Fairbank maintains in an affidavit that he inserted the word "I" by mistake, but it is difficult to see that Connell should not be bound by what he deposed to.) If the matter had gone to trial at that stage, there can be no question but that it would not have been open for Connell to deny his proprietorship of the business named John Connell and Associates, or his engagement to perform the work in question. But that was not to be. Not only did the matter not go to trial then, but Connell now asserts that he did not authorise the entry of the appearance by Mouldens on his behalf, that he did not authorise the admission by Ross McCarthy and Nosworthy in October 1987 that he was the person behind the business name John William Connell and Associates, and that although he appeared in the records of the Corporate Affairs Commission as the proprietor of that business name, he held it on trust for a company called Winara Pty Ltd, which in fact carried on the business under the name. 22. Connell's assertions in that respect first found expression in a defence to the plaintiff's amended Statement of Claim, that defence having been filed on 18 April 1991. The context in which that defence was filed appears from a passage appearing in the reasons for judgment of the Master given on 6 July 1993 in which the Master summarises the various steps taken in the action which followed the filing of the answers to interrogatories to which I have referred:
    "On 10th January, 1990, that is two days before the return
    of the application for directions, the plaintiff filed an
    application for leave to file an amended statement of claim. The
    affidavit in support of the application had exhibited to it a
    copy of the proposed amended statement of claim. Paragraph 3 of
    that proposed amended statement of claim reads:- 'The second
    defendant John William Connell carried on business in 1974 within
    the said State as a consulting engineer'. Because of the short time between the filing of that application and the return date of the application for directions, the matter was adjourned on 12th January, 1990 to 8th February, 1990. On 8th February, Mr Fairbank appeared for the second named defendant. I decided, on that occasion, to adopt a course which I have adopted quite frequently where there are complex pleadings and amendment of the statement of claim if sought. Rather than give leave to file an amended statement of claim and then have to face a barrage of Rule 46.20 notices, I directed that within 14 days each of the defendants advise the plaintiffs solicitors of any further details required in respect of the proposed amended statement of claim. I then gave time for the plaintiff to consider such requests and, if thought appropriate, to file a further proposed amended statement of claim. The matter was then adjourned to 20th March, 1990. On 13th February, 1990, Ross and McCarthy gave a notice to the plaintiff requiring a more explicit statement of claim, pursuant to Rule 46.20. I had intended that a less formal attitude should be taken, with a view to reducing the costs. However, that is the course which Ross and McCarthy chose to take. That Rule 46.20 notice alleged deficiencies in relation to paragraphs 10, 11, 12, 15, 23 and 25 of the proposed amended statement of claim. In particular, in relation to paragraph 25, a large number of considerable deficiencies were alleged. More importantly, however, there was no reference in the notice to any deficiency, or defect, in relation to paragraph 3 of the proposed amended statement of claim. The sixth defendant also filed a formal Rule 46.20 notice and other defendants took a less formal approach. There were various hearings, over quite a protracted period of time, in relation to challenges to the proposed amended statement of claim. Ultimately, on 12th September, 1990, I gave leave to the plaintiff to file and deliver an amended statement of claim within 28 days. On 1st November, 1990, an amended statement of claim, which is in fact the current statement of claim, was filed. This document is some 72 pages in length together with schedules attached to it and plans which are also part of it. Paragraph 3 of that statement of claim reads:- 'The second defendant John William Connell carried on business in 1974 within the said State as a consulting engineer'. 23. In other words, that paragraph of the statement of claim is in exactly the same form as the paragraph 3 contained in the proposed amended statement of claim, exhibited to the affidavit in support of the application made on 10th January, 1990. It varied only from the amended statement of claim which had been in existence since 26th November, 1987, in that it deleted the words 'under the name John Connell and Associates'. The defence of the second named defendant, John William Connell to the amended statement of claim filed on 1st November, 1990, which was filed on 18th April, 1991, by paragraph 3 read:-

    'The second defendant denies each of the allegations
    contained in paragraph 3 of the amended statement of claim as if
    the same were set out herein and specifically traversed. The
    second defendant says that Winnarra Pty Ltd carried on business
    in 1974 within the State of South Australia as a consulting
    engineer under the business name "John Connell and Associates".
    The second defendant further says that in 1974 he was a director
    and employee of Winnarra Pty Ltd and held the business name "John
    Connell and Associates" as trustee for Winnarra Pty Ltd'." 24. Not surprisingly, the plaintiff challenged Connell's attempts to change direction, and to resile from the consequences of the appearance filed ostensibly on his behalf on 13 May 1986, and from the subsequent steps taken which appeared, on the face of it, to put beyond argument for the purposes of the proceedings, his position as the proprietor of the firm named John Connell and Associates, and that in that capacity he undertook the work in question. 25. The steps taken in that respect by the plaintiff, and the various rulings given, are conveniently set out in an affidavit of Mr Andrew Clare, filed on 20 October 1993 (document 212) which tells the story in sufficient detail for present purposes as from the filing of the amended Statement of Claim by the plaintiff in November 1990. In that affidavit, he puts the matter in this way:
     "2. On 1 November 1990 the plaintiff filed an Amended Statement
    of Claim (Court document No 124). Paragraph 3 of the Amended
    Statement of Claim alleges: '3. The second defendant John
    William Connell carried on business in 1974 within the said State
    as a Consulting Engineer'.
     3. On 18 April 1991 the second defendant, John William
    Connell, filed a Defence to the Amended Statement of Claim (Court
    document No 127). Paragraph 3 of such Defence alleged: 'The
    second defendant denies each of the allegations contained in
    paragraph 3 of the Amended Statement of Claim as if the same was
    set out herein and specifically traversed. The second defendant
    says that Winara Pty Ltd carried on business in 1974 within the
    State of South Australia as a Consulting Engineer under the
    business name "John Connell and Associates". The second named
    defendant further says that in 1974 he was a director and
    employee of Winara Pty Ltd and held the business name "John
    Connell and Associates" as trustee for Winara Pty Ltd'.
     4. By Application dated 20 January 1992 (Court document No
    143) the plaintiff applied to have the Amended Defence struck out
    or in the alternative an order that Connell be required to
    provide a more specific Defence in respect of the allegation that
    he held the business name "John Connell and Associates" on trust
    for Winara Pty Ltd. The Application was supported by an
    Affidavit of Donal George Craig sworn 4 December 1991 (Court
    document No 144) and exhibits thereto (Court documents no's 144A
    - D) and an Affidavit of Edward Robert Harvey sworn the 21
    January 1992 (Court document No 145) and exhibits thereto (Court
    documents no's 145A and B).
     5. The plaintiff's Application dated 20 January 1992 was heard
    by His Honour Judge Bowen Pain, Master of the Supreme Court on 21
    January 1992. In reasons for decision delivered on 28 August
    1992 (Court document No 147) His Honour ordered that paragraph 3
    of the second defendant's Defence be struck out. His Honour also
    granted leave to the second defendant to file a Further Amended
    Defence which properly pleaded to paragraph 3 of the Amended
    Statement of Claim.
     6. The second defendant filed a Further Amended Defence on 31
    August 1992 (Court document No 148) in purported compliance with
    the Order of Judge Bowen Pain made on 28 August 1992. Paragraph
    3 of such Further Amended Defence alleged: '3. The second named
    defendant denies each of the allegations contained in paragraph 3
    of the Amended Statement of Claim as if the same were set out
    herein and specifically traversed. The second named defendant
    says that Winara Pty Ltd carried on business in 1974 within the
    State of South Australia as a Consulting Engineer under the
    business name "John Connell and Associates". The second named
    defendant further says that in 1974 he was a director and
    employee of Winara Pty Ltd.'
     7. On 17 September 1992 the plaintiff made an oral application
    to Judge Bowen Pain for an order that paragraph 3 of the second
    defendant's Further Amended Defence be struck out. In reasons
    for decision delivered on 21 October 1992 (Court document No 149)
    His Honour directed as follows: 'In light of this material, the
    plaintiff is justified in pursuing John William Connell. Connell
    cannot now change the assertions which he has previously made.
    To do so, would prejudice the plaintiff's position. The second
    named defendant cannot now set up the structure, which he
    purports to plead in the second and third sentences of paragraph
    3 of the Further Amended Defence. I therefore strike out
    paragraph 3 of the Further Amended Defence'.
     8. The second defendant appealed against the decision of Judge
    Bowen Pain handed down on 17 September 1992. The appeal was
    heard on 4 December 1992 before the Honourable Justice Perry. In
    reasons for judgment delivered on 16 April 1993 (Court document
    No 187) His Honour dismissed the appeal and directed: 'It should
    be made clear to the second defendant that for the reasons which
    I have given he has put himself in the position where he is
    unable to file a Defence which denies that he was carrying on
    business in this State at the relevant time in the name "John
    Connell and Associates", or conflicts with any such assertion by
    suggesting that the business was conducted in that name by
    another entity'.
     9. In reasons delivered 6 July 1993 (Court document No 191)
    His Honour Judge Bowen Pain determined an application of the
    second defendant dated 8 March 1993 (Court document No 164) which
    amongst other orders sought orders that the Appearance dated 13
    May 1986 for "John William Connell trading as John Connell and
    Associates" be withdrawn or alternatively amended. In dismissing
    the application His Honour directed (page 25) that the second
    defendant was estopped from being allowed to withdraw his
    Appearance and ordered that the time within which the second
    defendant may apply for time to file a further amended defence
    which complied with the terms of the judgment of the Honourable
    Justice Perry of 16 April 1993 be extended for 14 days.
     10. An appeal from the decision of Master Bowen Pain handed
    down on 6 July 1993 was heard by the Honourable Justice Perry on
    26 August 1993. In reasons dated 10 September 1993 (Court
    document No 202) His Honour dismissed the appeal.
     11. On 21 September 1993 the Honourable Justice Perry made a
    number of orders and directions in this action including an
    order: '1. That within 7 days of 14th September 1993 the second
    named defendant, John William Connell, place on file and serve on
    the remaining parties a further amended defence, complying with
    His Honour's reasons for judgment of 16 April 1993.'
     12. The second defendant filed a New Amended Defence dated 16
    September 1993 (Court document No 198) in purported compliance
    with the Order of the Honourable Justice Perry made on the 14
    September 1993. Paragraph 3 of the Defence states: 'The second
    named defendant John William Connell admits that in 1974 he was a
    Consulting Engineer. Save as aforesaid the second named
    defendant denies each of the allegations contained in paragraph 3
    of the amended Statement of Claim as if the same were set out
herein and specifically traversed'." 26. Mr Clare's affidavit which I have just quoted, was filed in support of an application (document 211) filed on 20 October 1993 by the plaintiff for an order that the new amended defence of the second defendant, John William Connell, dated 16 September 1993 - "...be struck out by reason of the failure of the defendant John William Connell to comply with the orders and directions of His Honour Judge Bowen Pain made 28 August 1992, 21 October 1992 and 6 July 1992 and the orders and directions of the Honourable Justice Perry made 16 April 1992, 10 September 1993 and 21 September 1993." 27. Before that application came on for hearing, I heard the application for general directions to which I referred at the start of this judgment. Rather than deal with that application, I thought it better that the issue of the extent to which Connell was to be regarded as bound by the admissions purportedly made on his behalf was better addressed directly rather than by way of a further application to strike out the defence. It seemed to me that such a course was more conducive to the orderly disposal of the proceedings, and offered greater hope that the plethora of interlocutory applications which have virtually brought any hope of sensible progress in the action to a halt, might cease. 28. I approached the matter by giving to counsel for Connell an opportunity to address the Court on all aspects of the matter, and in the course of doing so to deal with the new material which has been placed on file since the decision given by me on 10 September 1993. 29. That material includes not only the so-called new amended defence of Connell, filed on 16 September 1993 (document 198) but also two further affidavits of Mr Fairbank filed respectively on 12 October 1993 (document 209) and on 25 November 1993 (document 223), an affidavit of Mr Duncan Hart of Phillips Fox, the solicitors for Connell, filed 20 September 1993 (document 200), and an affidavit of Mr Richard Twidale, who was a member of the firm of Mouldens at the time the appearance for Connell was filed, but who now lives in London. His affidavit was filed on 1 November 1993 (document 216). Also placed on file by the solicitors for Connell is an affidavit of Ms Belinda McMahon, who was in 1987 an employed solicitor with Ross McCarthy and Nosworthy, as it then was. Her affidavit was filed on 12 October 1993. 30. As well as the affidavit of Mr Clare to which I have referred, Mr Beamond of Mellor Olsson, solicitors for the plaintiff, filed an affidavit (document 201) on 21 September 1993. 31. The affidavit of Mr Twidale is of particular interest. He deposes to the fact that Mouldens was instructed by letter from John Connell and Associates dated 20 July 1984 to act for it in the action. He says that his firm continued to represent John Connell and Associates until 25 September 1987. 32. After referring to the filing of an appearance "for an on behalf of John Connell and Associates", he deposes that his attention was then drawn to the fact that the appearance was not in conformity with the Supreme Court Rules in that it did not contain the names of the proprietors of the firm. He states that Master Lunn QC, as he then was, subsequently granted leave for an amended appearance to be filed disclosing the names of the proprietor of the firm. 33. He states that he thereupon undertook searches of the records of the Corporate Affairs Commission in Adelaide and ascertained, inter alia, that the name John Connell and Associates was registered in the name of John William Connell between 9 March 1959 and 29 September 1976, at which latter date the registration was cancelled. His searches revealed that the business name was re-registered on 29 June 1979 in the name of John Connell Holdings Pty Ltd. He thereupon wrote to John Connell and Associates seeking confirmation of what he describes in his affidavit "of the facts of registration", and inquiring whether the business was conducted under the business name between 29 September 1976 and 29 June 1979. He exhibits a copy of the letter to his affidavit. The reply to his letter from John Connell and Associates confirmed that - "...John Connell and Associates was first registered on 9 March 1959 and the registered proprietor was John William Connell of Victoria". He was informed further that John Connell and Associates ceased trading on 29 September 1976 in order that John Connell and Associates Pty Ltd, registered in Victoria, could be registered as a foreign company in South Australia. 34. Mr Twidale goes on to depose to the fact that as a result of the searches of the Corporate Affairs Office, and of the exchange of correspondence with John Connell and Associates: "I caused an amended appearance to be filed on behalf of John Connell and Associates in the within action dated 13 May 1986." 35. Although he states that during the time which Mouldens acted for John Connell and Associates he never "spoke to or had any correspondence with an individual known as John William Connell", the appearance which was filed on 13 May 1986 was, as I have already pointed out, clearly an appearance purporting to be an appearance by Connell trading as John Connell and Associates. 36. Mr Fairbank's affidavits refer to the circumstances in which it is alleged that Winara Pty Ltd were said at the relevant time to have owned and operated the consulting engineering business "John Connell and Associates", and that John William Connell held the business name of John Connell and Associates on trust for Winara, of which he was a director and shareholder. 37. It is unnecessary to refer in detail to the other matters deposed to in the other affidavits to which I have referred. It is sufficient to say that none of them discloses a proper basis upon which it would be right to depart from the opinions already expressed by me as to the effect which should be accorded to the course of the proceedings in the reasons on appeal which I have previously given. 38. I remain unpersuaded, for example, that the earlier affidavit of Connell (document 182) previously filed by him and commented on in my reasons delivered on 10 September 1993, provides a proper basis for yielding to the proposition that he should not be bound by the course of the proceedings commencing, for relevant purposes, with the appearance filed on 13 May 1986 (document 11), the subsequent defence and the letter from Ross McCarthy and Nosworthy stating that he was the person behind the business name. 39. Quite apart from the reasons expressed by me which led me to that view at pages 16 et seq of my reasons for judgment dated 10 September 1993, it seems to me that not only have Ross McCarthy and Nosworthy (subsequently known as Phillips Fox) clearly been acting personally for him, but their conduct of the proceedings, together with the answers to interrogatories to which I have previously referred, plainly indicate an adoption of the proceedings by him. 40. If the appearance entered on 13 May 1986 was entered without his authority (as opposed to the authority of the then proprietors of the name), I do not see how he can be permitted now to resile from whatever inferences should be drawn from it, having regard to his subsequent adoption of the proceedings. 41. There is early authority to the effect that if an appearance is entered without authority, the Court looks no further, but leaves the party to his or her action against the solicitor: see Anon 1 Salk 86, 91 ER 81. The whole of the somewhat cryptic report of that case reads:
    "Per Holt Chief Justice. The course of this Court is,
    where an attorney takes upon him to appear, the Court looks no
    farther, but proceeds as if the attorney had sufficient
    authority, and leaves the party to his action against him." 42. In another case, reported in the same volume of Salk, the Court took a somewhat different view; see Anon 1 Salk 87:
    "Judgment shall not be set aside because attorney
    appeared without warrant, if he be sufficient. Mod Cases 16. An
    attorney appeared and judgment was entered against his client,
    and he had no warrant of attorney; and now the question was, if
    the Court could set aside the judgment? Et per Cur. If the
    attorney be able and responsible, we will not set aside the
    judgment. The reason is, because the judgment is regular, and
    the plaintiff ought not to suffer, for there is no fault in him;
    but if the attorney be not responsible or suspicious, we will set
    aside the judgment; for otherwise the defendant has no remedy;
and any one may be undone by that means." 43. Subsequent authorities are not consistent as to whether proceedings filed without authority should be struck out or stayed. In re Gray (1891) 45 LT(NS) 743, is an example of a case where an appearance entered without authority was struck out. In Reynolds and Anor v Howell (1873) 8 LR QB 398, the proceedings brought without the authority of the plaintiff were stayed. 44. Here, of course, I have already dismissed an appeal against the refusal of the Master to allow the appearance to be withdrawn. Separately, Connell has failed in an application to revoke the order pursuant to which he was joined in the proceedings. In those circumstances, it is unnecessary further to address the question as to the course to be taken where an appearance is filed without authority, and whether it should be permitted to remain on file. 45. The real question at this stage is whether, being a party to the proceedings, Connell should be held to the terms of the appearance filed in his name, the earlier defences, and the formal admissions made by his solicitors. 46. Clearly, if he was not personally aware of the proceedings beforehand, he was certainly aware of them when he filed the answers to interrogatories. He must be taken to have adopted the proceedings, or more accurately his defence of the proceedings, at that stage. A party who adopts proceedings must be regarded as bound by the formal steps previously taken in them, unless the Court, in the exercise of its discretion, relieves him or her from the consequences of those steps. 47. In the previous decisions given by me, as to this aspect of the matter I have had regard to the decision of Rogers CJ sitting in the Commercial Division of the Supreme Court of New South Wales in Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738. 48. In that case, the defendant sought leave to withdraw certain formal admissions made by letter passing between solicitors. In the letter the defendant admitted, for the purposes of the litigation, that certain particulars set out in the summons in the action were true. 49. Later the defendant maintained that the admission was incorrectly made, and that after a change of solicitors, and certain other instructions had been given, it was clear that there had been a mistake. His Honour Rogers CJ, after referring to a number of authorities, concludes that if the admissions were made in error there was a discretion as to whether or not to allow the admissions to be withdrawn (746). Although he was of the view on the evidence before him that the admissions were correctly made, and their withdrawal should not by reason of that be permitted, he went on to say that even if he was to assume that the admissions were made in error, he would not exercise his discretion by giving leave to withdraw the admissions. 50. He observed (750):
    "In the circumstances, I do not believe that the
    defendant's explanations for making the admission justify an
    order for its withdrawal, even if the admission had been
    incorrectly made. I have reached this conclusion after
    considering two competing policies. One, that an admission
    should not be permitted easily to be withdrawn so as to make the
    procedure meaningless, and on the other that parties should not
    be discouraged from making admissions out of fear that once given
    they can not be withdrawn," 51. In this case, I am not persuaded that the appearance filed on 13 May 1986 should be regarded as having been filed without the authority of Connell. I say this because of the evidence of his adoption of the proceedings, at least from the time he swore the answers to interrogatories, at which stage he was clearly aware that he was being sued, and took no steps to inform the solicitors appearing on the record for him that his ownership of the business name in question was on trust for Winara Pty Ltd. 52. However, even if it is right to think that the appearance and subsequent admissions were made without authority, at least without Connell's authority as opposed to the authority of the then proprietors of the business name, it seems to me that in the particular circumstances of this case, the discretion in favour of relieving Connell of the consequences of the admissions which were made ostensibly on his behalf should not be exercised in his favour. 53. I have previously drawn attention to the fact that the purported registration of a business name by a person who in fact was not carrying on the business is in breach of the Business Names Act 1963, and unlawful (see reasons for judgment delivered on 16 April 1993 at p.10). While it is true that there is no evidence to suggest that the plaintiff was misled by the incorrect registration, it is clear from Mr Twidale's affidavit that he was misled by it. 54. In that sense, therefore, the breach by Mr Connell of the provisions of the Business Names Act resulted in a solicitor filing an appearance in his name. That, in my opinion, is a circumstance relevant to the question whether or not the discretion should be exercised in favour of relieving Connell from the consequences of that appearance and of the later admissions made for the purposes of the proceedings. 55. The strength of the submission put by Mr Connell lies in the suggestion that to bind him to what has been said on his behalf before now precludes him from adducing evidence at the trial which might persuade the trial Judge of the truth of the suggestion now made that he held the business name in trust. It is true that the Court does not lightly take a step which might preclude the Court from hearing all of the evidence relevant to any factual issue. But under the application of the case flow management principles, when, for example, adjournments are refused and the Court insists that matters proceed even though not ready, the same situation will from time to time arise. 56. The desire by a party to put all relevant evidence before the Court must be balanced against ensuring that the proceedings are conducted in an orderly fashion. The parties should not be allowed to blow hot and cold, when to permit such a course would operate to prejudice the orderly disposal of the proceedings. In this case, the concessions made at an early stage of the proceedings, the changes and the restructuring of the proceedings which followed in consequence of those concessions, and as it now appears, the unlawfulness inherent in Mr Connell's action in registering a business name which he now asserts he did not conduct himself, all tend to the view that this is one of those cases where Connell must be left with his action against those who are or were his solicitors on the record in these proceedings. 57. The conduct of litigation would break down, and the business of the Court would become unmanageable, if parties were not entitled to rely upon pleadings and the formal steps taken in the course of litigation. While no doubt, as I have indicated, there is a discretion in certain circumstances to relieve a party of the consequences of those formal steps, for the reasons which I have given, and for the reasons given in support of the two earlier judgments which I have pronounced, which have not been the subject of an appeal, or at least an appeal which had proceeded, I have reached the firm view that this is not a case where that discretion should be exercised. Nothing has emerged in the material put before the Court since these decisions were made which persuades me that some other course should now be taken. 58. I propose, therefore, to make an order in terms which I have foreshadowed, although I will give to counsel an opportunity to speak to the final terms of that order. 59. Before parting with the matter, I should say that Mr Fairbank submitted that s.59j of the Evidence Act did not authorise an order dispensing with the rules of evidence except as to a matter 'not genuinely in dispute' (ss.91)(a)) or where compliance with the rules of evidence 'might involve unreasonable expense or delay' (ss.(1)(b)), and that neither consideration was of application. It must be accepted that ss.(1)(b) would probably not support the proposed order. But in my opinion, ss.(1)(a) is applicable. Despite Mr Fairbank's argument to the contrary, I do not think that it can properly be asserted that a matter which has been the subject of four adverse rulings by this Court can thereafter be the subject of a genuine dispute. 60. In any event, the same result may be achieved by utilising the power to strike out pleadings in part, together with the power to order that 'evidence of any particular fact shall be given at the trial in such manner as may be specified in the order' (see R 78.01(2) and the notes in Lunn Civil Procedure, South Australia page 9737).