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

[1993] SASC 4158

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Practice - withdrawal of appearance - Asserted by defendant that filing of appearance, and subsequent conduct of proceedings, including admission in defence that the defendant in question was the proprietor of the business name with which the plaintiff contracted, was all done in his name by two firms of solicitors, acting in succession, without his authority - held that his assertion that they had acted without authority could not stand analysis against the terms in which he had sworn answers to two sets of interrogatories and that the Master appealed from had correctly so held - held further that, having regard to the long history of the matter, and the defendant's conduct in allowing the defence to the proceedings to go ahead in that way, the other parties having altered their positions in reliance upon the manner in which he had conducted his defence to the proceedings, a Master had correctly refused an application to withdraw the appearance. Cooners Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738, applied.

HRNG ADELAIDE, 26 August 1993 #DATE 10:9:1993
Counsel for plaintiff:         Mr D E Clayton QC
   with him Mr M Beamond
Solicitors for plaintiff:     Mellor Olsson
Counsel for defendant:J W Connell
   Mr P Rice with him
   Mr A Fairbank
Solicitors for defendant:     Ross and Mccarthy
Remaining defendants:         No attendance

ORDER
Appeal dismissed.

JUDGE1 PERRY J This is an appeal against an order of a Master dismissing an application by the defendant John William Connell to withdraw his appearance. The appeal also extends to the refusal by the Master to allow, as an alternative to withdrawal of the appearance, an amendment to the appearance, and to his refusal to set aside an order of another Master made in 1987 which substituted Mr Connell as the second defendant in the action. 2. This is not the first appeal by the same defendant to come before me in this matter. In April 1993 I dismissed his appeal from an order of a Master, striking out a paragraph of his defence (see Judgment No 3899, delivered 16.4.93, Court file document 187). 3. The two appeals and the applications which preceded the orders appealed from in each instance all reflect a desire by the second defendant to resile from the consequences of an appearance filed ostensibly on his behalf on 13 May 1986 (document 11). That appearance was expressed to be an appearance "for John William Connell trading as John Connell and Associates of 168 Melbourne Street, North Adelaide". From the terms of that appearance, from various admissions made thereafter in a defence filed on his behalf and in other documents, and by implication to be drawn from the manner in which the proceedings have been conducted, unless Mr Connell can in some way be permitted to negative the overwhelming conclusion that he was properly joined, and that he conducted the business of John Connell and Associates at the relevant time, those matters could not be placed in issue at the trial. In order to understand the present appeal, it is necessary to make some observations as to the history of the matter. 4. The action concerns a building constructed for the plaintiff on certain land at Ridleyton between 1978 and 1979. The plaintiff sues a number of defendants who are all either architects or engineers. The plaintiff seeks damages from them on the footing that they were negligent in failing to avoid subsidence of soil which, after the building was erected, resulted in damage to its foundations. 5. 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). 6. 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". 7. That appearance was endorsed: "This appearance if filed by Mouldens of and whose address for service is 54 Currie Street, Adelaide, solicitors for the defendant John Connell and Associates." 8. 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". 9. A summons for directions (document 7) came on for hearing before Master Lunn, as he then was, on 18 December 1984. Mr Twydale 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". 10. No doubt that order was made on the basis of an affidavit sworn by Mr Twydale 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." 11. 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". 12. 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 Twydale on behalf of Mouldens as "solicitors for John Connell Holdings Pty Ltd trading as John Connell and Associates". 13. 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 the 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. 18. 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. 19. 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 inquired 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." 20. 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." 21. The defence there referred to was apparently a defence filed by Mouldens on behalf of the second-named defendant, then described, of course, as John Connell and Associates, on 20 October 1986 (document 22). 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....." 23. 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. I have so far referred to salient features of the course of the proceedings, for present purposes, down to August 1989. 24. The Master appealed from, in his reasons for judgment, summarised the position as at that stage as follows (13):
    "As at August 1989, it was clear to the second named
    defendant John William Connell and to his solicitors, Ross and
    McCarthy, as follows:-
     1. The second named defendant in the action was John William
    Connell.
     2. Paragraph 3 of the statement of claim at that time read:-
    'The second defendant, John William Connell, carried on business
    in 1974 within the said State as a consulting engineer under the
    name John Connell and Associates'.
     3. That paragraph 3 of the defence of the second defendant
    read:- '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. That John William Connell had sworn two sets of answers to
    interrogatories, which acknowledged that he was the second named
    defendant, and that Ross and McCarthy had prepared and filed
those answers on his behalf." 25. I would add by way of comment that the substitution of John William Connell as defendant in place of John Connell and Associates occurred as a result of two circumstances: the first was the concern by the solicitors acting for the second defendant to comply with what they perceived to be their obligation under Order 48, as it then was, and the second, the information in the letter from Ross McCarthy and Nosworthy given in response to the notice served by the plaintiff pursuant to Rule 36.03. 26. The Master appealed from goes on in his reasons for decision to refer to other interlocutory steps which followed in 1989 and early 1990. It is convenient to refer to his reasons to summarise further events in the action from thereon (14):
     "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'. 27. 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'." After the plaintiff had filed a Rule 46.20 notice in respect of the amended defence, on 14 August 1991, John William Connell filed a further amended defence (document 137) in which paragraph 3 read in exactly the same terms as the defence filed on 18 April 1991, which is referred to in the passage I have just quoted from the reasons of the Master. 28. For the reasons set out in reasons for decision given on 28 August 1992 (document 147), the Master, upon the application of the plaintiff, struck out paragraph 3 of the second defendant's defence as it then stood. Pursuant to leave given by the Master, the second defendant then filed a further amended defence on 4 September 1992 (document 148) paragraph 3 of which reads: "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 Winnara Pty Ltd carried on business in 1974 within the State of South Australia as a consulting engineer under the business named 'John Connell and Associates'. The second named defendant further says that in 1974 he was a director and employee of Winnara Pty Ltd." 29. On a further application by the plaintiff to strike out that paragraph of the defence, for reasons delivered by Master Bowen Pain on 21 October 1992 (document 149), it met the same fate as its predecessor. Part of the Master's reasons are as follows: "As I have indicated the plaintiff seeks to strike out the second named defendant's defence, on the basis that the amendment does not comply with my order of 28th August, 1991 and, further, that the defendant now seeks to deny something which was previously admitted. I propose to deal with this matter on the basis of the second submission, because in reviewing the matter for the present application, it seems to me that my examination of the background, in my reasons of 28th August, was not in sufficient depth. Although the current defence relates to the amended statement of claim, filed on 1st November, 1990, it must be considered in the light of the previous pleadings and actions taken in respect thereof. The plaintiff initially joined John Connell and Associates as a defendant. As a result of procedural steps, in accordance with the rules as they have been from time to time, the plaintiff was told that John Connell and Associates was at the relevant time a business name owned and operated by John William Connell. Mr Fairbank argued that that information was not provided by John William Connell, or by solicitors instructed by him. Mr Fairbank submitted that Mouldens were not instructed by John William Connell, but by other interests. That may be so, but the response to the Rule 36.03 notice was provided by the current solicitors for the second defendant. Furthermore, Mr Fairbank himself has perpetuated the understanding by his affidavit of 6th June, 1989 to which I have referred. The answers to interrogatories further perpetuate that understanding. In the 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." 30. In the reasons delivered by me on 16 April 1993 (document 187), in the course of which I dismissed an appeal against that decision, I made the following observations: "In my opinion, although there may have been some confusion in the description of the solicitors for John William Connell, he is bound by the terms of the appearance filed on 13 May 1986, which specifically stated: 'Enter an appearance in this action for John William Connell trading as John Connell and Associates ...' 31. That appearance has been on the file ever since and the litigation has been conducted on the basis of the assertion in that appearance. Although an appearance is not a pleading, the assertion contained in it must be given effect to. In particular, it is not open to John William Connell to file a defence which conflicts with the assertion in the appearance. A party cannot be allowed to blow hot and cold, particularly in circumstances when other parties have altered their position upon the basis of an assertion which finds expression in the appearance. It is true that an appearance may be withdrawn with the leave of the Court, or the Court may, in the interests of justice, allow a party to withdraw an admission made formally for the purposes of the proceedings (see Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738). But having regard to the history of these proceedings, and the long period of time over which the plaintiff was induced to believe and act to his detriment upon an admission that John William Connell traded as John Connell and Associates, to permit a withdrawal of the appearance (which in any event has not been sought) or to allow the second defendant to resile from the assertion contained in it, or to make an assertion which negatives or contradicts it, would be contrary to the interests of justice and could not possibly be entertained." 32. I went on to say:

    "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. In dismissing the appeal, I would
    at the same time direct that the second defendant, if it is so
    advised, file a further amended defence complying with the
    conclusions which I have reached within five days of today." 33. On 21 April 1993 the second-named defendant amended the further amended defence which he had filed on 4 September 1992, and in particular paragraph 3, so that it now reads:
    "The second named 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 named defendant says that any admissions to the contrary
    were made without his knowledge or authority." 34. While it may not be that the further amended paragraph is literally in conflict with the direction I gave in dismissing the earlier appeal, in that it does not deny that the second defendant was "carrying on business ..... at the relevant time in the name John Connell and Associates", for the reasons given by me before, it would appear to be equally as objectionable as its predecessor. No doubt it will be made the target of a further strike out application. 35. For reasons which have not been made clear to me, but which seem to reflect a lack of confidence in paragraph 3 of the amended defence as it presently stands, on 30 April 1993 the second defendant brought on yet another application further to amend paragraph 3 of the defence (document 179) seeking to substitute the following in its place: "The second named defendant John William Connell admits that in 1974 he was registered, under the BusinessNames Act 1963, as the proprietor of the business name 'John Connell and Associates'. The second named defendant says that he held the business name 'John Connell and Associates' on trust for Winara Pty Ltd and that he executed a deed of trust to that effect on the 5th day of April 1974. The second named defendant further says that in 1974 he was a director and employee of Winara Pty Ltd and 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'. 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 was set out herein and specifically traversed." 36. The application to substitute that paragraph in the defence has yet to be heard. 37. For good measure, on 10 May 1993, the second defendant's solicitors took out yet another application (document 185) this time seeking orders: "1. That, pursuant to Rule 84.12 of the Supreme Court Rules 1987, the direction or order of His Honour Justice Perry 'that the second defendant, if it (sic) is so advised, file a further amended Defence complying with the conclusions which I have reached within five days of today' be varied by deleting the words 'complying with the conclusions which I have reached' or, in the alternative, that his order be set aside." 38. The application the dismissal of which is the subject of the appeal now before me, was issued on 8 March 1993 (document 164). That date lies between the date upon which I heard the previous appeal from the Master (4 December 1992) and the date upon which I delivered judgment on that appeal (16 April 1993). 39. The application sought orders as follows:,
"1. That, pursuant to Rule 3.04(b) of Supreme Court Rules
    1987, that the Appearance dated the 13th day of May 1986 filed
    herein for "JOHN WILLIAM CONNELL TRADING AS JOHN CONNELL and
    ASSOCIATES" by Mouldens, the solicitors for JOHN CONNELL
    HOLDINGS PTY LTD TRADING AS JOHN CONNELL and ASSOCIATES be
    withdrawn as having been filed without authority and/or by
    mistake.
     2. In the alternative and/or in addition to 1, that pursuant
to Rule 53 of the Supreme Court Rules 1987, the Appearance dated
    the 13th day of May 1986 filed herein for "JOHN WILLIAM CONNELL
    TRADING AS JOHN CONNELL and ASSOCIATES" by Mouldens, the
    solicitors for JOHN CONNELL HOLDINGS PTY LTD TRADING AS JOHN
    CONNELL and ASSOCIATES be amended to read "WINARA PTY LTD
    TRADING AS JOHN CONNELL and ASSOCIATES".
3. That, pursuant to Rule 84.12 of the Supreme Court Rules
    1987, the order of Acting Master Boehm substituting JOHN WILLIAM
    CONNELL as the second defendant in place of "JOHN CONNELL and
    ASSOCIATES" be set aside.
4. That, pursuant to Rule 46.18 of the Supreme Court Rules
    1987, so much of the plaintiff's Statement of Claim as refers to
    JOHN WILLIAM CONNELL rather than "JOHN CONNELL and ASSOCIATES"
    be struck out as not complying with the Rules as to pleadings
    and tending to cause embarrassment or delay in the proceedings.
5. That, pursuant to Rule 75.02 of the Supreme Court rules
1987 and Section 48(5) of the Limitation of Actions Act 1936,
    the issue of whether the plaintiff's action against the second
    defendant is time-barred by Section 35 of the Limitation of
    Actions Act 1936 be heard and determined as a preliminary issue
    before the trial on liability sought by the plaintiff in
paragraph 29(a) of its Statement of Claim." 40. In his reasons for the order appealed from, the learned Master dealt only with paragraph 1, 2 and 3, from which I assume that they were the only paragraphs brought forward for resolution at that stage. 41. The application was supported by various affidavits. There were two affidavits of Mr Andrew Fairbank, a member of the firm of solicitors representing the second defendant. The other was an affidavit sworn by the second defendant himself. 42. In his affidavit, Mr Connell states that on 5 April 1974 he executed a deed of trust declaring that he held the business name John Connell and Associates in trust for the company Winara Pty Ltd. He exhibits a copy of the deed of trust to the affidavit. He states that he was a director, shareholder and employee of Winara. 43. He states that the position had changed by 1983 by the time the writ was issued, in that a company called John Connell Holdings Pty Ltd was then carrying on the business of John Connell and Associates. Mr Connell said that he was chairman of John Connell Holdings Pty Ltd. He denies that he personally participated in the giving of instructions for the defence of the plaintiff's claim. 44. He proceeds to comment on a number of matters which he says that he was informed about in April 1993 by one Geoffrey Robin Masel, whom he describes as his "personal solicitor". He deposes to the fact that he was informed by Mr Masel on that date that on 13 May 1986 Mouldens, the solicitors for John Connell Holdings Pty Ltd, entered an appearance for him trading as John Connell and Associates. He states that the appearance was not authorised by him, and was entered without his knowledge or consent. As to the defence filed by Mouldens, he denies that the admission contained in it that the business was carried on by him was authorised by him, and furthermore, he asserts that it was not in accordance with the facts. Likewise, he denies the authority of Ross McCarthy and Nosworthy to have advised as they did on 2 October 1987 that he was the sole partner of John Connell and Associates. He denies that he was aware of the fact that he was joined as a defendant by the order of 26 November 1987. 45. Mr Connell goes on to state that he was not aware of the entry of the appearance by Mouldens, the admission made in the defence, and the admission made in the letter from Ross McCarthy and Nosworthy until he was informed about them by Mr Masel on 5 April 1993. 46. The affidavit is at odds with the answers to interrogatories to which I have referred which were filed on 3 August 1989 (document 106). The answers to interrogatories make it clear that at the time they were sworn Mr Connell must have been aware that he was the second-named defendant, and if his answers were true, he had made proper enquiry from the former servants and agents of John Connell and Associates "who may have had any knowledge of the matters inquired into", and whom he had been able to contact. According to the affidavit, his answers were based upon that knowledge. In the answers, he acknowledges paragraph 4 of the defence in which the admission to which I have referred was made, and objects to certain of the interrogatories on the basis that he had admitted in his defence the engagement of John Connell and Associates by the architect, who is one of the other defendants. 47. The same comments apply to the set of answers to interrogatories administered by the defendant Kinhill Pty Ltd. 48. Not only were Ross and McCarthy solicitors on the record for Mr Connell, but unless the two sets of answers to interrogatories were false and were not sworn by him, which has not been suggested, I do not see how it is other than proper to infer from them that he was well aware of his involvement in the action, of the admissions that had been made on his behalf, and of his representation in the proceedings by Ross and McCarthy at that time, if not before then. 49. The appellant is not in a position to challenge his joinder in the action for the reason that, as I have pointed out, a member of Mouldens was present at the time the order was made. On the contrary, there was an adoption of the proceedings by him and by Ross and McCarthy having regard, inter alia, to the very many documents subsequently filed on his behalf by Ross and McCarthy, and by his swearing of the answers to the interrogatories for his examination. 50. The affidavits of Mr Fairbank do not take the matter any further, as they simply exhibit and refer to material going to the question of the identity of the entity or person carrying on the business of John Connell and Associates. 51. At this stage of the case, the question is not whether there is evidence which might tend to suggest that someone other than John William Connell carried on that business. At this stage of the matter, the only question is whether the second defendant, John William Connell, should properly be regarded as having conducted the defence of the proceedings in such as way that he is precluded from denying what was clearly asserted on his behalf in the appearance, and admitted in the defence, and in the response to the formal request for the identity of the partners carrying on the business of John Connell and Associates. 52. The assertion in the appearance is but one of the many matters which go to the question whether the discretion of the Court to permit a party to withdraw an admission or withdraw an appearance should be exercised in their favour. It is unnecessary for me to repeat what I said in the reasons given for my last decision in this matter as to the decision of Rogers CJ in Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738. I entirely agree with the judgment pronounced by Rogers CJ in that case, and in particular his observations that while the Court may grant leave for an admission to be withdrawn if the justice of the case so requires, the Court may decline leave to withdraw an admission, notwithstanding that the admission was made in error. 53. After referring to the history of the matter, the learned Master under appeal made the following observations in his reasons (23):
    "It is against this background that I have to consider the
    second defendant's application filed on 8th March, 1993. That
    application is supported by affidavits of Andrew Ian Fairbank
    sworn on 10th May and 14th May, 1993 and an affidavit of John
    William Connell sworn 4th May, 1993. Paragraph 2 of Connell's
    affidavit deals with the proprietorship of the business name
    John Connell and Associates and the deed of trust. Paragraph 3
    of the affidavit reads:- 'In 1983 at the time of the issue of
    the writ in this action, John Connell Holdings Pty Ltd was
    carrying on the business of John Connell and Associates. I was
    at that time the chairman of John Connell Holdings Pty Ltd. I
    did not personally participate in the giving of instructions for
    the defence of the claim brought by the plaintiff in this action
    on behalf of either John Connell Holdings Pty Ltd of Winara Pty
    Ltd.'
     The affidavit goes on in paragraph 4 to set out various
    matters, of which Connell was informed by his personal solicitor
    on 5th April, 1993. The only inference, which can be drawn from
    the affidavit, is that Connell is suggesting that until 5th
    April, 1993, he knew nothing of these proceedings. That cannot
    be true. As has already been mentioned in the examination of
    the background of the file, Connell swore answers to two sets of
    interrogatories in August, 1989 and Mr Fairbank has indicated,
    as I have already mentioned also, that he has at all times been
    instructed by John William Connell when he has appeared at Court
    in this matter. At paragraph 4(v) of his affidavit, Connell
    says:- 'That on 1st day of November, 1990, an amended statement
    of claim was delivered in this action alleging that I carried on
    business as a consulting engineer in South Australia without
    even any reference to the firm of John Connell and Associates.
    I was aware thereafter, that a number of steps had been taken by
    Messrs Ross and McCarthy in an attempt to have me removed
    personally from the action.'
     That of course, is simply not true. The first action which
    could be classified as an attempt to remove Connell from the
    action is the current application, seeking to withdraw the
    appearance. That application, as I have already indicated, was
    filed on 8th March, 1993. The affidavit of Fairbank, filed on
    10th May, 1993, deals with the matter of the trust relating to
    the business name and the matters sworn to by Connell in his
    affidavit of 4th May, 1993. The affidavit is, in fact, in
    support of the application to vary the order of Perry J, which
    application was filed on 10th May, 1993. The affidavit of Mr
    Fairbank, filed on 14th May, simply exhibits copies of the
    minutes of Winnara Pty Ltd and John Connell and Associates Pty
    Ltd for various dates dealing with the business name. Those
    matters are, in my view, irrelevant to the current application.
    The material, in my view, does not establish any basis upon
    which it could be said that the appearance dated 13th May, 1986
    was filed by mistake. In so far as it is alleged that it was
    filed without authority, in my view, since the second named
    plaintiff and his solicitors have stood by, since at least
    August, 1989, and taken part in a large number of interlocutory
    applications without taking any action to remedy the alleged
    defect, the second defendant must now be estopped from being
    allowed to withdraw his appearance, on that ground. So far as
    the application, in paragraph 2 of the application of 8th March,
    1993, is concerned, it must also fail for the same reasons. The
    application, in paragraph 3, to set aside the order of Master
    Boehm must also fail for the same reasons." 54. On the hearing of the present appeal, Mr Rice, who appeared for John William Connell, contended that to allow the present appearance to stand and the matter to proceed to trial on that basis, would be "contrary to the interests of justice". He developed that submission by suggesting that Mr Connell "could not be prevented from giving evidence, and as part of his case at trial, being permitted to assert what he is in effect trying to assert by his amended appearance, and indeed, had tried to assert by virtue of his amended defence - in other words, he wants to say that he is not liable and that he is not properly joined as a party to these proceedings". He went on to submit: "Surely Mr Connell, through his counsel, would be able to, for instance, cross examine the plaintiff's witnesses and then, indeed, himself give evidence at a later time and may be adduce evidence in support of his claim that he was not properly joined as a party, and is not, indeed, liable in the action." 55. That submission belies a misconception as to the function of pleadings. If the present order of the learned Master stands, and if, furthermore, the defence is brought into line with the view expressed in the rulings of the Master, and by me at the hearing of the last appeal, namely, that the second defendant is bound by the assertion made in the first appearance which he filed, and the admission made subsequently in his defence, and should not be permitted now to file a defence denying those matters, it would not be open for the second defendant at the trial to adduce evidence to the contrary. 56. I put to Mr Rice during the course of argument, and I repeat, that the main function of pleadings is two-fold. They serve to put the opposing party on notice as to the nature of the allegations which are pursued in the action by the party filing the pleading, and they serve to define the issues. The function of defining the issues has the consequence that the taking of evidence is confined to evidence relevant to those issues. Evidence is inadmissible and irrelevant if it is not evidence relevant to the issues as struck by the pleadings. 57. If there is an admission in the pleadings, evidence as to the matter admitted is irrelevant and inadmissible. Furthermore, evidence cannot be led at the trial which is inconsistent with the pleadings filed by the party concerned. If it were otherwise, the pleadings may as well be torn up. I gave the example to Mr Rice of an admission in the pleadings that the defendant was the driver of a motor car which had caused injury to the plaintiff. In the event of such an admission, the defendant would be unable to lead evidence at the trial to the contrary. He may only do so if he obtains an appropriate amendment of the pleadings. 58. Here the question of any amendment to deny something which was previously admitted in the defence has already been dealt with as a pre-trial matter. The terms of the appearance filed on behalf of the second defendant were just one of a number of matters relied on in refusing the defendant leave to resile from the admission which he had made in his defence. The reasoning behind the dismissal of the last appeal, and the various rulings of the Master, is that the plaintiff had clearly altered its position to its prejudice on the basis perpetuated in the conduct of the litigation by the second defendant over several years. 59. Mr Rice referred to authorities which say that a case is decided on the evidence, not the pleadings. That is perfectly true. At the end of the trial, the Court must give judgment on the evidence, not on the assertions in the pleadings, and furthermore, is not limited to the relief claimed in the pleadings. So that the pleadings have very little work to do at the end of the trial. But this does not mean to say that the admission of evidence can be other than upon the basis which I have indicated, and absent any amendment to the pleadings, the evidence must be confined to the issues raised in the pleadings, and these issues alone. 60. Mr Rice further contended that it would be unjust to Mr Connell not to allow him to give evidence in support of what he now says was the true position with respect to the proprietorship of the business. But the effect of a ruling that a party is precluded from disputing something which he has previously admitted will inevitably be that he will be unable at the trial to lead evidence which he otherwise might be able to lead. 61. Mr Rice understated the position when he said: ".... I am in a slightly difficult position. In many ways, I will be asking Your Honour to divorce yourself from what has been done by all the solicitors along the way." 62. Parties are bound by what their solicitors do. If the Courts cannot rely upon the formal steps taken by solicitors who are the solicitors on the record, the business of the Courts would become unworkable. If two different firms of solicitors purporting to act on behalf of Mr Connell go on over several years conducting the litigation with the clearest possible acknowledgment in document after document that they are acting for Connell, and that his status as the person conducting the business of John Connell and Associates was admitted, a point is reached at which Mr Connell is unable to resile from that. 63. Notwithstanding those comments, I suppose it is theoretically possible for a party to be able to resile from everything that had been done on his behalf by solicitors purporting to act for him in the course of the litigation, if in fact there never was any authority for them to represent him at all. In that respect, I have been invited to decide that aspect of the matter on the basis of the affidavit and other evidence before me. But as to that assertion, I agree with the conclusions of the learned Master. In particular, I would not be prepared to accept the affidavit of Mr Connell as evidence that he never at any time authorised an appearance to be filed on his behalf, or the various admissions to be made on his behalf, or the litigation to be conducted in his name. There are a number of reasons why his assertion to that effect should not be accepted:

     (a) The terms of the sworn answers to the two sets of
    interrogatories filed in August 1989, unexplained by the
    affidavit filed by Mr Connell in support of the application now
    in question.
     (b) The assertion in his reasons by the Master, which there
    was no attempt to contradict in the hearing before me, that "Mr
    Fairbank has indicated, as I have already mentioned also (sic)
    that he has at all times been instructed by John William Connell
    when he has appeared in Court in this matter".
     (c) The fact that there is no affidavit or evidence from Mr
    Twydale, or anyone from Mouldens, to explain how it came about
    that they filed the appearance for Mr Connell in the form in
    which they did.
     (d) The fact that there is no affidavit from anyone from Ross
    and McCarthy, Solicitors, as they then were, explaining how it
    came about that they made the admission which they did in their
    letter dated 2 October 1987.
     (e) In his affidavit sworn on 4 May, Mr Connell states (para
    3): "I did not personally participate in the giving of
    instructions for the defence of the claim brought by the
    plaintiff in this action on behalf of either John Connell
    Holdings Pty Ltd or Winara Pty Ltd." 64. That assertion is unsupported by any evidence from any officer of John Connell Holdings Pty Ltd, or any employee of John Connell and Associates, or any person from Winara Pty Ltd, to indicate that they were the source of instruction. The source of instruction which gave rise to the various admissions, and which resulted in the conduct of the litigation in the manner to which I have referred, has remained unidentified. No light has been shed on the circumstances giving rise to the fact that two firms of solicitors in succession perpetuated what is now asserted to be a mistake. If two firms of solicitors in succession did not get their instructions clear, and conducted the litigation on a basis which is not in accordance with what is now asserted to be the true position, it may be that Mr Connell has his remedies against them. 65. It is clear, from what I have drawn attention to, that Mr Connell did personally become involved in the litigation, and cannot be heard to suggest now that everything that was done was done without his authority. 66. I accept also the argument advanced by Mr Clayton QC on behalf of the plaintiff that to allow the appearance to be withdrawn would achieve nothing. So long as the joinder of John William Connell as the second-named defendant remains, and for the reasons which I given, there is no reason to disturb the order pursuant to which he was joined, to allow him to withdraw his appearance would simply mean that there would then be no appearance on file for him, and he would be in default of appearance. It could not possibly be right to allow, as is sought in paragraph 2 of the application which was before the learned Master, an amendment of the appearance so that it indicated that the party appearing was "Winara Pty Ltd trading as John Connell and Associates". 67. There is now no allegation in the pleading that the second defendant did trade as John Connell and Associates. The amended Statement of Claim, as filed on 1 November 1990 (document 124), simply asserts in paragraph 3: "The second defendant John William Connell carried on business in 1974 within the said State as a Consulting Engineer." 68. Winara Pty Ltd is not a party to the action. It would not be proper to allow it to file an appearance in the form suggested. 69. In my opinion, the decision reached by the learned master was, in all respects, clearly right. 70. Before parting with the matter, I make some observations about the present state of the matter. 71. As I pointed out in the reasons for judgment delivered in April 1993, the writ was issued in October 1983 but the action had not at that stage come to trial. That is still the case. I observed then that the pleadings and other pre-trial steps had followed a "tortuous and convoluted path". 72. Nothing has occurred since then which has done other than confirm and perpetuate that view. Quite apart from the application which preceded the making of the order now under appeal, the Master is still faced with a plethora of unresolved interlocutory applications of one kind or another. 73. The amended Statement of Claim upon which the action proceeds is 72 pages long, not including a number of plans and schedules attached to it (document 124). All the defendants deny liability, and most of them blame each other for whatever went wrong with the building. The pleadings are lengthy and wordy. There have been a number of requests emanating from all parties for better particulars. Many of the pleadings have been amended more than once. Lengthy interrogatories have been exchanged. The process of discovery has become distended. Many of the parties have had more than one attempt at discovery, and supplementary lists of documents were coming into Court as late as July of this year. 74. When this matter was last before me, I commented that "there is no reason apparent to me from the file why this action should not have been brought to trial some years ago. It should now be brought to trial without further delay". 75. It is clear that until it is brought to trial, the parties will go on conducting what can only be described as a paper war. I propose to consult with the Master supervising the matter to see what steps can be taken to end that process, and bring the matter on for hearing. 76. For the reasons which I have given, the appeal must be dismissed.