SFJ Pty Ltd v Brady Constructions Company Pty Ltd and Ors

[2001] VSC 487

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8229 of 1998

SFJ PTY. LTD.	Plaintiff
v.
BRADY CONSTRUCTIONS COMPANY PTY. LTD. AND OTHERS	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 DECEMBER 2001
DATE OF JUDGMENT:	18 DECEMBER 2001
CASE MAY BE CITED AS:	SFJ PTY. LTD. v. BRADY CONSTRUCTIONS COMPANY PTY. LTD. & ORS.
MEDIUM NEUTRAL CITATION:	[2001] VSC 487

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CATCHWORDS:      Practice and Procedure – Admission of liability by solicitor of party – Admission made in letter not document filed in the proceeding – Application for judgment by party to whom admission made – Rules of the Supreme Court – Rule 35.04.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. R. Moore	Mills Oakley
For the Defendants	Mr. J.R. Dixon	Scanlan Carroll

HIS HONOUR:

1. The proceeding arises from a number of commercial agreements between the parties involving a residential development at 337 Station Street, Fairfield.  The transactions are somewhat complex.  Having regard to the issue I am required to determine it is unnecessary to recite them in these reasons for judgment.

1. Since August last the solicitor for the plaintiff have been endeavouring to resolve the issues in dispute between the parties with the solicitor for the defendants with a view to shortening the trial of the proceeding and reducing the cost of the litigation.

1. In his affidavit of 26 November 2001 filed in relation to the present dispute the defendants' solicitor has sworn:

"3.On 29 August 2001 I spoke with the plaintiff's solicitor, Ms. Tracey Rothwell, and advised on a without prejudice basis that I was disposed to obtain my clients' instructions to admit liability with the trial to proceed as an assessment of damages.  I advised Ms. Rothwell that I would further contact her and that I would make enquiries of the Listing Master's secretary as to whether it was necessary for any steps to be taken regarding the trial date listed as the estimated duration of the trial would be revised if the matter were to proceed solely as an assessment of damages."

1. The reference to "the trial date listed" is a reference to the order of the Listing Master of 31 July 2001 whereby the Listing Master fixed the proceeding for hearing on 24 April 2002 on an estimate of duration of three to four days.

1. On 1 November 2001 the defendants' solicitors wrote the following open letter to the plaintiff's solicitor:

"Dear Madam,

Brady Constructions Pty. Ltd. and Ors. v. SFJ Pty. Ltd.
Supreme Court Proceeding Number 8229 of 1998

I refer to our recent communications in the above regard.

We confirm that we are instructed by our clients to admit liability in this matter.  We advise that the issue of quantum remains to be finalised.

Yours faithfully."

1. On 19 November 2001 the plaintiff's solicitor filed a summons in the Court seeking an order pursuant to the provisions of Rule 35.04 of the Supreme Court Rules that judgment be entered against the defendants with damages to be assessed.

1. Rule 35.04 reads:

"35.04  Judgment on admissions

(1)Where a party makes admissions of fact in a proceeding, whether by his pleading or otherwise, the Court may, on the application of any other party, give the judgment or make the order to which the applicant is entitled on those admissions.

(2)The Court may exercise its powers under paragraph (1) without waiting for the determination of any other question in the proceeding."

1. On 27 November 2001 the Listing Master ordered (inter alia) that judgment be entered against the defendants with damages to be assessed.

1. The defendants now appeal from that order to a Judge of the Court.

1. It is not that the defendants seek to resile from the admission of liability made in the letter of 1 November 2001.

1. Indeed, if their appeal is successful, their counsel has proposed that in the order I then make in the proceeding the following words appear under "Other Matters":

"The defendants and each of them consent to a Master giving judgment or making an order at the trial of the proceeding"

and that paragraphs 1, 2 and 3 of the order read:

"1.       The appeal is allowed.

2.The proceeding is referred to Master Wheeler for trial on an estimate of two days on 17 April 2002.

3.      Trial shall be by affidavit."

1. What counsel for the defendants contends is that the Listing Master had no power to enter judgment against the defendants pursuant to Rule 35.04 because the admission of liability made in the letter of 1 November was not an admission of fact and was not an admission made in a proceeding.

1. In my opinion counsel's first contention cannot be sustained.

1. An admission of liability is comparable to a plea of guilty to a criminal charge.  It is an admission of every fact a plaintiff would otherwise be required to establish to entitle the plaintiff to the entry of judgment in his or her favour.

1. An authority relied upon by counsel for the defendants with respect to his second contention is the decision of Asche, C.J. in Civil & Civic Pty. Ltd. v. Pioneer Concrete (NT) Pty. Ltd.[1]

   [1](1991) 103 F.L.R. 196

1. In that case his Honour was considering an application for summary judgment pursuant to R.22.02 of the Rules of the Supreme Court 1987 (NT) and an application for judgment pursuant to R.35.04 of those Rules.

1. Rule 35.04 in the Northern Territory Rules is identical to Rule 35.04 of the Victorian Rules.  At p.208 his Honour said:

"I think Mr. Nosworthy's submission is correct.  The relevant words are 'admissions of fact in a proceeding'.  The word 'proceeding' is not defined in the Rules but it is defined in the Supreme Court Act 1979 (NT), s.9 as meaning 'a proceeding in the Court'. The words 'or otherwise' would then cover such matters as admissions made in answers to interrogatories or notice to admit, which, clearly enough, can be considered part of the proceeding. I doubt if they would cover discovery since a discovered document would only become part of the proceeding when tendered. I would leave for another day the question whether, once there had been discovery, discovered documents containing admissions could then be tendered by affidavit in an interlocutory proceeding and therefore become admissions 'in the proceeding'. Discovery has not yet taken place in this case, and I do not think the plaintiff can anticipate it by referring to documents which have not been formally discovered and cannot yet constitute admissions 'in a proceeding'."

1. However in Re Registered Trade Mark "Certina"[2] Barwick, C.J. was required to consider the provisions of Order 33 Rule 4 of the High Court Rules.  Although the rule is not identical to Rule 35.04 of the Victorian Rules it does contain the words "a party may, at any stage of a proceeding where admissions of fact have been made, either on the pleadings or otherwise, apply to the Court or a Justice for such judgment or order as upon those admissions he may be entitled to".  At p.192 Barwick, C.J. said:

"The admissions on which a Justice may be asked to act under the rule are not limited to admissions formally made in the pleadings or in response to a notice given pursuant to O.33 R.3, see Ellis v. Allen (1914) 1 Ch. 904. The necessary admission may be found in writing proved to be the defendants' or it may be proved to have been made by the defendant orally."

[2](1970) 44 A.L.J.R. 191

1. It may be argued that the words "in a proceeding" are more restrictive than the words "at any stage of a proceeding" used in O.33 R.3. But are they?"

1. The seventeenth definition of the word "in" in the Second Edition of the Oxford English Dictionary at p.761 of Volume VII reads:

"Expressing reference or relation to something;  in reference or regard to;  in the case of, in the matter affair or province of."

1. I can see no good reason for not construing the words "in a proceeding" where used in Rule 35.04 as meaning "in reference to a proceeding, in relation to a proceeding or with regard to a proceeding".

1. As Barwick, C.J. pointed out in Certina (at p.192) – "a proper exercise of the power (given by the rule) will obviate the delay involved in a hearing and will save unnecessary expense.

1. The appeal will be dismissed with costs to be taxed and paid by the defendants.

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