Tremeer v City of Stirling

[2001] WADC 165

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   TREMEER -v- CITY OF STIRLING & ANOR [2001] WADC 165

CORAM:   REGISTRAR KINGSLEY

HEARD:   7 JUNE 2001

DELIVERED          :   17 JULY 2001

FILE NO/S:   CIV 3402 of 1993

BETWEEN:   GAVIN JOHN TREMEER

Plaintiff

AND

CITY OF STIRLING
Defendant

GLENWOOD SYSTEMS PTY LTD
Third Party

Catchwords:

Practice - Application to amend defence by withdrawal of admission

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff:     No appearance

Defendant:     Mr D M McKenna

Third Party                   :     Mr G I-K Macnish

Solicitors:

Plaintiff:     Bradford & Co

Defendant:     Jackson McDonald

Third Party                   :     Cocks Macnish

Case(s) referred to in judgment(s):

Coyne v Munro & Anor, unreported; SCt of WA; Library No 8901130; 20 April 1989

Davey v Harrow Corporation (1958) 1 QB 60

Hamilton v Australian Telecommunications Commission [1989] 2 Qd R 18

Case(s) also cited:

Clough v Frog (1974) 48 ALJR 481

Commonwealth v Verwayen (1990) 170 CLR 394

Cropper v Smith (1884) 26 Ch D 700

Davies v Collins [1945] 1 All ER 247

Hollis v Burton [1892] 3 Ch 226

Johnson & Anor v Raylton, Dixon & Co (1881) 7 QBD 438

Phillips & Anor t/as Northbridge Drilling v Biral Pty Ltd, unreported; FC SCt of WA; Library No 950726; 18 December 1995

Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

Shanklin Pier LD v Detel Products LD [1951] 2 KB 854

Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd (1994) 13 WAR 323

1. REGISTRAR KINGSLEY:  On 21 September 1989 at Bardon Park Maylands the plaintiff attempted to use a flying fox that was erected as part of playground equipment.  The plaintiff lost his grip in attempting to use the flying fox, fell and was severely injured.  The defendant is pleaded to be the occupier of Bardon Park and had caused the playground equipment to be used at the park.  This pleading the defendant admits.  The plaintiff, as part of the particulars of negligence, pleads that the defendant failed to ensure the handgrip of the flying fox was of sufficient size to safely accommodate two adult hands, failed to ensure the handgrip was slip resistant, failed to ensure the handgrip could not swivel, and there is a pleading that there has been contravention of Australian Standards 255-1982, 1924.2-1981 and 2155-1982.

2. The defendant filed its defence on 4 August 1993 and on the same day issued a third party notice to Glenwood Systems Pty Ltd.  In the statement of claim against the third party the defendant alleges at par 7 that the third party was at the material time the manufacturer, supplier and installer of playground equipment.  At par 9 the defendant pleaded that the third party manufactured, supplied and installed playground equipment with the knowledge and intention that the playground equipment would be used in the form it was left without any intermediate previous examination by a person or persons to whom they were supplied.

3. The third party filed a defence on 1 November 1993.  In that defence, the third party admits that it was at the material time a manufacturer, supplier and installer of playground equipment.  At par 8 of its defence, the third party admitted that it supplied the playground equipment and says that pursuant to the contract with the defendant, the third party was obliged to install the equipment subject to inspection and to the entire satisfaction of the defendant, but otherwise denies the allegations therein contained.  However at par 8 of its defence, the third party now denies that it manufactured the playground equipment.

4. In August 1994 the defendant brought an application seeking leave to substitute its statement of claim in terms of a minute against the third party.  Orders were made giving the defendant leave to substitute its statement of claim.  By that statement of claim the defendant pleaded that the third party was at all material times the manufacturer, supplier and installer of playground equipment and at par 9 pleads there were implied terms of the agreement between the defendant and the third party that the third party (stated in par 9 as the defendant) was to manufacture, supply and install goods which were safe, of merchantable quality, and fit for their intended purpose.

5. At par 10 of the substituted statement of claim, under the heading "Particulars of Breach of Agreement", the defendant particularises the breach by stating the third party manufactured, supplied and installed a track ride which failed to provide a handgrip of sufficient size and safety and at (j) states having manufactured, supplied and installed a track ride designed for use by children failed to provide any equipment warnings to restrict the device the use of the track ride by persons not of a specified age.

6. At par 11 the defendant brings in a plea of negligence and at par 11(d) states the third party failed to manufacture and install the track ride in such a manner to ensure the handle of the track ride was joined to the track ride with a chain of appropriate and sufficient length and at par 11(h) states having manufactured, supplied and installed a track ride designed for use by children failed to provide any equipment warnings.

7. On 17 October 1994 the third party filed a defence to the defendant's substituted statement of claim.  Again at par 4 of the defence, the third party admits that it was a manufacturer, supplier and installer of playground equipment.  Also in par 4 of its defence the third party admits, subject to its production, the agreement pleaded in par 6 of the defendant's statement of claim.  There is no other general denial within the defence.  Thus, according to the rules of pleading, the third party is taken to admit that it agreed to supply and install a track ride which it had manufactured.  The third party generally denies there were implied terms of the agreement, the particulars of breach of the agreement and particulars of negligence.

8. At par 9(i) the third party makes the allegation that upon its installation the defendant inspected the equipment and accepted the same as having been manufactured, completed and installed in all respects in accordance with the agreement.

9. Having regard to the significance of the claim, there have been substantial number of interlocutory issues that seem to have occupied the parties attention since October 1994 to date.  The plaintiff certified that the matter was ready for trial in August 1998.  The matter went to three listing conferences and in January 1999 the listing conference was adjourned generally whilst further interlocutory issues were resolved.

10. By chamber summons filed 14 December 2000 the third party now seeks to amend its defence to now deny it was a manufacturer of or manufactured the playground equipment.  The application is supported by the affidavit of Graeme Innes-Ker Macnish sworn 10 May 2001.  He deposes that when he originally received instructions he understood and believed it to be the case that the third party was the designer, manufacturer and installer of playground equipment.  That understanding was reinforced by a brochure published by the third party.  For the purposes of preparing the further amended defence, Mr Macnish undertook a review of the papers and it then became clear that the third party, whilst a designer and installer of playground equipment, was not the manufacturer of that equipment.

11. The defendant through its counsel and by written submissions submits that the withdrawal of the admission is a significant amendment and that the third party has failed to show cause for withdrawing the admission.

12. It is a serious matter to make an admission in a pleading because from the point of admission the admitted fact ceases to be in issue.  It could be the case that, absent the admission, the action may have proceeded differently.  It is for these reasons that a party who has made an admission in a pleading should not be entitled to withdraw that pleading without good cause.  Authorities such as Davey v Harrow Corporation (1958) 1 QB 60 and Hamilton v Australian Telecommunications Commission [1989] 2 Qd R 18 are authorities for the proposition that the withdrawal of an admission will be less readily allowed if it has stood for a long time or where the withdrawal will cause significant prejudice to the other parties.

13. Defendant's counsel submits that on the authority of Coyne v Munro & Anor, unreported; SCt of WA; Library No 8901130; 20 April 1989 Master White commented that in the proper case a party who has made an admission unwarily or under a bona fide mistake or prematurely will be allowed to amend or withdraw on such terms as may be just, but equally where an amendment seeks to withdraw an admission, the Court will inquire into the circumstances into which the admission was made and will grant such leave only when the admission was made inadvertently or new facts have come to light justifying its withdrawal.  Master White found that in the present case before him there were no facts from which he could draw any conclusion as to the circumstance in which the admission was made.

14. Similarly in this case, the defendant's counsel says there are no facts before me from which I could draw any conclusion as to the circumstance in which the admissions were made.  Mr Macnish in his affidavit sworn 10 May 2001 simply states that when he originally received instruction it was his understanding and belief that the third party was the designer, manufacturer and installer of playground equipment.  That belief and understanding was reinforced by a brochure where, throughout the brochure, references made to the third party being a manufacturer of components for playground equipment.  It was only until a thorough review of the action that it became apparent that the third party was not the manufacturer of the equipment.  Whilst the defendant has good cause to complain that a proper review ought to have been undertake at the time of the defendant substituted statement of claim in the end, there is sufficient for me to conclude that good cause has been shown.  The main issue in contention in my opinion is the question of prejudice.

15. The defendant's submissions are that the defendant would be prejudiced by the withdrawal of the admission because the limitation period for actions founded in contract against the manufacturer of the playground equipment has expired.  The defendant submits that some of the pleaded defects are defects of manufacture.  The defendant has particularised those defects.  As the third party admitted it was a manufacturer, then the defendant has pursued the third party for these manufacturing defects.

16. Further, the defendant contends that it would be prejudiced as it is arguable the defendant could have exercised contractual rights against the manufacturer of the track ride.  Thus the defendant has not investigated or sought information as to warranties applicable to any works that were subcontracted or assigned or the continuing warranties or obligations relating to maintenance.  In relation to this latter issue, there is no allegation that the third party did not fulfil any maintenance obligations.

17. The essence of the defendant's submissions are that the defendant will not be able to pursue any rights it may have against the manufacturer of the playground equipment.

18. The obligation between the defendant and the third party arises out of contract.  The third party was to design, supply and install equipment.  There was no contractual obligation on the part of the third party to manufacture the equipment.  Thus there has never been an action in contract against the manufacturer of the equipment.

19. However, the defendant also brings his action against the third party in negligence in that at par 13(d) the third party is alleged to have failed to manufacture the track ride to ensure the handle was joined to the track ride with a chain of appropriate and sufficient length, and at 13(h) having manufactured a track ride design to be used by children failed to provide adequate warnings.

20. The defendants claim is against the third party and is brought within the primary proceedings as a matter of convention.  At law, the cause of action against by the defendant against the third party only crystallises upon a finding that the defendant is liable to the plaintiff.  The third party procedure is a creature of statute and is designed to prevent the multiplicity of proceedings and the possibility of the same question being litigated twice.  As the cause of action has not yet arisen, there is no issue as to the statute of limitations.  Whilst there may be difficulties apparent from the passage of time, there is no legal impediment to the defendant now pursuing the manufacturer of the playground equipment.

21. Whilst the admission on the pleading has lain on the pleadings for some seven years, in my opinion there is no substantial prejudice to the defendant to warrant the third party now being denied its motion to amend the pleading to withdraw that admission.

22. I will hear counsel as to the form of orders and as to costs.