BETWEEN : DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

BETWEEN : DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

BETWEEN : DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

BETWEEN : DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

BETWEEN : DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

BETWEEN : DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

Administrative law - Prerogative writs and orders - Double jeopardy - Merits - Delay

Practice and procedure - Pleadings - Strike out application - Turns on own facts

Crimes Act 1914 (Cth), s 4C(1)

Income Tax Assessment Act 1936 (Cth), s 221NB

Taxation Administration Act 1953 (Cth), s 8ZE

1 WHEELER J: The applications presently before me are the defendants' application for orders nisi for writs of mandamus and prohibition, and for injunctions and declarations, and the plaintiff's application to strike out certain of the paragraphs of the defendants' minutes of proposed substituted defence.

2 The history of the present actions was summarised by me in Deputy Commissioner of Taxation v Robinswood (2001) 24 WAR 284; [2001] WASC 191, and I do not propose to repeat that summary, which I incorporate in the present reasons.

3 The applications as argued before me were somewhat narrower in scope than those originally proposed. In relation to what was referred to as the "constitutional issue", which is pleaded in par 42 of the minute of proposed substituted defence of Maddeliene Caratti and par 41 of the minute of proposed substituted defence of Robinswood, the plaintiff expressed the view that since the question was one of law and went to quantum only of the amount, if any, recoverable by the Deputy Commissioner, that it would be convenient to permit the point to be pleaded, and to be determined by me if it were necessary to do so at the conclusion of the trial.

4 A similar approach to that suggested by the plaintiffs in respect of the constitutional issue should in my view be adopted in relation to the res judicata and issue estoppel defences which relate to Dyonna Pty Ltd ("the Dyonna action"). This issue arises from a pleading in pars 14 and 15 of the proposed Maddeliene Caratti defence and pars 14 and 15 of the Robinswood defence. The contention in each case in respect of the Dyonna action is that in respect of any of the persons listed in Sch A and Sch C who are natural persons the plaintiff:

"is prevented from putting in suit in these proceedings the issue that, prior to 1 July 1992, the said persons were employees of the defendant [whichever the relevant defendant may be] since in action COY 133 of 1992 ... between the plaintiff and Dyonna Pty Ltd in the Supreme Court of Western Australia, the same issue was put in suit by the plaintiff, heard and brought into judgment on 8 January 1993 in favour of the plaintiff."

On its face, the pleading appears to suggest that the plea of res judicata (or in respect of par 15 an identical plea in relation to issue estoppel) is made in respect of each person who is a natural person and who is listed in the relevant schedules. The plaintiff submits that there has been no identification of any employees referred to in the schedules as being the same employees in respect of whom a determination was made in the Dyonna action; however, there is on the Court file a document dated 13 November 2002, entitled "Further and Better Particulars of Persons found to be employees of Dyonna in COR 133 of 1992 ... ", which appears to remedy this difficulty. In any event, it seems to me that further particulars could be sought if necessary.

5 The plaintiff also submits that the parties involved in the Dyonna action and in these actions are not identical since, although the plaintiff was a party to the Dyonna action, these defendants were not. It is true that there is no pleading at present which suggests that Dyonna was relevantly a "privy" of any of the present defendants, or that it represented their interests in some relevant way. That seems to me is a matter for clarification, and perhaps for argument, at some future time.

6 Finally, the plaintiff submits that the subject matter in the Dyonna proceedings was different from the present proceedings and that none of the debts proved in the Dyonna proceedings related to employee transactions referred to in any of the schedules in these proceedings. The plaintiff has filed an affidavit of Mr Ian Sutherland sworn 24 October 2002, in which he deposes that he has compared the transactions referred to in each of the Schedule A's for each defendant and concluded that there was no overlap between the amounts listed in those schedules and those comprised in the proof of debt in the Dyonna action. That is a matter of evidence which it seems to me could conveniently be dealt with once some or all of the relevant transactions have been proved after trial in these actions.

7 Having regard to the nature of these actions, and to the time already taken in preparation for trial, it seems to me that the appropriate course in relation to the pleading resting on the Dyonna action is to permit the plaintiff to seek what clarification of the pleading it requires at this stage, and to consider any issues arising out of that pleading once findings of fact have been made in these proceedings after trial.

8 The defendants' argument in respect of this issue, and the view which underpins certain paragraphs in the defences which the plaintiffs seek to strike out as disclosing no cause of action, rest on the same conceptual foundation. That conceptual foundation is encapsulated in par 12 of the detailed written submissions filed by the defendants in support of the application to amend the defences and in support of the motion for order nisi. It reads:

"12. The Order Nisi application and defences to the Civil Actions contend that both common law and statute required the plaintiff, on or before 8 December 1994, to decide whether he wished to impose statutory penalties for the failure of the company defendants and Maddeliene Caratti, Allen Caratti and John Caratti as officers to comply with the group tax requirements of Division 2 Part VI of the ITAA, or whether he wished to initiate a criminal prosecution. In the special circumstances of the case, the defendants argue, the plaintiff was required to do one or the other, but is not entitled to do both. To do so, they contend is offensive to double jeopardy and a miscarriage of discretion."

9 The relevant statutory provisions relied upon by the defendants are s 221NB(1) of the Income Tax Assessment Act 1936 ("the Assessment Act") and s 4C of the Crimes Act 1914. The "criminal prosecution" referred to is the prosecution of Maddeliene Caratti, Allen and John Caratti for conspiring with Sergio Caratti to defraud the Commonwealth, contrary to s 86A of the Crimes Act, the history of which proceeding is to be found described in Caratti v The Queen (2000) 22 WAR 527; [2000] WASCA 279.

10 So far as the defendants' application is concerned, it is my view that this is one of the relatively unusual cases in which I am able to conclude, even at the order nisi stage, that the delay by the defendants in raising these issues is such that no order nisi, and no interlocutory injunction, should be granted. A brief chronology of the relevant events is as follows:

8 December 1994 - Maddeliene, John and Allen Caratti arrested and charged with conspiracy to defraud the Commonwealth.

5 December 1997 - Writ of summons filed with statement of claim annexed, initiating these proceedings.

22 April 1998 - Defendants' summons for leave to amend the defence.

May/June 1999 - Criminal proceedings concluded, John convicted and Maddeliene and Allen acquitted.

(It appears that by agreement between the plaintiff and the defendants, civil proceedings were stayed for a time while the criminal proceedings were on foot.)

28 September 2000 - Court of Criminal Appeal dismisses John Caratti's appeal against conviction.

13 December 2000 - Minute of proposed amended statement of claim.

27 February 2001 - Defendants' summons to strike out claim or paragraphs of it.

3 August 2001 - Dismissal of defendants' application to strike out claim or paragraphs of it, granting of plaintiff's application to admit evidence from the criminal proceedings in these proceedings.

14 December 2001 - Defendants' summons to strike out proceedings as an abuse of process.

20 December 2001 - Dismissal of defendants' summons to strike out proceedings as an abuse of process.

20 March 2002 - Defendants' application in the Federal Court for mandamus, injunctions, etc. It was this application which was remitted by the Federal Court to this Court and which is essentially the application which the defendants now make.

22 May 2002 - Full Court refuses leave to appeal in respect of decision of 3 August 2001.

11 For a full understanding of the significance of that chronology, it is necessary to explain the basis of the summons to strike out the claim dated 11 December 2001. In my reasons dismissing that strike out application, I said the following (pars 7 and 8 [2001] WASCA 356, delivered 20 December 2001):

"7 The content of the statement of claim has not been significantly altered by any of the amendments made. The point which it is sought to argue is that s 221NB(1) of Division 2 of Pt VI of the Income Tax Assessment Act precludes the bringing of each of these actions. It can be seen therefore that the application is in each case grossly out of time.

8 So far as the application for extension of time is concerned, it appears to me that the defendants have simply not presented any material which would point to an exercise of a discretion to extend time in their favour. It is appropriate in such a case normally to look at the period of the delay, the explanation for the delay, and the merits of the proposed application. As I have noted, the period of delay is gross. So far as explanation is concerned, there is none. There is no material, on affidavit or otherwise, to explain why it is that the defendants did not choose to bring this application at a much earlier stage. So far as merits are concerned, I am prepared to assume that the application is arguable. I do so despite the fact that I was not taken in argument to the relevant definition provisions of the statute which, it was asserted, demonstrated that s 221NB(1) had application in this case. However, in a context in which no argument was addressed to the merit of the proposed application, so as to demonstrate that it had strong merit, I give little weight to this factor. I would therefore dismiss the defendants' application for leave to extend time within which to bring an application to strike out the statement of claim as an abuse of process."

It is to be noted that at the time at which I delivered those reasons, the defendants had applied to me for leave to appeal my earlier decision of 3 August 2001. At that stage I considered that it was not appropriate for me to determine whether leave should be granted, but left it for the defendants to make application before the Full Court. Not only would it have been open for the defendants to appeal from my decision dismissing the strike out application, but at that stage such an appeal could have been consolidated with the appeal in respect of the decision of 3 August 2001 without any delay in hearing.

12 At the latest, it is apparent that the time at which the issues which the defendants now seek to agitate would have crystallised would have been the time of the conclusion of the criminal proceedings in June of 1999. No amendment to the statements of claim after that date substantially altered the claim which the plaintiff seeks to prove. Further, so far as the s 221NB(1) issue is concerned, precisely that issue was raised by the defendants in December 2001 and I at that stage found against them for the reason that they had delayed raising it. They did not seek to appeal that finding, but rather sought to raise the issue again some months later in a different form, in the Federal Court. That seems to me to be an abuse of process.

13 As on the former occasion on which this question was raised before me, the defendants have not sought to explain their delay. It appears that there is no reason which can be advanced for it, save that, so far as the broader "double jeopardy" principle is concerned, the defendants have relatively recently changed solicitors and their present solicitors, unlike their former solicitors, consider that such a principle may arguably apply in this case. The delay therefore is gross, and unexplained. The plaintiff has been prejudiced by the delay since 1999, in that it has in the intervening years prepared amended statements of claim and enormously detailed accompanying schedules and other documentation. It has participated in a number of interlocutory proceedings, and in an application for leave to appeal from the decision in one of those proceedings. It has given in electronic form discovery of a vast number of documents. Without attempting to quantify it, it is clear enough that the plaintiff would have expended a very substantial sum in legal costs and other costs associated with the litigation during the last five years.

14 In the face of the considerations which I have outlined above, it does not appear to me that it is open to the defendants to persuade the court to grant any of the discretionary remedies which they seek. I should also add that, in any event, I am of the view that the argument underpinning the application lacks merit. I accept that at the order nisi stage, it is generally the case that the court should take the approach outlined by Lord Diplock in R v Inland Revenue Commissioners; Ex parte National Federation of Self Employed and Small Business Ltd [1981] UKHL 2; [1982] AC 617 at 643 - 644. That approach is to the effect that if, on a "quick perusal" of the material available, the court thinks that it discloses what "might on further consideration" turn out to be an arguable case, it ought to give the applicant leave to apply for that relief. However, in the present case it is in any event necessary for me to consider the question of whether the issues raised by the defendants are arguable, since that question is raised by the plaintiff's application to strike out relevant paragraphs of the defence on the basis that they disclose no reasonable defence and are frivolous and vexatious. I have, for reasons which I shall outline shortly, reached the view that these issues are not arguable, and that seems to me to be a further reason for refusing relief on the defendants' application for mandamus and other associated remedies.

15 It seems to me convenient first to deal with the statutory basis of the defendants' argument, and then turn to the broader propositions which they seek to raise. I turn first to s 221NB. At the time at which the criminal proceedings were instituted, s 221NB(1) of the Assessment Act read:

(a) but for this subsection, an amount is payable, by way of penalty, by a person to the Commissioner under this Division by reason of an act or omission of the person; and

(b) a prosecution is instituted against the person for an offence against this Division constituted by the act or omission,

the amount is not payable unless and until the prosecution is withdrawn."

Where an amount had already been paid, s 221NB(2) required the Commission to refund the amount of any penalty that had been paid or to apply it in total or partial discharge of a tax liability of the payer.

16 Section 8ZE of the Taxation Administration Act 1953 ("the Administration Act") at that time relevantly read:

(a) but for this subsection, an amount is payable by a person under a penalty tax provision by reason of an act or omission of the person; and

(b) a prosecution is instituted against the person for an offence against section 8C, subsection 8K(1) or section 8N or 8P of this Act or section 262A of the Income Tax Assessment Act 1936 constituted by the act or omission,

the amount is not payable unless and until the prosecution is withdrawn."

Where an amount had already been paid in those circumstances, s 8ZE(2) required the Commissioner to refund the amount of any payment or alternatively to apply it in total or partial discharge of any tax liability of the payer. It is clear that at the time at which the criminal proceedings were instituted, s 8ZE was confined in its operation to the five nominated provisions, so that it is only s 221NB which requires further examination.

17 So far as all defendants are concerned, there is in my view one insuperable obstacle to reliance on s 221NB. So far as all defendants other than Maddeliene Caratti are concerned, there is a second obstacle.

18 The reason why, in my view, all defendants are precluded from relying upon s 221NB, is the reference in par (b) to an offence "against this Division". There has been no prosecution of any of the defendants, as I understand it, for an offence against any provision contained within the relevant Division, being Div 2. Maddeliene, John and Allen Caratti were charged pursuant to s 86A of the Crimes Act which at the relevant time read:

"A person who conspires with another person to defraud the Commonwealth or a public authority under the Crown is guilty of an indictable offence."

It is true that, as I understand the way in which the prosecution was run, a very large number of overt acts were alleged as evidence from which the conspiracy might be inferred, which overt acts might have been prosecuted pursuant to some of the provisions of Div 2. However, the offence of conspiracy was a different and distinct offence. In particular, it had at its heart the element of agreement, which appears to be entirely missing from the offences created by Div 2. (Cf Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 at 93.) Conversely, the penalties imposed in respect of Div 2 offences are imposed principally against employers, while it was not apparently necessary in the criminal trial to demonstrate that any of the accused was an employer.

19 The argument of the defendants in relation to s 221NB requires reading the expression "offence against this Division" in subpar (b) as including a reference to the offence of conspiracy, where the conspiracy is an agreement to commit or is evidenced by the commission of offences against that Division. Such a reading is, in my view, inconsistent with the plain meaning of the words used. Any inability of the plaintiff to recover penalties from the defendants must rest, if it is to be found at all, on broader principles rather than upon the words of s 221NB.

20 So far as all defendants other than Maddeliene Caratti are concerned, the second insuperable obstacle to reliance upon s 221NB, is that that section in its terms applies only where the prosecution has been instituted against the same person as the person by whom the penalties are payable. None of the defendants, other than Maddeliene Caratti, has ever been prosecuted in relation to the non-payment of the amounts which the plaintiff now seeks to recover. I shall develop this point in a little more detail shortly.

21 So far as the broader principle is concerned, it is I think fair to describe the submissions of the defendants on this point as somewhat diffuse. It is not always easy to ascertain from them the precise elements of the "double jeopardy" principle upon which it is sought to rely. As has been pointed out in Pearce v The Queen (1998) 194 CLR 610, the expression "double jeopardy" is not always used with a single meaning (at 614 ff per McHugh, Hayne and Callanan JJ). It seems to me that the two matters upon which the defendants principally rely are the principle that decisions of courts, unless set aside or quashed, should be accepted as "incontrovertibly correct", most recently discussed in R v Carroll [2002] HCA 55, and the "practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act" (R v Hoar [1981] HCA 67; (1981) 148 CLR 32 at 38 per Gibbs CJ, Mason, Aickin and Brennan JJ). Again, so far as the defendants other than Maddeliene Caratti are concerned, it is my view that neither of these principles could arguably preclude the plaintiff from bringing or succeeding in the present proceedings against the defendants, or could justify a stay of those proceedings as an abuse of process.

22 Turning to the "incontrovertibility" principle first, it seems to me that the acquittal of Maddeliene and Allen Caratti could, in an appropriate case, trigger resort to this principle. It is convenient to refer to the discussion of this principle in R v Carroll, and in particular to the joint judgment of Gleeson CJ and Hayne J. Although there are differences of emphasis, I do not understand other members of the High Court to have expressed a different view in respect of this issue.

23 Broadly described, the principle is that an acquittal may not be questioned or called in question by proceedings or evidence which would "overturn or tend to overturn" a verdict of acquittal (Carroll [37], citing Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437). That principle leads to the conclusion that there are cases where a charge of an offence would be manifestly inconsistent with a previous acquittal, even though no plea of autrefois acquit is available. The inconsistency, if it exists, will appear from a comparison of the elements of the new charge, with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial (Carroll, [40]).

24 Assuming for the moment that the principle is applicable in respect of civil proceedings for recovery of a penalty, it appears to me that there are two reasons why no relevant inconsistency between the verdict in the criminal proceedings and the present civil proceedings can exist here. The first is that, other than Maddeliene Caratti, none of the present defendants was charged with any offence and, hence, none was acquitted of any offence, in the criminal proceedings. Reference was made to overt acts which may have involved a failure on the part of the defendants to deduct or remit tax in circumstances which give rise to liability in the present proceedings, but that was by way of evidence only. More importantly, although the prosecution in the criminal proceedings was put to proof of the transactions which it alleged as overt acts, it appears that one of the central questions in the criminal proceedings - and probably the most important question - was whether there was evidence from which it could be inferred that any of the accused had agreed with any other person to defraud the Commonwealth, that element of agreement lying at the heart of the charge of conspiracy. As I have noted, any question of agreement between any persons in that sense is irrelevant to the present proceedings.

25 There are further difficulties in the way of the application of the "incontrovertibility" principle to the present proceedings. As was noted by Gleeson CJ and Hayne J in Carroll, the principle has not been held to preclude persons other than the prosecution asserting in later proceedings that the person committed the crime of which he or she was acquitted at trial ([45]) and there is therefore a question as to whether it could be said that the present plaintiff is to be identified with "the prosecution" in the criminal proceedings. There is a further question as to the applicability of the principle where the issues in a criminal trial are raised directly or indirectly in later civil proceedings. For the present, it is enough to note that these difficulties may arise, but I do not rely upon them in order to reach the view that the principle is not arguably applicable in respect of defendants other than Maddeliene Caratti.

26 So far as the "double punishment" question is concerned, I have already quoted what appears to be the relevant passage from Hoar. The fundamental difficulty which the defendants' argument faces in respect of all defendants other than Maddeliene Caratti, is the one to which I have earlier adverted, i.e. that the present defendants have never been prosecuted or penalised in any criminal or other proceedings for the matters upon which the present plaintiff relies as giving rise to their liability in the present actions. The defendants seek to overcome that difficulty by alleging that the connection between the family members and the corporate persons is so close, in management and ownership terms that for all purposes they should be regarded as "one and the same". It is submitted on behalf of the defendants that it is "unjust that the Caratti family should suffer penal diminution of their property by the artifice of a plea of separate corporate personality".

27 The plaintiff points out that there is no relevant pleading in any of the proposed amended defences as to the elements which go to make up the connection between any member of the Caratti family and the corporate defendants, whether by way of a pleading of directorship, shareholding, involvement in management, or the like. While this submission is correct, I do not regard it as an insuperable obstacle, since it appears to me that appropriate particulars could be sought.

28 However, whether one considers the matter conceptually or in practical terms, it appears to me that there is no identity which could be alleged between any of the present defendants other than Maddeliene Caratti, and the accused in the criminal proceedings, so as to preclude action for recovery of penalties being taken against those defendants. The defendants point out that in earlier reasons for decision I took the view, that for the purpose of admission of evidence from the criminal proceedings, the parties in the criminal proceedings and the present defendants were relevantly "the same" or in any event were not relevantly "strangers" to each other ([20] and [21] Deputy Commission of Taxation for the Commonwealth of Australia v Robinswood Pty Ltd [2001] WASC 191). That view was expressed only for the purpose of admissibility of evidence, in circumstances where I indicated that it appeared to me that the relevant question was whether those against whom the evidence was sought to be admitted had had an opportunity of testing the evidence on the earlier occasion.

29 The question in issue here, by contrast, is whether, action having been taken against natural persons who may be considered to be the directing mind and will of a corporation, separate action is able to be taken against that corporation in respect of the same acts (assuming for present purposes that these proceedings and the criminal proceedings involved relevantly the "same acts"). That question is as a matter of principle answered by the decision of the High Court in Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121. In that case, a company had been charged with offences under the Companies (Western Australia) Code and the respondent, a natural person, was charged on six counts of being knowingly concerned in the commission of those offences. On appeal pursuant to s 197 of the Justices Act 1901, a Judge of this Court took the view that because the prosecution case against the company in effect relied upon the actions of the respondent as the directing mind and will of the company it was "clearly wrong and oppressive" to prosecute the respondent personally for the identical acts and decisions. In the High Court, however, Mason CJ, Wilson and Toohey JJ said:

"There is nothing conceptually wrong in such a course since 'it is a logical consequence of the decision in Salomon's case that one person may function in dual capacities' ... In Reg v Goddall Bray CJ ... expressed his conclusion as follows:

'My view is that the logical consequence of Salomon's case ... is that the company, being a legal entity apart from its members, is also a legal person apart from the legal personality of the individual controller of the company, and that he in his personal capacity can aid and abet what the company speaking through his mouth or acting through his hand may have done.' "

If there is no contravention of the prohibition against "double punishment" where the company is punished and the individual who directs the company is personally punished, in respect of the same acts, then it appears to me that a fortiori there can be no contravention of that principle where civil proceedings are taken against the company in respect of acts which overlap in a practical sense with, but are not identical to, the acts in respect of which an individual, who is directing the mind and will of some of those corporations, has been convicted and punished.

30 Further, when one considers the practical question of who, if anyone, was liable to punishment in the criminal proceedings, it was conceded on behalf of the corporate defendants that, had his Honour in the criminal proceedings seen fit to impose a pecuniary penalty on John Caratti (or on any of the other accused, in the event that they had been convicted) it would not have been possible to recover that pecuniary penalty from the present defendants. Indeed, the separate holding of property by a corporation is one of the principal reasons for incorporation of smaller business enterprises; the "artifice of a ... separate corporate personality" was not created by the plaintiff for his purposes and there is in my view no injustice in his relying upon that separate legal personality.

31 For the reasons which I have outlined above, no "double jeopardy" issues can in my view arguably arise in respect of the corporate defendants. To the extent to which those defendants rely upon s 4C(1) of the Crimes Act 1914, it appears to me that that is simply, for present purposes, a provision giving statutory effect to an aspect of the prohibition against "double jeopardy". It is not necessary to deal with that provision separately.

32 So far as the corporate defendants are concerned, it is my view that the matters outlined above would both constitute a reason for refusing to grant the prerogative and other relief sought by them, lead to the conclusion that the paragraphs of the minutes of proposed substituted defences of those corporate defendants which plead s 221NB and the "double jeopardy" principle should be struck out, they being pars 32, 33, 34 and 37 of the defence.

33 So far as Maddeliene Caratti is concerned, it appears to me that the considerations in relation to her are somewhat different. So far as she is concerned, the plaintiff is not able to rely upon any legal personality separate from that of the persons accused in the criminal proceedings. It does appear to me, for the reasons that I have expressed, that s 221NB cannot be relied upon by her. I have noted during the course of these reasons a number of difficulties with the plea which she seeks to make based upon the broader double jeopardy principles. There is a further difficulty perhaps in raising those matters by way of defence, rather than by way of application to strike out or stay the present proceedings. However, the principles sought to be invoked by her are complex and difficult ones, and it appears to me that in respect of her the broader plea of double jeopardy is not so unarguable that the paragraphs of her defence which seek to rely upon it should be struck out. So far as Maddeliene Caratti is concerned then, I would strike out only pars 32 - 34 of her minute of proposed substituted defence. The striking out of par 33 affects the subsequent res judicata pleading in par 35, and I would grant leave to replead that paragraph.

34 In summary, it is my view that the defendants' application which was remitted from the Federal Court should be dismissed. The paragraphs of the minutes of proposed substituted defences which I have indicated should be struck out, with leave to replead, to the extent indicated, in respect of Maddeliene Caratti.