of fact in a pleading shall be taken to be admitted unless it is denied specifically or by necessary implication or is stated to be not admitted in the pleading of the opposite party, or unless a joinder of issue under rule 13.13 operates as a denial of it, and a general denial of the allegations, or a general statement that they are not admitted, shall not be sufficient. (3) Where the party pleading intends to prove facts which are different from those pleaded by the opposite party, it is not sufficient for the party merely to deny or not to admit the facts so pleaded but the party shall plead the facts he intends to prove." 22. On 7 August 1991 the plaintiff obtained interlocutory judgment against the defendant in default of the defendant filing a defence. 23. On 19 September 1991 an application to set aside judgment was dismissed by the Master. This was the time to raise the issue of contributory negligence. It appears that contributory negligence was adverted to because of the contents of one of the affidavits sworn by the solicitor for the defendant on 17 September 1991 and filed in support of the application to set aside judgment. There was no appeal against the Master's decision refusing the application to set aside judgment. 24. A court cannot, in the absence of a plea of contributory negligence, find contributory negligence (Fookes v Slaytor (1979) 1 All ER 137 and Christie v Bridgestone Australia Pty Ltd (1983) 33 SASR 377). 25. The plaintiff must establish, as part of his negligence claim against NAALAS, that he suffered damage. Accordingly, the plaintiff must prove negligence against the original tortfeasors, being Mr Hanney and the unknown driver, otherwise the plaintiff has not established he would have suffered any damage because of the negligence of the solicitor, in this case, the defendant NAALAS. 26. I find that the fact of negligence both in respect of the original tortfeasors, Mr Hanney and the unknown driver, and in respect of CAALAS were pleaded in the Statement of Claim. No defence to the Statement of Claim was filed and therefore the negligence is admitted on the pleadings. The interlocutory judgment determined the issue of liability in favour of the plaintiff. The matter is listed for hearing on the question of damages. 27. Because negligence of the original tortfeasors, Mr Hanney and an unknown driver, and the negligence of CAALAS and of NAALAS is admitted on the pleadings, then no evidence relating to it will be admitted at trial (Pioneer Plastic Containers v Commissioner of Customs and Excise (1967) Ch 597). The one thing that is not admitted by a failure to file a defence is a question of damages. Order 13 rule 12(4) states: "An allegation that a party has suffered damage, and an allegation as to the amount of damages, shall be taken to be denied unless specifically admitted." 28. I do not accept the submission of counsel for the defendant that the only liability that can be taken to be conceded by the failure to file a defence is the liability of the defendant NAALAS. The pleadings specify in the Statement of Claim the acts of negligence of the original tortfeasor and the acts of negligence of CAALAS. Failure to file a defence must be an admission of negligence both in respect of the original tortfeasor and of CAALAS. 29. I accept the submission of counsel for the plaintiff that the onus of proving contributory negligence is upon the defendant (Boyd v Leftwich 43 ALR 280). 30. I accept the responsibility of the court to apportion liability in accordance with the provisions of section 16(1) of the Law Reform (Miscellaneous Provisions) Act. However, in this case liability is not an issue. Following my ruling the defendant was precluded from adducing evidence of contributory negligence by the plaintiff. There is no evidence before the court of contributory negligence on the part of the plaintiff and contributory negligence was not pleaded. 31. Counsel for the defence seeks to distinguish this particular case from the decision in Christie v Bridgestone Australia Pty Ltd (supra), in that the defendant in this matter is raising the issue of contributory negligence fairly and squarely before the court and the issue of contributory negligence can be fairly agitated before the court. The difficulty I have with that submission is that it appears, from a statement by counsel for the defendant (p.44 transcript of evidence), that the issue of contributory negligence was raised for the first time at approximately 11.30 am, following the opening addresses by counsel for the plaintiff, on 28 June 1993 being the first day of the hearing of this matter on an assessment of damages. 32. Counsel for the defendant conceded that in fairness if his application to adduce evidence of contributory negligence was granted the plaintiff would be entitled to an indulgence to meet the claim for contributory negligence and the defendant would have to bear the cost of that. Counsel for the defendant sought the opportunity to plead contributory negligence and to adduce evidence of contributory negligence. 33. I adopt with respect the following passage from the decision of White J Christie v Bridgestone Australia Pty Ltd (supra) at 388: "The importance of the pleadings and the right to have them amended, even at the last moment, was discussed by the High Court in Clough v. Frog: 'The principle according to which this power (to amend pleadings) is to be exercised was stated by Bowen LJ in Cropper v. Smith: '... the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases ... I know of no kind of error or mistake which, if not fraudulent or intended to over-reach, the court ought not to correct if it can be done without injustice to the other party ... As soon as it appears that the way in which the party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right." The passage, which refers to the right to amend pleadings at a late stage, applies a fortiori where there are no pleadings at all on an issue. The right to make a late correction to the pleadings is subject to the proviso that the amendment will not be made if it cannot be made without injustice to the other party. The same reasoning applies to the right to make on appeal submissions without any pleadings where no evidence was elicited on the topic either by examination or cross-examination and where the addresses do not raise it. There should be a decision on "the real matter in controversy" according to "the way the party has framed his case". cf Browne v Dunn." 34. I think the point of concern in this issue are the words quoted above; "The right to make a late correction to the pleadings is subject to the proviso that the amendment will not be made if it cannot be made without injustice to the other party." 35. In this particular case the accident which is the subject of the claim occurred on or about 23 January 1975. A period in excess of 18 years has lapsed since that date. A judgment was obtained by default in August 1991 and an application to have judgment set aside which canvassed the issue of contributory negligence was refused on 19 September 1991. On 28 June 1992 the Master appointed Monday 28 June 1993 to Friday 1 July 1993 as hearing dates for the assessment of damages. 36. Counsel for the defendant agreed that the first morning of the scheduled hearing on an assessment of damages was the first notice given to the plaintiff that the defendant was seeking to plead contributory negligence and adduce evidence on the issue of contributory negligence. 37. Counsel for the plaintiff has objected to the defendant being entitled to adduce evidence of contributory negligence as the plaintiff did not attend court in the expectation of having to address that issue. I accept the argument of counsel for the plaintiff that an order for costs in favour of the plaintiff of any adjournment occasioned by the defendant's request does not sufficiently redress the injustice to the plaintiff of losing his hearing date. 38. I recognise the importance of allowing pleadings to be amended even at the last moment so that the court can adequately deal with the substantial issue between the parties. However, in this particular matter I considered that on balance the injustice would be greater to the plaintiff to allow the defendant's application having regard to the delays that have already occurred. This defendant has had the carriage of the matter since 1982 and has admitted its own negligence. To allow the defendant at this time to raise the defence of contributory negligence is an injustice to the plaintiff. 39. Counsel for the defendant also drew my attention to the following passage in Christie v Bridgestone Australia Pty Ltd (supra) at 389: "If s.27a(3) did impose a duty upon the trial Judge to

reduce the damages of his own motion as a result of his view of the fault of the plaintiff it would have been desirable to have heard further argument on a topic not canvassed in addresses before delivering reasons." 40. I accept that may well be a reasonable solution in some matters. However, in this case counsel for the plaintiff opposes either leave to amend the pleadings to enable the defendant to file a defence of contributory negligence and also opposes the defendant adducing evidence on the issue. The topic of contributory negligence has been canvassed, in argument prior to the plaintiff calling evidence. The plaintiff opposes the issue of contributory negligence being considered by the court because it was not pleaded. I have ruled in favour of the plaintiff. 41. The defendant made the following applications: (1) Interlocutory judgment obtained before the Master be set aside to the extent to enable the defendant to raise the issue of contributory negligence. (2) The defendant be entitled to file pleadings raising the defence of contributory negligence in these proceedings. (3) To allow the defendant to adduce evidence of

contributory negligence in these proceedings to enable the court to consider any evidence of contributory negligence and exercise the obligation imposed on the court under the provision of s16(1) of the Law Reform (Miscellaneous Provisions) Act. 42. I accept the submission of counsel for the plaintiff that the issue of contributory negligence was raised before the Master in the form of affidavit material at the time the application to set aside judgment was refused and the defendant cannot seek to re-litigate the same application. If it was sought to challenge the decision of the Master in refusing the application to set aside judgment then this should have been done by way of an appeal from the Master's decision. 43. I agree with the two basic submissions of counsel for the plaintiff that: (1) the issue of contributory negligence should have been pleaded by the defendant. (2) the opportunity for doing that was lost when the defendant's application to set aside the judgment was refused by the Master and no appeal was made from that decision. 44. I further agree with the submission of counsel for the plaintiff that contributory negligence not having been pleaded, then I have no jurisdiction to consider contributory negligence as provided in s16(1) of the Law Reform (Miscellaneous Provisions) Act (Fookes v Slater) (supra) and Christie v Bridgestone Australia Pty Ltd (supra)). 45. Counsel for the defendant resumed his submissions on the morning of 29 June 1993 and sought to file the affidavit of Peggy Siew Meng Cheong, his instructing solicitor, dated 28 June 1993. Counsel for the plaintiff objected to the filing of this affidavit and if leave were granted to it being filed, then objected to the affidavit being used. It was the submission of counsel for the plaintiff that this was in fact another application to set aside judgment and the defence were estopped from making such application (Access Finance Corporation Pty Ltd v Golubovic and Anor [1991] FCA 74; (1991) ASC 56,930 at 56,933). 46. Counsel for the plaintiff also submitted the material in the affidavit of Ms Cheong was available to the defendant at the time of making the application to set aside judgment before the Master. I accept the submission of counsel for the plaintiff that Mr Mortimer's name was on a police report dated 1978 and his name as a potential witness was known to the defendant since 1982. It was the submission of counsel for the plaintiff that he had a report from Mr Mortimer quite different to the version given in Ms Cheong's affidavit. 47. Counsel for the defendant did in fact make application for the judgment to be set aside to the extent to enable the defendant to rely on the issue of contributory negligence and sought to rely on the affidavit of Ms Cheong sworn on 28 June 1993 to support that application. 48. I agree with the submission of counsel for the plaintiff that the defendant is estopped from making a further application to set aside judgment, the first application having been refused by the Master on 19 September 1991 (Access Finance Corporation Pty Ltd v Golubovic and Anor (supra)). I am satisfied the Master had before him affidavit material raising the issue of contributory negligence and subject to any appeal which did not eventuate, the Master's determination disposed of that issue between the parties and the defendant is estopped from raising this again. 49. In failing on an application to set aside judgment then the defendant must also fail in seeking leave to file a defence raising the issue of contributory negligence. 50. I consider it would create an injustice to the plaintiff to allow the defendant to adduce evidence of contributory negligence when that has not been pleaded and when the plaintiff was informed for the first time on the morning of the hearing that the defendant would be seeking to adduce evidence of contributory negligence in respect of the original tortfeasors and of CAALAS. The defendant, NAALAS, having already admitted liability. The plaintiff did not come to court prepared to meet a defence of contributory negligence in respect of the defendant the original tortfeasors or CAALAS. 51. In this particular case and for various reasons the defendant has already waited an inordinate length of time for a hearing. There should be no further delay and the matter should proceed to hearing on an assessment of damages. 52. For these reasons I gave the ruling as stated. 53. Counsel for the defence also submitted that I consider taking evidence de bene esse on the issue of contributory negligence on the basis that if I were to rule against him and that ruling was overturned by a Court of Appeal then there would not need to be another trial on contributory negligence. 54. I did not agree with that submission. This hearing should be on the issues on the pleadings. The course proposed by counsel for the defendant would still create an injustice to the plaintiff who was not at court prepared to deal with an issue of contributory negligence. 55. Finally, it seemed a preferable use of court time to proceed with the hearing on an assessment of damages, an exercise that must be done irrespective of contributory negligence. If I am found to be wrong on my ruling then the issue of contributory negligence is a discrete issue and can be referred back to the court to take evidence on this aspect. 56. The alternative could result in an entire loss of the five hearing days allocated for this matter or an unnecessarily protracted hearing. In view of the fact it is now 18 years since the original accident I considered there was good reason why the matter should proceed without further delay.